20020153 Ver 1_Complete File_20020201

State of North Carolina
Department of Environment
and Natural Resources
Division of Water Quality
Michael F. Easley, Governor
William G. Ross, Jr., Secretary
Gregory J. Thorpe, Ph.D., Acting Director
DWQ Project No.: 2,(x?2(?(S 3
Applicant: 0 • - "E/L
Iffl?W'A
NC ENR
NORTH CAROLINA DEPARTMENT OF
ENVIRONMENT AND NATURAL RESOURCES
County: C-'t-ICJ-rta4(,1
Project Name: -1y- 232q
Date of Issuance of 401 Water Quality Certification: 3( ZZ/' z
Certificate of Completion
Upon completion of all work approved within the 401 Water Quality Certification or applicable Buffer
Rules, and any subsequent modifications, the applicant is required to return this certificate to the
401/Wetlands Unit, North Carolina Division of Water Quality, 1621 Mail Service Center, Raleigh, NC,
27699-1621. This form may be returned to DWQ by the applicant, the applicant's authorized agent, or the
project engineer. It is not necessary to send certificates from all of these.
Applicant's Certification
1, , hereby state that, to the best of my abilities, due care and
diligence was used in the observation of the construction such that the construction was observed to be built
within substantial compliance and intent of the 401 Water Quality Certification and Buffer Rules. the
approved plans and specifications, and other supporting materials.
Signature:
Date:
Agent' Certification
I, N? 5(-04A) hereby state that, to the best of my abilities. due care and
diligence was used in the observation of the construction such that the construction was observed to be built
within substantial compliance and intent of the 401 Water Quality Certification and Buffer Rules, the
approved plans and specifications, and other supporting materials. /
Signature: Date: ? 122•?OS
Engineer's Certification
Partial Final
1, , as a duly registered Professional Engineer in the State
of North Carolina, having been authorized to observe (periodically, weekly, full time) the construction of
the project,for the Permittee hereby state that, to the best of my abilities, due care and diligence was used in
the observation of the construction such that the construction was observed to be built within substantial
compliance and intent of the 401 Water Quality Certification and Buffer Rules, the approved plans and
specifications, and other supporting materials.
Signature Registration No.
Date
Wetlands/401 Unit 1650 `tail Service Center Raleigh, North Carolina 27699-1621
Telephone [phone] FAX 733-999
An Equal Opportunity Aftirmame Action Employer 50% recycled/ 10% post consumer paper
State of North Carolina
Department of Environment
and Natural Resources
Division of Water Quality
1 ! • ? FAA
Michael F. Easley, Governor NCDENR
William G. Ross, Jr., Secretary NORTH CAROLINA DEPARTMENT OF
Gregory J. Thorpe, Ph.D., Acting Director ENVIRONMENT AND NATURAL RESOURCES
March 22, 2002
Chatham County
DWQ Project No. 020153
APPROVAL of 401 Water Quality Certification
Mr. William D. Gilmore, P.E., Manager
Planning and Environmental Branch
North Carolina Department of Transportation
1548 Mail Service Center
Raleigh, North Carolina, 27699-1548
Dear Mr. Gilmore:
You have our approval, in accordance with the attached conditions and those listed below, to place fill
material in 184 linear feet of streams for the purpose of replacing a culvert on SR 2324 in Chatham County.
The project shall be constructed in accordance with your application dated January 30, 2002. After
reviewing your application, we have decided that this fill is covered by General Water Quality Certification
Number 3289. This certification corresponds to the Nationwide Permit Number 14 issued by the Corps of
Engineers. In addition, you should acquire any other federal, state or local permits before you proceed with
your project including (but not limited to) Sediment and Erosion Control, Non-Discharge and Water Supply
Watershed regulations. This approval will expire with the accompanying 404 permit, unless otherwise
specified in the Water Quality Certification.
This approval is valid solely for the purpose and design described in your application (unless modified
below). Should your project change, you must notify the DWQ and submit a new application. If the
property is sold, the new owner must be given a copy of this Certification and approval letter, and is thereby
responsible for complying with all the conditions. If total wetland fills for this project (now or in the future)
exceed one acre, or of total impacts to streams (now or in the future) exceed 150 linear feet, compensatory
mitigation may be required as described in 15A NCAC 2H .0506 (h) (6) and (7). For this approval to
remain valid, you must adhere to the conditions listed in the attached certification.
1.) Upon completion of the project, the NCDOT shall complete and return the enclosed "Certification of
Completion Form" to notify DWQ when all work included in the 401 Certification has been completed.
The responsible party shall complete the attached form and return it to the 401/Wetlands Unit of the
Division of Water Quality upon completion of the project.
If you do not accept any of the conditions of this certification, you may ask for an adjudicatory hearing.
You must act within 60 days of the date that you receive this letter. To ask for a hearing, send a written
petition that conforms to Chapter 150B of the North Carolina General Statutes to the Office of
Administrative Hearings, P.O. Box 27447, Raleigh, N.C. 276 1 1-7447. This certification and its conditions
are final and binding unless you ask for a hearing.
Wetlands/401 Unit 1650 Mail Service Center Raleigh, North Carolina 27699-1621
Telephone [phone] FAX [phone]
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State of North Carolina
Department of Environment
and Natural Resources
Division of Water Quality
1 ? •
Michael F. Easley, Governor NC ENR
William G. Ross, Jr., Secretary NORTH CAROLINA DEPARTMENT OF
Gregory J. Thorpe, Ph.D., Acting Director ENVIRONMENT AND NATURAL RESOURCES
This letter completes the review of the Division of Water Quality under Section 401 of the Clean Water
Act. If you have any questions, please contact John Hennessy at 919-733-5694.
Attachment
cc: Wilmington District Corps of Engineers
Corps of Engineers Raleigh Field Office
DWQ Raleigh Regional Office
File Copy
Central Files
c:\ncdot\SR 2324\wqc\020153wgc.doc
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6ov
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ctin Director
Wetlands/401 Unit 1650 Mail Service Center Raleigh, North Carolina 27699-1 62 1
Telephone [phone] FAX [phone]
An Equal Opportunity Affirmative Action Employer 50% recycled/10% post consumer paper
State of North Carolina
Department of Environment
and Natural Resources
Division of Water Quality
e??
Michael F. Easley, Governor NCDENR
William G. Ross, Jr., Secretary NORTH CAROLINA DEPARTMENT OF
Gregory J. Thorpe, Ph.D., Acting Director ENVIRONMENT AND NATURAL RESOURCES
ROAD CROSSING CERTIFICATION GENERAL CERTIFICATION FOR PROJECTS
ELIGIBLE FOR CORPS OF ENGINEERS NATIONWIDE PERMIT NUMBER 14 (ROAD
CROSSINGS), REGIONAL GENERAL PERMIT 198200031 AND NEUSE/TAR-
PAMLICO/RANDLEMAN BUFFER RULES
This General Certification is issued in conformity with the requirements of Section 401, Public Laws 92-
500 and 95-217 of the United States and subject to the North Carolina Division of Water Quality (DWQ)
Regulations in 15A NCAC 2H, Section .0500 and 15A NCAC 2B .0200 for the discharge of fill material to
waters and wetland areas as described in 33 CFR 330 Appendix A (B) (14) of the Corps of Engineers
regulations (i.e., Nationwide Permit No. 14 and Regional General Permit 198200031) and for the Neuse,
Tar-Pamlico and Randleman Buffer
Rules (15A NCAC 2B .0233, .0259 and .0250). The category of activities shall include any fill activity for
road crossing and is limited to fill less than one-third of an acre. This Certification replaces Water Quality
Certification Number 2177 issued on November 5, 1987, Water Quality Certification Number 2666 issued
on January 21, 1992, Water Quality Certification Number 2732 issued on May 1, 1992 and Water Quality
Certification Number 3103 issued on February 11, 1997. This WQC is rescinded when the Corps of
Engineers re-authorizes Nationwide
Permit 14 or Regional General Permit 198200031 when deemed appropriate by the Director of the DWQ.
The State of North Carolina certifies that the specified category of activity will not violate applicable
portions of Sections 301, 302, 303, 306 and 307 of the Public Laws 92-500 and 95-217 if conducted in
accordance with the conditions hereinafter set forth.
Conditions of Certification:
1. Proposed fill or substantial modification of wetlands or waters (including streams) under this General
Certification requires application to and prior written concurrence from the Division of Water Quality;
2. In accordance with North Carolina General Statute Section 143-2 15.31)(e), any application for a 401
Water Quality Certification must include the appropriate fee. If a project also requires a CAMA Permit,
one payment to both agencies shall be submitted and will be the higher of the two fees;
3. In accordance with 15A NCAC 2H .0506 (h) compensatory mitigation may be required for impacts to
streams and/or wetlands. In addition, buffer mitigation may be required for any project with Buffer
Rules in effect at the time of application. A determination of buffer, wetland and stream mitigation
requirements shall be made for any Certification for this Nationwide Permit. The most current design
and monitoring protocols from DWQ shall be followed and written plans submitted for DWQ approval
as required in those protocols;
4. For any project involving a stream re-alignment, a stream relocation plan must be included with the 401
application for written DWQ approval. Relocated stream designs should include the same dimensions,
patterns and profiles as the existing channel, to the maximum extent practical. The new channel should
be constructed in the dry and water shall not be turned into the new channel until the banks are
stabilized. Vegetation used for bank stabilization shall be limited to native woody species, and should
include establishment of a 30 foot wide wooded and an adjacent 20 foot wide vegetated buffer on both
sides of the relocated channel to the maximum extent practical. A transitional phase incorporating coir
Wetlands/401 Unit 1650 Mail Service Center Raleigh, North Carolina 27699-1621
Telephone [phone] FAX [phone]
An Equal Opportunity Affirmative Action Employer 50% recycled/ 10% post eonsumer paper
State of North Carolina
Department of Environment
and Natural Resources
Division of Water Quality
Michael F. Easley, Governor
William G. Ross, Jr., Secretary
Gregory J. Thorpe, Ph.D., Acting Director
1 ? •
10
NC ENR
NORTH CAROLINA DEPARTMENT OF
ENVIRONMENT AND NATURAL RESOURCES
fiber and seedling establishment is allowable. Also, rip-rap may be allowed if it is necessary to maintain
the physical integrity of the stream, but the applicant must provide written justification and any
calculations used to determine the extent of rip-rap coverage requested. If suitable stream mitigation is
not practical on-site, then stream impact will need to be mitigated elsewhere;
Impacts to any stream length in the Neuse, Tar-Pamlico and Randleman River Basins requires written
concurrence from DWQ in accordance with 15A NCAC 2B.0233, 15A NCAC 2B .0259 and.0250 and
15A NCAC 2H .0500. New development activities located in the protected 50-foot wide riparian areas
(whether jurisdictional wetlands or not) within the Neuse, Tar-Pamlico and Randleman River Basins
shall be limited to "uses" identified within and constructed in accordance with 15A NCAC 2B .0233,
15A NCAC 2B .0259 and .0250. All new development shall be located, designed, constructed, and
maintained to have minimal disturbance to protect water quality to the maximum extent practicable
through the use of best management practices. Activities listed as "exempt" from these rules do not need
to apply for written concurrence under this Certification;
6. Placement of culverts and other structures in waters, streams, and wetlands must be placed below the
elevation of the streambed to allow low flow passage of water and aquatic life unless it can be shown to
DWQ that providing passage would be impractical. Design and placement of culverts and other
structures including temporary erosion control measures shall not be conducted in a manner that may
result in dis-equilibrium of wetlands or stream beds or banks, adjacent to or upstream and down stream
of the above structures. The applicant is required to provide evidence that the equilibrium shall be
maintained if requested in writing by DWQ. Additionally. when roadways, causeways or other fill
projects are constructed across FEMA-designated floodways or wetlands, openings such as culverts or
bridges must be provided to maintain the natural hydrology of the system as well as prevent constriction
of the floodway that may result in destabilization of streams or wetlands;
7. If this Certification is used to access building sites, all lots owned by the applicant must be buildable
without additional fill beyond that allowed under other General Certifications. Deed restrictions must be
placed on the remaining wetlands and streams on these lots to restrict future wetland and stream fill.
DWQ shall be sent copies of all deed restrictions applied to these lots;
That appropriate sediment and erosion control practices which equal or exceed those outlined in the
most recent version of the "North Carolina Sediment and Erosion Control Planning and Design Manual"
or the "North Carolina Surface Mining Manual" whichever is more appropriate (available from the
Division of Land Resources (DLR) in the DENR Regional or Central Offices) shall be in full
compliance with all specifications governing the proper design, installation and operation and
maintenance of such Best Management Practices in order to assure compliance with the appropriate
turbidity water quality standard;
9. All sediment and erosion control measures placed in wetlands or waters shall be removed and the natural
grade restored within two months after the Division of Land Resources has released the project;
10. Measures shall be taken to prevent live or fresh concrete from coming into contact with waters of the
state until the concrete has hardened;
Wetlands/401 Unit 1650 Mail Service Center Raleigh, North Carolina 27699-1 62 1
Telephone [phone] FAX [phone]
An Equal Opportunity Affirmative Action Employer 50% recycled/ 10% post consumer paper

State of North Carolina
Department of Environment
and Natural Resources
Division of Water Quality
Michael F. Easley, Governor
William G. Ross, Jr., Secretary
Gregory J. Thorpe, Ph.D., Acting Director
0.9w'A
NC ENR
NORTH CAROLINA DEPARTMENT OF
ENVIRONMENT AND NATURAL RESOURCES
11. This Certification shall be utilized for roads from natural high ground to natural high ground. The
Certification for Nationwide Permit 18 may not be used in conjunction with this Certification to create
high ground for road access;
12. If an environmental document is required, this Certification is not valid until a Finding of No
Significant Impact (FONSI) or Record of Decision (ROD) is issued by the State Clearinghouse. All
water quality-related conditions of the FONSI or ROD shall become conditions of this Certification;
13. That additional site-specific conditions may be added to projects proposed under this Certification in
order to ensure compliance with all applicable water quality and effluent standards;
14. When written concurrence is required, the applicant is required to use the enclosed "Certification of
Completion Form" to notify DWQ when all work included in the 401 Certification has been completed;
15. Concurrence from DWQ that this Certification applies to an individual project shall expire three years
from the date of the cover letter from DWQ or on the same day as the expiration date of the
corresponding Nationwide Permit 14 and Regional General Permit 198200031 whichever is sooner.
Non-compliance with or violation of the conditions herein set forth by a specific till project may result in
revocation of this Certification for the project and may also result in criminal and/or civil penalties.
The Director of the North Carolina Division of Water Quality may require submission of a formal
application for individual certification for any project in this category of activity, if it is determined that the
project is likely to have a significant adverse effect upon water quality or degrade the waters so that existing
uses of the wetland, stream or downstream waters are precluded.
Public hearings may be held for specific applications or group of applications prior to a Certification
decision if deemed in the public's best interest by the Director of the North Carolina Division of Water
Quality.
Effective date: I June 2000
DIVISION OF WATER QUALITY
By
Kerr T. Stevens
Director
WQC # 3289
Wetlands/401 Unit 1650 Mail Service Center Raleigh. North Carolina 27699-1 62 1
Telephone [phone] FAX [phone]
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W
N, d rl^ A
020153
STATE OF NORTH CAROLINA
DEPARTMENT OF TRANSPORTATION
MICHAEL F. EASL?Y DIVISION OF HIGHWAYS LYNDo T?PPETT
GOVERNOR SECRETARY
January 30, 2002
Mr. Rob Riding
Division of Water Quality
401 Wetlands Unit
1650 Mail Service Center
Raleigh, North Carolina 27699-1650
Dear Mr. Ridings:
Enclosed is the permit application for the following project:
Description: SR 2324 - Chatham Co.
Work Order 6.522070T
TIP Number: N/A
Fee Category: $475.00
Please submit for automated payment.
Sincerely,
J4,1-e-
Art C. King
Division Environmental Officer

PAYMENT
RECEIVED
Ar
d.. suit °?
y
020153
STATE OF North CAROLINA
DEPARTMENT OF TRANSPORTATION
MICHAEL F. EASLEY DIVISION OF HIGHWAYS LYNDo TIPPETT
GOVERNOR SECRETARY
January 30, 2002
Mr. Rob Ridings
Divsion of Water Quality
401 Wetlands Unit
1650 Mail Service Center
Raleigh, North Carolina 27699-1650
Dear Mr. Ridings:
Subject: Chatham County - SR 2324 (Winfred Brady Road)
In an effort to obtain the permits needed for pipe replacement on SR 2324 (Winfred
Brady Road) from SR 2308 (Charlie Garner Road) to NC Highway 902 in Chatham
County, we are providing the pre construction notification application and the supporting
materials.
A Mimimum Criteria Checklist and a natural resource investigation was conducted by the
NCDOT. The subject project has been determined to have no effect on any listed
threatened or endangered plant or animal species. Project is outside of the critical habitat
area for the Cape Fear Shiner.
To our knowledge there are No High Quality Waters or Outstanding Water Resources
occurring in the project area. We anticipate that these activities will be authorized under
Nationwide Permit Numberl4.
This letter and a copy of the application materials will be submitted to N.C. Division of
Water Quality, U.S. Fish and Wildlife Service, and U.S. Army Corps. of Engineers for
approval.
If you have any questions or comments, or need additional information, please contact
our office at [phone]. Thank you for your cooperation in this matter.
Sincerely,
7t
Art C. King
Division Environmental Officer
PAyr,A INT
RE.CFI'l? P.O. BOX 1067, ABERDEEN, NORTH CAROLINA 28315
PHONE [phone] FAX [phone]
Office Use Only: Form Version October 2001
USACE Action ID No. DWQ No. 02 0 153
If any particular item is not applicable to this project, please enter "Not Applicable" or "N/A" rather than
leaving the space blank.
1. Processing
Check all of the approval(s) requested for this project: f3 l
® Section 404 Permit
Section 10 Permit
® 401 Water Quality Certification
F] Riparian or Watershed Buffer Rules
I Nationwide, Regional or General Permit Number(s) Requested: Nationwide #14 & #33
3. If this notification is solely a courtesy copy because written approval for the 401 Certification
is not required, check here: El
4. If payment into the North Carolina Wetlands Restoration Program (NCWRP) is proposed for
mitigation of impacts (see section VIII - Mitigation), check here: E]
II. Applicant Information
1. Owner/Applicant Information
Name: North Carolina Department of Transportation
Mailing Address: W F Rosser. P E Division Engineer
North Carolina Department of Transportation. Division 8
P O Box 1067
Aberdeen North Carolina 28315
Telephone Number: 910-944-2344 Fax Number: 910-944-5623
E-mail Address:
2. Agent Information (A signed and dated copy of the Agent Authorization letter must be
attached if the Agent has signatory authority for the owner/applicant.)
Name: Benny F Sloan
Company Affiliation: NC Department of Transportation
Mailing Address: 1404 East Raleigh Street
Siler City. North Carolina 27344
Telephone Number: [phone] Fax Number: 919-742-3986
E-mail Address: bfsloanna dot state nc us
Page 5 of 12
III. Project Information
Attach a vicinity map clearly showing the location of the property with respect to local
landmarks such as towns, rivers, and roads. Also provide a detailed site plan showing property
boundaries and development plans in relation to surrounding properties. Both the vicinity map
and site plan must include a scale and north arrow. The specific footprints of all buildings,
impervious surfaces, or other facilities must be included. If possible, the maps and plans should
include the appropriate USGS Topographic Quad Map and NRCS Soil Survey with the property
boundaries outlined. Plan drawings, or other maps may be included at the applicant's discretion,
so long as the property is clearly defined. For administrative and distribution purposes, the
USACE requires information to be submitted on sheets no larger than 11 by 17-inch format;
however, DWQ may accept paperwork of any size. DWQ prefers full-size construction
drawings rather than a sequential sheet version of the full-size plans. If full-size plans are
reduced to a small scale such that the final version is illegible, the applicant will be informed that
the project has been placed on hold until decipherable maps are provided.
1. Name of project: Winfred Brady Road (SR 2324)
2. T.I.P. Project Number or State Project Number (NCDOT Only): 6.522070T
3. Property Identification Number (Tax P
4. Location
County: Chatham Nearest Town: Bennett
Subdivision name (include phase/lot number):- _N/A
Directions to site (include road numbers, landmarks, etc.):From Siler City SR 1006 south to
Ha=ers Crossroads to NC 902. Follow NC 902 in a southwesterly direction for 2.2 miles
to SR 2324.
5. Site coordinates, if available (UTM or Lat/Long):See attached sheet
(Note - If project is linear, such as a road or utility line, attach a sheet that separately lists the
coordinates for each crossing of a distinct waterbody.)
6. Describe the existing land use or condition of the site at the time of this application:
Unpaved Secondary Road Pipe Crossings
7. Property size (acres):- N/A Roadway
8. Nearest body of water (stream/river/sound/ocean/lake): Falls Creek
9. River Basim Cape Fear River Basin
(Note - this must be one of North Carolina's seventeen designated major river basins. The
River Basin map is available at http://h2o.enr,state.nc.us/adminJmaps/.)
Page 6 of 12
10. Describe the purpose of the proposed work: Pipe replacement and upgrade in conjunction
with Secondary Road Improvement Project: Grade, Drain. Base. Pave and Erosion Control
on SR 2324 (Winfred Brady Road) from SR 2308 (Charlie Garner Road) to NC Highwax
11. List the type of equipment to be used to construct the project: Trackhoe. Dozer. Pan.
Backhoe. Compactor and Motor Grader
12. Describe the land use in the vicinity of this project: Private Homes and Farms
IV. Prior Project History
If jurisdictional determinations and/or permits have been requested and/or obtained for this
project (including all prior phases of the same subdivision) in the past, please explain. Include
the USACE Action ID Number, DWQ Project Number, application date, and date permits and
certifications were issued or withdrawn. Provide photocopies of previously issued permits,
certifications or other useful information. Describe previously approved wetland, stream and
buffer impacts, along with associated mitigation (where applicable). If this is a NCDOT project,
list and describe permits issued for prior segments of the same T.I.P. project, along with
construction schedules.
V. Future Project Plans
Are any future permit requests anticipated for this project? If so, describe the anticipated work,
and provide justification for the exclusion of this work from the current application:
VI. Proposed Impacts to Waters of the United States/Waters of the State
It is the applicant's (or agent's) responsibility to determine, delineate and map all impacts to
wetlands, open water, and stream channels associated with the project. The applicant must also
provide justification for these impacts in Section VII below. All proposed impacts, permanent
and temporary, must be listed herein, and must be clearly identifiable on an accompanying site
plan. All wetlands and waters, and all streams (intermittent and perennial) must be shown on a
delineation map, whether or not impacts are proposed to these systems. Wetland and stream
evaluation and delineation forms should be included as appropriate. Photographs may be
included at the applicant's discretion. If this proposed impact is strictly for wetland or stream
mitigation, list and describe the impact in Section VIII below. If additional space is needed for
listing or description, please attach a separate sheet.
Page 7 of 12
1. Wetland Impacts
Wetland Impact
Site Number
(indicate on map)
Type of Impact* Area of
Impact
(acres) Located within
100-year Floodplain**
(yes/no) Distance to
Nearest Stream
(linear feet)
Type of Wetland***
None

" List each impact separately and identify temporary impacts. Impacts include, but are not limited to: mechanized clearing, grading, fill,
excavation, flooding, ditching/drainage, etc. For dams, separately list impacts due to both structure and flooding.
100-Year floodplains are identified through the Federal Emergency Management Agency's (FEMA) Flood Insurance Rate Maps
(FIRM), or FEMA-approved local floodplain maps. Maps are available through the FEMA Map Service Center at 1-800-358-9616, or
online at http://www.fema.gov.
List a wetland type that best describes wetland to be impacted (e.g., freshwater/saltwater marsh, forested wetland, beaver pond,
Carolina Bay, bog, etc.)
List the total acreage (estimated) of existing wetlands on the property:
Total area of wetland impact proposed:
2. Stream Impacts, including all intermittent and perennial streams
Stream Impact
Site Number
(indicate on map)
Type of Impact* Length of
Impact
(linear feet)
Stream Name** Average Width
of Stream
Before Impact Perennial or
Intermittent?
(please specify)
1 P 60 UT of Falls Creek 34' I
2 P 64 UT of Falls Creek 2-3' I
3 P 60 UT of Falls Creek 3-4' I

* List each impact separately and identify temporary impacts. Impacts include, but are not limited to: culverts and associated rip-rap,
dams (separately list impacts due to both structure and flooding), relocation (include linear feet before and after, and net loss/gain),
stabilization activities (cement wall, rip-rap, crib wall, gabions, etc.), excavation, ditching/straightening, etc. If stream relocation is
proposed, plans and profiles showing the linear footprint for both the original and relocated streams must be included.
** Stream names can be found on USGS topographic maps. If a stream has no name, list as UT (unnamed tributary) to the nearest
downstream named stream into which it flows. USGS maps are available through the USGS at 1-800-358-9616, or online at
www.uses.eov. Several intemet sites also allow direct download and printing of USGS maps (e.g., NV%vw.topozone.com,
www.maRquest.com, etc.).
Cumulative impacts (linear distance in feet) to all streams on site: 184
Page 8 of 12
3. Open Water Impacts, including Lakes, Ponds, Estuaries, Sounds, Atlantic Ocean and any
other Water of the U.S.
Open Water Impact
Site Number
(indicate on map)
Type of Impact* Area of
Impact
(acres) Name of Waterbody
(if applicable) Type of Waterbody
(lake, pond, estuary, sound,
bay, ocean, etc.)
None

List each impact separately ana ioennry temporary impacts. impacts mctuue, out are nut. umrt.cu t.v. III!, cnk'avaLIVII, wcur?uis,
flooding, drainage, bulkheads, etc.
4. Pond Creation
If construction of a pond is proposed, associated wetland and stream impacts should be
included above in the wetland and stream impact sections. Also, the proposed pond should
be described here and illustrated on any maps included with this application.
Pond to be created in (check all that apply): F_? uplands ? stream [-I wetlands
Describe the method of construction (e.g., dam/embankment, excavation, installation of
draw-down valve or spillway, etc.): N/A
Proposed use or purpose of pond (e.g., livestock watering, irrigation, aesthetic, trout pond,
local stormwater requirement, etc.):
Size of watershed draining to pond: Expected pond surface area:
VII. Impact Justification (Avoidance and Minimization)
Specifically describe measures taken to avoid the proposed impacts. It may be useful to provide
information related to site constraints such as topography, building ordinances, accessibility, and
financial viability of the project. The applicant may attach drawings of alternative, lower-impact
site layouts, and explain why these design options were not feasible. Also discuss how impacts
were minimized once the desired site plan was developed. If applicable, discuss construction
techniques to be followed during construction to reduce impacts.
Erosion Control Devices will be installed prior to and during construction These devices will be
maintained during _the life of the construction
VIII. Mitigation
DWQ - In accordance with 15A NCAC 2H .0500, mitigation may be required by the NC
Division of Water Quality for projects involving greater than or equal to one acre of impacts to
freshwater wetlands or greater than or equal to 150 linear feet of total impacts to perennial
streams.
Page 9 of 12
USACE - In accordance with the Final Notice of Issuance and Modification of Nationwide
Permits, published in the Federal Register on March 9, 2000, mitigation will be required when
necessary to ensure that adverse effects to the aquatic environment are minimal. Factors
including size and type of proposed impact and function and relative value of the impacted
aquatic resource will be considered in determining acceptability of appropriate and practicable
mitigation as proposed. Examples of mitigation that may be appropriate and practicable include,
but are not limited to: reducing the size of the project; establishing and maintaining wetland
and/or upland vegetated buffers to protect open waters such as streams; and replacing losses of
aquatic resource functions and values by creating, restoring, enhancing, or preserving similar
functions and values, preferable in the same watershed.
If mitigation is required for this project, a copy of the mitigation plan must be attached in order
for USACE or DWQ to consider the application complete for processing. Any application
lacking a required mitigation plan or NCWRP concurrence shall be placed on hold as
incomplete. An applicant may also choose to review the current guidelines for stream restoration
in DWQ's Draft Technical Guide for Stream Work in North Carolina, available at
http:/ih2o.ear.state.nc,us/ncwetlands/stnngide.html.
Provide a brief description of the proposed mitigation plan. The description should provide
as much information as possible, including, but not limited to: site location (attach directions
and/or map, if offsite), affected stream and river basin, type and amount (acreage/linear feet)
of mitigation proposed (restoration, enhancement, creation, or preservation), a plan view,
preservation mechanism (e.g., deed restrictions, conservation easement, etc.), and a
description of the current site conditions and proposed method of construction. Please attach
a separate sheet if more space is needed.
2. Mitigation may also be made by payment into the North Carolina Wetlands Restoration
Program (NCWRP) with the NCWRP's written agreement. Check the box indicating that
you would like to pay into the NCWRP. Please note that payment into the NCWRP must be
reviewed and approved before it can be used to satisfy mitigation requirements. Applicants
will be notified early in the review process by the 401/Wetlands Unit if payment into the
NCWRP is available as an option. For additional information regarding the application
process for the NCWRP, check the NCWRP website at hU;//h2o enr.state nc.us/IIM/index.htm. If
use of the NCWRP is proposed, please check the appropriate box on page three and provide
the following information:
Amount of stream mitigation requested (linear feet):
Amount of buffer mitigation requested (square feet):
Amount of Riparian wetland mitigation requested (acres):
Amount of Non-riparian wetland mitigation requested (acres):
Amount of Coastal wetland mitigation requested (acres):
Page 10 of 12
IX. Environmental Documentation (DWQ Only)
Does the project involve an expenditure of public funds or the use of public (federaUstate/local)
land?
Yes ® No F-I
If yes, does the project require preparation of an environmental document pursuant to the
requirements of the National or North Carolina Environmental Policy Act (NEPA/SEPA)?
Note: If you are not sure whether a NEPA/SEPA document is required, call the SEPA
coordinator at [phone] to review current thresholds for environmental documentation.
Yes ? No
If yes, has the document review been finalized by the State Clearinghouse? If so, please attach a
copy of the NEPA or SEPA final approval letter.
Yes [] No
X. Proposed Impacts on Riparian and Watershed Buffers (DWQ Only)
It is the applicant's (or agent's) responsibility to determine, delineate and map all impacts to
required state and local buffers associated with the project. The applicant must also provide
justification for these impacts in Section VII above. All proposed impacts must be listed herein,
and must be clearly identifiable on the accompanying site plan. All buffers must be shown on a
map, whether or not impacts are proposed to the buffers. Correspondence from the DWQ
Regional Office may be included as appropriate. Photographs may also be included at the
applicant's discretion.
Will the project impact protected riparian buffers identified within 15A NCAC 2B .0233
(Meuse), 15A NCAC 2B .0259 (Tar-Pamlico), 15A NCAC 2B .0250 (Randleman Rules and
Water Supply Buffer Requirements), or other (please identify )?
Yes ? No ® If you answered "yes", provide the following information:
Identify the square feet and acreage of impact to each zone of the riparian buffers. If buffer
mitigation is required calculate the required amount of mitigation by applying the buffer
multipliers.
Zone* Impact
(square feet) Multiplier Required
Mitigation
1 3
2 1.5
Total
` Lone 1 extends out JU teet perpendicular trom near oanK of cnannei; Lone a extends an
additional 20 feet from the edge of Zone 1.
Page 11 of 12
If buffer mitigation is required, please discuss what type of mitigation is proposed (i.e., Donation
of Property, Conservation Easement, Riparian Buffer Restoration / Enhancement, Preservation or
Payment into the Riparian Buffer Restoration Fund). Please attach all appropriate information as
identified within 15A NCAC 2B .0242 or.0260.
XI. Stormwater (DWQ Only)
Describe impervious acreage (both existing and proposed) versus total acreage on the site.
Discuss stormwater controls proposed in order to protect surface waters and wetlands
downstream from the property.
N/A
XII. Sewage Disposal (DWQ Only)
Clearly detail the ultimate treatment methods and disposition (non-discharge or discharge) of
wastewater generated from the proposed project, or available capacity of the subject facility.
N/A
XIII. Violations (DWQ Only)
Is this site in violation of DWQ Wetland Rules (15A NCAC 2H.0500) or any Buffer Rules?
Yes r-1 No
Is this an after-the-fact permit application?
Yes n No
XIV. Other Circumstances (Optional):
It is the applicant's responsibility to submit the application sufficiently in advance of desired
construction dates to allow processing time for these permits. However, an applicant may
choose to list constraints associated with construction or sequencing that may impose limits on
work schedules (e.g., draw-down schedules for lakes, dates associated with Endangered and
Threatened Species, accessibility problems, or other issues outside of the applicant's control).
/-30 . Oz
Applicant/Agent's Signature Date
(Agent's signature is valid only if an authorization letter from the applicant is provided.)
Page 12 of 12
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U.S. ARMY CORPS OF ENGINEERS
WILMINGTON DISTRICT
Action ID: 200200410 TIP No:
State Project No: 6.522070T
GENERAL PERMIT (REGIONAL AND NATIONWIDE)
Applicant: North Carolina Department of Transportation
Address: W.F. Rosser, P.E., Division Engineer
North Carolina Department of Transportation
Division 8
P.O. Box 1067
Aberdeen, North Carolina 28315
Telephone Number: [phone]
(,? 201,5_3
County: Chatham
VERIFICATION
APR ! 5
Size and Location of project (waterway, road name/number, town, etc.): 60 linear feet of twin 87-inch X 63-
inch CMPA culvert with headwalls at centerline station 88+50 and temporary diversion on SR 2324 at an unnamed
tributary to Falls Creek in Chatham County, North Carolina.
Description of Activity: To replace 66 linear feet of 72-inch CMP with 66 linear feet of twin 87-inch X 63-inch
CMPA culvert with headwalls and install a temporary diversion structure consisting of a fabic-lined channel, temporary
diversion pipe and fabric-covered stone berms placed on filter cloth on the upstream and down stream side of the
culverts. 20-feet of class B rip-rap is to be placed on both banks above the plane of ordinary high water at each end of
the culverts for bank protection. Traffic will be detoured onto existing roadways during construction. All temporary
fill is to be removed from the waterway in its entirety upon completion of the construction.
Applicable Law: X Section 404 (Clean Water Act, 33 U.S.C. 1344)
Section 10 (River and Harbor Act of 1899)
Authorization: 14/33 Nationwide Permit Number
Regional General Permit Number
Your work is authorized by this Regional General (RGP) or Nationwide (NWP) Permit provided it is accomplished
in strict accordance with the attached conditions and your submitted plans. If your activity is subject to Section 404
(if Section 404 block above is checked), before beginning work you must also receive a Section 401 water quality
certification fi•om the N.C. Division of Environmental Management, telephone [phone]. For any activity
within the twenty coastal counties, before beginning work you must contact the N.C. Division of Coastal
Management, telephone [phone].
Please read and carefully comply with the attached conditions of the RGP or NWP. Any violation of the conditions
of the RGP or NWP referenced above may subject the permittee to a stop work order, a restoration order, and/or
appropriate legal action.
This Department of the Army RGP or NWP verification does not relieve the permittee of the responsibility to obtain
any other required Federal, State, or local approvals/permits. The permittee may need to contact appropriate State
and local agencies before beginning work.
If there are any questions regarding this authorization or any of the conditions of the RGP or NWP, please contact
the Corps Regulatory Official specified below.
Date 8 A ril 2002
Corps Regulatory Official Richard K. Spencer --'Telephone No. [phone]
Expiration Date of Verification_8 April 2005_
CF: NCDOT ( Division 8, attn: Art ing)
DWQ, John Hennessey
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Federal Register / Vol. 67, No. Ill / Tuesday, January 15, 2002 /Notices 2077
New York
New fork District Engineer, ATTN: CENAN-
OP-R, 26 Federal Plaza, New York, NY
10278-0090
North Carolina
Wilmington Dishict Engineer, ATTN:
CESAW-RG, 1'.0. Box 1890, Wiluington.
NC 28402-1890
North Dakota
Onudra Dish'ict Engineer, ATTN: CENWO-
OP-R, 106 South 15th Street, Omaha, NE
68102-1618
Ohio
Huntington District Engineer, ATTN:
CELRII-OR-F, 502 8th Street, Huntington
WV 25701-2070
Oklahoma
Tulsa District Engineer, ATl'N: CESWI'-PF:-
R, 1645 S. 101st East Ave, Tulsa, OK
74'128-4609
Oregon
Portland District Engineer, ATTN: CENWP--
PE-G, P.O. Box 2946, Portland, OR 97208-
2946
Pennsylvania
Baltimore District Engineer, ATTN: CENAB-
OP-R, P.O. Box 1715, Baltimore, IvID
21203-1715
Rhode Island
New England District Engineer, AT"IN:
CENAE-R, 696 Virginia Road, Concord,
MA 01742-2751
South Carolina
Charleston District Engineer, ATTN: CESAC-
CO-P, P.O. Box 919, Charleston, SC
29402-0919
South Dakota
Omaha District Engineer, ATTN: CENWO-
OP-R, 106 South 15th Street, Omaha, NE
68102-1618
Tennessee
Nashville District Engineer, ATTN: CELRN-
OP-F, P.O. Box 1070, Nashville, TN
37202-1070
Texas
Ft. Worth District Engineer, ATTN: CESWF-
PER--R, P.O. Box 17300, Ft. Worth, TX
76102-0300
Utah
Sacramento District Engineer, ATTN:
CESPK-CO-R, 1325 J Street, CA 95814-
2922
Vermont
New England District Engineer, ATTN:
CENAE-R, 696 Virginia Road, Concord,
MA 01742-2751
Virginia
Norfolk District Engineer, ATTN: CENAO-
OP-R, 803 Front Street, Norfolk, VA
2 3 5 1 0--1 09 6
Washington
Seattle District Engineer, ATTN: CENWS-
OPP.O. Box 3755, Seattle, WA 981: 4-
2255
West Virginia
Huntington District Engineer, ATTN:
CI?i.Rl1-OR-F, 502 8th street, I Iunturgton,
WV :?5701-2070
Wisconsin
St. Pant District FIngincer, AT-FN: CEMVP-
CO-R, 190 Fifth Street East, St. Paul, MN
5511-1-11338
1'V"o rn i I Ig
Omaha District Engineer, ATTN: CENWO-
OP-R, 106 South 15th Street, Omaha, NF.
6810'2-1618
District of Columbia
Baltiuore District Engineer, ATTN: CF:NAH--
Ol'-R, P.O. Box 1715, Baltimore, MD
21203-1715
I'acrfic Territories (Arnerican Sarnou, Guars,
E- Commonwealth of the Northern Mariana
Islands)
I Iouohdu District Engineer, ATTN: CEPOI I-
EC-R, Building 230, Fort Shafter,
Ilonolnlu, HI 96858--5440
Puerto Rico fr Virgin Islands
Jacksonville District Engineer, A'I-TN:
CESAJ-CO-R, P.O. Box 4970, Jacksonville,
FL 32202-4412
Dated: January 4, 2002.
Approved:
Robert H. Griffin,
8rigadierGeneral, U.S.Army,Director ofCivil
Works.
Nationwide Permits, Conditions,
Further Information, and DeFulitions
A. Index of Nationwide Permits,
Conditions, Further Information, and
Definitions
Nationwide Permits
1. Aids to Navigation
2. Structures in Artificial Canals
3. Maintenance
4. Fish and Wildlife Harvesting,
Enhancaanent, and Attraction Devices and
Activities
5. Scientific Measurement Devices
6. Survey Activities
7. Outfatl Structures and Maintenance
8. Oil and Gas Structures
9. Structures in Fleeting and Anchorage
Areas
10. Mooring Buoys
11. Temporary Recreational Structures
12. Utility Line Activities
13. Bank Stabilization
14. Linear Transportation Projects
15. U.S. Coast Guard Approved Bridges
16. Return Water From Upland Contained
Disposal Areas
17. Hydropower Projects
18. Minor Discharges
19. Minor Dredging
20. Oil Spill Cleanup
21. Surface Coal Mining Activities
22. Removal of Vessels
23. Approve(! Categorical Exclusions
24. State Administered Section 40,1 Programs
25. Structural Discharges
26. [Reserved]
27. Stream and Wetland Restoration
Activities
213. Modifications of Existing Marinas
29. Singlc-family Housing
30. Moist Soil Management for Wildlife
3'1 . Maintenance of Existing Flood Control
Facilities
32. Completed Enforcement Actions
33. Temporary Construction, Access and
Dewatering
34. Cranberry Production Activities
35. Maintenance Dredging of Existing Basins
36. Boat Rantps
37. Emergency Watershed Protection and
Rehabilitation
38. Cleanup of Ilazardous and Toxic Waste
39. Residential, Commercial, and
Institutional Developments
40. Agricultural Activities
4l. Reshaping Existing Drainage Ditches
42. Rocreational Facilities
43. Stormwater Management Facilities
4.1. Mining Activities
Nationwide Permit General Conditions
1. Navigation
2. Proper Maintenance
3. Soil Erosion and Sediment Controls
•1. Aquatic- Life Movements
5. Equipnrent
6. Regional and Case-by-Case Conditions
7. Wild and Scenic Rivers
8. Tribal Rights
9. Water Quality
10. Coastal "Lone Management
11. Endangered Species
12. Historic Properties
13. Notification
14. Compliance Certification
15. Use of Multiple Nationwide Permits.
16. Water Supply Intakes
17. Shellfish Beds
18. Suitable Material
19. Mitigation
20. Spawning Areas
21. Management of Water Flows
22, Adverse Effects from Imlpoundments
23. Waterfowl Breeding Areas
24. Removal of Temporary Fills
25. Designated Critical ResnllrCe Waters
26. Fills Within 100-year Floodplains
27. Construction Period
Further Information
Definitions
Best Management Practices (BNCPs)
Compensatory Mitigation
Creation
Enhancement
Ephemeral Stream
Farm Tract
Flood Fringe
Floodway
Independent Utility
Intermittent Stream
Loss of Waters of the US
Non-tidal Wetland
Open Water
Perennial Stream
Permanent Above-grade Fill
Preservation
Restoration
Riffle and Pool Complex

207£3 Federal Register/ Vol. 07, No. 1.0/Tuesday, January 15, 2002/Notices
Single and Complete Projoct
Stor
vater Management bridges, culverted road crossings, water done primarily to obtain fill for any
rm
Stream Bed Streamm Bed er Management facilities intake structures, etc.) and the
placement of new or additional riI? n rE t restoration activities . "Ihe discharg e of

t, (j
o dred°
or fill material and all related
Stream Channelizatioe protect the structure, provided the work needed to restore the upland must
Tidal Wetland permittee notifies the District Engineer be part of a single and complete projfx:t.
Vegetated Buffer in accordance with General Condition This permit cannot be used in
Vegetated Shallows
Waterbod 13. The removal of sediment is limited conjunction with NWP 18 or NW13 19 to
y to the minimum ne.cossary to restore the restore clarnaged upland areas. This
B. Nationwide Permits waterway in the immediate vicinity of permit cannot he used to reclaim

1. Aids to Navigation. The placement
of aids to navigation and Regulatory the structure to the approximate
dimensions that existed when the historic lands lost, over an extended
period, to normal erosion processes.

markers which are approved by and structure was built, but cannot extend

furthet than 200 feet in any direction
`Cl:is permit sloes not authorize
installed in accordance with the

requirements of the U
S
Coast Guard
from the structure. The placement of rip maintenance. dredging for the primary
purpose; of navigation and beach
.
.
(USCG) (See 33 CFR, chapter I, rap must he the ntinimme necessary to

Protect the structure or to ensu
th
restoration. 'I'bis permit does not

subchapter C part 6G). (Section 10)
' 2. Stnrchrres in Artificial Canals. re
e
safety of the structure. All excavated
y authorize new stream channelization or

stream relocation projects. Any work
Structures constructed in artificial materials must he deposited and
retained in an upland area unless authorized by this permit must not
canals within principally residential
developments where the connection of
otherwise specifically approved by the cause more than minimal degradation of
water quality, more than minimal
the canal to navigable water of the US

h
District Engineer under separate
authorization
An
bank stabilizati
changes to the flow characteristics of tire
as been previously authorized (see 33
CFR 322,5(g)). (Section 10) .
y
on
measures not directly associated with stream, or increase flooding (See
General Conditions 0 and 21). (Sections
3. Maintenance. Activities related to: the structure will require a separate 10 and 404)
(i) The repair, rehabilitation, or authorization from the District Engineer. Note: 'Chic NWP authorises the repair,
replacement of any previously (iii) Discharges of dredged or fill rehabilitation, or replacement of any
authorized, currently serviceable, material, including excavation, into all previously authorized strnrcture or fill that
structure, or fill, or of any currently waters of the US for activities associated does not qualify for the Section 104(p
serviceable structure or fill authorized with the restoration of upland areas exemption for iaintenance.
by 33 CM 330.3, provided that the damaged by a storm, flood, or other 4. Fish and Wildlife Harvesting,
structure or fill is not to be put to uses discrete event, including the h,nhancoment, and Attraction Devices
differing from those uses specified or construction, placement, or installation and Activities. Nish and wildlife
contemplated for it in the original of upland protection structures and harvesting devices and activities such as
permit or the most recently authorized minor dredging to remove obstructions pound nets, crab traps, crab dredging
modification. Minor deviations in the
' in a water of the US. (Uplands lost as eel pots, lobster traps, duck blinds, clam
structure
s configuration or filled area a result of a storm, flood, or other and oyster digging; and small fish
including those due to changes in discrete event can be replaced without attraction devices such as open water
materials, construction techniques, or a Section 404 permit provided the fish concentrators (sea kites, etc.). This
current construction codes or safety uplands are restored to their original NWP authorizes shellfish seeding
standards which are necessary to make pre-event location. This NWP is for the provided this activity does not occur in
repair, rehabilitation, or replacement are activities in waters of the US associated wetlands or sites that support
permitted, provided the adverse with the replacement of the uplands.) submerged aquatic vegetation (including
environmental effects resulting from The permittee must notify the District sites where submerged aquatic
such repair, rehabilitation, or Engineer, in accordance with General vegetation is documented to exist
but
replacement are minimal. Currently Condition 13, within 12-months of the ,
may not be present in a given year.).
serviceable means useable as is or with date of the damage and the work must This NWP does not authorize artificial
some maintenance, but not so degraded commence, or be under contract to reefs or impoundments and semi-
as to essentially require reconstruction. commence, within two years of the date impoundments of waters of the US for
This NWP authorizes the repair, of the damage. The permittee should the culture or holding of motile species
rehabilitation, or replacement of those provide evidence, such as a recent such as lobster or the use of covered
structures or fills destroyed or damaged topographic survey or photographs, to oyster trays or clarn racks. (Sections 10
by storms, floods, fire or other discrete justify the extent of the proposed and 404)
events, provided the repair,
rehabilitation, or replacement is restoration. The restoration of the
damaged areas cannot exceed the , 5. Scientific Measill'ement Devices.
Devices, whose purpose is to measure
commenced, or is under contract to contours, or ordinary high water mark, and record scientific data such as staff
commence, within two years of the date that existed before the damage. The gages, title gages, water recording
of their destruction or damage. In cases District Engineer retains the right to devices, water quality testing and
of catastrophic events, such as determine the extent of the pre-existing improvement devices and similar
hurricanes or tornadoes, this two-year conditions and the extent of any structures. Small weirs and flumes
limit may be waived by the District restoration work authorized by this constructed primarily to record water
Engineer, provided the permittee can permit. Minor dredging to remove quantity and velocity are also
demonstrate funding, contract, or other obstructions from the adjacent authorized provided the discharge is
similar delays.
(ii) Discharges of dredged or fill waterbody is limited to 50 cubic yards
below the plane of the ordinary high limited to 25 cubic yards and further for
discharges of 10 to 25 cubic yards
material, including excavation, into all water mark, and is limited to the provided the permittee notifies the
waters of the US to remove accumulated
sediments and debris in the vicinity of amount necessary to restore the pre-
existing bottom contours of th District Engineer in accordance with the
''N
f
"
,
and within, existing structures (e.g., e
waterbody. The dredging may not be oti
ication
General Condition.
(Sections 10 and 404)
Federal Register/ Vol. 67, No. 10/Tuesday, January 15, 2002/ Notices 2079
' 6. Survey Activities. Survey activities
including core sampling, seismic
exploratory operations, plugging of
seismic shot holes and other
exploratory-type bore holes, soil survey,
sampling, and historic resources
surveys. Discharges and structures
associated with the recovery of historic
resources are not authorized by this
NWP. Drilling and the discharge of
excavated material from test wells for
oil and gas exploration is not authorized
by this NWP; the plugging of such wells
is authorized. Fill planed for roads, pads
and other similar activities is not
authorized by this NWP. The MVP does
not authorize any permanent structures.
The discharge of drilling, mud and
cuttings may require a permit under
section 402 of the CWA. (Sections 10
and 404)
-7. Outfall Structures and
Maintenurce. Activities related to:
(i) Construction of outfall structures
and associated intake structures where
the effluent from the outfall is
authorized, conditionally authorized, or
specifically exempted, or are otherwise
in compliance with regulations issued
under the National Pollutant Discharge
Elimination System Program (Section
402 of the CWA), and
(ff) Maintenance excavation,
including dredging, to remove
accumulated sediments blocking or
restricting outfall and intake structures,
accumulated sediments from small
impoundments associated with outfall
and intake structures, and accumulated
sediments from canals associated with
outfall and intake structures, provided
that the activity meets all of the
following criteria:
a. The permittee notifies the District
Engineer in accordance with General
Condition 13;
b. The amount of excavated or
dredged material must be the minimum
necessary to restore the outfalls, intakes,
small impoundments, and canals to
original design capacities and design
configurations (i.e., depth and width);
c. The excavated or dredged material
is deposited and retained at an upland
site, unless otherwise approved by the
District Engineer under separate
authorization; and.
d. Proper soil erosion and sediment
control measures are used to minimize
reentry of sediments into waters of the
us.
The construction of intake structures
is not authorized by this NWP, unless
they are directly associated with an
authorized outfall structure. For
maintenance excavation and dredging to
remove accumulated sediments, the
notification must include information
regarding the original design capacities
and configurations of the facility and
ie presence of special aquatic sites
e.g., vegetated shallows) in the vicinity
of the proposed work. (Sections 10 and
404)
8. Oil and Gas Structures. Structures
for the exploration, production, and
transportation of oil, gas, and minerals
on the outer continental shelf within
areas leased for such purposes by the
DOI, Minerals Management Service
(1viMS).'Such structures shall not-be
placed within the limits of any
designated shipping safety fairway or
traffic separation scheme, except
temporary anchors that comply with the
fairway regulations in 33 CFR 322.5(1).
(Where such limits have not been
designated, or where changes are
anticipated, District Engineers will
consider asserting discretionary
authority in accordance with 33 CFR
330.4(e) and will also review such
proposals to ensure they comply with
the provisions of the fairway regulations
in 33 CFR 322.5(1). Any Corps review
under this permit will be limited to the
effects on navigation and national
security in accordance with 33 CFR
322.5(f)). Such structures will not be
placed in established danger zones or
restricted areas as designated in 33 CFR
part 334: nor will such structures be
permitted in EPA or Corps designated
dredged material disposal areas.
(Section 10)
9. Structures in Fleeting and
Anchorage Areas. Structures, buoys,
floats and other devices placed within
anchorage or fleeting areas to facilitate
moorage of vessels where the USCG has
established such areas for that purpose.
(Section 10)
, 10. Mooring Buoys. Non-cominercial,
single-boat, mooring buoys. (Section lo)
11. TemporaryRecreational
Structures. Temporary buoys, markers,
small floating docks, and similar
structures placed for recreational use
during specific events such as water
skiing competitions and boat races or
seasonal use provided that such
structures are removed within 30 days
after use has been discontinued. At
Corps of Engineers reservoirs, the
reservoir manager must approve each
buoy or marker individually. (Section
10)
.12. UtilitpLille Activities. Activities
required for the construction,
maintenance and repair of utility lines
and associated facilities in waters of the
US as follows:
(f) Utility lines: The construction,
maintenance, or repair Of utility lines,
including outfall and intake structures
and the associated excavation, backfill,
or bedding for the utility lines, in all
waters of the US, provided there is no
change in preconstruction contours. A
"utility line" is defined as any pipe or
pipeline for the transportation of any
gaseous, liquid, liquescent, or slurry
substance, for any purpose, and any
(-,able, line, or wire for the transmission
for any purpose of electrical energy,
telephone, and telegraph messages, and
radio and television communication
(see Note t, below). Material resulting
from trench excavation may be
temporarily sidecast (up to three
months) into waters of the US, provided
that the material is not placed in such
a manner that it is dispersed by currents
or other forces. The District Engineer
may extend the period of temporary side
casting nut to exceed a total of 180 days,
where appropriate. In wetlands, the top
6" to 12" of the trench should normally
be backfilled'with topsoil from the
trench. Furthermore, the trench cannot
be constructed in such a manner as to
drain waters of the US (e.g., backfilling
with extensive gravel layers, creating a
french drain effect). For example, utility
line trenches can be backfilled with clay
blocks to ensure that the trench does not
drain the waters of the US through
which the utility line is installed. Any
exposed slopes and stream banks must
be stabilized immediately upon
completion of the utility line crossing of
each waterbody.
(ii) Utility line substations: The
construction, maintenance, or
expansion of a substation facility
associated with a power line or utility
line in non-tidal waters of the US,
excluding non-tidal wetlands adjacent
to tidal waters, provided the activity
does not result in the loss of greater than
'/z-acre of non-tidal waters of the US.
(iii) Foundations for overhead utility
line towers, poles, and anchors: The
construction or maintenance of
foundations for overhead utility line
towers, poles, and anchors in all waters
of the US, provided the foundations are
the mininuun size necessary and
separate footings for each tower leg
(rather than a larger single pad) are used
where feasible.
(iv) Access roads: The construction of
access roads for the construction and
maintenance of utility lines, including
overhead power lines and utility line
substations, in non-tidal waters of the
US, excluding non-tidal wetlands
adjacent to tidal waters, provided the
discharges do not cause the loss of
greater than V.,!-acre of non-tidal waters
of the US. Access roads shall be the
minimum width necessary (see Note 2,
below). Access roads must be
constructed so that the length of the
road minimizes the adverse effects on
waters of the US and as near as possible
to preconstruction contours and
2080 Federal Register / Vol. 67, No. 10 /'Tuesday, January 15, 2002 / Notices
elevations (e.g., at grade corduroy roads (c) The utility line in waters of the
or geotextile/gravel roads). Access roads US
excluding overhead lilies
d expected high flows (properly anchored

Constructed above preconstruction ,
, excee
s
500 feet; trees and treetops may be used in low
ener
areas)
and

contours and elevations in waters of the
(d) The utility lilu; is plac=ed within it gy
;
,
g, the ac=tivity is part of it single and
US roust be properly bridged or jurisdictional area (i e., water of the I IS) , complete project
culverted to maintain surface flows.
' and it runs parallel to a streain bed that Bank stabilization activities in excess
T'ile term ''utility line" does not is within that jurisdictional area; of 500 feet in length or greater than an
include activities which drain a water o f (e) Discharges associated with the, average of one cubic yard per running
the US, such as drainage tile, or french construction of utility line substations foot may be authorized if the perrnittee
drains; however, it does apply to pipes that. result in the loss of greater than !/o - notifies the District Engineer in
conveying drainage from another area. ;u:re of. waters of the US; or accordance with the ''Notificutiori'
For the purposes of this NWP, the loss
of waters of the US includes the filled (1) Permanent access roads
constructed above Trade in waters oP thy. General Condition 13 and the District
Engineer determines the ac=tivity
area plus waters of the US that are ITS for a distance of more than 500 feet.
) P
( complies with the other terms and
adversely affected by flooding,
excavation
or drainage as a result of the ermanent access roads
g
oonstructed in waters of the US with conditions of the NWP and the adverse
i
,
project. Activities authorized by
impervious materials. (Sections 10 and env
ronmental effec=ts are mininnal both
individually and cumulatively
This
paragraph (i) through rv may not
_
exceed a total of /zgacre loss of waters 404)

Note 1: Overliuad utility tines constructed .
NWP may not he used for the
channelization of waters of the US

of the US. Waters of the US temporarily

affected by fillin
floodin
excavati
over Section to waters and utility lines that
are routed in or under Section 10 waters .

(Sections 10 and 404)
'
'
g,
g,
on,
or drainage, where the project area is without a discharge of dredged or fill
material require it Section 1'01
o permit; except t 14• Lirtear
1
rnnsportution Projects.
Activities required for the construction,
restored to preconstruction coutou rs for pipes or pipelines used to n`uuport expansion, modification, or
and elevation, is not included in the gaseous, liquid, liquescent, or slurry improvement of linear transportation
calculation of permanent loss of waters substances over navigable waters of the U ;, crossings (e.g., highways, railways,
of the US. This includes temporary
c
t
ti
t
i which are considered to be bridges, out
utility lines
and may require a
ermit from trails, airport runways, and taxiways) in
ons
ruc
on mats (e.g., timber, steel,
c
geotextile) ons
ruct
used during construction and ,
p
the USCG pursuant to section 9 of the Rivers
d H
b waters of the CIS, includin, wetlands, if

the activity meets the followin
criteria:

removed upon completion of the work. an
ar
ors Act of 1899. Ilowever, any
discharges of dredged or fill material g
a. This NWP is subject to the
Where certain functions and values of associated with such pipelines will require it following acreage Limits:
waters of the US are permanently Corps permit under Sec=tion 404, l) For linear transportation projec=ts
adversely affected, such as the Note 2: Access roads used for both in non-tidal waters, provided the
conversion of a forested wetland to a construction and maintenance may be discharge does not cause the loss of
herbaceous wetland in the permanently authorized, provided they nneet the terms and greater than'/ -acre of waters of the US;
maintained utility line right-of-way, conditions of this NWP. Access roads used (2) For linear transportation projects
mitigation will be required to reduce the solely for construction of the utility line must in tidal waters, provided the discharge
adverse effects of the project to Ilie be removed upon completion of the work and does not cause the loss of greater than
tuirrimal level. the area restored to preconstnhction contours,
elevations
and wetland c=onditi Vi-acre of water's of the US,

ized land clearing necess
r t
e
y ,
ons.
Ta'hponn•y access roads for Construction may h. The ermittee must notify the
p
fo
h
on
or
be authorized by NWP :33. District F;
gineer in accordance with
repair of utility lines and the
construction, maintenance and
Note 3: Where the proposed utility line is General Condition 13 if any of the
following criteria are met:

expansion of utility line substations, constructed or installed in navigable waters
of the US (i.e., Section 10 waters), copies of (1) The discharge causes the loss of
foundations for overhead utility lines, the PCN and NWP verification will be sour greater than '/io acre of waters of the TJS;
and access roads is authorized, provided by the Corps to the National Oceanic and or
the cleared area is kept to the minimum Atmospheric Administration (NOAA), (2) 'There is a discharge in a special
necessary and preconstruction contours National Ocean Service (NOS), for charting aquatic site, including wetlands;
are maintained as near as possible. 1'he the utility line to protect navigation. c. The notificution must include a
area of waters of the US that is filled +13. Bank Stabilization, Bank compensatory mitigation proposal to
,
excavated, or flooded must be limited to stabilization activities necessary for offset permanent losses of waters of the
the minimum necessary to construct the erosion prevention provided the activity US to ensure that those losses result
utility line, substations, foundations, meets all of the following criteria: only in minimal adverse effects to the
and access roads. Excess material must a. No material is placed more than the aquatic environment and a statement
be removed to upland areas minimum needed for erosion protection; describing how temporary losses will be
immediately upon completion of b. The bank stabilization ac=tivity is minimized to the nlaximutn extent
construction. This NWP may authorize less than 500 feet in length; practicable;
utility lines in or affecting navigable C. The activity will not exceed an cf. For discharges in special aquatic
waters of the US even if there is rro average of one cubic yard per running sites, including wetlands, and stream

associated dischar
e of dredged or fill foot placed along the bank below the riffle and pool complexes, tlhe
g
material (See 33 CFR part 322), plane of the ordinary high water mark notification most include a delineation

Notification: The permittee must or the high tide line;
d. No material is placed in any special of the affected special aquatic sites;
e. The width of the fill is limited to
notify the District Engineer in

acc=ordance with General C=ondition 13
aquatic site, including wetlands;
the minimum necessary for the crossing;
,
if any of the following criteria are stet: e. No material is of the type, or is
placed in any location, or in any F. This permit does not authorize
stream channelization
and the
(a) Mechanized land clearing in a
forested wetland for the utility line manner, to impair surface water flow
i ,
authorized activities must not cause

ri
ht-of-wa nto or out of any wetland area; more than minimal changes to the
g
y;
(b) A Section 10 permit is required; E No material is placed in a manner
that will be eroded by normal or hydraulic flow characteristics of the
strea
i
fl
di
m,
ncrease
oo
ng, or cause more
Federal Register / Vol. 67, No. 10 / Tuesday, January 15, 200-2/Notices 2081
than minimal degradation of water
quality of any stream (see (;enera)
Conditions 9 and 21);
g. This permit canuot be used to
authorize non-linear features conunouly
associated with transportation projects,
such as vehicle maintenance or storage
buildings, parking lots, train stations, or
aircraft hangars; and
h. The crossing is a single and
complete project for crossing; waters of
the US. Where a road segment (i.e., the
shortest segment of a road with
independent utility that is part of a
larger project) has multiple crossings of
streams (several single and complete
projects) the Corps will consider
whether it should use its discretionary
authority to require an Individual
Permit. (Sections 10 and 404)
Note: Some discharges for the construction
of farm roads, forest roads, or temporary
roads for moving unining equipment may he
eligible for an exemption from the need for
a Section 404 permit (see 33 CFR 323.4).
• 15. U.S. Coost Guard Approved
Bridges. Discharges of dredged or fill
material incicdental to the construction
of bridges across navigable waters of fire
US, including cofferdams, abutments,
foundation seals, piers, and temporary
construction and access fills provided
such discharges have been authorized
by the USCG as part of the bridge
permit. Causewayrs anti approach fills
are riot included iu this NWP and will
require an individual or regional
Section 404 permit. (,Section 404)
16. Return Water Front Upland
Contained Disposal Areas. Return water
from upland, contained dredged
material disposal area. The dredging
itself may require a Section 404 permit
(33 CFR 323.2(d)), but will require a
Section 10 permit if located in navigable
waters of the US. The return water from
a contained disposal area is
adniinistratively.defined as a discharge
of dredged material by 33 CFI: 323.2(d),
even though the disposal itself occurs
on the upland and does not require a
Section 404 permit. This NVVP satisfies
the technical requirement for a Section
404 permit for the return water where
the quality of the return water is
controlled by the state through the
Section 401 certification procedures.
(Section 404)
- 17. HydropowerProjeets. Discharges
of dredged or fill material associated
with (a) small hydropower projects at
existing reservoirs where the project,
which includes the fill, are licensed by
the Federal Energy Regulatory
Commission (FERC) under the Federal
Power Act of 1920, as amended; and has
a total generating capacity of not more
than 5000 klV; and the permittee
notifies the District Engineer in
accordattc:e with the "Notification-
General Condition; or (b) hydropower
projects for which the FE RC has granted
an exemption from licensing pursuant
to section 408 of the Energy Security
Act of 1980 (16 U.S.(:. 2705 and 2708)
and section 30 of the Federal Power A(;t,
as amended; provided file perinittbe
notifies the I )istrict Engineer in
accordance with the "Notification"
General Condition. (Section <to-I)
18., tWinor Discharges. Minor
discharges of dredged or fill material
into all waters of the US if the activity
meets all of the following criteria:
a. The quantity of discharged material
and the voltnne of area excavated do riot
exceed 25 cubic yards below the place
of the ordinary high water mark or the
)sigh tide line;
b. The discharge, including any
excavated area, will not cause the loss
of more than Vio-acre of a special
aquatic site, including wetlands. For the
purposes of this NWP, the acreage
limitation includes the filled area and
excavated area plus special aquatic sites
that are adversely affected by flooding
and special aquatic sites that are
drained so that they would no longer he
a water of the US as a result of the
project;
c. If the discharge, including any
excavated area, exceeds 10 cubic yards
below the plane of the ordinary high
water mark or the high tide line or if the
discharge is in a special aquatic site,
including wetlands, the peruittee
notifies the District Engineer in
accordance with the "Notification"
General Condition. For discharges in
special aquatic sites, including
wetlands, the notification must also
include a delineation of affected special
aquatic: sites, including wetlands (also
see 33 CFR 330.1(e)); and
d. The discharge, including all
attendant features, both temporary and
permanent, is part of a single and
complete project and is not placed for
the purpose of a stream diversion.
(Sections 10 and 404)
19. Minor Dredging. Dredging of no
more than 25 cubic yards helow the
plane of the ordinary high water mark
or the mean high water mark from
navigable waters of the US (i.e., Section
10 waters) as part of a single and
complete project. This NWP does not
authorize the dredging or degradation
through siltation of coral reefs, sites that
support submerged aquatic vegetation
(including sites where submerged
aquatic vegetation is documented to
exist, but may not be present in a given
year), anadronuous fish spawning areas,
or wetlands, or the connection of canals
or other artificial waterways to
navigable waters of the LIS (see 33 CFR
322.5(1,)). (Sections 10 and 404)
20. Oil Spill Cleanup. Activities,
required for the rontairrment and
cleanup of oil and hazardous substances
which are subject to the National Oil
and Hazardous Substances Pollution
Contingency Plan (40 CFR part 300)
Provided that the work is clone in
accordance with the Spill Control and
Countermeasure Plan required by 40
CF'R 112.3 and any existing state
contingency [)fall and provided that the
Regional Response Team (if one exists
in the area) concurs with the proposed
contaiurnuiit and cleanup action.
(Sections 10 and 404)
2I. Surface Cool Mining Activities.
Discharges of dredged or fill material
into waters of the LIS associated with
surface coal raining and reclamation
operations provided the coal mining
activities are authorized by the DOI,
Office Of Surface Mining (OSM), or by
states with approved programs under
Title V of the Surface Mining Control
and Reclamation Act of 1977 and
provided the perrnittee notifies the
District E'ligineer in accordance with the
"Notification" General Condition. In
addition, to be authorized by this NWP,
the District Engineer must determine
that the activity complies with the terms
and conditions of the NWP and that the
adverse environmental effects are
minimal both individually and
cumulatively and must notify the
project sponsor of this determination in
writing. Tire Corps, at the discretion of
the District Engineer, may require a
bond to ensure success of the
mitigation, if no other Federal or state
agency has required one. For discharges
in special aquatic: sites, including
wetlands, and stream riffle and pool
complexes, the notification must also
include a delineation of affected special
aquatic sites, including wetlands. (also,
see 33 CFR 330.1(e))
Mitigation: In determining the need
for as well as the level and type of
mitigation, the District Engineer will
ensure no more than minimal adverse
effects to the aquatic environment
occur. As such, District Engineers will
determine oil a case-by-case basis the
requirement for adequate mitigation to
onsure the offects to aquatic systems are
minimal. In cases where OSM or the
state has required mitigation for the loss
of aquatic habitat, the Corps may
consider this in determining appropriate
mitigation under Section 404. (Sections
10 and 404)
22. Removal of Vessels. Temporary
structures or minor discharges of
dredged or, fill material required for the
removal of wrecked, abandoned, or
disabled vessels, or the removal of man-
2082 Federal Register / Vol. 67, No. I 0 /'I'uesda
y, JunurrV 15. / Nnticn.e
made obstructions to navigation. This
NWP does not authorize the removal of
vessels listed or determined eligible tor
listing ou the National Register of
Ilistoric Places unless the District
EDF,ineer is notified and indicates that
there is compliance with the ''Historic
Properties" General Condition. This
NWP does not authorize maintenance
dredging, shoal removal, or riverbank
snagging. Vessel disposal in waters of
the US may need a permit from EPA
(see 40 CFR :?29.3). (Sections 10 and
404)
23. Approved Categoricolli,rclusions.
Activities undertaken, assisted,
authorized, regulated, funded, or
financed, in whole or in part, by another
Federal agency or department where
that agency or department has
determined, pursuant to the Council on
Environmental Quality Regulation for
hnplernenhiu, the Procedural Provisious
of the National Environmental Policy
Act (NEPA) (40 CFR part 1500 et seq.),
that the activity, work, or discharge is
categorically excluded from
environmental documentation, because
it is included within a category of
actions which neither individually nor
cumulatively have a significant effect on
the human environment, and the Office
of the Chief of Engineers (ATTN: CECW-
OR) has been furnished notice of the
agency's or department's application for
the categorical exclusion and concurs
with that determination. Before
approval for purposes of this NWP of
any agency's categorical exclusions, the
Chief of Engineers will solicit public
comment. In addressing these
continents, the Chief of Engineers may
require certain conditions for
authorization of an agency's categorical
exclusions carder this NWP. (Sections
10 and 404)
24. State Administered Section 404
Program. Any activity permitted by a
state administering its own Section 404
permit program pursuant to 33 U.S.C.
1344(g)-(1) is permitted pursuant to
section 10 of the Rivers and Harbors Act
of 1899. Those activities that do not
involve a Section 404 state permit are
not included in this NWP, but certain
structures will be exempted by section
154 of Pub. L. 94-587, 90 Stat. 2917 (33
U.S.C. 591) (see 33 CPR 322.3(x)(2)).
(Section 10)
25. Structural Disehni-es. Discharges
of material such as concrete, sand, rock,
etc., into tightly sealed forms or cells
where the material will be used as a
structural member for standard pile
supported structures, such as bridges,
transmission line footings, and
walkways or for general navigation,
such as mooring cells, including the
excavation of bottom material from
within the form prior to the discharge r
concrete, sand, rock, etc. This NWP
does not authorize filled structural
members that would support buildings,
building pads, homes, house pads,
parking areas, storage areas and other
such structures. 't'he structure itself ina
require it Section 10 permit if located in
navigable waters of the US. (Section
404)
2G. [Reserved[
27. Strcaut and bVetlanr] Restoration
Activities. Activities in waters of the US
associated with the restoration of forme
waters, the enhancement of degraded
tidal and non-tidal wetlands and
riparian areas, the creation of tidal and
non-tidal wetlands and riparian areas,
and the restoration and enhancement of
uou-tidal streams and non-tidal open
water areas as follows:
(a) The activity is ronductcrl on:
(1) Non-Federal public lands and'.
private lands, in uccordanco with the
terms and conditions Of,,, binding
wetland enhancement, restoration, or
creation agreement between the
landowner and the U.S. Fish and
Wildlife Service (FWS) or the Natural
Resources Conservation Service (NRCS),
the National Marine Fisheries Service,
the National Ocean Service, or
voluntary wetland restoration,
enhancement, and creation actions
documented by the, NRCS pursuant to
NRCS regulations; or
(2) Rec aimed surface coal mine
lands, in accordance with a Surface
Mining Control and Reclamation Act
permit issued by the OSM or the
applicable state agency (the future
reversion does not apply to streams or
wetlands created, restored, or eulrancu(!
us mitigation for the raining impacts,
nor naturally due to hydrologic or
topographic features, nor fora
mitigation bank); or
(3) Any other public, private or tribal
lands;
(b) Notification: For activities or any
public or private laud that arc not
described by paragraphs (a)(1) or (a)(2)
above, the permittee must notify the
Iistrict Engineer in accordance with
General Condition 13; and
(c) Planting of only native species
should occur oil the site.
Activities authorized by this NWP
include, to the extent that a Corps
permit is required, but are not liutitud
to: the renwval of accumulated
sediments; the installation, removal,
and maintenance of small water control
structures, dikes, and berms, the
installation of current deflectors; the
enhancement, restoration, or creation of
riffle and pool stream structure; fire
placement of in-stream habitat
structures; modifications of the stream
f bed and/or banks to restom or create
stream meanders; the backfilling of
artificial channels and drainage ditches;
the rc;ntoval of e.,xisting drainage
structru'es; tlu; construction of small
nesting islands; the constructinn of open
y water areas; the construction of oyster
habitat over unvegetated bottom in tidal
waters; activities needed to reestablish
vegetation, including plowing or discing
for seed bed preparation and the
planting of appropriate wetland species;
mechanized land clearing to remove
r uou-native invasive, exotic or nusiance
vegetation; and other related activities.
This NWP does not authorize the
conversion of a stream to another
aquatic use, such as the creation of an
intpuuuchrn:rrt for waterfowl habitat.
This NWP does not authorize stream
channelization. This NWP does not
authorize the conversion of natural
wetlands to another aquatic use, such as
creation of waterfowl impoundments
where a forested wetland previously
existed. IIowever, this NWP authorizes
the relocation of non-tidal waters,
including non-tidal wetlands, on the
project site provided there are net gains
in aquatic resource functions and
values. For example, this NWP may
authorize the creation of an open water
impoundment in a non-tidal emergent
wetland, provided the nort-tidal
emergent wetland is replaced by
creating that wetland type oar the project
site. This NWP does not authorize the
relocation of tidal waters or the
conversion of tidal waters, including
tidal wetlands, to other aquatic uses,
such as the conversion of tidal wetlands
into open water irpoundmetits,
Reversion. For enhancement,
restoration, and creation projects
conducted tinder paragraphs (a)(3), this
NVVP does not authorize any future
discharge of dredged or fill material
associated with the reversion of the area
to its prior condition. Ill such cases a
separate perrnit would be required for
any reversion. For restoration,
enhancement, and creation projects
conducted corder paragraphs (a)(1) and
(a)(2), this NWP also authorizes any
future discharge of dredged or fill
material associated with the reversion of
the area to its documented prior
condition and use (i.e., prior to the
restoration, enhancement, or creation
activities). The reversion must occur
within five years after expiration of a
limited turrn wetland restoration or
creation agreement or permit, even if the
discharge occurs after this NWP expires.
This NWP also authorizes the reversion
of wetlands that wero restored,
entranced, or created on prior-converted
cropland that has not been abandoned,
in accordance with a binding agreement
Federal Register/ Vol. 67, No. W /Tuesday, January 15, 2002/Notices
20133
between the landowner and NRCS or
FWS (even though the restoration,
enhancement, or creation activity did
not require a Section 404 permit). The
five-year reversion limit does not apply
to agreements without time limits
reached under paragraph (a)(1). The
prior condition will be documented in
the original agreement or permit, and
the determination of return to prior
conditions will be made by the Federal
agency or appropriate state agency
executing the agreement or permit.
Before any reversion activity the
permittee or the appropriate Federal or
state agency most notify the District
Engineer and include the
documentation of the prior condition.
Once an area has reverted to its prior
physical condition, it will be subject to
whatever the Corps Regulatory
requirements will be at that future date.
(Sections 10 and 404)
Note: Compensatory mitigation is not
required for activities authorized by this
NWP, provided the authorized work results
in a net increase in aquatic resource
functions and values in the project area. 11 us
NWP can be used to authorize compensatory
mitigation projects, including mitigation
banks, provided the, permittee notifies the
District Engineer in accordance with General
Condition 13, and the project includes
compensatory mitigation for impacts to
waters of the US caused by the authorized
work. However, this NWP does not authorize
the reversion of an area used for a
compensatory mitigation project to its prior
condition. NWP 27 can be used to authorize
impacts at a mitigation bank, but only in
circumstances where it has been approved
under the Interagency Federal Mitigation
Bank Guidelines.
28. Modifications of Existing Marinus.
Reconfiguration of existing clocking
facilities within all authorized marina
area. No dredging, additional slips, clock
spaces, or expansion of any kind within
waters of the US, is authorized by this
NWP. (Section 10)
29. Single-family Housing. Discharges
of dredged or fill material into non-tidal
waters of the US, 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 Vi-acre of non-tidal
waters of the US, including non-ticlal
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 nn-
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 IJS of acre for the entire
subdivision;
e. Ain 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 NVVP may not be used in
conjunction with NVVP 14 or NWP 18,
for any parcel; and,
h. Sufficient vegetated buffers must be
maintained adjacent to all open water
bodies, streams, etc., to preclude water
quality degradation clue to erosion and
sedimentation.
For the purposes of this NVVP, the
acreage of loss of waters of the US
includes the filled area previously
permitted, the proposed filled area, and
anv other waters of the US that are
adversely affected by flooding,
excavation, or drainage as a result of the
project. 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 NW, 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)
30. Pvtoist Soil Monagement for
Wildlife. Discharges of dredged or fill
material and maintenance activities that
are associated with moist soil
management for wildlife performed on
non-tidal Federally-owned or managed,
state-owned or managed property, and
local government agency-owned or
managed property, for the purpose of
continuing ongoing, site-specific,
wildlife management activities where
soil manipulation is used to manage
habitat and feeding areas for wildlife.
Such activities include, but are not
limited to: The repair, maintenance or
replacement of existing water control
structures; the repair or maintenance of
dikes; and plowing or discing to impede
succession, prepare seed beds, or
establish fire breaks. Sufficient
vegetated huffers most be maintained
adjacent to all open water bodies,
streams, etc., to preclude water quality
degradation due to erosion and
sedimentation. This NWP does not
authorize the construction of new dikes,
roads, water control structures, etc.
associated with the management areas.
This NWP does not authorize converting
wetlands to uplands, impoundments or
other open water bodies. (Section 404)
31. Maintenance of Existing Flood
Control Facilities. Discharge of dredge
or fill material resulting from activities
associated with the maintenance of
existing flood control facilities,
including debris basins, retention/
detention basins, and channels that
(i) were previously authorized by the
Corps by Individual Permit, General
Permit, by 33 CFR 330.3, or did not
require a permit at the time it was
constructed, or
(ii) were constructed by the Corps and
transferred to a non-Federal sponsor for
operation and maintenance. Activities
authorized by this NVVP are limited to
those resulting from maintenance
activities that are conducted within doe
''maintenance baseline," as described in
the definition below, Activities
including the discharges of dredged or
fill materials, associated with
maintenance activities in flood control
facilities in any watercourse that has
previously been determined to be
within the maintenance baseline, are
authorized under this NWP. The NWP
does not authorize the removal of
sediment and associated vegetation from
the natural water courses except to the
extent that these have been included in
the maintenance baseline. All dredged
material must be placed in all upland
site or an authorized disposal site in
waters of the US, and proper siltation
controls most be used. (Activities of any
kind that result in only incidental
fallback, or only the cutting and
removing of vegetation above the
ground, e.g., mowing, rotary cutting,
and chainsawing, where the activity
neither substantially disturbs the root
system nor involves mechanized
pushing, dragging, or other similar
activities that redeposit excavated soil
material, do not require a Section 404
permit in accordance with 33 CFR
323.2(d)(2)).
Notification: After the maintenance
baseline is established, and before any
maintenance work is conducted, the
permittee must notify the District
Engineer in accordance with the
"Notification" General Condition. The
notification may be for activity-specific
r.
2084 Federal Register / Vol. 67, No. 10 / Tuesday, January 15, 2002/Notices
maintenance or for maintenance of the
entire flood control facilit
b I lowever, if one-time mitigation is
i
d f activity subject to the terms and
y
y
submitting a five year (or loss) requ
re
or impacts associated with
maintenance activities, the District conditions of this NWP and the
settlement agreement
includin
a
maintenance plan.
Nlaintenonce Baseline: The Engineer will not delay needed ,
g
specified completion date; or

maintenance baseline is it description of maintenance, provided the District
Engineer and the permitter establish a (ii) The terms of a final Federal court
decision
consent decree
or settlement
the physical characteristics (e.g., depth,
width, length, location, configuration, or schedule for identification, approval,
development, construction and ,
,
agreement resulting from all
enforcement action brought by the G
S

design flood capacity, etc.) of a flood
control project within which
completion of any such required
i
i .
.
under section 404 of the CWA and/or

maintenance activities are normally m
t
gation. Once the one-time
mitigation described above has been section 10 of the Rivers and Harbors Act
of 1899; or
authorized by NWP 31, subject to any completed, or a determination made (iii) The terms of a final court
case-specific conditions required by the that niltigation is not required, no decision, consent decree, settlement
District Engineer. The District Engineer
will approve the maintenance baseline further mitigation will be required for
i agreement, or non-judicial settlement

based on the approved or constructed ma
ntenance activities within the
maintenance baseline. In determining agreement resulting from a natural
resource: damage claim brought by a
capacity of the flood control facility,
whichever is smaller, including any appropriate mitigation, the District
Engineer will give special consideration trustee or trustees for natural resources
(as defined by the National Contingency
areas where there are no constructed
channels
but which are
art of the to natural water courses that have been
i
l
d Plan at 40 CFR subpart G) under section
,
p
facility. If no evidence of the nc
u
ed in the maintenance baseline
and require compensatory mitigation 311 of the Clean Water Act (CWA),
section 107 of the Comprehensive
constructed capacity exist, the approved
constructed capacity will be used. The and/or 131,41's as appropriate.
Emergency Situations: In eniergericy Environmental Response, Compensation
and Liability Act (CERCLA or
prospective pernrittee will provide
documentation of the physical situations, this NWP may be used to
authorize maintenance activities in Superfund), section 312 of the National
Marine Sanctuaries Act (NMSA)
section
characteristics of the flood control flood control facilities for which no ,
1002 of the Oil Pollution Act of 1990
facility (which will normally consist of
as-built or approved drawings) and maintenance baseline has been
approved. Emer
enc
situations ar (OPA), or the Park System Resource
Pr
t
ti
A
t
t
U
S
C
`

documentation of the design capacities g
y
e
those which would result in an o
ec
on
c
a
16
.
.
.
19jj, to the
extent that a Corps permit is required.
of the flood control facility. The unacceptable hazard to life, a significant For either (ii) or (iii) above

documentation will also include BMPs
loss of property, or ail immediate, ,
compliance is a condition of the MVP
to ensure that the impacts to the aquatic unforeseen, and significant economic itself. Any authorization under this
environment are minimal, especially in hardship if action is not taken before a NWP is automatically revoked if the
maintenance areas where there are no maintenance baseline can be approved. pernrittee does riot comply with the
constructed channels. (The Corps may In such situations, the determination of terms of this MVP or the terms of the
request maintenance records in areas
where there has riot been recent mitigation requirements, if any, may be
deferred until the emergency has been court decision, consent decree, or
judicial/non-judicial settlement
maintenance.) Revocation or resolved. Once the emergency has agreement or fails to complete the work
modification of the final determination ended, a maintenance baseline must be by the specified completion date. This
of the maintenance baseline can only be established expeditiously, and NWP does not apply to any activities
clone in accordance with 3,9 CFR 330.5. mitigation, including mitigation for occurring after the date of the decision,
Except in emergencies as described maintenance conducted during the, decree, or agreement that are not for the
below, this NbVP can not be used until emergency, must be requires] as purpose of mitigation, restoration, or
the District Engineer approves the appropriate. (Sections 10 and 404) environmental benefit. Before reaching
maintenance baseline and determines 32. Completed Enforcement Actions. any settlement agreement, the Corps
the need for mitigation and any regional Any structure, work or discharge of will ensure compliance with the
or activity-specific conditions. Once dredged or fill material, remaining in provisions of 33 CFR part 326 and 33
determined, the maintenance baseline place, or undertaken for mitigation CFR 330.6 (d)(2) and (e). (Sections 10
will remain valid for any subsequent ,
restoration, or environmental benefit in and 404)
reissuance of this NWP. This permit compliance with either: 33. Temporary Construction, Access
does riot authorize maintenance of a (i) The terms of a final written Corps and Dewatering. Temporary structures,
flood control facility that has been non-judicial settlement agreement work and discharges, including
abandoned. A flood control facility will resolving a violation of section 404 of cofferdams, necessary for construction
be considered abandoned if it has the CWA and/or section 10 of the Rivers activities or access fills or dewatering of
operated at a significantly reduced and Harbors Act of 1899; or the terms construction sites; provided that the
capacity without needed maintenance of an EPA 309(a) order on consent associated primary activity is authorized
being accomplished in a timely manner. resolving a violation of section 404 of by the Corps of Engineers or the USCG,
Mitigation: The District Engineer will the CWA, provided that: or for other construction activities not
determine any required mitigation one- a. The unauthorized activity affected subject to the Corps or USCG
time only for impacts associated with no more than 5 acres of non-tidal regulations. Appropriate measures must
maintenance work at the same time that
the maintenance baseline is approved. wetlands or 1 acre of tidal wetlands;
b. The settlement a
reement
rovides be taken to maintain near normal
downstream flows
nd to
i
i
i

Such one-time mitigation will be g
p
for environmental benefits, to an equal a
m
n
m
ze
flooding. Fill must be of materials, and
required when necessary to ensure that or greater degree, than the placed in a manner
that will not be
adverse environmental impacts are no
more than minimal
both individuall environmental detriments caused by the
h ,
eroded by expected high flows. The use
,
y
and cumulatively. Such mitigation will unaut
orized activity that is authorized
by this NWP; and of dredged material may be allowed if
it is determined by the District Engineer
only be required once for any specific c. The District Engineer issues a that it will not cause more than minimal
reach of a flood control project. verification letter authorizing the adverse effects on aquatic resources.
Federal Register/Vol. 67, No. 10 / Tuesday, January 15, 2002/Notices 2nm
Temporary fill must he entirely remove
to upland areas, or dredged material
returned to its original location,
following completion of the
construction activity, and the affected
areas must be restored to the pre-project
conditions. Cofferdams cannot be used
to dewater wetlands or other aquatic
areas to change their use. Structures left
in place after cofferdams are removed
require a Section 10 permit if located in
navigable waters of the U.S. (See 33 CFZ
I
part 322). The permittee must notify the
District Engineer in accordance with the
"Notification" General Condition. The
notification must also include a
restoration plan of reasonable measures
to avoid and minimize adverse effects to
aquatic resources. The District Engineer
will add Special Conditions, where
necessary, to ensure environmental
adverse effects is minimal. Such
conditions may include: limiting the
temporary work to the minimum
necessary; requiring seasonal
restrictions; modifying the restoration
plan; and requiring alternative
construction methods (e.g. construction
mats in wetlands where practicable.).
(Sections 10 and 404)
34. Cranberry Prnduction Activities.
Discharges of dredged or fill material for
dikes, berms, pumps, water control
structures or leveling of cranberry beds
associated with expansion,
enhancement, or modification activities
at existing cranberry production
operations provided that the activity
meets all of the following criteria:
a. The cumulative total acreage of
disturbance per cranberry production
operation, including but riot limited to,
filling, flooding, ditching, or clearing,
does not exceed 10 acres of waters of the
U.S., including wetlands;
b. The permittee notifies the District
Engineer in accordance with the
"Notification" General Condition. The
notification must include a delineation
of affected special aquatic sites,
including wetlands; and,
c. The activity does not result in a net
loss of wetland acreage. This NWP does
not authorize any discharge of dredged
or fill material related to other cranberry
production activities such as
warehouses, processing facilities, or
parking areas. For the purposes of this
NWP, the cumulative total of 10 acres
will be measured over the period that
this NWI' is valid. (Section 404)
35. Maintenance Dredging of Existing
Rosins. Excavation and removal of
accumulated sediment for maintenance
of existing marina basins, access
channels to marinas or boat slips, and
boat slips to previously authorized
depths or controlling depths for ingress/
egress, whichever is less, provided the
d dredged material is disposed of at an
upland site and proper siltation controls
are used. (Section 10)
:36. Root Ramps. Activities required
for the construction of boat ramps
provided:
a. The discharge into waters of the
U.S. does not exceed 50 cubic yards of
concrete, rack, crushed stone or gravel
into forms, or placement of pre-cast
concrete planks or slabs. (Unsuitable
material that causes unacceptable
chemical pollution or is structurally
unstable is not authorized);
b. The boat ramp does not exceed 20
feet in width;
c. The base material is crushed stone,
gravel or other suitable material;
d. The excavation is limited to the
area necessary for site preparation and
all excavated material is removed to the
upland; and,
e. No material is placed in special
aquatic sites, including wetlands.
Another NWP, Regional General
Permit, or Individual Permit may
authorize dredging to provide access to
the boat ramp after obtaining a Section
10 if located in navigable waters of the
U.S. (Sections 'to and 404)
37. Emergency Watershed Protection
and Rehabilitation. Work done by or
funded by:
a. The NRCS which is a situation
requiring immediate action under its
emergency Watershed Protection
Program (7 CFR part 624); or
b. The USES under its Burned-Area
Emergency Rehabilitation Handbook
(FSH 509.13); or
c. The DOI for wildland fire
management burned area emergency
stabilization and rehabilitation (DOI
Manual part 620, Ch. 3).
For all of the above provisions, the
District Engineer must be notified in
accordance with the General Condition
13. (Also, see 33 CFR 330.1(e)).
(Sections 10 and 404)
38. Cleanup of Hazardous and Toxic
Waste. Specific activities required to
effect the containment, stabilization, or
removal of hazardous or toxic waste
materials that are performed, ordered, or
sponsored by a government agency with
established legal or regulatory authority
provided the permittee notifies the
District Engineer in accordance with the
"Notification" General Condition. For
discharges in special aquatic sites,
including wetlands, the notification
must also include a delineation of
affected special aquatic sites, including
wetlands. Court ordered remedial action
plans or related settlements are also
authorized by this NWP. This NWP does
not authorize the establishment of new
disposal sites or the expansion of
existing sites used for the disposal of
hazardous or toxic waste. Activities
undertaken entirely on a
Comprehensive Environmental
Response, Compensation, and Liability
Act (CERCLA) site by authority of
CERCLA as approved or required by
EPA, are not required to obtain permits
under section 404 of the CWA or section
10 of the Rivers and Harbors Act.
(Sections 10 and 404)
39. Residential, Commercial, and
Institutional Developments. Discharges
of dredged or fill material into non-tidal
waters of the U.S., excluding non-tidal
wetlands adjacent to tidal waters, for the
construction or expansion of residential,
commercial, and institutional building
foundations and building pads and
attendant features that are necessary for
the use and maintenance of the
structures. Attendant features may
include, but are not limited to, roads,
parking lots, garages, yards, utility lines,
storrnwater management facilities, and
recreation facilities such as
playgrounds, playing fields, and golf
courses (provided the golf course is in
integral part of the residential
development). The construction of new
ski areas or oil and gas wells is not
authorized by this NWP,
Residential developments include
multiple and single unit developments.
Examples of commercial developments
include retail stores, industrial facilities,
restaurants, business parks, and
shopping centers. Examples of
institutional developments include
schools, fire stations, government office
buildings, judicial buildings, public
works buildings, libraries, hospitals,
and places of worship. The activities
listed above are authorized, provided
the activities meet all of the following
criteria:
a. The discharge does not cause the
loss of greater than 1/2-acre of non-tidal
waters of the U. S., excluding non-tidal
wetlands adjacent to tidal waters;
b. The discharge does not cause the
loss of greater than 300 linear-feet of a
stream bed, unless for intermittent
stream beds this criterion is waived in
writing pursuant to a determination by
the District Engineer, as specified
below, that the project complies with all
terms and conditions of this NWP and
that any adverse impacts of the project
on the aquatic environment are
minimal, both individually and
cumulatively;
c. The permittee must notify the
District Engineer in accordance with
General Condition 13, if any of the
following criteria are met:
(1) The discharge causes the loss of
greater than Iho-acre of non-tidal waters
of the US, excluding non-tidal wetlands
adjacent to tidal waters; or
2086 Federal Register / Vol. 67, No. 10/Tuesday, January 15, 2002 /Notices
(2) The discharge causes the loss of
any open waters, including perennial of
intermittent streams, below the ordinary
hi- h water mark (see Note, below); or
('3) The discharge causes the loss of
greater than 300 linear feet of
intermittent stream bed. In such case, to
be authorized the District Engineer must
determine that the activity complies
with the other terms and conditions of
the NWP, determine adverse
environmental effects are minimal both
individually and cumulatively, and
waive the limitation on stream impacts
in writing before the permittee may
proceed;
d. For discharges in special aquatic.
sites, including wetlands, the
notification must include a delineation
of affected special aquatic sites;
e. The discharge is part of a single and
complete project;
f. The permittee must avoid and
minimize discharges into waters of the
US at the project site to the maximum
extent practicable. The notification,
when required, must include a written
statement explaining how avoidance
and minimization of losses of waters of
the US were achieved on the project
site. Compensatory mitigation will
normally be required to offset the losses
of waters of the US. (See General
Condition 19.) The notification must
also include a compensatory mitigation
proposal for offsetting unavoidable
losses of waters of the US. If an
applicant asserts that the adverse effects
of the project are minimal without
mitigation, then the applicant may
submit justification explaining why
compensatory mitigation should not be
required for the District Engineer's
consideration;
g. When this NWP is used in
conjunction with any other NWP, any
combined total permanent loss of waters
of the US exceeding 1/lo-acre requires
that the permittee notify the District
Engineer in accordance with General
Condition 13;
h. Any work authorized by this NWP
must not cause more than minimal
degradation of water quality or more
than minimal changes to the flow
characteristics of any stream (see
General Conditions 9 and 21);
i. For discharges causing the loss of
1ho-acre or less of waters of the US, the
permittee must submit a report, within
30 days of completion of the work, to
the District Engineer that contains the
following information: (1) The name,
address, and telephone number of the
permittee; (2) The location of the work;
(3) A description of the work; (,I) The
type and acreage of the loss of waters of
the US (e.g., 1A2-acre of emergent
wetlands); and (5) The type and acreage
of any compensatory mitigation used to
offset the loss of waters of the US (e.g.,
1h2-acre of emergent wetlands created
on-site);
j. If there are any open waters or
streams within the project area, the
permittee will establish and maintain, to
t the maximum extent practicable,
wetland or upland vegetated buffers
next to those open waters or streams
consistent with General Condition 19.
Deed restrictions, conservation
easerni nts, protective covenants, or
other means of land conservation and
preservation are required to protect and
maintain the vegetated buffers
established on the project site.
Only residential, commercial, and
institutional activities with structures
on the foundation(s) or building pad(s),
as well as the attendant features, are
authorized by this NWP, The
compensatory mitigation proposal that
is required in paragraph (e) of this NWP
may be either conceptual or detailed.
The wetland or upland vegetated buffer
required in paragraph (i) of this NWP
will be determined on a case-by-case
basis by the District Engineer for
addressing water quality concerns. The
required wetland or upland vegetated
buffer is part of the overall
compensatory mitigation requirement
for this NWP. If the project site was
previously used for agricultural
purposes and the farm owner/operator
used NWP 40 to authorize activities in
waters of the US to increase production
or construct farm buildings, NWP 39
cannot be used by the developer to
authorize additional activities. This is
more than the acreage limit for NWP 39
impacts to waters of the US (i.e., the
combined acreage loss authorized under
NWPs 39 and 40 cannot exceed 1/ -acre,
see General Condition 15).
Subdivisions: For residential
subdivisions, the aggregate total loss of
waters of US authorized by NWP 39 can
not exceed 1/2-acre, This includes any
loss of waters associated with
development of individual subdivision
lots. (Sections 10 and 404)
Note: Areas where wetland vegetation is
not present should be determined by the
presence or absence of an ordinary high
water mark or bed and bank. Areas that are
waters of the US based on this criterion
would require a PCN although water is
infrequently present in the stream channel
(except for ephemeral waters, which do not
require PCNs).
40. Agricultural Activities. Discharges
of dredged or fill material into non-tidal
waters of the US, excluding non-tidal
wetlands adjacent to tidal waters, for r
improving agricultural production and
the construction of building pads for
farm buildings. Authorized activities c
include the installation, placement, or
construction of drainage tiles, ditches,
or levees; mechanized land clearing;
land leveling; the relocation of existing
serviceable drainage ditches constructed
in waters of the US; and similar
activities, provided the permitter;
complies with the following terms and
conditions:
a. For discharges into non-tidal
wetlands to improve agricultural
production, the following criteria must
be met if the permittee is an United
States Department of Agriculture
(USDA) Program participant:
(1) The permittee must obtain a
categorical minimal effects exemption,
minimal effect exemption, or mitigation
exemption from NRCS in accordance
with the provisions of the Food Security
Act of 1985, as amended (16 U.S.C. 3801
et seq.);
(2) The discharge into non-tidal
wetlands does not result in the loss of
greater than V,-acre of non-tidal
wetlands on a farm tract;
(3) The permittee must have NRCS-
certified wetland delineation;
(4) The permittee must implement an
NRCS-approved compensatory
mitigation plan that filly offsets
wetland losses, if required; and
(5) The permittee crust submit a
report, within 30 clays of completion of
the authorized work, to the District
Engineer that contains the following
information: (a) The name, address, and
telephone number of the permittee; (b)
The location of the work; (c) A
description of the work; (d) The type
and acreage (or square feet) of the loss
of wetlands (e.g., 1/3-acre of emergent
wetlands); and (e) The type, acreage (or
square feet), and location of
compensatory mitigation (e.g. IA-acre of
emergent wetland on a farm tract;
credits purchased from a mitigation
bank); or
h. For discharges into non-tidal
wetlands to improve agricultural
production, the following criteria must
be met if the permittee is not a USDA
Program participant (or a USDA
Program participant for which the
proposed work does not qualify for
authorization under paragraph (a) of this
NWP):
(1) The discharge into non-tidal
wetlands does not result in the loss of
greater than 1/2-acre of non-tidal
wetlands on a farm tract;
(2) The permittee must notify the
District Engineer in accordance with
General Condition 13, if the discharge
exults in the loss of greater than 1ho-
acre of non-tidal wetlands;
(3) The notification must include a
lelineation of affected wetlands; and
Federal Register/Vol. 67, No. 10 / Tuesday, January 15, 2002/Notices 2087
(4) The notification must include a discharge qualifies for an exemption ditches to their original dimensions and
compensatory mitigation proposal to
offset losses of waters of the US; or under section 404(1) of the CWA, even
though a categorical minimal effects configuration, which does not require a
Section 404 permit (see 33 CFR
c. For the construction of building
pads for farm buildings, the discharge exemption, rninirnal effect exemption,
or miti
ti
i 323.4(a)(3)). This NWP does not

does not cause the loss of greater than ga
on exempt
on from NRCS
pursuant to the Food Security Act of authorize the relocation of drainage
ditches constructed in waters of the US

/z-acre of nori-tidal wetlands that were
in agricultural production prior to
1985, as amended, may be required,
Activities authorized b
ara
ra
hs a ;
the location of the centerline of the
h

December 23, 1985, (i.e., farmed
wetlands) and the permittee must notif y p
g
p
.
through d. may not exceed a total of v-,- res
aped drainage ditch must be
3pproximateiy the same as the location
y
the District Engineer in accordance with acre on a single farm tract. If the site wa
used for agricultural purposes and the s of the centerline of the original drainage
ditch
This NWP does not autho
i

General Condition 13; and
d. Any activity in other waters of the
farm owner/operator used either
paragraphs a
b
or c
of this NWP to .
r
ze
stream channelization or stream

US is limited to the relocation of
existing serviceable drainage ditches .,
.,
.
authorize activities in waters of the US
i relocation projects. (Section 404)
12. Recreational Facilities. Discharges

constructed in non-ticlal streams. This to
ncrease agricultural production or
construct faint buildings
and the of dredged or fill material into non-tidal

NWP does not authorize the relocation
of greater than 300 linear-feet of existin ,
current landowner wants to use NWP 39

h waters of the US, excludin non-tidal
g
wetlands adjacent to tidal waters, for the
g
serviceable draina e ditches constructed
g to aut
orize residential, commercial, or
industrial development activities in construction or expansion of

in non-tidal streams unless, for drainage
waters of the US on the site
the recreational facilities, provided the

ditches constructed in intermittent non- ,
combined acreage loss authorized by activity greets all of the following
b
tidal streams, the District Engineer
waives this criterion in writing, and the NWPs 39 and 40 cannot exceed'/7.-acre
(see General Condition 15)
(Section criteria:
a. The discharge does not cause the
District Engineer has determined that .
404) loss of greater titan
acre of non-tidal
the project complies with all terms and 41. Reshaping Existing Drainage cl
waters of the US, excluding non tidal
conditions of this NWP, and that any Ditches. Discharges of dredged or fill wetlands adjacent to tidal waters;
adverse impacts of the project on the material into non-tidal waters of the US 1i• The discharge does not cause the
aquatic environment are minimal, both ,
excluding non-tidal wetlands adjacent loss of greater than 300 lineal feet of a
individually and cumulatively. For to tidal waters, to modify the cross stream bed, unless for intermittent
impacts exceeding ;300-linear feet of sectional configuration of currently stream beds this criterion is waived in
impacts to existing serviceable ditches
constructed in intermittent non-tidal serviceable drainage ditches constructed
in waters of the US. The reshaping of writing pursuant to a determination by
the District Engineer, as specified
streams, the permittee roust notify the the ditch cannot increase drainage below, that the project complies with all
District Engineer in accordance with the
" capacity beyond the original design terms and conditions of this NWP and
Notification" General Condition 13; capacity. Nor can it expand the area that any adverse impacts of the project
and
'' drained by the ditch as originally on the aquatic environment are
e. The term
farm tract'' refers to a designed (i.e., the capacity of the ditch minimal, both individually and
parcel of land identified by the Farm
Service Agency. The Corps will identify must be the same as originally designed
and it cannot drain additional wetlands cumulatively;
c. The permittee notifies the District
other waters of the US on the farm tract, or other waters of the US). Engineer in accordance with the
NRCS will determine if a proposed Compensatory mitigation is not required "Notification" General Condition 13 for
agricultural activity meets the terms and because the work is designed to improve discharges exceeding 300 linear feet of
conditions of paragraph a. of this NWP, water quality (e.g., by regrading the impact of intermittent stream beds. In
except as provided below. For those drainage ditch with gentler slopes such cases, to be authorized the District
activities that require notification, the ,
which can reduce erosion
increase Engineer must determine that the
District Engineer will determine if a ,
growth of vegetation, increase uptake of activity complies with the other terms
proposed agricultural activity is
authorized by paragraphs b., c., and/or nutrients and other substances by
vegetation, etc.). and conditions of the NWP, determine
the adverse environmental effects are
d. of this NWP. USDA Program Notification: The permittee must minimal both individually and
participants, requesting authorization for notify the District Engineer in cumulatively, and waive this limitation
discharges of dredged or fill material accordance with General Condition 13 if in writing before the permittee may
into waters of the US authorized by greater than 500 linear feet of drainage proceed;
paragraphs (c) or (d) of this NWP, in
addition to paragraph (a)
must notif ditch will be reshaped. Material
l
i
f d. For discharges causing the loss of
,
y
the District Engineer in accordance with resu
t
ng
rom excavation may riot be
permanently sidecast into waters but greater than ho-acre of non-tidal waters
of the US, the permittee notifies the
General Condition 13 and the District may be temporarily sidecast (up to three District Engineer in accordance with
Engineer will determine if the entire months) into waters of the US, provided General Condition 13;
single and complete project is
authorized by this NWP
Dischar
es of the material is not placed in such a
h e. For discharges in special aquatic
.
g
dredged or fill material into waters of manner t
at it is dispersed by currents
or other forces. The District Engineer sites, including wetlands, the
notification must include a delineation
the US associated with completing
required compensatory mitigation are may extend the period of temporary
sidecasting not to exceed a total of 180 of affected special aquatic sites;
f. The discharge is part of a single and
authorized by this NWP, however, total clays, where appropriate. In general, this complete project; and
impacts, including other authorized
impacts under this NWP, may riot NWP does not apply to reshaping
drainage ditches constructed in g. Compensatory mitigation will
normally be required to offset the losses
exceed the 1/2-acre limit of this NWP,
This NWP does riot affect
or
th
i uplands, since these areas are generally of waters of the US. The notification
,
o
erw
se
regulate, discharges associated with not waters of the US, and thus no permit
from the Corps is required, or to the must also include a compensatory
mitigation proposal to offset authorized
agricultural activities when the maintenance of existing drainage losses of waters of the US.
2088 Federal Register/Vol. (37, No. l0 / Tuesday, January 15, 2002 / Notices
For the purposes of this NWP, the greater than lh-acre of non-tidal waters
term "recreational facility" is defined as of the US
excludin
non-tidal w
tl
d that are exempt from Section 404 permit

a recreational activity that is integrated ,
g
e
an
s
o;d)'acent to tidal waters, requirements);
I. The permittee must avoid and
into the natural landscape and does not
substantially change preconstruction b. The discharge does not cause the
loss of greater than 300 linear-feel
f minimize discharges into waters of the
US

grades or deviate from natural landscap o
a
e stream bed, unless for intermittent at [he project site to the maximum
extent practicable
and the notification
contours. For the purpose of this permit
the primary function of recreational , stream beds this criterion is waived in
iti ,
must include a written statement to the

facilities does not include the use of wr
ng pursuant to a determination by
the District Engineer, as specified District Engineer detailing compliance
with [his condition (i.e. why the
motor vehicles, buildings, or impervious below, that the project complies with all
surfaces. Examples of recreational terms and conditions of this MVP
d discharge must occur in waters of the

facilities that may be authorized by this an
that any adverse impacts of the project
' US and why additional minimization
cannot be achieved);
NWP include hiking trails, bike paths,
horse paths, nature centers, and on th
O aquatic environment are,
minimal
both individuall
and g. The stormwater management
f
ili

campgrounds (excluding trailer parks). ,
y
cumulatively; ac
ty must comply with General
Condition 21 and be designed using
This NWP may authorize the
r c. For discharges causing the loss of BMPs and watershed protection
const
uction or expansion of golf
courses and the expansion of ski areas, greater than 300 linear feet of
intermittent stream beds, the permittee techniques. Examples ruay include
forebays (deeper areas at the upstream
provided the golf course or ski area does
not substantially deviate from natural notifies the District Engineer in
accordance with the. "Notification" end of the stormwater management

landscape contours. Additionally, these
General Condition 13. In such cases, to facility that would be maintained
through excavation)
vegetated buffers

activities are designed to minimize
adverse effects to waters of the US and
be authorized the District Engineer must
determine that the activity complies ,
,
and siting considerations to minimize
d

riparian areas through the use of such
with the other terms and conditions of a
verse effects to aquatic resources.
Another example of a I3ivIP would be
practices as integrated pest
management, adequate stormwater the NWP, determine the adverse
environmental effects are minimal both hioengineering methods incorporated

management facilities, vegetated buffers,
individually and cumulatively, and into the facility design to benefit water
quality and minimize adverse effects to
reduced fertilizer use, etc. The facility
must have an adequate water quality waive this limitation in writing before
the permittee may proceed; aquatic resources from storm flows,

management plan in accordance with
d. The discharges of dredged or fill especially downstream of the facility,
that provide
to the maximum extent
General Condition 9, such as a
t material for the construction of new ,
practicable, for long term aquatic
s
ormwater management facility, to
ensure that the recreational facility stormwater management facilities in
perennial streams is not authorized; resource protection and enhancement;
h. Maintenance excavation will be in
results in no substantial adverse effects e. For discharges or excavation for the accordance with an approved
to water quality. This NWP also
authorizes the construction or construction of new stormwater
management facilities or for the maintenance plan and will not exceed

expansion of small support facilities,
maintenance of existing stormwater the original contours of the facility as
approved and constructed; and
such as maintenance and storage
buildings and stables that are directly management facilities causing the loss
of greater than 'ho-acre of non-tidal i. The discharge rs art of a single and
P

related to the recreational activity. This
waters, excluding non-ticiat wetlands complete projec.(Se
iion 404)
44. Mining Activities. Discharges of
NWP does not authorize other adjacent to tidal waters, provided the dredged or fill material into:
buildings, such as hotels, restaurants, permittee notifies the District Engineer (i) Isolated waters; streams where the
etc. The construction or expansion of in accordance with the "Notification" annual average flow is 1 cubic foot per
playing fields (e.g., baseball, soccer, or General Condition 13. In addition, the second or less
and non-tidal wetlands
football fields), basketball and tennis notification must include: ,
adjacent to headwater streams
for
courts, racetracks, stadiums, arenas, and
the construction of new ski areas are not (1) A maintenance plan. The
maintenance plan should be in ,
aggregate mining (i.e., sand, gravel, and

authorized by this NWP. (Section 404)
accordance with state and local crushed and broken stone) and
associated support activities;
43. StorrnwaterMonagement requirements, if any such requirements (ii) Lower perennial streams

Facilities. Discharges of dredged or fill
material into non-tidal waters of the US,
exist;
(2) For discharges in special aquatic ,
excluding wetlands adjacent to lower
pererurial streams
for a
re
t
i
i

excluding non-tidal wetlands adjacent
sites, including wetlands and ,
gg
ga
e m
ng
n
activities (support activities in lower
to tidal waters, for the construction and submerged aquatic vegetation, the perennial streams or adjacent wetlands
maintenance of stormwater management
f
il notification must include a delineation are not authorized by this NWP); and/
ac
ities, including activities for the of affected areas; and or
excavation of stormwater ponds/ (3) A compensatory mitigation (iii) Isolated waters and non-tidal
facilities, detention basins, and proposal that offsets the loss of waters wetlands adjacent to headwater streams

retention basins; the installation arid
of the US. Maintenance in constructed ,
for hard rock/mineral mining activities
maintenance of water control structures,
outfall structures and emergency areas will not require mitigation
provided such maintenance is (i.e., extraction of metalliferous ores

spillways; and the maintenance
accomplished in designated frour subsurface locations) and
associated support activities
provided
dredging of existing stormwater maintenance areas and not within ,
the discharge meets the following
management ponds/facilities and compensatory mitigation areas (i.e., criteria:
detention and retention basins, District Engineers pray designate non- a. The mined area within waters of
provided the activity meets all of the maintenance areas, normally at the the US, plus the acreage loss of waters
following criteria:
a. The discharge for the construction downstream end of the stormwater
management facility
in existin of the US resulting from support
i

of new stormwater management ,
g
stormwater management facilities). (No act
vities, cannot exceed '/r-acre;
b. The permittee must avoid and
facilities does not cause the loss of mitigation will be required for activities minimize discharges into waters of the
Federal Register/Vol. 67, No. 10/Tuesday, January 15, 2002/Notices ?nsrn
I IS at the project site to the MdXimum
extent practicable, and the notification
must include a written statement
detailing compliance with this
condition (i.e., why the discharge must
occur in waters of the US and wkly
additional minimization cannot be
achieved);
r.. In addition to General Conditions
t7 and 20, activities authorized by this
permit mist not substantially alter the
sediment characteristics of areas of
concentrated shellfish beds or fish
spawning areas. Normally, the
mandated water quality management
plan should address these impacts;
d. The permittee must implement
necessary measures to prevent increases
in stream gradient and water velocities
and to prevent adverse effects (e.g., Ileact
cutting, bank erosion) to upstream and
downstream channel conditions;
e. Activities authorized by this permit
must not result in adverse effects on the
course, capacity, or condition of
navigable waters of the US;
f. The permittee must use measures to
minimize downstream turbidity;
S. Wetland impacts mist be
compensated through mitigation
approved by the Corps;
P1. Beneficiation and mineral
processing for hard rock/mineral mining
activities may not occur within 200 feet
of the ordinary high water mark of any
open waterbudy. Although the Corps
does not regulate discharges from these
activities, a CWA section 402 permit
may be required;
i. All activities authorized must
comply with General Conditions 9 and
21. Further, the District Engineer may
require modifications to the required
water quality managernent plan to
ensure that the authorized work results
in minimal adverse effects to water
quality;
j. Except for aggregate mining
activities in lower perennial streams, no
aggregate mining can occur within
stream beds where the average annual
flow is greater than 1 cubic foot per
second or in waters of the US within
100 feet of the ordinary high water mark
of headwater steam segments where the
average annual flow of the stream is
greater than 1 cubic foot per second
(aggregate mining can occur in areas
immediately adjacent to the ordinary
high water mark of a steam where the
average annual flow is 1 cubic foot per
second or less);
k. Single and complete project: The
discharge must be for a single and
complete project, including support
activities. Discharges of dredged or fill
material into waters of the US for
multiple mining activities on several
designated parcels of a single and
complete ruining operation can be
authorized by this NVVP provided the
'/2-acre limit is not exceeded; and
1. Nuhfiration. The permittee must
notify the District Engineer in
accordance with General Condition 13.
The notification must include: (1) A
description of waters of the US
adversely affected by the project; (2) A
written statement to the District
Engineer detailing compliance with
paragraph (b), above (i.e., why the
discharge must occur in waters of the
US and why additional minimization
cannot he achieved); (3) A description o
measures taken to ensure that the
proposed work complies with
paragraphs (c) through (f), above; and (4
A reclamation plan (for aggregate
mining in isolated waters ar,d non-tidal
wetlands adjacent to headwaters and
hard rock/mineral mining only).
This NWP (toes not gut rorize hard
rock/mineral mining, including placer
mining, in streams. No hard rock/
mineral mining can occur in waters of
the US within loo feet of the ordinary
high water mark of headwater streams.
The term's "headwaters" and "isolated
waters" are defined at 33 CFR 330.2(d)
and (e), respectively. For the purposes
of this NWP, the terra "lower perennial
stream" is defined as follows: "A stream
in which the gradient is low and water
velocity is slow, there is no tidal
influence, some water flows throughout
the vear, and the substrate consists
mainly of sand and mud." (Sections to
and 404)
C. Nationwide Permit General
Conditions
The following General Conditions
must be followed in order for any
authorization by an NWP 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. Soil Erosion and Sediment
Controls. Appropriate soil erosion and
sediment controls must be used and
maintained in effective operating
condition during construction, and all
exposed soil and other fills, as well as
anv work below the ordinary high water
mark or high tide line, must be
permanently stabilized at the earliest
practicable date. Permittees are
encouraged to perform work within
waters of the United States during
periods of low-flaw or no-flow.
4. Aquatic Life Movenients. No
activity may substantially disrupt the
necessary life-cycle movements of those
species of aquatic life indigenous to the
waterbudy, including those species that
normally migrate through the area,
Halos the activity's primary purpose is
to impound water. Culverts placod in
streams most be installed to maintain
low flow conditions.
5. L'quiprrtent. Heavy equipment
working in wetlands must he placed on
mats, or other measures must ho taken
to minimize soil disturbance.
6. Regionol and Case-By-Case
Conditions. The activity must comply
with any regional conditions that may
have been added by the Division
f Engineer (see 33 CFR 330.4(e)).
Additionally, any case specific
conditions added by the Corps or by the
state or tribe in its Section 401 Water
Quality Certification and Coastal "Lone
Management Act consistency
determination.
7. Will 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; unless the
appropriate Federal agency, with direct
management responsibility for such
river, has determined in writing that the
proposed activity will not adversely
affect the Wild and Scenic River
designation, or study status. Information
on Wild and Scenic Rivers may be
obtained from the appropriate Federal
land management agency in the area
(e.g., National Park Service, U.S. Forest
Service, Bureau of Land Management,
U.S. Fish and Wildlife 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. (a) In certain states
and tribal lands an individual 401 Water
Quality Certification must be obtained
or waived (See 33 CFR 330.4(c)).
(b) For NWPs 12, M, 17, 18, 32, 39,
40, 42, 43, and 44, where the state or
tribal 401 certification (either
generically or individually) does not
require or approve water quality
management measures, the permittee
must provide water quality management
measures that will ensure that the
authorized work does not result in more
than minimal degradation of water
quality (ur the Corps determines that
compliance with state or local
standards, where applicable, will ensure
no more than minimal adverse effect on
water quality). An important component
of water quality management includes
stormwater inanagerrrent that minimizes
degradation of the downstream aquatic
system, including water quality (refer to
General Condition 21 for stormwater
2090 Federal Register / Vol. 67, No. 10 /'Tuesday, January 15, 2002/Notices
management requirements). Another
important component of water quality
management is the establishment and
maintenance, of vegetated buffers next to
open waters, including streams (refer to
General Condition io for vegetated
buffer requirements for the NWPs),
This condition is only applicable to
projects that have the potential to affect
water quality. While appropriate
measures must be taken, in most cases
it is not necessary to conduct detailed
studies to identify such measures or to
require monitoring.
10, Constal Zone Management. In
certain states, an individual state coastal
zone management consistency
concurrence must be obtained or waived
d
(see Section 330,4(4)).
11. Endangered Species. (a) No
activity is authorized under any NVVP
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 (ESA), or which will
destroy or adversely modify the critical
habitat of such species. Non-federal
permittees shall notify the District
Engineer if any listed species or
designated critical habitat might be
affected or is in the vicinity of the
project, or is located in the designated
critical habitat and shall not begin work
on the activity until notified by the
District Engineer that the requirements
of the ESA have been satisfied and that
the activity is authorized. For activities
that may affect Federally-listed
endangered or threatened species or
designated critical habitat, the
notification must include the name(s) of
the endangered or threatened species
that may be affected by the proposed
work or that utilize the designated
critical habitat that may be affected by
the proposed work. As a result of formal
or informal consultation with the FWS
or NMFS the District Engineer may add
species-specific regional endangered
species conditions to the NWPs.
(b) Authorization of an activity by a
NWP does riot authorize the "take" of a
threatened or endangered species as
defined under the ESA. In the absence
of separate authorization (e.g., an ESA
Section 10 Permit, a Biological Opinion
with "incidental take" provisions, etc.)
from the USFWS or the NMFS, both
lethal arid non-lethal "takes" of
protected species are in violation of the
ESA. Information on the location of
threatened and endangered species acid
their critical habitat can be obtained
directly from the offices of the USFWS
and NMFS or their world wide web
pages at http://wrovrv.fws.-ovlr9eridsppl
endspp.html and http://wvvrv.nfins.gov/
prot_res/esalrome,htrnl respectively.
12. 11istoric Properties. No activity
o which may affect historic: properties
listed, or eligible for listing, in the
National Register of Historic Places is
authorized, until the District Engineer
has complied with the provisions of 33
CI'P. 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 he
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 I Iistoric 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
33 CFR 330.4(8)). For activities that may
affect historic properties listed in, or
eligible for listing in, the National
Register of Historic Places, the
notification must state which historic
property may be affected by the
proposed work or include a vicinity
map indicating the location of the
historic property.
13. Notification.
(a) Tinning; where required by the
terms of the NVVP, the prospective
permittee must notify the District
Engineer with a preconstruction
notification (PCN) as early as possible.
The District Engineer must determine if
the notification is complete within 30
days of the date of receipt and can
request additional information
necessary to make the PCN complete
only once. However, if the prospective
permittee does not provide all of the
requested information, then the District
Engineer will notify the prospective
permittee that the notification is still
incomplete and the PCN review process
will not commence until all of the
requested information has been received
by the District Engineer. The
prospective permittee shall not begin
the activity:
(1) Until notified in writing by the
District Engineer that the activity may
proceed under the NVVP with any
special conditions imposed by the
District or Division Engineer; or
(2) If notified in writing by the District
or Division Engineer that art Individual
Permit is required; or
(3) Unless 45 days have passed from
the District Engineer's receipt of the
complete notification and the
prospective permittee has not received
written notice from the District or
Division Engineer. Subsequently, the
permittee's right to proceed under the
NWI' may be modified, suspendecl, or
revoked only in accordance with the
procedure set forth in 33 CFR
330.5(d)(2).
(b) Contents of Notification: The
notification must br, in writing and
include the following information:
(1) Name, address and telephone
numbers 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
tho project would cause; any other
NWP(s), Regional General Permit(s), or
Individual Permit(s) used or intended to
be used to authorize any part of the
proposed project or any related activity.
Sketches should he provided when
necessary to show that the activity
complies with the terms of the NWP
(Sketches usually clarify the project and
when provided result in a quicker
decision.);
(4) For NWPs 7, 12, 14, 18, 21, 34, 38,
39, 41, 42, and 43, the PCN must also
include a delineation of affected special
aquatic sites, including wetlands,
vegetated shallows (e.g., submerged
aquatic vegetation, seagrass beds), and
riffle and pool complexes (see paragraph
13(0);
(5) For NWP 7 (Outfall Structures and
Maintenance), the PCN must include
information regarding the original
design capacities and configurations of
those areas of the facility where
maintenance dredging or excavation is
proposed;
(6) For NWP 14 (Linear
Transportation Crossings), the PCN
must include a compensatory mitigation
proposal to offset permanent losses of
waters of the US and a statement
describing how temporary losses of
waters of the US will be minimized to
the maximum extent practicable;
(7) For NWI' 21 (Surface Coal Mining
Activities), the PCN must include an
Office of Surface Mining (OSM) or state-
approved mitigation plan, if applicable.
To be authorized by this NWP, the
District Engineer must determine that
the activity complies with the terms arid
conditions of the NWP and that the
adverse environmental effects are
minimal both individually and
cumulatively and must notify the
project sponsor of this determination in
writing;
(8) For NWP 27 (Stream and Wetland
Restoration), the PCN must include
documentation of the prior condition of
the site that will he reverted by the
permittee;
Federal Register/Vol. 67, No. 10/'T'uesday, ianuarv 15. 2On2 / Nnr;rr,c inn
(9) For NWP 29 (Single-Family
Housing), the PCN most also include:
W Any past use of this NVVP by the
Individual Permittee and/or the
perrittee's spouse;
(ii) A statement that the single-family
housing activity is for a personal
residence of the permittee;
(iii) A description of the entire parcel
including its size, and a delineation of
wetlands. For the purpose of this NWP,
parcels of land measuring 1/,t-acre or les
will not require a formal on-site
delineation. However, the applicant
shall provide an indication of where wetlands are and the amount of
wetlands that exists on the property. Fo
parcels greater than 1/n-acre in size,
formal wetland delineation must be
prepared in accordance with the current
method required by the Corps. (See
paragraph 13(f));
(iv) A written description of all land
(including, if available, legal
descriptions) owned by the prospective
permittee and/or the prospective
permittee's 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 p?urchase has been executed;
(70) For NWP 31 (Maintenance of
Existing Flood Control projects), the
prospective permittee must either notify
the District Engineer with a PCN prior
to each maintenance activity or submit
a five year (or less) maintenance plan.
In addition, the PCN roust include all of
the following:
W Sufficient baseline information
identifying the approved channel
depths and configurations and existing
facilities. Minor deviations are
authorized, provided the approved flood
control protection or drainage is not
increased;
(ii) A delineation of any affected
special aquatic sites, including
wetlands; and,
(iii) Location of the dredged material
disposal site;
(11) For NWP 33 (Temporary
Construction, Access, and Dewatering),
the PCN must also include a restoration
plan of reasonable measures to avoid
and minimize adverse effects to aquatic:
resources;
(12) For NWPs 39, 43 and 44, the PCN
must also include a written statement to
the District Engineer explaining how
avoidance and minimization for losses
of waters of the US were achieved on
the project site;
(13) For NWP 39 and NVVP 42, the
PCN must include a compensatory
mitigation proposal to offset losses of
waters of the US or justification
explaining why compensatory
mitigation should not be required. For
discharges that cause the loss of greater
than 300 linear feet of an intermittent
stream bed, to be authorized, the Distri
Engineer must determine that the
activity complies with the other terms
and conditions of the NWP, determine
adverse environmental effects are
minimal both individually and
s cumulatively, and waive the limitation
on stream impacts in writing before the
permittee may proceed;
(14) For NWP 40 (Agricultural
Activities), the PCN must include a
r compensatory litigation proposal to
offset losses of waters of the US. This
NWP does not authorize the relocation
of greater than 300 linear-Feet of existing
serviceable drainage ditches constructed
in non-tidal streams unless, for drainage
ditches constructed in intermittent non-
tidal streams, the District Engineer
waives this criterion in writing, and the
District Engineer has determined that
the project complies with all terms and
conditions of this NWP, and that any
adverse impacts of the project on the
aquatic environment are minimal, both
individually and cumulatively;
(15) For NWP 43 (Stormwater
Management Facilities), the PCN Hurst
include, for the construction of new
stormwater management facilities, a
maintenance plan (in accordance with
state and local requirements, if
applicable) and a compensatory
mitigation proposal to offset losses of
waters of the US. For discharges that
cause the loss of greater than 300 linear
feet of an intermittent stream bed, to be
authorized, the District Engineer roust
determine that the activity complies
with the other terms and conditions of
the NWP, determine adverse
environmental effects are minimal both
individually and cumulatively, and
waive the limitation on stream impacts
in writing before the permittee may
proceed;
(16) For NVVP 44 (Mining Activities),
the PCN most include a description of
all waters of the US adversely affected
by the project, a description of measures
taken to minimize adverse effects to
waters of the US, a description of
measures taken to comply with the
criteria of the NWP, and it reclamation
plan (for all aggregate mining activities
in isolated waters and non-tidal
wetlands adjacent to headwaters and
any hard rock/mineral mining
activities);
(17) For activities that may adversely
affect Federally-listed endangmered or
threatened species, the PCN ust
include the name(s) of those endangered
or threatened species that may be
affected by the proposed work or utilize
the designated critical habitat that may
he affected by the proposed wnrk; and
(18) For activities that clay affect
historic properties listed in, or eligible
ct for listing in, t11e National Register of
Historic Places, the PCN roust state
which historic property may be affected
by the proposed work or include a
vicinity map indicating the location of
the historic property.
(c) Form of Notification: The standard
Individual Permit application form
(Form ENG 4345) may be used as the
notification but must clearly indicate
that it is a PCN and must include all of
the information required in (b) (1)-(18)
of General Condition 13. A letter
containing the requisite information
may also be used.
i (d) District Engineer's Decision: In
reviewing the PCN for the proposed
activity, the District Engineer will
determine whether the activity
authorized by the NWP will result in
more than minimal individual or
cumulative adverse environmental
effects or may be contrary to the public
interest. The prospective permittee may
submit a proposed mitigation plan with
the PCN to expedite the process. The
District Engineer will consider any
proposed compensatory mitigation the
applicant has included in the proposal
in determining whether the net adverse
environmental effects to the aquatic
environment 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 on the
aquatic environment are minimal, after
considering mitigation, the District
Engineer will notify the permittee and
include any conditions the District
Engineer deems necessary. The District
Engineer roust approve any
compensatory mitigation proposal
before the permittee commences work.
If the prospective permittee is required
to submit a compensatory mitigation
proposal with the PCN, the proposal
may be either conceptual or detailed. If
the prospective permittee elects to
submit a compensatory mitigation plan
with the PCN, the District Engineer will
expeditiously review the proposed
compensatory mitigation plan. The
District Engineer must review the plan
within 45 days of receiving a complete
PCN and determine whether the
conceptual or specific proposed
mitigation would ensure no more than
minimal adverse effects on the aquatic
environment. If the net adverse effects
of the project on the aquatic
environment (after consideration of the
compensatory mitigation proposal) are
determined by the District Engineer to
2092 Federal Register/ Vol. 67, No. 10 / Tuesday, January 15, 2002/Notices
be mininial, the District Engineer will
provide a timely written response to the
applicant. The response will state that
the project can proceed under the terms
and conditions of the NWP.
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 either: (1) That the project
does not qualify for authorization under
the NWP and instruct the applicant on
the procedures to seek authorization
under an Individual Permit; (2) that the
project is authorized under the NWP
subject to the applicant's submission of
a mitigation proposal that would reduce
the adverse effects on the aquatic
environment to the minimal level; or (3)
that the project is authorized under the
NWP with specific modifications or
conditions. Where the District Engineer
determines that mitigation is required to
ensure no more than minimal adverse
effects occur to the aquatic
environment, the activity will be
authorized within the 45-day PCN
period. The authorization will include
the necessary conceptual or specific
mitigation or a requirement that the
applicant submit a mitigation proposal
that would reduce the adverse effects on
the aquatic environment to the minimal
level. When conceptual mitigation is
included, or a mitigation plan is
required under item (2) above, no work
in waters of the US will occur until the
District Engineer has approved a
specific mitigation plan.
(e) Agency Coordination: The District
Engineer will consider any comments
from Federal and state agencies
concerning the proposed activity's
compliance with the terms and
conditions of the NWPs and the need for
mitigation to reduce the project's
adverse environmental effects to a
minimal level. ,
For activities requiring notification to
the District Engineer that result in the
loss of greater than 1h-acre of waters of
the US, the District Engineer will
provide immediately (e.g., via facsimile
transmission, overnight mail, or other
expeditious manner) a copy to the
appropriate Federal or state offices
(USFWS, state natural resource or water
duality agency, EPA, State Historic
Preservation Officer (SHPO), and, if
appropriate, the NMFS). With the
exception of NWP 37, these agencies
will then have 10 calendar days from
the date the material is transmitted to
telephone or fax the District Engineer
notice that they intend to provide
substantive, site-specific comments. If
so contacted by ,in agency, the District
Engineer will wait an additional 15
calendar days before making a decision
on the notification. The District
Engineer will fully consider agency
comments received within the specified
time franno, but will provide uo
response to the resource agency, except
as provided below. The District
Engineer will indicate in the
administrative record associated with
each notification that the resource
agencies' concerns were considered. As
required by section 305(b)(4)(B) of the
Magnuson-Stevens fishery
Conservation and Management Act, the
District Engineer will provide a
response to NIvtFS within 30 days of
receipt of any Essential Fish Habitat
conservation recommendations.
Applicants are encouraged to provide
the Corps multiple copies of
notifications to expedite agency
notification.
(f) Wetland Delineations: Wetland
delineations must be prepared in
accordance with the current method
required by the Corps (For NWP 29 see
paragraph (b)(9)(iii) for parcels less than
(1/,-acre in size). The permittee may ask
the Corps to delineate the special
aquatic site. '['here may be some delay
if the Corps does the delineation.
Furthermore, dre 45-day period will not
start until the wetland delineation has
been completed and submitted to the
Corps, where appropriate.
14. Compliance C.'el1ification. Every
permittee who has received NWP
verification froin the Corps will submit
a signed certification regarding the
completed work and any required
mitigation. The certification will be
forwarded by the Corps with the
authorization letter and will include:
(a) A statement that the authorized
work was done in accordance with the
Corps authorization, including any
general or specific conditions;
(b) A statement that any required
mitigation was completed in accordance
with the permit conditions; and
(c) The signature of the permittee
certifying the completion of the work
and mitigation.
15. Use of Multiple Nationwide
Permits. The use of more than one NWP
for a single and complete project is
prohibited, except when the acreage loss
of waters of the US authorized by the
NWPs does not exceed the acreage limit
of the NWP with the highest specified
acreage limit (e,g, if a road crossing over
tidal waters is constructed under NWP
14, with associated bank stabilization
authorized by NWP 13, the maximum
acreage loss of waters of the US for the
total project cannot exceed V,-acre).
16. Water Supply Intakes. No activity,
including structures and work in
navigable waters of the US or discharges
of dredged or fill material, may occur in
the proximity of a public: water supply
intake except where the activity is for
repair of the public water supply intake
structures or adjacent bank stabilization.
17. Shellfish Beds. No activity,
including structures and work in
navigable waters of the US or discharges
of dredged or fill material, may occur in
areas of concentrated shellfish
populations, unless the activity is
directly related to a shellfish harvesting
activity authorized by NWP 4.
18, Suitable Material. No activity,
including structures and work in
navigable waters of the US or discharges
of dredged or fill material, may consist
of unsuitable material (e. trash,
debris, car bodies, asphalt, etc.) and
material used for construction or
discharged must be free from toxic
pollutants in toxic amounts (see section
307 of the CWA).
19. Mitigation. The District Engineer
will consider the factors discussed
below when determining the
acceptability of appropriate and
practicable mitigation necessary to
offset adverse effects on the aquatic
environment that are more than
minimal.
(a) The project must be designed and
constructed to avoid and minimize
adverse effects to waters of the US to the
maximum extent practicable at the
project site (i.e., on site).
(b) Mitigation in all its forms
(avoiding, minimizing, rectifying,
reducing or compensating) will be
required to the extent necessary to
ensure that the adverse effects to the
aquatic environment are minimal.
(c) Compensatory mitigation at a
minimum one-for-one ratio will be
required for all wetland impacts
requiring a PCN, unless the District
Engineer determines in writing that
some other form of mitigation would be
more environmentally appropriate and
provides a project-specific waiver of this
requirement. Consistent with National
policy, the District Engineer will
establish a preference for restoration of
wetlands as compensatory mitigation,
with preservation used only in
exceptional circumstances.
(d) Compensatory mitigation (i.e.,
replacement or substitution of aquatic
resources for those impacted) will not
be used to increase the acreage losses
allowed by the acreage limits of some of
the NWPs. For example, 1/4-acre of
wetlands cannot be created to change a
'/a-acre loss of wetlands to a 1/ -acre loss
associated with NW1' 39 verification.
However, 1/2-acre of created wetlands
can be used to reduce the impacts of a
1h-acre loss of wetlands to the minimum
impact level in order to meet the
Federal Register / Vol. 67, No. 1.0 / Tuesday, January 15, 2002 / Notices 2093
minimal impact requirement associated
with NWPs.
(e) To be practicable, the mitigation
must be available and capable of being
done considering costs, existing
technology, and logistics in light of the
overall project purposes. Examples of
mitigation that may be appropriate and
practicable include, but are not limited
to: reducing the size of the project;
establishing and maintaining wetland o
or
upland vegetated buffers to protect open
waters Stich as streams; and replacing
losses of aquatic resource functions and
values by creating, restoring, enhancing,
or preserving similar functions and
values, preferably in the same
watershed.
(f) Compensatory mitigation plans for
projects in or near streams or other open
waters will normally include a
requirement for the establishment,
maintenance, and legal protection (e.g.,
easements, deed restrictions) of
vegetated buffers to open waters. In
many cases, vegetated buffers will be
the only compensatory mitigation
required. Vegetated buffers should
consist of native species. The width of
the vegetated buffers required will
address documented water quality or
aquatic habitat loss concerns. Normally,
the vegetated buffer will be 25 to 50 Feet
wide on each side of the stream, but the
District Engineers may require slightly
wider vegetated buffers to address
documented water quality or habitat
loss concerns. Where both wetlands and
open waters exist on the project site, the
Corps will determine the appropriate
compensatory mitigation (e.g., stream
buffers or wetlands compensation)
based on what is best for the aquatic
environment on a watershed basis. In
cases where vegetated buffers are
determined to be the most appropriate
form of compensatory mitigation, the
District Engineer'rnav waive or reduce
the requirement to provide wetland
compensatory mitigation for wetland
impacts.
(g) Compensatory mitigation
proposals submitted with tlue
"notification" may be either conceptual
or detailed. If conceptual plans are
approved under the verification, then
the Corps will condition the verification
to require detailed plans be submitted
and approved by the Corps prior to
construction of the authorized activity
in waters of the US.
(lr) Permittees may propose the use of
mitigation banks, in-lieu fee
arrangements or separate activity-
specific compensatory mitigation. In all
cases that require compensatory
mitigation, the mitigation provisions
will specify the party responsible for
accomplishing and/or complying with
the mitigation plan.
20. Spawning Areas..Activities,
including structures and work in
navigable waters of the US or discharge.
of dredged or fill material, in spawning
areas during spawning seasons must he,
avoided to the maximum extent
practicahle. Activities that result in the
physical destruction (e.g., excavate, fill,
or smother downstream by substantial
n turbidity) of au important spawning area
are not authorized.
21. Management of water FYows. Tb
the maximum extent practicable, the
activity must be designed to maintain
preconstncction downstream flow
conditions (e.g., location, capacity, and
flow rates). Furthermore, the activity
must not permanently restrict or impede
the passage of normal or expected high
flows (unless the primary purpose of the
fill is to impound waters) and the
structure or discharge of dredged or fill
material must withstand expected high
flows. The activity must, to the
maximum extent practicable, provide
for retaining excess flows from the site,
provide for maintaining surface flow
rates from the site similar to
preconstncction conditions, and provide
for not increasing water flows from the
project site, relocating water, or
redirecting water flow beyond
preconstruction conditions. Stream
channelizing will he reduced to the
minimal amount necessary, and the
activity must, to the maximum extent
practicable, reduce adverse effects such
as flooding or erosion downstream and
upstream of the project site, unless the
activity is part of a larger system
designed to manage water flows. In most
cases, it will not be a requirement to
conduct detailed studies and monitoring
of water flow.
This condition is only applicable to
projects that have the potential to affect
waterflows. While appropriate measures
must be taken, it is not necessary to
conduct detailed studies to identify
such measures or require monitoring to
ensure their effectiveness. Normally, the
Corps will defer to state and local
authorities regarding management of
water flow.
2'2. Adverse Effects From
Impoundments. If the activity creates an
impoundment of water, adverse effects
to the aquatic system due to the
acceleration of the passage of water,
and/or the restricting its flow shall be
minimized to the inaxi[num extent
practicable. This includes structures
and work in navigable waters of the US,
or discharges of dredged or fill material.
23. Waterfowl Breeding Areas.
Activities, including structures and
work in navigable waters of the US or
discharges of dredged or fill material,
into breeding areas for migratory
waterfowl must be avoided to the
maximum extent practicable.
S 24. Removal of Temporary Fills. Any
temporary fills must be removed in their
entirety and the affected areas returned
to their preexisting elevation.
25. Dasipriated Critical Resource
Waters. Critical resource waters include,
NOAA-designated marine sanctuaries,
u 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 national resource
waters or other waters officially
designated by a state as having
particular environmental or ecological
significance and identified by the
District Engineer after notice and
opportunity for public comment. The
District Engineer may also designate
additional critical resource waters after
notice and opportunity for comment.
(a) Except as noted below, discharges
of dredged or fill material into waters of
the US are not authorized by NWPs 7,
12, 14, 16, 17, 21, 29, 31, 35, 39, 40, 42,
43, and 44 for any activity within, or
directly affecting, critical resource
waters, including wetlands adjacent to
such waters. Discharges of dredged or
fill materials into waters of the US may
be authorized by the above N"Ts in
National Wild and Scenic Rivers if the
activity complies with General
Condition 7. Further, such discharges
may be authorized in designated critical
habitat for Federally listed threatened or
endangered species if the activity
complies with General Condition 11 and
the USFWS or the NMF'S has concurred
in a determination of compliance with
this condition.
(b) For NWPs 3, 8, 10, 13, 15, 18, 19,
22, 23, 25, 27, 28, 30, 33, 34, 36, 37, and
38, notification is required in
accordance with General. Condition 13,
for any activity proposed in the
designated critical resource waters
including wetlands adjacent to those
waters. The District Engineer may
authorize activities under these NWPs
only after it is determined that the
impacts to the critical resource waters
will be no more than minimal.
26. Fills Within 100-YearFloodplains.
For purposes of this General Condition,
100-year floodplains will be identified
through the existing Federal Emergency
Management Agency's (FEMA) Flood
Insurance Rate Maps or FEMA-approved
local floodplain maps.
(a) Discharges in Floodplairc; Below
Headwaters. Discharges of dredged or
fill material into waters of the US within
the mapped 100-year floodplain, below
2094 Federal Register/Vol. 67, No. l0 / Tuesday, January 15, 2002 / Notices
headwaters (i.e. five cfs), resulting in
permanent above-grade fills, are not
authorized by NWPs 3J, 40, 42, 413, and
44.
(b) Oischarges in F'loodway; Above
lleadtvoters. Discharges of dredgecl or
fill material into waters of the US within
the FEMA or locally mapped floodway,
resulting in permanent above-grade fills,
are not authorized by NWPs 39, 40, 42,
and 44.
(c) The perrnittee must comply with
any applicable FEMA-approved state or
local floodplaiii management
requirements.
27. Construction Period. For activities
that have not been verified by the Corps
and the project was commenced or
under contract to commence by the
expiration date of the NWP (or
modification or revocation date), the
work must be completed within 12-
months after such date (including any
modification that affects the project).
For activities that have been verified
and the project was commenced or
snider contract to commence within the
verification period, the work must be
completed by the date determined by
the Corps.
For projects that have been verified by
the Corps, an extension of a Corps
approved completion date maybe
requested. This request must be
submitted at least one month before the
previously approved completion date.
D. Further Information
1. District Engineers have authority to
determine if an activity complies with
the terms and conditions of an NWP.
2. NWPs do not obviate the need to
obtain other Federal, state, or local
permits, approvals, or authorizations
required by law.
3. NWPs do not grant any property
rights or exclusive privileges.
4. NWPs do not authorize any injury
to the property or rights of others.
5. NWPs do not authorize interference
with any existing or proposed Federal
project.
E'. Definitions
Best Management Practices (BMPs):
BMPs are policies, practices,
procedures, or structures implemented
to mitigate the adverse environmental
effects on surface water quality resulting
from development. BMPs are
categorized as structural or non-
structural. A BtMP policy may affect the
limits on a development.
Compensatory Mitigation: For
purposes of Section 10/404,
compensatory mitigation is the
restoration, creation, enhancement, or in
exceptional circumstances, preservation
of wetlands and/or other aquatic
resources for the purpose of
compensating for unavoidable adverse
inipacts which remain after all
appropriate and practicable avoidance
and minimization has been achieved.
Cron tion:'Clio establishnient of a
wetland or other agnntic resource where
one did not formerly exist.
Enhancement: Activities conducted in
existing wetlands or other aquatic
resources that increase one or ,lore
aquatic'functions.
Ephemeral Strcom: An ephemeral
stream has flowing water only during
and for a short duration after,
precipitation events in a typical year.
Ephemeral stream beds are located
above the water table year-round.
Groundwater is riot a source of water for
the stream. Runoff from rainfall is the
primary source of water for stream flow.
Farm T'roct: A unit of contiguous land
under one ownership that is operated as
a farm or part of a farm,
Flood Fringe: That portion of the 100-
year floodplain outside of the floodway
(often referred to as "floodway fringe"),
Floodcvay: The area regulated by
Federal, state, or local requirements to
provide for the discharge of the base
flood so the cumulative increase in
water surface elevation is no more than
a designated amount (not to exceed one
foot as set by the National Flood
Insurance Program) within the 100-yeax
flood lain.
Independent Utility: A test to
determine what constitutes a single and
complete project in the Corps regulatory
program. A project is considered to have
independent utility if it would be
constructed absent the construction of
other projects in the project area.
Portions of a multi-phase project that
depend upon other phases of the project
do not have independent utility. Phases
of a project that would be constructed
even if the other phases were not built
can be considered as separate single and
complete projects with independent
utility.
Intermittent Stream: An intermittent
stream has flawing water during certain
titles of the year, when groundwater
provides water for stream flow. During
dry periods, intermittent streams may
not have flowing water. Runoff from
rainfall is a supplemental source of
water for stream flow.
Loss of Waters of the US: Waters of
the US that include the filled area and
other waters that are permanently
adversely affected by floodiug,
excavation, or drainage because of the
regulated activity. Permanent adverse
effects include permanent above-grade,
at-grade, or below-grade fills that change
an aquatic area to dry land, increase the
bottom elevation of a waterbody, or
change the its(,, of a, waterhody. The
acreage of loss of waters of the US is the
threshold measurentelit of the impact to
existing waters for determining whether
a project may qualify for an MVP; it is
not a net threshold that is calculated
after considering compensatory
mitigation that may he used to offset
losses of aquatic functions and values.
The loss of stream bed includes the
linear feet of stream bed that is filled or
excavated. Waters of lho US ternporruily
filled, flooded, excavated, or drained,
but restored to preconstructiou contours
and elevations after construction, are
not included in the measurement of loss
of waters of the US. Impacts to
ephemeral waters are only not included
in the acreage or linear foot
measurements of loss of waters of the
US or loss. of'stream bed, for tiro purpose
of determining compliance with the
threshold limits of the NWPs.
Non-tidal Wetland: A non-tidal
wetland is a wetland (i.e., a water of the
US) that is riot subject to the ebb and
flow of tidal waters. The definition of ;t
wetland can be found at 33 CFR
328.3(b). Non-tidal wetlands contiguous
to tidal waters are located landward of
the high tide line (i.e., spring high tide
line).
Open Water: An area that, during a
year with normal patterns of
precipitation, has standing or flowing
water for sufficient duration to establish
an ordinary high water mark. Aquatic
vegetation within the area of standing or
flowing water is either non-emergent,
sparse, or absent. Vegetated shallows are
considered to be open waters. The term
"open water'' includes rivers, streams,
lakes, and ponds. For the purposes of
the NWPs, this terra does not include
ephemeral waters.
Perennial Stream: A perennial stream
has flowing water year-round during a
typical year. The water table is located
above the stream bed for most of the
year. Groundwater is the primary source
of water for stream flow. Runoff from
rainfall is a supplemental source of
water for stream flow.
Permanent Above-grade Fill: A
discharge of dredged or fill material into
waters of the US, including wetlands,
that results in a substantial increase in
ground elevation and permanently
converts part or all of the waterbody to
dry land. Structural fills authorized by
NWPs 3, 25, 36, etc. are not included.
Preservation: The protection of
ecologically important wetlands or other
aquatic resources in perpetuity through
the implementation of appropriate legal
and physical mechanisms. Preservation
May include protection of upland areas
adjacent to wetlands as necessary to
Federal Register/Vol. 07, No. 10 /'Tuesday, January 15, 2002/Notices
2095
ensure protection and/or enhancement
of the overall aquatic ecosystem.
Restorntion: Re-establishment of
wetland and/or other aquatic resource
characteristics and function(s) at a site
where they have ceased to exist, or exist
in a substantially degraded state.
Riffle and Pool Complex: Riffle and
pool complexes are special aquatic sites
under the 404(b)(1) Guidelines. Riffle
and pool complexes sometimes
characterize steep gradient sections of
streams. Such steam sections are
recognizahle by their hydraulic
characteristics. The rapid movement of
water over a course substrate in riffles
results in a rough flnW, a ttrbulent
surface, and high dissolved oxygen
levels in the water. Pools are deeper
areas associated with riffles. A slower
stream velocity, a streaming flow, a
smooth surface, and it finer substrate
characterize pools.
Single and Complete Pro)ect: 'I'll
term "single and complete project" is
defined at 33 CFR 330.2(i) as the total
project proposed or accomplished by
one owner/developer or partnership or
other association of owners/developers
(see definition of independent utility).
For linear projects, the "single and
complete project" (i.e., a single and
complete crossing) will apply to each
crossing of a separate water of the US
(i.e., a single waterbody) at that location.
An exception is for linear projects
crossing a single waterbody several
times at separate and distant locations:
each crossing is considered a single and
complete project. However, individual
channels in a braided stream or river, or
individual arras of a large, irregularly
shaped wetland or lake, etc., are not
separate waterbodies.
StorrntvaterMonogement: Stormwater
management is the mechanism for
controlling stormwater runoff for the
purposes of reducing downstream
erosion, water quality degradation, and
flooding and mitigating the adverse
affects of changes in land use on the
aquatic environment.
Storm water !?ianagemen t facilities:
Storrnwater rnanagementfacilities are
those facilities, including but not
limited to, stormwater retention and
detention ponds and MIPs, which
retain water for a period of time to
control runoff and/or improve the
quality (i.e., by reducing the
concentration of nutrients, sediments,
hazardous substances and other
pollutants) of storrnwater runoff.
Stream Lled: The substrate of the
stream channei between the ordinary
high water marks. The substrate may be
bedrock or inorganic particles that range
M size front clay to boulders. Wetlands
contiguous to the stream beef, but
outside of the ordinary high water
marks, are riot considered part of the
stream bed.
Stream Chonrlelization:The
manipulation of it stream channel to
increase the rate of water flow through
the stream channel. Manipulation may
include deepening, widening,
straightening, armoring, or other
activities that change the stream cross-
section or other aspects of stream
channel geometry to increase the rate of
water flow through the stream channel.
A channelized stream remains a water
of the US, despite the modifications to
increase the rate of water flow.
Tidal Wetland: A tidal wetland is it
wetland (i.e., water of the US) that is
inundated by tidal waters. The
definitions of it wetland and tidal waters
can be found at 33 CFR 328.3(h) and 33
CFR 328.3(f), respectively. Tidal waters
rise and fall in a predictable and
measurable rhythm or cycle due to the
gravitational palls of the moon and sort.
Tidal waters and where the rise and fall
of the water surface can no longer be
practically measured in a predictable
rhythm due to masking by other waters,
wind, or other effects. Tidal wetlands
are located channelward of the high tide
line spring high tide line) and are
inundated by tidal waters two times per
hurar month, during spring high tides.
Vegetated Buffer: A vegetated upland
or wetland area next to rivers, streams,
lakes, or other open waters which
separates the open water from
developed areas, including agricultural
land. Vegetated buffers provide a variety
of aquatic habitat functions and values
(e.g., aquatic habitat for fish and other
aquatic organisms, moderation of water
temperature changes, and detritts for
aquatic food wpbs) and help improve or
maintain local water quality. A
vegetated buffer can be established by
rnailrtaining an existing vegetated area
or planting native trees, shruhs, and
herbaceous plants on land next to open-
waters. Mowed lawns are not
considered vegetated buffers because
they provide little or no aquatic habitat
functions and values. The establishment
and maintenance of vegetated buffers is
a method of compensatory mitigation
that can be used in conjunction with the
restoration, creation, enhancement, or
preservation of aquatic habitats to
ensure that activities authorized by
NWI's result in minimal adverse effects
to the aquatic environment. (See
General Condition 19.)
Vegetated Shallows: Vegetated
shallows are special aquatic sites under
the 404(b)(1) Guidelines. They are areas
that are permanently inundated and
under normal circuulstances have
rooted aquatic vegetation, such as
seagrasses in marine and estuarine
systems and a variety of vascular rooted
plants in freshwater systems.
Waterbody: A waterbody is any area
that in a normal year has water flowing
or standing above ground to the extent
that evidence of an ordinary high water
mark is established. Wetlands
contiguous to the waterbody are
considered part of the waterbody.
[FR Doc. 02-539 Filed 1-14--02; 8:45 aml
BILLING CODE 3710--92-P
6692 Federal Register / Vol. 67, No. 30 / Wednesday, February 13, 2002 /Notices
ADDRESSES). The holding of such
hearing is at the discretion of the
Assistant Administrator for Fisheries,
NOAA. All statements and opinions
contained in the permit action
summaries are those of the applicant,
and do not necessarily reflect the views
of NMFS.
Species Covered in This Notice
The following species are covered in
this notice:
Sea turtles
Threatened and endangered green
turtle (Chelonio mydas)
Endangered hawksbill turtle
(Eretinuchelys imbricata)
Endangered Kemp's ridley turtle
(Lepidochelys kempii)
Endangered leatherback turtle
(Nerairo('helys coriacea)
Threatened loggerhead turtle (Cureitn
corettu)
Applicution 1361
The applicant is applying for a 5-year
permit to trawl for turtles, as needed, at
dredge and other construction/
destruction sites to remove the turtles to
a safe location. The turtles will be
captured, tagged, measured and released
offshore away from the dredging
activities. The applicant experts to
capture and relocate 95 green, 11
hawksbill, 160 loggerhead, 14 Ketnp's
ridley and 4 leatherback turtles on the
Atlantic coast and 105 green, 17
hawksbill, 160 loggerhead, 50 Kemp's
ridley and 1.1 leatherback turtles on the
Gulf coast.
Dated: February 7, 2002.
Jill 1,ewandovvski,
Acting Chief, Punnets, Conservation, mad
h'ducaliorn Division, Office of Protected
Bosoarcus, National Marine l'isherias Service.
[FIZ Doc. 02-3522 Filed 2-12-02; £3:45 amt
BILLING CODE 3510.22-S
DEPARTMENT OF DEFENSE
Department of the Army, Corps of
Engineers
Issuance of Nationwide Permits;
Notice; Correction
AGENCY: Army Corps of Engineers, DOD
ACTION: Final notice; correction.
SUMMARY: This document contains
corrections to the final notice of
issuance of Nationwide Permits (NWT's)
which was published in the. Federal
Register on Tuesday, January 15, 2002
(67 PR 2020-2(195).
ADDRESSES: IIQUSAGE, ATTN: CECW-
OR, 441 "G" Street, NW., Washington,
DC 20314-1000.
FOR FURTHER INFORMATION CONTACT: Mr.
David Olson, at [phone], Mr,
Kirk Stark, at (202) 76 1-415611 or Ms.
L,eesa Beal at [phone] or access
the (I.S. Army Corps of Engineers
Regulatory Home Page at: http://
www,usac(,.arnly.nail/root/functions/
cw/cecwo/reg/.
SUPPLEMENTARY INFORMATION: In the
SUMMARY section on page 2020, the third
and fourth sentences are corrected to
read: "All NWPs except NWPs 3, 7, 12,
'1.4, 2°7, 39, 40, 41, 42, 43, and 44 expire
on February 1l, 2002. Existing NWPs 3,
7, 12, 14, 27, 39, 40, 41, 42, 43, and 44
expire on March 18, 21102.'In the last
sentence of the SUMMARY section, the
expiration date is corrected as -N/larch
16, 2007", instead of 'March 19, 2007'
On page 2020, in second sentence of
the DATES section, the expiration date is
corrected as "March 18, 2007", instead
of "March 19, 2007". Therefore, the
NW1's published ill the January L,,
2002; Federal Register will expire on
March 18, 2007, five years from llu,ir
effective date of Ntarch 18, 2002.
On page 2020, in the fifth paragraph
of the Background section, the third and
fourth sentences are corrected to read:
"All NWPs except NWPs 3, 7, 12, 14,
27, 39, 40, 41, 42, 43, and 44 expire on
February 11, 2002. Existing NWPs 3, 7,
121 14, 27, 39, 40, 41, 42, 43, and 44
expire on March 18, 2002," 'Pile
expiration date in the last sentence of
this paragraph is corrected as "March
18, 2007", instead of "March 1.9, 2007".
On page 2020, the paragraph in Iho
section entitled "Grandfather Provision
for Expiring NWPs at 33 CFR 330.6" is
corrected to read: "Activities authorized
by the current NWPs issued oil
December 13, 1996, (except NWPs 3, 7,
12, 14, 27, 39, 40, 41, 42, 43, and 44),
that have commenced or are under
contract to conmconce. by February 11,
2002, will have until February 11, 2003,
to complete the activity. Activities
authorized by NWPs 3, 7, 12, 14, 27, 39,
40, 41, 42, 43, and 44, that were issued
on Ntarch 9, 2000, that are coninuerrced
or under contract to commence by
Nlarclr 1.8, 2002, will have until Ntarch
18, 2003, to complete the activity."
On page 2020, in the "Clean Wutcr
Act Section 401 Water Quality
Certification (WQ(") and Coastal 'Lune
Management Act (CZMA) (;onsistencv
Agreement" section, the dato in the fifth
sentence is corrected as "February 11,
2002", instead of "February 11, 2001
On page 2023, third column, last
sentence, the number 29 is replaced
with the number 19, because this
sentence refers to General Condition I
On page 2024, first cola nin, in the
fourth sentence of the last paragraph the
phrase "less than" is replaced by
"greater than" because the 30 clay
completeness review period for NWP
pre-construction notifications is greater
than the 15 day completeness review
period for standard permit applications.
On page 2031, second column, second
full paragraph, tile 11111riber :31 is
replaced with the number 3 because this
paragraplirefers to NWP 3.
On page, 2044, second column, fourth
complete paragraph, the title is
corrected to read "Stroam and Wetland
Restoration Activities" because that is
the title of NWP 27.
Ou page 2054, second column, the
year cited in the third sentence of the
second paragraph is the year 2000, not
1 796.
On page 2058, third column, in the
second sentence or the Second complete
Ir u•agraph the word "intermittent" is
inserted bofore the phrase "stream bell"
because the waiver for filling or
excavating greater than 300 linear feet of
siroana hods can apply only to
interiirittmat stream beds.
On page 2072, third column, last
sentence, the number 19 is inserted after
the lean "General Condition" since this
sentence refers to General Condition 19.
On page 20713, second column, the
street address for the Walla Walla
Oistrict Engineer is corrected to read
"201 N. 't'hird Avenue".
On page 2080, second column, third
paragraph from the top of the column
(in the "Notification" section of NWl'
12), the word "or" at the end of
paragraph (e) is deleted and the period
at the end of the fourth paragraph
(paragraph (f)) is replaced with "; or".
On page 2080, second column,
paragraph (a) of NWP 13 is corrected to
road: "No material is placed in excess of
the minimum needed for erosion.
protection;" The change was not
intended and we are correcting this
paragraph by reinstating the original
text as it appeared in the version of
NWP 13 published in the December 1S,
19!)6, Federal Register (61 FR 65915).
On page 2080, third coluann, the word
"or" is inserted at the end of paragraph
(a)(1) of NWP 14, Linear Transportation
projects. Paragraph (a) of NWP 1.4 is
corrected to read: "a. This NWP is
subject to the following acreage limits:
(1) For linear transportation projects in
non-tidal waters, provided the discharge
does not causo the loss of greater than
'/e-acre of waters of the US; or (2) For
linear transportation projects in tidal
waters, provided the discharge does riot
cause the loss of greater than 'A-acre of
waters of the US."
On page 2085, second column, the
last sentence of NWP 36 is corrected to
read as follows: "Dredging to provide
Federal Register/Vol. 67, No. 30/Wednesday, February 13, 2002/Notices 6693
access to the boat ramp may be
authorized by another NVVP, regional
general permit, or individual permit
pursuant to section 10 if located in
navigable waters of the United States.
* * *" The change was not intended
and we are correcting this paragraph by
reinstating the original text as it
appeared in the version of NWP 36
Published in the December 13, 1996,
Federal Register (61 FR 65919).
On page 2086, in the second full
paragraph of the second column,
"paragraph (e)" in the second sentence
is replaced with "paragraph (tl" and
"paragraph (i)" in the third sentence is
replaced with "paragraph (j)" to
accurately cite the previous paragraphs
of NWP 39. The last two sentences of
the paragraph before the subdivision
paragraph were incorrectly divided into
two sentences from the original single
sentence and identified as being related
to General Condition 15. This change
was not intended and we are correcting
this paragraph by reinstating the
original last sentence as it exists in the
March 9, 2000, text of NWP 39 (65 FR
12890).
On page 2086, middle column, the
parenthetical statement at the end of the
Note at the end of NVVP 39 is corrected
to read "* * * (except for ephereral
waters, which do not require PCNs
under paragraph (c)(2), above; however,
activities that result in the loss of greater
than '/,o acre of ephemeral waters
would require PCNs under paragraph
(c)(1), above)." The addition to the Note
was intended to clarify that under
paragraph (c)(2) only the loss of
ephemeral open waters were not
included in the requirement for a pre-
construction notification (PCN).
However, under paragraph (c)(1) all
ephemeral waters of the United States
are included in the measurement for the
Vto acre PCN requirement. The
correction is needed because the
statement in the parentheses could be
incorrectly interpreted to apply to
paragraph (c)(1) and possibly to all
PCNs, not just those affected by
paragraph (c)(2).
For clarity, we are providing the text
of NWP 39 in its entirety, with the
corrections described above:
39. Residential, Commercial, and
Institutional Developments. Discharges
of dredged or fill material into non-tidal
waters of the U.S., excluding non-tidal
wetlands adjacent to tidal waters, for the
construction or expansion of residential,
commercial, and institutional building
foundations and building pads and
attendant features that are necessary for
the use and maintenance of the
structures. Attendant features may
include, but are not limited to, roads,
parking lots, garages, yards, utility lines,
stornrwater management facilities, and
recreation facilities such as
playgrounds, playing fields, and golf
courses (provided the golf course is an
integral part of the residential
development). The construction of new
ski areas or oil and gas wells is not
authorized b this NWP.
Residential developments include
multiple and single unit developments.
Examples of commercial developments
include retail stores, industrial facilities,
restaurants, business parks, and
shopping centers. Examples of
institutional developments include
schools, fire stations, government office
buildings, judicial buildings, public
works buildings, libraries, hospitals,
and places of worship. The activities
listed above are authorized, provided
the activities meet all of the following
criteria:
a. The discharge does not cause the
loss of greater than V, ?-acre of non-tidal
waters of the U.S., excluding non-tidal
wetlands adjacent to tidal waters;
b. The discharge does not cause the
loss of greater than 300 linear-feet of a
stream bed, unless for intermittent
stream beds this criterion is waived in
writing pursuant to a determination by
the District Engineer, as specified
below, that the project complies with all
terms and conditions of this NWP and
that any adverse impacts of the project
on the aquatic environment are
minimal, both individually and
cumulatively;
c. The permittee must notify the
District Engineer in accordance with
General Condition 13, if any of the
following criteria are met:
(1) The discharge causes the loss of
greater than I/,o-acre of non-tidal waters
of the US, excluding non-tidal wetlands
adjacent to tidal waters; or
(2) The discharge causes the loss of
any open waters, including perennial or
intermittent streams, below the ordinary
hi h water mark (see Note, below); or
?3) The discharge causes the loss of
greater than 300 linear feet of
intermittent stream bed. In such case, to
be authorized the District Engineer must
determine that the activity complies
with the other terms and conditions of
the NWP, determine adverse
environmental effects are minimal both
individually and cumulatively, and
waive, the limitation on stream impacts
in writing before the permittee may
proceed;
d. For discharges in special aquatic
sites, including wetlands, the
notification trust include a delineation
of affected special aquatic sites;
e. The discharge is part of a single and
complete project;
f. The permittee must avoid and
minimize discharges into waters of the
US at the project site to the maximum
extent practicable. The notification,
when required, most include a written
statement explaining how avoidance
and minimization of losses of waters of
the US were achieved on the project
site. Compensatory mitigation will
normally be required to offset the losses
of waters of the US. (See General
Condition 19.) The notification must
also include a compensatory mitigation
proposal for offsetting unavoidable
losses of waters of the US. If an
applicant asserts that the adverse effects
of the project are minimal without
mitigation, then the applicant may
submit justification explaining why
compensatory mitigation should not be
required for,the District Engineer's
consideration;
g. When this NWP is used in
conjunction with any other NWP, any
combined total permanent loss of waters
of the I JS exceeding V, o-acre requires
that the permittee notify the District
Engineer in accordance with General
Condition 13;
lu. Any work authorized by this NWP
must not cause more than minimal
degradation of water quality or more
than minimal changes to the flow
characteristics of any stream (see
General Conditions 9 and 21);
i. For discharges causing the loss of
ho-acre or less of waters of the US, the
permittee must submit a report, within
30 days of completion of the work, to
the District Engineer that contains the
following information: (1) The name,
address, and telephone number of the
permittee; (2) 'I'll(, location of the work;
(3) A description of the work; (4) The
type and acreage of the loss of waters of
the US (e.g., 1/2-acre of emergent
wetlands); and (5) The type and acreage
of any compensatory mitigation used to
offset the loss of waters of the US (e.g.,
1/2-acre of emergent wetlands created
on-site);
j. If there are any open waters or
streams within the project area, the
permittee will establish and maintain, to
the maximum extent practicable,
wetland or upland vegetated buffers
next to those open waters or streams
consistent with General Condition 19.
Deed restrictions, conservation
easements, protective covenants, or
other means of land conservation and
preservation are required to protect and
maintain the vegetated buffers
established on the project site.
Only residential, commercial, and
institutional activities with structures
on the foundation(s) or building pad(s),
as well as the attendant features, are
authorized by this NWP. The
6694 Federal Register/ Vol, 67, No. 30 / Wednesday, February 13, 2002 /Notices
compensatory mitigation proposal that
is required in paragraph (f) of this NWP
may be either conceptual or detailed.
The wetland or upland vegetated buffer
required in paragraph (j) of this NWP
will be determined on a rase-by-case
basis by the District Engineer for
addressing water quality concerns. The
required wetland or upland vegetated
buffer is part of the overall
compensatory mitigation requirement
for this NWP. If the project site was
previously used for agricultural
purposes and the farm owner/operator
used NWP 40 to authorize activities in
waters of the United States to increase
production or construct farm buildings,
NWP 39 cannot be used by the
developer to authorize additional
activities in waters of the United States
oil the project site in excess of the
acreage limit for NWP 39 (i.e., the
combined acreage loss authorized nuclei-
NWPs 39 and 40 cannot exceed 1/2 acre).
Subdivisions: For residential
subdivisions, the aggregate total loss of
waters of US authorized by NWP 39 can
not exceed 1/2-acre. This includes any
loss of waters associated with
development of individual subdivision
lots. (Sections 10 and 404)
Note: Areas where wetland vegetation is
not present should be determined by the
presence or absence of an ordinary high
water mark or bed and bank. Areas that aro
waters of the US based on this criterion
would require a PCN although water is
infrequently present in the strearn chamrel
(except for ephemeral waters, which do not
require PCNs under paragraph (c)(2), above;
however, activities that result in the loss of
greater than'/,a acre of ephemeral waters
would require PCNs under paragraph (c)(1),
above).
On page 2088, in the sixth sentence of
the first paragraph in the first column,
the phrase "an adequate water quality
management plan" is replaced with the
phrase "adequate water quality
management measures" to reflect the
modified language in General Condition
9. This sentence is corrected to read
"The facility must have adequate water
quality management measures in
accordance with General Condition 9,
such as a stormwater management
facility, to ensure that the recreational
facility results in no substantial adverse
effects to water quality."
On page 2089, first column, the
second sentence of paragraph (c) of
NWP 44 is corrected to read "Normally,
the water quality management measures
required by General Condition 9 should
address these impacts;". In addition, tine
second sentence of paragraph (i) of NWP
44 is corrected to read "Further the
District Engineer may require water
quality management measures to ensure
the authorized work results in minimal
adverse effects to water quality;" These
corrections are necessary to reflect the
modified language in General Condition
9,
On page 2089, third column, the text
of General Condition 6 is corrected to
read: "The activity must comply with
any regional conditions that may have
been added by the Division Engineer
(see 33 CFR 330.4(e)) and with any case
specific conditions added by the Corps
or by the state or tribe in its Section 403
Water Quality Certification and Coastal
Zone Management Act consistency
determination." The clrange; to General
Condition 6 that was published in the
January 15, 2002, Federal Register was
not intended and we are correcting this
sentence by reinstating the original text
as it existed in the March 9, 2000,
NWPs.
On page 2090, first column, the word
"Section" in the parenthetical at the end
of General Condition 10 is replaced with
"33 CFR" so that the parenthetical reads
"(see 33 CFR 330.4(d))".
On page 2090, at the top of the second
column, the second Internet URL is
replaced with "* * * http://
wrvvv.ilillfs.ilo(l(].gov/Pl-ot-l-es/ov(?I-Vic"lv/
es.html * * *" because the Internet
address for the National Marine
Fisheries Service home page; for
endangered species has been changed.
On page 2090, third column, in
paragraph. (b)(4) of General Condition
13, NWP 40 should be added to the list
of NWPs that require submission of
delineations of special aquatic sites with
pre-construction notifications.
Therefore, paragraph (b)(4) of General
Condition 13 is corrected to read "For
N W P s 7, 12, 14, 18, 21, 34, 38, 39, 40,
41, 42, and 43, the PCN must also
include a delineation of affected special
aquatic sites, including wetlands,
vegetated shallows (e.g., submerged
aquatic vegetation, seagrass beds), and
riffle and pool complexes (see paragraph
13(f));"
On page 2090, third column, in
paragraph (b)(6) of General Condition
13, the word "Projects" replaces the
word "Crossings", because the title of
NWP 14 is "Linear Transportation
Projects".
On page 2090, third colutnrn, in
paragraph (b)(8) of General Condition
13, the word "Activities" is inserted
after the word "Restoration" because the
title of NWP 27 is "Stream and Wetland
Restoration Activities".
On page 2091, first column, in
paragraph (b)(10) of General Condition
13, the word "Projects" is replaced with
the word "Facilities" because the title of
NWP 31 is "Maintenance of Existing
Flood Control Facilities".
()n page 2094, third column, we are
correcting the definition of "Loss of
Waters of the US" by deleting the last
sentence and inserting tyre following
sentence after the fourth sentence of this
definition: "Impacts to ephemeral
streams are not included in the linear
foot measurement of loss of stream bed
for the purpose of determining
compliance with the linear foot limits of
NWPs 39, 40, 42, and 43."
Due to the number of corrections
made to the definition of "Loss of
Waters of the US", we are providing the
text of this definition in its entirety,
with the corrections described above:
Loss of Waters of the US: Waters of
the US that include the filled area and
other waters that are permanently
adversely affected by flooding,
excavation, or drainage because of the
regulated activity. Permanent adverse
effects include permanent above-grade,
at-grade, or below-grade fills that change
an aquatic area to dry land, increase the
bottom elevation of a waterbody, or
change the use of a waterbody. The
acreage of loss of waters of the US is the
threshold measurement of the impact to
existing waters for determining whether
a project may qualify for an NWP; it is
not a net threshold that is calculated
after considering compensatory
mitigation that may be used to offset
losses of aquatic functions and values.
The loss of stream beet includes the
linear feet of stream bed that is filled or
excavated. Impacts to ephemeral
streams are not included in the linear
foot measurement of loss of stream beet
for the purpose of determining
compliance with the linear foot limits of
NWPs 39, 40, 42, and 43. Waters of the
US temporarily filled, flooded,
excavated, or drained, but restored to
preconstrruuction contours and elevations
after construction, are not included in
the measurement of loss of waters of the
US.
In the January 15, 2002, Federal
Register, it was stated that the definition
was being revised (to clarify that
ephemeral waters and streams are not
included in the acreage or linear
thresholds for NWPs) to comport with
language in the preamble of the March
9, 2000 Federal Register notice.
However, the language in the preamble
of the March 9, 2000 Federal Register
notice (65 FR 12881, third column) does
not support this revision. Rather, the
referenced preamble states, "During our
review of the comments received in
response to the Judy 21, 1999, Federal
Register notice, we found an error in the
proposed definition of the term, "loss of
waters of the United States." In the
fourth sentence of the draft definition,
we stated that the loss of stream bed

Federal Register/ Vol. 67, No. 30/Wednesday, February 13, 2002/Notices 6695
includes the linear feet of perennial or
intermittent stream bed that is filled or
excavated. This statement is inaccurate
because ephemeral stream bed that is
filled or excavated can also be
considered a loss of waters of the United
States. However, the 300 linear foot
limit for stream beds filled or excavated
does not apply to ephemeral streams.
We have modified this sentence to
define the loss of stream bed as the
linear feet of stream bed that is filled or
excavated." 'T'hus, the modification of
this definition was intended to clarify
that activities that involve filling or
excavating ephomeral streams are not
included in the linear foot limits for
filling or excavating stream beds in
NWPs 39, 40, 42, and 43. However, it
was not intended to exempt ephemeral
waters or streams from calculations of
impacted acreages to determine PCN or
maximum acreage requirements in
accordance with NWPs :39, 40, 42, and
43.
In the August 9, 2001, Federal
Register notice (66 FR 42099) we
proposed to modify the definition of
"Loss of Waters of the US" by adding
the sentence "* * * Tlio loss of stream
hed includes the linear feet of perennial
stream or intermittent stream that is
filled or excavated * *". The
proposed change was in response to a
commitment to clearly state in the text
of the NWPs (which includes the
definitions) that the 300 linear foot limit
in NWPs 39, 40, 42, and 43 for filling
and excavating stream beds would only
apply to intermittent and perennial
streams, not to ophemeral streams.
In the January 15, 2002, Federal
Register notice (67 FR 2074-2075) we
erroneously stated that both the acreage
and linear limits of the NWPs do not
apply to ephemeral waters. This was
never intended to be adopted as policy
for the NWPs or the Corps regulatory
program. A previously stated, in the first
column of page 2075 of the January 15,
2002, Federal Register notice, we refer
to page 12881 of the March 9, 2000,
Federal Register notice, which only
discusses the 300 linear foot limit, not
the acreage limits of the NWPs. Our
intent is to continue to apply acreage
limits of NWPs to activities that result
in the permanent loss of ephemeral
waters, but the linear foot limits of the
NWPs (i.e., NWI's 39, 40, 42, and 413) for
filling or excavating stream beds would
not apply to activities that involve
filling or excavating ephemeral streams.
The last sentence of the definition of
"Loss of Waters of the US" as published
in the January 15, 2002, Federal
Register notice does not comport with
remainder of this NWP package,
Therefore, we are correcting this
definition as described above.
We believe that correcting the text of
NWP 39 and the definition of "Loss of
Waters of the US" through the
publication of this correction notice is
appropriate. Nevertheless, in order to
give all interested parties further
opportunity to comment on this matter,
we intend to publish a Federal Register
notice to solicit public comments on
those two corrections. If we determine
that any other matter relating to the final
NWPs requires correction or
clarification, but that matter was not
adequately dealt with in this correction
notice, we will address that additional
matter in the forthcoming Federal
Register notice, as well. We expect to
publish that Federal Register notice
within a few weeks.
Dated: February 7, 2002
Lawrence A. Lang,
Assistant Chief, Operations Division,
Directorate of Civil Works.
1FR Doc. 02-3555 filed 2-12-02; 8:45 ate
BILLING CODE 3710-92-P
DEPARTMENT OF DEFENSE
Uniformed Services University of the
Health Sciences
Sunshine Act Meeting
AGENCY HOLDING THE MEETING:
Uniformed Services University of the
Health Sciences.
TIME AND DATE: 8:00 a.m. to 4:00 p.m.,
February 5, 2002.
PLACE: Uniformed Services University
of the I Iealth Sciences, Board of Regents
Conference Room (D3001), 4301 Jones
Bridge Road, Bethesda, MD 20814-4799.
STATUS: Open-under "Government i11
the Sunshine Act" (5 U.S.C. 552b(e)(3)).
MATTERS TO BE CONSIDERED:
8:30 a.m. Meeting-Board of Regents
(1) Approval of Minutes-November 14,
2001
(2) Faculty Matters
(3) Department Reports
(4) Financial Report
(5) Report-President, USUHS
((3) Report-Dean, School of Medicimc
(7) Report-Dean, Graduate School of
Nursing
(8) Comments--Chairman, Board of
Regents
(9) New Business
CONTACT PERSON FOR MORE INFORMATION:
Mr. Bobby D. Anderson, Executive
Secretary, Board of Regents, (301) 295-
3116.
Uated: February It, 2002.
Linda 11yn1nn,
OSDFederal RegisterLioison Officer,
Department of Defi:nse.
iFR Uoc. 02-3683 Filed 2-11-02; 3:32 pn1)
BILLING CODE 5001-03--M
DEPARTMENT OF EDUCATION
Submission for OMB Review;
Comment Request
AGENCY: Department of Education.
SUMMARY: The Leader, Regulatory
Information Management Group, Office
of the Chief Information Officer invites
comments on the submission for OMB
review as required by the Paperwork
Reduction Act of 1995.
DATES: Interested persons are invited to
submit comments on or before March
15, 2002.
ADDRESSES: Written comments should
be addressed to the Office of
Information and Regulatory Affairs,
Attention: Lauren Wittenberg, Desk
Officer, Department of Education, Office
of Management and Budget, 725 17th
Street, NW., Room 10202, New
Executive Office Building, Washington,
DC: 20503 or should be electronically
mailed to the internet address
Luuren-Wittern6eru omb.eop.gov.
SUPPLEMENTARY INFORMATION: Section
3506 of the Paperwork Reduction Act of
1995 (44 U.S.C. Chapter 35) requires
that the Office of Management and
Budget (OMB) provide interested
Ferleral agencies and the public an early
opportunity to comment oil information
collection requests. OMB may amend or
waive the requirement for public
consultation to the extent that public
participation in the approval process
would defeat the purpose of the
information collection, violate State or
Federal law, or substantially interfere
with any agency's ability to perform its
statutory obligations. The Leader,
Regulatory Information Management
Group, Office of the Chief Information
Officer, publishes that notice containing
proposed information collection
requests prior to submission of these
requests to OMB. Each proposed
information collection, grouped by
office, contains the following: (1) Type
of review requested, e.g. new, revision,
extension, existing or reinstatement; (2)
Title; (3) Summary of the collection; (4)
Description of the need for, and
proposed use of, the information; (5)
Respondents and frequency of
collection; and (6) Reporting and/or
Recordkeeping burden. OMB invites
public comment.
' U.S. ARMY CORPS OF ENGINEERS
WILMINGTON DISTRICT
Action Ill: 200200408 TIP No: State Project No: 6.522070T County: Chatham
GENERAL PERMIT (REGIONAL AND NATIONWIDE) VERIFICATION
Applicant: North Carolina Department of Transportation
Address: W.F. Rosser, P.E., Division Engineer
North Carolina Department of Transportation
Division 8
P.O. Box 1067
Aberdeen, North Carolina 28315
Telephone Number: [phone]
Size and Location of project (waterway, road name/number, town, etc.): 60 linear feet of 92-inch X 65-inch
CMPA culvert with headwalls at centerline station 41+20 and temporary diversion on SR 2324 at an unnamed
tributary to Falls Creek in Chatham County, North Carolina.
Description of Activity: To replace 30 linear feet of 36-inch RCP with 60 linear feet of 92-inch X 65-inch CMPA
culvert with headwalls and install a temporary diversion structure consisting of a fabic-lined channel, temporary
diversion pipe and fabric-covered stone berms placed on filter cloth on the upstream and down stream side of the
culverts. 20-feet of class B rip-rap is to be placed on both banks above the plane of ordinary high water at each end of
the culverts for bank protection. Traffic will be detoured onto existing roadways during construction. All temporary
fill is to be removed from the waterway in its entirety upon completion of the construction.
Applicable Law: X Section 404 (Clean Water Act, 33 U.S.C. 1344)
Section 10 (River and Harbor Act of 1899)
Authorization: 14/33 Nationwide Permit Number
Regional General Permit Number
Your work is authorized by this Regional General (RGP) or Nationwide (NWP) Permit provided it is accomplished
in strict accordance with the attached conditions and your submitted plans. If your activity is subject to Section 404
(if Section 404 block above is checked), before beginning work you must also receive a Section 401 water quality
certification from the N.C. Division of Environmental Management, telephone [phone]. For any activity
within the twenty coastal counties, before beginning work you must contact the N.C. Division of Coastal
Management, telephone [phone].
Please read and carefully comply with the attached conditions of the RGP or NWP. Any violation of the conditions
of the RGP or NWP referenced above may subject the permittee to a stop work order, a restoration order, and/or
appropriate legal action.
This Department of the Army RGP or NWP verification does not relieve the permittee of the responsibility to obtain
any other required Federal, State, or local approvals/permits. The permittee may need to contact appropriate State
and local agencies before beginning work.
If there are any questions regarding this authorization or any of the conditions of the RGP or NWP, please contact
the Corps Regulatory Official specified below.
Date 8 April 2002 ???L?C
Corps Regulatory Official Richard K. Spencer _ ---Telephone No. [phone]
Expiration Date of Verification_ 8 April 2005
CF: NCDOT ( Division 8, attn: Art King)
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Federal Register/Vol. 67, No. 10 / Tuesday, January 15, 2002/Notices 2077
New York
New York District Engineer, ATTN: CENAN-
OP-R, Z6 Federal Plaza, New York, NY
10278-0090
North Carolinn
Wilmington District Engineer, ATTN:
CESAW-RG, P.O. Box 1890, Wilmington,
NC 28402-1890
North Dakota
Omaha District Engineer, ATTN: CENWO-
OP-R, 106 South 15th Street, Omaha, NE'
68102--1618
Ohio
Huntington District Engineer, ATTN:
CELRff--OR-1', 502 8th Street, Iuntington,
WV 25701-2070
Oklahoma
Tulsa District Engineer, ATTN: CESWT'-PE-
R, 1645 S. 101st East Ave, Tulsa, OK
74128-4609
Oregon
Portland District Engineer, ATTN: CENWP-
PE-G, P.O. Box 2946, Portland, OR 97208--
2946
Pennsylvania
Baltimore District Engineer, ATTN: CENAB-
OP-R, P.O. Box 1715, Baltimore, MD
21203-1715
Rhode Island
New England District Engineer, ATTN:
CENAE-R, 696 Virginia Road, Concord,
MA 01742-2751
South Carolina
Charleston District Engineer, ATTN: CESAC-
CO-P, P.O. Box 919, Charleston, SC
29402-0919
South Dakota
Omaha District Engineer, ATTN: CENWO-
OP-R, 106 South 15th Street, Omaha, NF
68102-1618
Tennessee
Nashville District Fogineer, ATTN: CELRN-
OP-F, P.O. Box 1070, Nashville, TN
37202-1070
Texas
Ft. Worth District Engineer, ATTN: CESWF-
PER-R, P.O. Box 17300, Ft. Worth, TX
76102--0300
Utah
Sacramento District Engineer, ATTN:
CESPK-CO-R, 1325 J Street, CA 95814-
2922
Vertnont
New England District Engineer, ATTN:
CENAE-R, 690 Virginia Road, Concord,
MA 01742-2751
Virginia
Norfolk District Engineer, ATTN: CENAO--
OP-R, 803 Front Street, Norfolk, VA
23510--1096
Washington
Seattle District Engineer, ATTN: CE:NWS-
OP--RG, P.O. Box 3755, Seattle, WA 98124-
2255
West Virginia
Huntington District Engineer, AT" TN:
C1.'LRH-OR-F, 502 8th Street, fluatington,
WV 25701--2070
Wisconsin
St. Paul District Engineer, ATTN: CI',1vIVP---
CO--R, 190 Fifth Street East, St. Paul, MN
55161-1638
Wvornittg
Omaha District Engineer, ATTN: CENWO-
OP-R, 1061 South 15th Street, Omaha, NE,
68102-1618
District of Columbia
Baltimore District Engineer, ATTN: CENAfI-
OP-R, P.O. Box 1715, Baltimore, MD
21203-1715
Pacific Territories (American Samoa, Gudrn,
Fr Commonwealth of the Northern Mariana
Islands)
Honolulu District Engineer, ATTN: CEPOH-
EC-R, Building 230, Fort Shafter,
Honolulu, HI 96858-5440
Puerto Rico & Virgin Islands
Jacksonville District Engineer, ATTN:
CESAJ-CO-R, P.O. Box 4970, Jacksonville,
FI.32202-4412
Dated: January 4, 2002.
Approved:
Robert H. Griffin,
Brigadier General, U.S. Army, Directorof Civil
Works.
Nationwide Permits, Conditions,
Further Information, and Definitions
A. Index of Nationwide Permits,
Conditions, Furtherlnforinotion, and
Definitions
Nationwide Permits
1. Aids to Navigation
2. Structures in Artificial Canals
3, Maintenance
4. Fish and Wildlife Harvesting,
Enhancement, and Attraction Devices and
Activities
5. Scientific Measurement Devices
6. Survey Activities
7. Ontfall Structures and Maintenance
8. Oil and Gas Structures
9. Structures in Fleeting and Anchorage
Areas
10. Mooring Buoys
11. Temporary Recreational Structures
12. Utility Line Activities
13. Bank Stabilization
14. Linear Transportation Projects
15. U.S. Coast Guard Approved Bridges
16. Return Water From Upland Contained
Disposal Areas
17. Hydropower Projects
18. Minor Discharges
19. Minor Dredging
20. Oil Spill Cleanup
21. Surface Coal Mining Activities
22. Removal of Vessels
23. Approved Categorical Exclusions
24. State Administered Section 404 Programs
25. Structural Discharges
26. [Reserved]
27. Stream and Wetland Restoration
Activities
28. Modifications of Existing Marinas
29. Single-family Housing
30. Moist Soil Management for Wildlife
31. Maintenance of Existing Flood Control
Facilities
32. Completed Enforcement Actions
33. Temporary Construction, Access and
Dewatering
34. Cranberry Production Activities
35. Maintenance Dredging of Existing Basins
36. Boat Ramps
37. Emergency Watershed Protection and
Rehabilitation
38. Cleanup of Hazardous and Toxic Waste
39. Residential, Commercial, and
Institutional Developments
40. Agricultural Activities
41. Reshaping Existing Drainage Ditches
42. Recreational Facilities
43. Stormwater Management Facilities
44. Mining Activities
Nationwide Permit General Conditions
1. Navigation
2. Proper Maintenance
3. Soil Erosion and Sediment Controls
4. Aquatic Life Movements
5. Equipment
6. Regional and Case-by-Case Conditions
7. Wild and Scenic Rivers
8. Tribal Rights
9. Water Quality
10. Coastal Zone Management
11. Endangered Species
12. Historic Properties
13. Notification
14. Compliance Certification
15. Use of Multiple Nationwide Permits.
16. Water Supply Intakes
17. Shellfish Beds
18. Suitable Material
19. Mitigation
20. Spawning Areas
21. Management of Water Flows
22. Adverse Effects from Impoundments
23. Waterfowl Breeding Areas
2.4. Removal of Temporary Fills
25. Designated Critical Resource Waters
26. Fills Within 100-year Floodplains
27. Construction Period
Further Information
Definitions
Best Management Practices (BMPs)
Compensatory Mitigation
Creation
Enhancement
Ephemeral Stream
Farur Tract
Flood Fringe
Floodway
Independent Utility
Intermittent Stream
Loss of Waters of the US
Non-tidal Wetland
Open Water
Perennial Stream
Permanent Above-grade Fill
Preservation
Restoration
Riffle and Pool Complex
2078 Federal Register/Vol. 67, No. 10/Tuesday, January 15, 2002/Notices
Single and Complete Project
Stormwater Management
S bridges, culverted road crossings, water done primarily to obtain fill for any
intake structures
etc
) and th

tormwater Management Facilities
Stream Bed ,
.
e
placement of new or additional riprap t
restoration activities. The discharge of
o dredged or fill material and all related
Stream Channelization
Tidal Wetland protect the structure, provided the
permittee notifies the District Engineer work needed to restore the upland must
be part of a sin
le and com
l
t

Vegetated Buffer
Vegetates{ Shallows
in accordance with General Condition
13. The removal of sediment is limit
d g
p
e
e project.
This permit cannot be used in

Waterbody e
conjunction with NWP 18 or NWP 19 to
to the minimum necessary to restore the restore damaged upland areas. This
B. Nationwide Permits waterway in the immediate vicinity of
the structure to the a
roximat permit cannot be used to reclaim
h
1. Aids to Navigation. The placement
of aids to navigation and Regulatory pp
e
dimensions that existed when the istoric lands lost, over an extended
period, to normal erosion processes

markers which areapproved b and
y
structure was built, but cannot extend
furtheY than 200 feet in an
di
ti .
This permit does not authorize

installed in accordance with the
requirements of the U.S. Coast Guard v
rec
on
from the structure. The placement of rip maintenance dredging for the primary
purpose
of navigation and beach

(USCG) (See 33 CF'R, chapter 1,
subchapter C part 66). (Section 10) rap must be the minimum necessary to
protect the structure or to ensure the restoration. 'I'bis permit does not

authorize new stream channelizati

2. Structures in Artificial Canals.
Structures constructed in artificial
safety of the structure. All excavated
materials must be deposited and on or
stream relocation projects. Any work
authorized by this permit must not
canals within principally residential
developments where the connection of retained in an upland area unless
otherwise specifically approved by the cause more than minimal degradation of
water quality, more than minimal
the canal to navigable water of the US
has been previously authorized (see 33 District Engineer under separate
authorization. Any bank stabilization changes to the flow characteristics of the
str
i

CFR 322.5(8)). (Section 10)
,3. Maintenance
Activities related t
measures not directly associated with
the structure will require a separate eam, or
ncrease flooding (See
General Conditions 9 and 21). (Sections
d
.
o:
(i) The repair, rehabilitation, or
authorization from the District Engineer. 10 aci
404)
Note: This NWP authorizes the re
air

replacement of any previously
authorized, currently serviceable,
(iii) Discharges of dredged or fill
material, including excavation, into all p
,
rehabilitation, or replacement of any
previously authorized structure or fill that
structure, or fill, or of any currently waters of the US for activities associated does not qualify for the Section 404(8
serviceable structure or fill authorized
by 33 CFR 330.3, provided that the with the restoration of upland areas
damaged b
a storm
fl
d
th exemption for maintenance.
'
F

structure or fill is not to be put to uses y
,
oo
, or o
er
discrete event, including the 4.
ish and Wildlife Harvesting,
Enhancement
and Attraction Devices
differing from those uses specified or
contemplated for it in the original construction, placement, or installation
of upland protection structures and ,
and Activities. Fish and wildlife
harvesting devices and activities such as
permit or the most recently authorized
modification
Minor deviatio
i
th minor dredging to remove obstructions
i pound nets, crab traps, crab dredging,
.
ns
n
e
structure's configuration or filled area n a water of the US. (Uplands lost as
a result of a storm, flood, or other eel pots, lobster traps, duck blinds, clam
and oyster digging; and small fish
including those due to changes in
materials, construction techniques, or discrete event can be replaced without
a Section 404 permit provided the attraction devices such as open water
fish concentrators (sea kites
etc.)
This
current construction codes or safety
standards which are necessary to make uplands are restored to their original
pre-event location. This NWP is for the ,
.
NWP authorizes shellfish seeding
provided this activity does not occur ill
repair, rehabilitation, or replacement are
permitted, provided the adverse activities in waters of the US associated
with the replacement of the uplands.) wetlands or sites that support
submerged aquatic vegetation (includin

environmental effects resulting from
such repair
rehabilitation
The permittee must notify the District
E
i g
sites where submerged aquatic
,
, or
replacement are minimal. Currently ng
neer, in accordance with General
Condition 13, within 12-months of the vegetation is documented to exist, but
may not be present in a given year
)

serviceable means useable as is or with
date of the damage and the work must .
.
This NWP sloes not authorize artificial
some maintenance, but not so degraded
as to essentially require reconstruction. commence, or be under contract to
commence, within two years of the date reefs or impoundments and sertii-
impoundments of waters of the US for
This NWP authorizes the repair,
rehabilitation, or replacement of those of the damage. The permittee should
provide evidence, such as a recent the culture or holding of motile species
Such as lobster or the use of covered
structures or fills destroyed or damaged
by storms, floods, fire or other discrete topographic survey or photographs, to
justify the extent of the proposed oyster trays or clam racks. (Sections 10
and 404)
events, provided the repair,
rehabilitation, or replacement is restoration. The restoration of the
damaged areas cannot exceed th , 5. Scientific Measurement Devices.

commenced, or is under contract to e
contours, or ordinary high water mark, Devices, whose purpose is to measure
and record scientific data such as staff
commence, within two years of the date
of their destruction or damage. In cases that existed before the damage. The
District Engineer retains the right to gages, tide gages, water recording
devices, water quality testin
and
of catastrophic events, such as
hurricanes or tornadoes, this two-year determine the extent of the pre-existing
conditions and the extent of g
improvement devices and similar

limit may be waived by the District
Engineer
provided the
ermittee ca any
restoration work authorized by this
er
it
Mi
d
d structures. Small weirs and flurries
constructed primarily to record water
,
p
n
demonstrate funding, contract, or other p
m
.
nor
re
ging to remove
obstructions from the adjacent quantity and velocity are also
authorized provided the dischar
e is
similar delays.
(ii) Discharges of dredged or fill
i
l Waterbody is limited to 50 cubic yards
below the plane of the ordinary high g
limited to 25 cubic yards and further for
discharges of 10 to 25 cubic
ards
mater
a
, including excavation, into all
waters of the US to remove accumulat
d water mark, and is limited to the y
provided the permittee notifies the
e
sediments and debris in the vicinity of, amount necessary to restore the pre-
existing bottom contours of the District Engineer in accordance with the
"Notification" General C
diti

and within, existing structures (e.g.,
waterbody. The dredging may not be on
on,
(Sections 10 and 404)
Federal Register/Vol. 67, No. 10/Tuesday, January 15, 2002/Notices 2079
. 6. Survey Activities. Survey activities
including core sampling, seismic
exploratory operations, plugging of
seismic shot holes and other
exploratory-type bore holes, soil survey,
sampling, and historic resources
surveys. Discharges and structures
associated with the recovery of historic
resources are not authorized by this
NWP. Drilling and the discharge of
excavated material from test wells for
oil and gas exploration is not authorized
by this NWP; the plugging of such wells
is authorized. Fill placed for roads, pads
and other similar activities is not
authorized by this NWP. The NWP does
riot authorize any permanent structures.
The discharge of drilling mud and
cuttings may require a permit under
section 402 of the CWA. (Sections 10
and 404)
-7. Outfoll Structures and
iVlointenonce. Activities related to:
([) Construction of outfall structures
and associated intake structures where
the effluent from the outfall is
authorized, conditionally authorized, or
specifically exempted, or are otherwise
in compliance with regulations issued
under the National Pollutant Discharge
Elimination System Program (Section
402 of the CWA), and
([[) Maintenance excavation,
including dredging, to remove
accumulated sediments blocking or
restricting outfall and intake structures,
accumulated sediments from small
impoundments associated with outfall
and intake structures, and accumulated
sediments from canals associated with
outfall and intake structures, provided
that the activity meets all of the
following criteria:
a. The permittee notifies the District
Engineer in accordance with General
Condition 13;
b. The amount of excavated or
dredged material must be the minimum
necessary to restore the outfalls, intakes,
small impoundments, and canals to
original design capacities and design
configurations (i.e., de th and width);
C. The excavated or dredged material
is deposited and retained at an upland
site, unless otherwise approved by the
District Engineer under separate
authorization; and
d. Proper soil erosion and sediment
control measures are used to minimize
reentry of sediments into waters of the
US.
The construction of intake structures
is not authorized by this NWP, unless
they are directly associated with an
authorized outfall structure. For
maintenance excavation and dredging to
-remove accumulated sediments, the
notification must include information
regarding the original design capacities
and configurations of the facility and
e presence of special aquatic sites
e.g., vegetated shallows) in the vicinity
athe proposed work. (Sections 10 and
404)
8. Oil and Gas Structures. Structures
for the exploration, production, and
transportation of oil, gas, and minerals
on the outer continental shelf within
areas leased for such purposes by the
DO[, Minerals Management Service
(MMS).•Such structures shall not,be
placed within the limits of any
designated shipping safety fairway or
traffic separation scheme, except
temporary anchors that comply with the
fairway regulations in 33 CFR 322.5(1).
(Where such limits have not been
designated, or where changes are
anticipated, District Engineers will
consider asserting discretionary
authority in accordance with 33 CFR
330.4(e) and will also review such
proposals to ensure they comply with
the provisions of the fairway regulations
in 33 CFR 322.5(1). Any Corps review
under this permit will be limited to the
effects on navigation and national
security in accordance with 33 CFR
.322.5(f)). Such structures will not be
placed in established danger zones or
restricted areas as designated in 33 CFR
part 334: nor will such structures be
permitted in EPA or Corps designated
dredged material disposal areas.
(Section 10)
9. Structures in Fleeting and
Anchorage Areas. Structures, buoys,
floats and other devices placed within
anchorage or fleeting areas to facilitate
moorage of vessels where the USCG has
established such areas for that purpose.
(Section 10)
, 10. Mooring Buovs. Non-commercial,
single-boat, mooring buoys. (Section 10)
r 11. Temporary Recreational
Structures. Temporary buoys, markers,
small floating docks, and similar
structures placed for recreational use
during specific events such as water
skiing competitions and boat races or
seasonal use provided that such
structures are removed within 30 days
after use has been discontinued. At
Corps of Engineers reservoirs, the
reservoir manager must approve each
buoy or, marker, individually. (Section
10)
,12. Utility Line Activities. Activities
required for the construction,
maintenance and repair of utility lines
and associated facilities in waters of the
US as follows:
(i) Utility lines: The construction,
maintenance, or repair of utility lines,
including outfall and intake structures
and the associated excavation, backfill,
or bedding for the utility lines, in all
waters of the US, provided there is no
change in preconstruction contours. A
"utility line" is defined as any pipe or
pipeline for the transportation of any
gaseous, liquid, liquescent, or slurr}'
substance, for any purpose, and any
cable, line, or wire for the transmission
for any purpose of electrical energy,
telephone, and telegraph messages, and
radio and television communication
(see Note 1, below), Material resulting
from trench excavation may be
temporarily sidecast (up to three
months) into waters of the US, provided
that the material is not placed in such
a manner that it is dispersed by currents
or other forces. The District Engineer
may extend the period of temporary side
casting not to exceed a total of 180 days,
cohere appropriate. In wetlands, the top
6" to 12" of the trench should normally
be backfil)ed'with topsoil from the
trench. Furthermore, the trench cannot
be constructed in such a manner as to
drain waters of the US (e.g., backfilling
with extensive gravel layers, creating a
french drain effect). For example, utility
line trenches can be backfilled with clan
blocks to ensure that the trench does not
drain the waters of the US through
which the utility line is installed. Any
exposed slopes and stream banks must
be stabilized immediately upon
completion of the utility line crossing of
each waterbody.
([[) Utility line substations: The
construction, maintenance, or
expansion of a substation facility
associated with a power line or utility
line in non-tidal waters of the US,
excluding non-tidal wetlands adjacent
to tidal waters, provided the activity
does not result in the loss of greater than
1/2-acre of non-tidal waters of the US.
(iii) Foundations for overhead utility
line towers, poles, and anchors: The
construction or maintenance of
foundations for overhead utility line
towers, poles, and anchors in all waters
of the US, provided the foundations are
the minimum size necessary and
separate footings for each tower leg
(rather than a larger single pad) are used
where feasible.
(iv) Access roads: The construction of
access roads for the construction and
maintenance of utility lines, including
overhead power lines and utility line
substations, in non-tidal waters of the
US, excluding non-ticlal wetlands
adjacent to tidal waters, provided the
discharges do not cause the loss of
greater than V-acre of non-tidal waters
of the US. Access roads shall be the
ntinimuin width necessary (see Note 2,
below). Access roads must be
constructed so that the length of the
road minimizes the adverse effects on
waters of the US and as near as possible
to prccenstruction contours and
2080 Federal Register / Vol. 67, No. 10 / "Tuesday, January 15, 2002/Notices
elevations (e.g., at grade corduroy roads (c) The utility line in waters of the
or geotextile/gravel roads). Access roads US, excluding overhead lines
ex
d expected high flows (properly anchored

constructed above preconstruction ,
cee
s
500 feet; trees and treetops may be used in low
contours and elevations in waters of the

US must be properly bridged or (d) The utility E line is placed within a

jurisdictional area (i
f energy areas); and,
g. I'he activity is part of a single and

culverted to maintain surface flows.
" .e., water o
the US)
and it runs parallel to a stream bed that , complete project.
Bank stabilization activities in

The term
utility line" does not
include activities which drain a water o
is within that jurisdictional area;
f (e) Discharges associated with th excess
of 500 feet in length or greater than an

the US, such as drainage tile, or french
drains; however, it does apply to pipes e
construction of utility line substations
that result in the loss of greater than V average of one cubic yard per running
foot may be authorized if the pertittee
-

conveying drainage from another area,
F
h io
acre of waters of the US; or notifies the District Engineer in
accordance with the "Notification"
or t
e purposes of this NWP, the loss
of waters of the US includes the filled (t) Pelmanent access roads
constr•?tcted above grade in waters of the General Condition 13 and the District

area plus waters of the US that are
d
US for a distance of more than 500 feet.
) P
( Engineer determines the activity
complies with the other terms and
a
versely affected by flooding,
°
excavation, or draina
e as a result of the g
ermanent access roads
constructed in waters of the US with
conditions of the NWP and the adverse
g
project. Activities authorized by
impervious materials. (Sections 10 and environmental effects are minimal both
individually and cumulatively
This
paragraph (i) through (iv) may not
exceed a total of 1/2-acre loss of waters
Note 1: Overhead utility lines constructed .
NWP may not be used for the
channelization of waters of th
US

of the US. Waters of the US temporarily
affected by filling
floodin
exca
ti over Section 10 waters and utility lines that
are routed in or under Section 10 waters e
.
(Sections 10 and 404)
,
g,
va
on,
or drainage, where the project area is without a discharge of dredged or fill
material require a Section 10 permit; exce
t t14. Lin San Transportation Projects.
Activities required for the construction

restored to preconstruction contours
and elevation, is not included in the p
for pipes or pipelines used to transport
gaseous, liquid, liquescent, or slurry ,
expansion, modification, or
improvement of line
t

calculation of permanent loss of waters
of the US. This includes temporary
substances over navigable waters of the US,
which are considered to be bridges
not ar
ransportation
crossings (e.g., highways, railways,

construction mats (e.g, timber, steel,
0,
geotextile) used during construction and ,
utility lines, and may require a permit from
the USCG pursuant to section 9 of the Rivers trails, airport runways, and taxiways) in

waters of the US, including wetlands, if

removed upon completion of the work. and [[arbors Act of 1899. However, an
discharges of dredged or fill material y the activity meets the following criteria:
a. This NWP is subject to the
Where certain functions and values of
waters of the US are permanently associated with such pipelines will require a
Corps permit under Section 404. following acreage limits:
(1) For linear transportation projects
adversely affected, such as the
conversion of a forested wetland to a Note 2: Access roads used for both
construction and maintenance may be in non-tidal waters, provided the
discharge does not cause the loss of
herbaceous wetland in the permanently
maintained utility line right-of-way, authorized, provided they meet the terms and
conditions of this NWP. Access roads used greater than 1/2-acre of waters of the US;
(2) For linear transportation projects
mitigation will be required to reduce the solely for construction of the utility line must in tidal waters, provided the discharge
adverse effects of the project to the be reproved upon completion of the work and does not cause the loss of greater than
minimal level.
Mechanized land clearin necessary
g Y the area restored to preconstruction contours,
elevations, and wetland conditions.
T 1/3-acre of waters of the US.
b. The permittee must notify the

for the construction, maintenance, or emporary access roads for construction may
be authorized by NWP 33. District in accordance with
repair of utility lines and the
construction, maintenance and
Note 3: Where the proposed utility line is General Condition 13 if any of the
following criteria are met:

expansion of utility line substations,
foundations for overhead utilit
lines constructed or installed in navigable waters
of the US (i.e., Section 10 waters), copies of
th
P (1) The discharge causes the loss of
,
greater than ho acre
f
t
f
h
y
,
and access roads is authorized, provided e
CN and MVP verification will be sent
by the Corps to the National Oceanic and o
wa
ers o
t
e US;
or
the cleared area is kept to the minimum Atmospheric Administration (NOAA), (2) There is a discharge in a special
necessary and preconstruction contours National Ocean Service (NOS), for charting aquatic site, including wetlands;
are maintained as near as possible. The the utility line to protect navigation. ?c. Tire notification must include a
area of waters of the US that is filled, •13. Bank Stabilization. Bank compensatory mitigation proposal to
excavated, or flooded must be limited to stabilization activities necessary for offset permanent losses of waters of the
the minimum necessary to construct the erosion prevention provided the activity US to ensure that those losses result
utility line, substations, foundations, meets all of the following criteria: only in minimal adverse effects to the
and access roads. Excess material must a. No material is placed more than the aquatic environment and a statement
be removed to upland areas
immediately upon completion of minimum needed for erosion protection;
b. The bank stabilization activity is describing how temporary losses will be
minimized to the maximum extent
construction. This NWP may authorize
utility lines in or affecting navigable less than 500 feet in length;
c. Tire activity will riot exceed an practicable;
d. For discharges in special aquatic:
waters of the US even if there is no
associated discharge of dredg
ed or fill average of one cubic yard per running

foot placed along the bank below the sites, including wotlands, and stream

riffle and pool complexes, the
mat
material (See 33 g part 322).
(See 3
part plane of the ordinary high water mark notification must include a delineation
Notification.-
The
tee must
notify the District Engineer in or the higli tide line;
d. No material is placed in any special of the affected special aquatic sites;
e. The width of the fill is limited to

accordance with General Condition 13,
if any of the following criteria are m
t aquatic site, including wetlands;
e. No material is of the type, or is the minimum necessary for the crossing;
f. This permit does not authorize
e
:
(a) Mechanized land clearin
in a placed in any location, or in any stream channelization, and the
g
forested wetland for the utility line manner, to impair surface water flow
i
t authorized activities must not cause

right of-way; n
o or out of any wetland area;
f. No material is placed in a manner more than minimal clianges to the
hydraulic flow characteri
ti
f th

(b) A Section 10 permit is required;
that will be eroded by normal or s
cs o
e
stream, increase flooding, or cause more
Federal Register/Vol. 67, No. 10 / Tuesday, January 15, 2002/Notices 2(181
than minimal degradation of water
quality of any stream (see General
Conditions 9 and 21);
g. This permit cannot be used to
authorize non-linear features commonly
associated with transportation projects,
such as vehicle maintenance or storage
buildings, parking lots, train stations, or
aircraft hangars; and
h. The crossing is a single and
complete project for crossing waters of
the US. Where a road segment (i.e., the
shortest segment of a road with
independent utility that is part of a
larger project) has multiple crossings of
streams (several single and complete
projects) the Corps will consider
whether it should use its discretionary
authority to require an Individual
Permit. (Sections 10 and 404)
Note: Some discharges for the construction
of farm roads, forest roads, or temporary
roads for moving mining equipment may be
eligible for an exemption from the need for
a Section 404 permit (see 33 CFR 323.4).
• 15. U.S. Coast Guard Approved
Bridges. Discharges of dredged or fill
material incidental to the construction
of bridges across navigable waters of the
US, including cofferdams, abutments,
foundation seals, piers, and temporary
construction and access fills provided
such discharges have been authorized
by the USCG as part of the bridge
permit. Causeways and approach fills
are not included in this NWP and will
require an individual or regional
Section 404 permit. (Section 404)
16. Return Water F'rorn Upland
Contained Disposal Areas. Return water
from upland, contained dredged
material disposal area. The dredging
itself may require a Section 404 permit
(33 CFR 323.2(d)), but will require a
Section 10 permit if located in navigable
waters of the US. The return water from
a contained disposal area is
aclrninistratively.de.fined as a discharge
of dredged material by 33 CFR 323.2(4),
even though the disposal itself occurs
on the upland and does not require a
Section 404 permit. This NWP satisfies
the technical requirement for a Section
404 permit for the return water where
the quality of the return water is
controlled by the state through the
Section 401 certification procedures.
(Section 404)
- 17. flydropowcr Projects. Discharges
of dredged or fill material associated
with (a) small hydropower projects at
existing reservoirs where the project,
which includes the fill, are licensed by
the Federal Energy Regulatory
Commission (FERC) under the Federal
Power Act of 1920, as amended; and has
a total generating capacity of not more
than 5000 k1V; and the pernittee
notifies the District Engineer in
accordance with the ''Notification''
General Condition; or (b) hydropower
projects for which the FERC has granted
an exemption from licensing pursuant
to section 408 of the Energy Security
Act of 1980 (16 U.S.C. 2705 and 2708)
and section 30 of the Federal Power Act,
as amended; provided the permittee
notifies the District Engineer in
accordance with the ''Notification''
General Condition. (Section 404)
18..Minor Discharges. Minor
discharges of dredged or fill material
into all waters of the US if the activity
meets all of the following criteria:
a. The quantity of discharged material
and the volume of area excavated do not
exceed 25 cubic yards below the plane
of the ordinary high water mark or the
high tide line;
b. The discharge, including any
excavated area, will not cause the loss
of more than/,n-acre of a special
aquatic site, including wetlands. For the
purposes of this NWP, the acreage
limitation includes the filled area and
excavated area plus special aquatic sites
that are adversely affected by flooding
and special aquatic sites that are
drained so that they would no longer be
a water of the US as a result of the
project;
c. If the discharge, including any
excavated area, exceeds 10 cubic yards
below the plane of the ordinary high
water mark or the high tide line or if the
discharge is in a special aquatic site,
including wetlands, the permittee
notifies the District Engineer in
accordance with the "Notification"
General Condition. For discharges in
special aquatic sites, including
wetlands, the notification must also
include a delineation of affected special
aquatic sites, including wetlands (also
see 33 CFR 330.1(e)); and
d. The discharge, including all
attendant features, both temporary and
permanent, is part of a single and
complete project and is not placed for
the purpose of a strearn diversion.
(Sections 10 and 401)
19. Minor Dredging. Dredging of no
more than 25 cubic yards below the
plane of the ordinary high water mark
or the mean high water mark from
navigable waters of the US (i.e., Section
10 waters) as part of a single and
complete project. This NWP does not
authorize the dredging or degradation
through siltation of coral reefs, sites drat
support submerged aquatic vegetation
(including sites where submerged
aquatic vegetation is documented to
exist, but nray not be present in a given
year), anadronrous fish spawning areas,
or wetlands, or the connection of canals
or other artificial waterways to
navigable waters of the US (see 33 CFR
322.5(8)). (Sections 10 and 404)
20. Oil Spill Cleanup. Activities
required for the containment and
cleanup of oil and hazardous substances
which are subject to the National Oil
arid Hazardous Substances Pollution
Contingency Plan (40 CFR part 300)
provided that the work is done in
accordance with the Spill Control and
Countermeasure Plan required by 40
CFR 112.3 and any existing state
contingency plan and provided that the
Regional Response Team (if one exists
in the area) concurs with the proposed
containment and cleanup action.
(Sections 10 and 404)
21. Surface Coal Wining Activities.
Discharges of dredged or fill material
into waters of the US associated with
surface coal mining and reclamation
operations provided the coal mining
activities are authorized by the DOI,
Office of Surface Mining (OSM), or by
states with approved programs under
Title V of the Surface Mining Control
and Reclamation Act of 1977 and
provided the permittee notifies the
District Engineer in accordance with the
"Notification" General Condition. In
addition, to be authorized by this NWP,
the District Engineer must determine
that the activity complies with the terms
and conditions of the NWP and that the
adverse environmental effects are
minimal both individually and
cumulatively and must notify the
project sponsor of this determination in
writing. The Corps, at the discretion of
the District Engineer, may require a
bond to ensure success of the
mitigation, if no other Federal or state
agency has required one. For discharges
in special aquatic sites, including
wetlands, and stream riffle and pool
complexes, the notification must also
include a delineation of affected special
aquatic: sites, including wetlands. (also,
see 33 CFR 330.1(e))
Mitigation: In determinhw the need
for as well as the level and type of
mitigation, the District Engineer will
ensure no more than minimal adverse
effects to the aquatic environment
occur. As such, District Engineers will
determine on a case-by-case basis the
requirement for adequate mitigation to
ensure the effects to aquatic: systems are
minimal. In cases where OSM or the
state has required mitigation for the loss
of aquatic habitat, the Corps may
consider this in determining appropriate
mitigation under Section 404. (Sections
10 and 404)
22. ttemovol of Vessels. Temporary
structures or minor discharges of
dredged or fill material required for the
removal of wrecked, abandoned, or
disabled vessels, or the removal of man-
2082 Federal Register/Vol. 67, No. 10 / Tuesday, January 15, 2002/Notices
made obstructions to navigation. This
NWP does not authorize the removal of within the form prior to the discharge of bed and/
banks to restore or create
concrete, sand
rock
etc
This NWP

vessels listed or determined eligible for
listing on the National Re
i
t
f ,
,
.
does not authorize filled structural e
stream meanders; the backfillin0 of
artificial channels and drainage ditches

g
s
er o
Historic Places unless the District
members that would support buildings,
building pads, homes
house
ads ;
the removal of existing drainage
t
h

Engineer is notified and indicates that
there is compliance with the ''Historic ,
p
,
parking areas, storage areas and other
such structures. The structure itself m s
ructures; t
e construction of small
nesting islands; the construction of open

Properties" General Condition. This
NWP does not authorize mainte ay
require a Section 10 permit if located in water areas; the construction of oyster
habitat over unvegetated bottom in tidal
nance
dredging, shoal removal, or riverbank navigable waters of the US. (Section
404) waters; activities needed to reestablish
snagging. disposal in waters of
g° ?
the US may need a
ermit fr
EPA 26. [Keserved)

27
St vegetation, including plowing or discina
for seed bed preparation andthe
p
om
(see 40 CFR 229.3). (Sections 10 and .
rearn and Wetland Restoration
ActiOties. Activities in waters of the US planting of appropriate wetland species;

404)
associated with the restoration of former mechanized land clearing to remove

23. Approved Categorical Exclusions.
waters, the enhancement of de
raded non-native invasive, exotic or nusiance

Activities undertaken, assisted,
authorized
reoulated
funded g
tidal and non-tidal wetlands and vegetation; and other related activities.

This NWP does not authorize the
,
,
, or
o
financed, in whole or in part, by another riparian areas, the creation of tidal and
non-tidal wetlands and ri
i conversion of a stream to another

Federal agency or department where
that agency or department has par
an areas,
and the restoration and enhancement of aquatic use, such as the creation of an
impoundment for waterfowl habitat.

determined, pursuant to the Council on non-tidal streams and non-ticlal open
water areas as follow This NWP does not authorize stream

Environmental Quality Regulation for
Implementing the Procedural Provisions s;
(a) The activity is conducted on:
(1) Non-Federal public: lands and' channelization. This NWP does not
authorize the conversion of natural

of the National Environmental Policy ..
private lands, in accordance with the wetlands to another aquatic use, such as

Act (NEPA) (40 CFR part 1500 et seq.),
that the activity
work
or dischar
e i
terms and conditions of a binding
w
tl
d
h creation of waterfowl impoundments
where a forested wetland previously
,
,
g
s
categorically excluded from
i e
an
en
ancement, restoration, or
creation agreement between the existed. However, this NWP authorizes
the relocation of no
-tid
l

env
ronmental documentation, because
it is included within a category of
landowner and the U.S. Fish and
Wildlife Service (FWS) or the Natural n
a
waters,
including non-tidal wetlands, on the

actions which neither individually nor
cumulatively have a significant effect on
Resources Conservation Service (NRCS),
the National Marine Fisheries S
i project site provided there are net gains
in aquatic resource functions and

the human environment, and the Office
of the Chief of En
ineers (ATTN
CECW erv
ce,
the National Ocean Service, or
l values. For example, this NWP may
authorize the creation of an open water
g
:
-
OR) has been furnished notice of the vo
untary wetland restoration,
enhancement
and creation acti impoundment in a non-tidal emergent

agency's or department's application for
the categorical exclusion and ,
ons
documented by the NP.CS pursuant to wetland, provided the non-tidal
emergent wetland is replaced by
concurs
with that determination. Before
l NRCS regulations; or
(2) Reclaimed surface coal mine creating that wetland type on the project
site. This NWP does not a
th
i
h

approva
for purposes of this NWP of
any agency's categorical exclusions, the
lands, in accordance with a Surface
Mining Control and Reclamation A
t u
or
ze t
e
relocation of tidal waters or the

Chief of Engineers will solicit public
com
t
I
dd c
permit issued by the OSM or the conversion of tidal waters, including
tidal wetlands
to other a
uatic uses

men
.
n a
ressing these
comments, the Chief of Engineers may
applicable state agency (the future
reversion does not apply to streams o ,
q
,
such as the conversion of tidal wetlands
i
t

require certain conditions for
authorization of an agency's cate
orical r
wetlands created, restored, or enhanced
i
i n
o open water impoundments.
Reversion. For enhancement,
g
exclusions under this NW-P. (Sections
1
d as m
t
gation for the mining impacts,
nor naturally due to hydrologic or restoration, and creation projects
conducted under paragra
hs (a)(3)
thi

0 an
404)
24. State Administered Section 404
P
topographic features, nor for a
mitigation bank); or p
,
s
NWP does not authorize any future
discharge of dred
ed or fill
t
i
l
rogram. Any activity permitted by a
state administering its own Section 404 (3?Any other public, private or tribal
lands; g
ma
er
a
associated with the reversion of the area

permit program pursuant to 33 U.S.C.
'
(b) Notification: For activities on an to its prior condition. In such cases a
se
ar
t
i
l

1344(g)-(I) i
s' permitted pursuant to y
public or private land that are not p
a
e perm
t wou
d be required for

section 10 of the Rivers and Harbors Act
of 1899. Those activities that d
t
described by paragraphs (a)(1) or (a)(2) any reversion. For restoration,
enhancement, and creation projects
o no
involve a Section 404 state permit are above, the permittee must notify the
District Engineer in accordance with conducted under paragraphs (a)(1) and
(a)(2)
this NWP also
th
i

not included in this NWP, but certain
structures will be exempted by section
General Condition 13; and
(c) Plantin
of
l
ti ,
au
or
zes any
future discharge of dredged or fill

154 of Pub. L. 94-587, 90 Stat. 2917 (33
U
S
C g
on
y na
ve species
should occur oil the site. material associated with the reversion of
the area to its documented
rior
.
.
. 591) (see 33 CFR 322.3(a)(2)).
(Section 10) Activities authorized by this NWP p
condition and use (i.e., prior to the
25. Structural Discharges. Discharges include, to the extent that a Corps
permit is required
but are not limit
d restoration,
c
i
nt,
creation
of material such as concrete, sand, rock,
etc., into tightly sealed forms o
ll ,
e
to: the removal of accumulated he re
o
u
rsio
activities). The reversn must occur
ithin five years after expiration of a
w
r ce
s
where the material will be used as a sediments; the installation, removal,
and maintenance of small water control limited
i
t
t
r
m

structural member for standard pile
supported structures, such as briclges,
structures, dikes, and berms; the
installation of current deflect
th on
or
per
agreement
it, even if the
creat
discharge occurs after this NWP expires.

transmission line footings, and
walkways or for general navi
ati ors;
e
enhancement, restoration, or creation of
if This NWP also authorizes the reversion
of wetlands that were restored,
g
on,
such as mooring cells, including the r
fle and pool stream structure; the
placement of in-stream habit
t enhanced, or created on prior-converted

excavation of bottom material from a
structures; modifications of the stream cropland that has not been abandoned,
in accordance with a hinding agreement
Federal Register/Vol. 67, No. 10 / Tuesday, January 15, 2002/Notices 2nwi
between the landowner and NRCS or
FbVS (even though the restoration,
enhancement, or creation activity did
not require a Section 10,1 permit). The
five-year reversion limit does not apply
to agreements without time limits
reached under paragraph (a)(1). The
prior condition will he documented in
the original agreement or permit, and
the determination of return to prior
conditions will be rnacie by the Federal
agency or appropriate state, agency
executing the agreement or permit.
Before any reversion activity the
permittee or the appropriate Federal or
state agency must notify the District
Engineer and include the
documentation of tire prior condition.
Once an area has reverted to its prior
physical condition, it will be subject to
whatever the Corps Regulatory
requirements will be at that future date.
(Sections 10 and 404)
Note: Compensatory mitigation is not
required for activities authorized by this
NWP, provided the authorized work results
in a net increase in aquatic resource
functions and values in the project area. This
NWP call be used to authorize compensatory
mitigation projects, including mitigation
banks, provided the permittee notifies the
District Engineer in accordance with Gener,rl
Condition 13, and the project includes
compensatory mitigation for impacts to
waters of the US caused by the authorized
work. However, this NWP does not authorize
the reversion of an area used for a
compensatory mitigation project to its prior
condition. NWP 27 can be used to authorize
impacts at a mitigation bank, but only in
circumstances where it has been approved
under the Interagency Federal Mitigation
Sank Guidelines.
28. Modifications of Existing Marinas.
Reconfiguration of existing docking
facilities within an authorized marina
area. No dredging, additional slips, dock
spaces, or expansion of any kind within
waters of the US, is authorized by this
NWP. (Section 10)
29. Single-family housing. Discharges
of dredged or fill material into non-tidal
waters of the US, 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 Pernrittee
provided that the activity meets all of
the following criteria:
a. 'T'ile discharge does riot cause the
loss of more than Vi-acre of non-tidal
waters of the US, including non-ticlal
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
dischar,??e. 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 US of 1/4-acre for the entire
subdivision;
e. Ain 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 MVP may not he used in
conjunction with NWP 14 or NWP 18,
for any pparcel; and,
h. Sufficient vegetated buffers must be
maintained adjacent to all open water
bodies, streams, etc., to preclude water
quality degradation clue to erosion and
sedimentation.
For the purposes of this NWP, the
acreage of loss of waters of the US
includes the filled area previously
permitted, the proposed filled area, and
any other waters of the US that are
adversely affected by flooding,
excavation, or drainage as a result of the
project. 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)
30. Moist Soil Monagement for
Wildlife. Discharges of dredged or fill
material and maintenance activities that
are associated with moist soil
management for wildlife performed on
non-tidal Federally-owned or managed,
state-owned or managed property, and
local government agency-owned or
rrranaged property, for the purpose of
continuing ongoing, site-specific,
wildlife management activities where
soil manipulation is used to manage
habitat and feecling areas for wildlife.
Such activities include, but are not
limited to: The repair, maintenance or
replacement of existing water control
structures; the repair or maintenance of
dikes; and plowing or discing to impede
succession, prepare seed beds, or
establish fire breaks. Sufficient
vegetated buffers must he maintained
adjacent to all open water bodies,
streams, etc., to preclude water quality
degradation due to erosion and
sedimentation. '['his NWP does not
authorize the construction of new (likes,
roads, water control structures, etc.
associated with the management areas.
This NWP does not authorize converting
wetlands to uplands, impoundments or
other open water bodies. (Section 404)
31. Maintenance of Existing Flood
Control Facilities. Discharge of dredge
or fill material resulting from activities
associated with the maintenance of
existing flood control facilities,
including debris basins, retention/
detention basins, and channels that
(i) were previously authorized by the
Corps by Individual Permit, General
Permit, by 33 CFR 330.3. or did not
require a permit at the time it was
constructed, or
(ii) were constructed by the Corps and
transferred to a non-Federal sponsor for
operation and maintenance. Activities
authorized by this NWP are limited to
those resulting from maintenance
activities that are conducted within the
"maintenance baseline," as described in
the definition below. Activities
including the discharges of dredged or
fill materials, associated with
maintenance activities in flood control
facilities in any watercourse that has
previously been determined to be
within the maintenance baseline, are
authorized under this NMI. The MVP
does not authorize the removal of
sediment and associated vegetation from
the natural water courses except to the
extent that these have been included in
the maintenance baseline. All dredged
material must be placed in an upland
site or an authorized disposal site in
waters of the US, and proper siltation
controls must be used. (Activities of any
kind that result in only incidental
fallback, or only the cutting and
removing of vegetation above the
ground, a,g., mowing, rotary cutting,
and chainsawing, where the activity
neither substantially disturbs the root
system nor involves mechanized
pushing, dragging, or other similar
activities that redeposit excavated soil
material, do not require a Section 4041
permit in accordance with 33 CFR
323.2(d)(2)).
Notification: After the maintenance
baseline is established, and before any
maintenance work is conducted, the
permittee must notify the District
Engineer in accordance with the
"Notification" General Condition. The
notification may be for activity-specific
2084 Federal Register/Vol. 67, No. 10/Tuesday, January 15, 2002/Notices
maintenance or for maintenance of the
entire flood control facility by However, if one-time mitigation is
required for impacts associated with activity subject to the terms and

submitting a five year (or less)
maintenance plan
maintenance activities, the District
E conditions of this NWP and the
settlement agreement, including a
.
Maintenance Baseline: The
maintenance baseline is a descri
tion o ngineer will not delay needed
maintenance, provided the District
f E
i specified completion date; or
(ii) The terms of a final Federal court
p
the physical characteristics (e.g., depth, ng
neer and the permittee establish a
schedule for identification
ap
roval decision, consent decree, or settlement
a
ree
t
l

width, length, location, configuration, o
design flood capacity
etc
) of a flood ,
p
,
r development, construction and g
men
resu
ting from an
enforcement action brought by the U.S.
,
.
control project within which
mai
t completion of any such required
mitigation. Once the one-time under section 404 of the CWA and/or
section 10 of the Rivers and H
b
A

n
enance activities are normally
authorized by NWP 31, subject to any
mitigation described above has been
completed, or a determination made ar
ors
ct
of 1899; or
(iii) The terms of a final
t
case-specific conditions required by the
District Engineer, The District Engineer that mitigation is not required, no
further mitigation will be re
uired for cour
decision, consent decree, settlement
a
reement
o
di
l

will approve the maintenance baseline
based on the approved or constructed q
maintenance activities within the g
,
r non-ju
cia
settlement
agreement resulting from a natural

capacity of the flood control facility maintenance baseline. In determining
i resource damage claim brought by a
,
whichever is smaller, including any appropr
ate mitigation, the District
Engineer will give special consideration trustee or trustees for natural resources
(as defined by the National Conti

areas where there are no constructed
channels, but which are part of the
to natural water courses that have been
i
l ngency
Plan at 40 CFR subpart G) under section

facility. If no evidence of the nc
uded in the maintenance baseline
and require compensatory mitigation 311 of the Clean Water Act (CWA),
section 107 o'f the Comprehensive
constructed capacity exist, the approved
constructed capacity will be used. The and/or BMPs as appropriate.
Emergency Situations; In emergerioy Environmental Response, Compensation
and Liabilit
Act (CERCLA

prospective permittee will provide
documentation of the physical
situations, this NWP may be used to
authorize maintenance
ti
iti
i y
or
Superfund), section 312 of the National
M

characteristics of the flood control
facility (which will normall
consist of ac
v
es
n
flood control facilities for which no
i arine Sanctuaries Act (NMSA), section
1002 of the Oil Pollution Act of 1990
y
as-built or approved drawings) and
documentation of the desi
n ca
acities ma
ntenance baseline has been
approved. Emergency situations are
th
h (OPA), or the Park System Resource
Protection Act at 16 U.S.C. '19jj, to the
g
p
of the flood control facility. The ose w
ich would result in an
unacceptable hazard to life, a significant extent that a Corps permit is required.
For either (i)
(ri) or (iii) above

documentation will also include BMPs
to ensure that the impacts to the aquatic
i
loss of property, or an immediate,
unforeseen, and significant economic ,
,
compliance is a condition of the NWP
itself. Any authorization under this
env
ronment are minimal, especially in
maintenance areas where there are no hardship if action is not taken before a
maintenance baseline
b NWP is automatically revoked if the

constructed channels. (The Corps may can
e approved.
In such situations, the determination of permittee does riot comply with the
terms of this NWP or the terms of the
request maintenance records in areas
where there has riot been recent mitigation requirements, if any, may be
deferred until the emergency has been court decision, consent decree, or
judicial/non-judicial settlement
maintenance.) Revocation or
modification of the final determination resolved. Once the emergency has
ended, a maintenance baseline must be agreement or fails to complete the work
by the specified completion date
This
of the maintenance baseline can only be
done in accordance with 33 CFR 330
5 established expeditiously, and .
NWP does not apply to any activities
.
.
Except in emergencies as described mitigation, including mitigation for
maintenance conducted during the occurring after the date of the decision,
decree, or agreement that are not for th

below, this NWP can not be used until
the District Engineer approves the
emergency, must be required as e
purpose of mitigation, restoration, or

maintenance baseline and determines appropriate. (Sections 10 and 404)
32. Completed Enforcement Actions environmental benefit. Before reaching
any settlement agreement
the Cor
s
the need for mitigation and any regional .
Any structure, work or discharge of ,
p
will ensure compliance with the
or activity-specific conditions. Once
determined, the maintenance baseline dredged or fill material, remaining in
place, or undertaken for mitigation provisions of 33 CFR part 325 and 33
GF'R 330.6 (d)(2) and (e)
(Sections 10
will remain valid for any subsequent
reissuance of this NWP. This permit ,
restoration, or environmental benefit in
compliance with either: .
and 404)
33. Temporary Construction
Access
does not authorize maintenance of a
flood control facility that has been (i) The terms of a final written Corps ,
and Dewatering. Temporary structures,

ahattdoned. A flood control facility will non-judicial settlement agreement
resolving a violation of section 404 of work and discharges, including
cofferdams, necessary for construction
be considered abandoned if it has
operated at a significantl
reduced the CWA and/or section 10 of the Rivers
d activities or access fills or dewatering of
y
capacity without needed maintenance an
Harbors Act of 1f399; or the terns
of an EPA 309(a) order on consent construction sites; provided that the
associated primary activity is authorized
being accomplished in a timely mariner,
Mitigotion:'I'he District En
ineer will resolving a violation of section 404 of by the Corps of Engineers or the USCG,
g
determine any required mitigation one- the CWA, provided that:
it. The unauthorized activity affected or for other construction activities not
subject to the Corps or USCG
time only for impacts associated with
maintenance work at the same time that no more than 5 acres of non-tidal
wetlands or 1 acre of tidal wetlands; regulations. Appropriate measures must
be taken to maintain near no
l
the maintenance baseline is approved,
Such one-time mitigation will be b. The settlement agreement provides
for environmental benefits
to an
l rma
downstream flows and to minimize
flo
di
Fill
b
f

required when necessary to ensure that
adverse environmental impacts are no ,
equa
or greater degree, than the
i o
ng.
nrrrst
e o
materials, and
placed in a manner, that will not be

more than minimal, both individually
d env
ronmental detriments caused by the
unauthorized activity that is authorized eroded by expected high flows. The use
of dredged material ma
be allow
d if
an
cumulatively, Such mitigation will
only be required once for any specific by this NWP; and
c. The District Engineer issues a y
e
it is determined by the District Engineer
that it will not cause more th
i
i
l
reach of a flood control project. verification letter authorizing the an m
n
ma
adverse effects on aquatic resources.
Federal Register / Vol. 67, No. 10/Tuesday, January 15, 2002/Notices
2nsts
Temporary fill must be entirely removes
to upland areas, or dredged material
returned to its original location,
following completion of the
construction activity, and the affected
areas must be restored to the pre-project
conditions. Cofferdams cannot be used
to dewater wetlands or other aquatic
areas to change their use. Structures left
in place after cofferdams are removed
require a Section 10 permit if located in
navigable waters of the U.S. (See 33 CFR
part 322). The permittee crust notify the
District Engineer in accordance with the
"Notification'' General Condition. The
notification crust also include a
restoration plan of reasonable measures
to avoid and minimize adverse effects to
aquatic resources. The District Engineer
will add Special Conditions, where
necessary, to ensure environmental
adverse effects is minimal. Such
conditions may include: limiting the
temporary work to the minirnum
necessary; requiring seasonal
restrictions; modifying the restoration
plan; and requiring alternative
construction methods (e.g. construction
mats in wetlands where practicable.).
(Sections 10 and 404)
34. Cranberry Production Activities.
Discharges of dredged or fill material for
dikes, berms, pumps, water control
structures or leveling of cranberry beds
associated with expansion,
enhancement, or modification activities
at existing cranberry production
operations provided that the activity
meets all of the following criteria:
a. The cumulative totay acreage of
disturbance per cranberry production
operation, including but not limited to,
filling, flooding, ditching, or clearing,
does not exceed 10 acres of waters of the
U.S., including wetlands;
b. The permittee notifies the District
Engineer in accordance with the
"Notification" General Condition. The
notification must include a delineation
of affected special aquatic sites,
including wetlands; and,
c. The activity does not result in a net
loss of wetland acreage. This NWP does
not authorize any discharge of dredged
or fill material related to other cranberry
production activities such as
warehouses, processing facilities, or
parking areas. For the purposes of this
NWP, the cumulative total of 10 acres
will be measured over the period that
this NWP is valid. (Section 404)
35. Maintenance Dredging of Existing
Basins. Excavation and removal of
accumulated sediment for maintenance
of existing marina basins, access
channels to marinas or boat slips, and
boat slips to previously authorized
depths or controlling depths for ingress/
egress, whichever is less, provided the
1 dredged material is disposed of at all
upland site and proper siltation controls
are used. (Section 10)
36. Boat Ramps. Activities required
for the construction of boat ramps
provided:
a. The discharge into waters of the
U.S, does not exceed 50 cubic yards of
concrete, rock, crushed stone or gravel
into forms, or placement of pre-cast
concrete planks or slabs. (Unsuitable
material, that causes unacceptable
chemiral pollution or is structurally
unstable is not authorized);
b. The boat ramp does not exceed 20
feet in width;
c. The base material is crushed stone,
gravel or other suitable material;
d. The excavation is limited to the
area necessary for site preparation and
all excavated material is removed to the
upland; and,
e. No material is placed in special
aquatic sites, including wetlands.
Another NWP, Regional General
Permit, or Individual Permit may
authorize dredging to provide access to
the boat ramp after obtaining a Section
10 if located in navigable waters of the
U.S. (Sections 10 and 404)
37. Emergency Watershed Protection
and Rehabilitation. Work done by or
funded by:
a. The NRCS which is a situation
requiring immediate action under its
emergency Watershed Protection
program (7 CFR part 624); or
b. The USFS under its Burned-Area
Emergency Rehabilitation Handbook
(FSH 509.13); or
c. The DOI for wildland fire
management burned area emergency
stabilization and rehabilitation (DOI
Manual part 620, Ch. 3).
For alll of the above provisions, the
District Engineer must be notified in
accordance with the General Condition
13. (Also, see 33 CFR 330.1(e)).
(Sections 10 and 404)
38. Cleanup of Hazardous and Toxic
Woste. Specific activities required to
effect the containment, stabilization, or
removal of hazardous or toxic waste
materials that are performed, ordered, or
sponsored by a government agency with
established legal or regulatory authority
provided the permittee notifies the
District Engineer in accordance with the
"Notification" General Condition. For
discharges in special aquatic sites,
including wetlands, the notification
must also include a delineation of
affected special aquatic sites, including
wetlands. Court ordered remedial action
plans or related settlements are also
authorized by this NWP. This NWP does
not authorize the establishment of new
disposal sites or the expansion of
existing sites used for the disposal of
hazardous or toxic waste. Activities
s undertaken entirely on a
Comprehensive Environmental
Response, Compensation, and Liability
Act (CERCL.A) site by authority of
CERCLA as approved or required by
EPA, are not required to obtain permits
under section 404 of the CWA or section
10 of the Rivers and Harbors Act.
(Sections 10 and 404)
39. Residential, Commercial, and
Institutional Developments. Discharges
of dredged or fill material into non-tidal
waters of the U.S., excluding non-tidal
wetlands adjacent to tidal waters, for the
construction or expansion of residential,
commercial, and institutional building
foundations and building pads and
attendant features that are necessary for
the use and maintenance of the
structures. Attendant features may
include, but are not limited to, roads,
parking lots, garages, yards, utility lines,
stormwater management facilities, and
recreation facilities such as
playgrounds, playing fields, and golf
courses (provided the golf course is an
integral part of the residential
development). The construction of new
ski areas or oil and gas wells is not
authorized by this NWP.
Kesidential developments include
multiple and single unit developments.
Examples of commercial developments
include retail stores, industrial facilities,
restaurants, business parks, and
shopping centers. Examples of
institutional developments include
schools, fire stations, government office
buildings, judicial buildings, public
works buildings, libraries, hospitals,
and places of worship. The activities
listed above are authorized, provided
the activities meet all of the following
criteria:
a. The discharge does not cause the
loss of greater than '/z-acre of non-tidal
waters of the U.S., excluding non-tidal
wetlands adjacent to tidal waters;
b. The discharge does not cause the
loss of greater than 300 linear-feet of a
stream bed, unless for intermittent
stream beds this criterion is waived in
writing pursuant to a determination by
the District Engineer, as specified
below, that the project complies with all
terms and conditions of this NWP and
that any adverse impacts of the project
oil the aquatic environment are
minimal, both individually and
cumulatively;
c. The permittee must notify the
District Engineer in accordance with
General Condition 13, if any of the
following criteria are met:
(1) The discharge causes the loss of
greater than Vio-acre of non-tidal waters
of the US, excluding non-tidal wetlands
adjacent to tidal waters; or
2086 Federal Register/Vol. 67, No. 10/Tuesday, January 15, 2002/Notices
(2) The discharge causes the loss of of any compensatory mitigation used to include the installation, placement, or
any open waters, including perennial or offset the loss of waters of the US (e
const
ti
f d

intermittent streams, below the ordinar
hi-h water mark (see Note
below)
or .g.,
y 1/12-acre of emergent wetlands created ruc
on o
rainage tiles, ditches,
or levees; mechanized land clearing;
,
;
N The discharge causes the loss of on-site);
j. If there are any open waters or land leveling; the relocation of existing

greater than 300 linear feet of
streams within the project area
the serviceable drainage ditches constructed
,
intermittent stream bed. In such case, to permittee will establish and maintain, t
be authorized the District Engineer must the maximum extent practicable in waters of the US; and similar
o activities, provided the permittee

determine that the activity complies
with the other terms and conditions
f ,
wetland or upland vegetated buffers complies with the following terms and
conditions:
o
the NWP, determine adverse next to those open waters or streams
consistent witli General Condition 19 a. For discharges into non-tidal

environmental effects are minimal both .

Deed restrictions
conservation
wetlands to improve agricultural
individually and cumulativel and
y,
waive the limitation on stream im
act ,
easements, protective covenants, or production, the following criteria must
be met if the permittee is an United
p
s
in writing before the permittee may
proceed; other means of land conservation and
preservation are required to protect and
States Departmenp of A Piculhue
(USDA) Program artici ant:

d. For discharges in special aquatic
i maintain the vegetated buffers
established on the project site (1) The
permittee must obtain a
s
tes, including wetlands, the
notification must include a delineation .
Only residential, commercial, and
i categorical
minimal effects exemption,
minimal effect exemption
or miti
ation

of affected special aquatic sites;
e. The discharge is part of a single and nstitutional activities with structures
on the foundation(s) or buildin ad(s) ,
g p ,
g
exemption from NRCS in accordance
with the provisions of the Food Sec
it

compl
complete project;
f. The permittee must av
id
d
as well as the attendant features, are

authorized by this NWP. The ur
y
Act of 1985, as amended (16 U.S.C. 3801
o
an
minimize discharges into waters of the
US at the project site to the maximum
compensatory mitigation proposal that
is required in paragraph (e) of this NWP et se
q•).
wetl(2) `an ds he discharge into non tidal
does not result
th
l
f
extent practicable. The notification,
when required, must include a written may be either conceptual or detailed.
The wetland or upland vegetated buffer n-
e
oss o
greater than 1/2-acre of non-tidal
wetlands on a farm tract

statement explaining how avoidance

and minimization of losses of w
t
f
m
t
required in paragraph (i) of this NWP
will be determined on a case-by-case ;

The permittee must have NRCS-
a
ers o
the
were achieved on the r wa
er
p 1
basis by the District Engineer for

addr
i rti
certified wetland delineation;
(4) The permittee must implement an
site. Compensatory mitigation will
normally be required it offset the lo ess
ng water quality concerns. The
required wetland or upland vegetated NRC:S-approved compensatory
i
sses
of waters of the US. (See General
of the
buffer is part of the overall m
tigation plan that fully offsets
wetland losses, if required; and
Condition
The notification must
also include a compensator
miti
ti compensatory mitigation requirement
for this NWP. If the project site was (5) The permittee must submit a
y
ga
on
proposal for offsetting unavoidable
avoidable
f
un
previously used for agricultural report, within 30 days of completion of
the authorized work
to the District
losses of waters o
the
If
applicant asserts that the advers
ff
t purposes and the farm owner/operator
used NWP 40 to authorize activities in ,
Engineer that contains the following
e e
ec
s
of the project are minimal without
waters of the US to increase production information: (a) The name, address, and
telephone number of the permittee; (b)
mitigation, then the applicant may
submit justification explainin
wh or construct farm buildings, NWP 39
cannot be used by the developer to The location of the work; (c) A
d
g
y
compensatory mitigation should not be
required for the District Engineer's
authorize additional activities. This is
more than the acreage limit for NWP 39 escription of the work; (d) The type
and acreage (or square feet) of the loss
f
l
1

consideration;
g. When this NWP is used in
impacts to waters of the US (i.e., the
combined acreage loss authorized under o
wet
ands (e.g.,
/3-acre of emergent
wetlands); and (e) The type, acreage (or

conjunction with any other NWP, any
combined total a;ny other loss of waters
P
NWPs 39 and 40 cannot exceed 1/1-acre,
see General Condition 15). square feet), and location of
compensatory mitigation (e.g. 1/3-acre of

of the US exceeding 1ho acre requires
that the ermittee notify the District
p y
Subdivisions: For residential
subdivisions, the aggregate total loss of emergent wetland on a farm tract;
credits purchased from a mitigation

Engineer in accordance with General
Condition 13; waters of US authorized by NWP 39 can

not exceed 1/2-acre. This includes any bank); or
b. For discharges into non-tidal

h. Any work authorized by this MVP
tru
t
t loss of waters associated with

development of individual
bdi
i
i wetlands to improve agricultural
production, the following criteria must
s
no
cause more than minimal
degradation of water quality or more su
v
s
on
lots. (Sections 10 and 404)
be met if the permittee is not a USDA

than minimal changes to the flow
Note: Areas where wetland vegetation is Program participant (or a USDA
Program participant for which the
characteristics of any stream (see

General Conditions 9 and 21); not present should be determined by the
presence or absence of an ordinary high
proposed work does not qualify for

i. For discharges causing the loss of water mark or bed and bank. Areas that are authorization under paragraph (a) of this

1/io-acre or less of waters of the US, the
permittee must submit a re
ort
withi waters of the US based on this criterion
would require a PCN although water is NWP):
(1) The discharge into non-tidal
p
,
n
30 days of completion of the work, to infrequently present in the stream channel
(except for ephemeral waters, which do not wetlands does not result in the loss of
greater than 1/2-acre of non-tidal
the District Engineer that contains the
following information: (1) The name require PCNs). wetlands on a farm tract;
,
address, and telephone number of the 40. Agricultural Activities. Discharges
of dredged or fill material into
tid
l (2) The permittee must notify the
Di

permittee; (2) The location of the work;
(3) A description of the work
(4) Th non-
a
waters of the US, excluding non-tidal
l strict Engineer in accordance with
General Condition 13, if the discharge
;
e
type and acreage of the loss of waters of wet
ands adjacent to tidal waters, for
improving agricultural production and results in the loss of greater than 1/10-
acre of non-tidal wetla
d

the US (e.g., 1/12-acre of emergent
wetlands); and (5) The type and acreage
the construction of building pads for
farm buildings. Authorized activities n
s;
(3) The notification must include a
delineation of affected wetlands; and
Federal Register/Vol. 67, No. 10/Tuesday, January 15, 2002/Notices 2087
(4) The notification must include a discharge qualifies for an exemption ditches to their original dimensions and
compensatory mitigation proposal to
offset losses of waters of the US; or under section 404(f) of the CWA, even
though a categorical minimal eff
t configuration, which does not require a
S

c. For the construction of building
pads for faun buildings, the discharge ec
s
exemption, minimal effect exemption,
or miti
ti ection 404 permit (see 33 CFR
323.4(x)(3)). This NbVP does not

does not cause the loss of greater than
'/ ga
on exemption from NRCS
pursuant to the Food Security Act of authorize the relocation of drainage
ditches constructed in waters
f th
US

z-acre of non-tidal wetlands that were
in agricultural production prior to
1985, as amended, may be required.
Activities authorized by para
ra
hs a o
e
;
the location of the centerline of the
h

December 23, 1985, (i.e., farmed
wetlands) and the permittee must notif g
p
,
through d. may not exceed a total of 1/2- res
aped drainage ditch must be
approximately the same as the location
y
the District Engineer in accordance with acre on a single farm tract. If the site was of the centerline of the original drainage
used for agricultural purposes and the d

General Condition 13; and
d. Any activity in other waters of the
farm owtler/operator used either itch. This NWP does not authorize
stream channelization or stream

US is limited to the relocation of paragraphs a., b., or c. of this NWP to
authorize activities in waters of the US relocation projects. (Section 404)

existing serviceable drainage ditches
constructed in non-tidal streams
This
to increase agricultural production or 42. Recreational Facilities. Discharges
of dredged or fill material into non tidal
.
NWP does not authorize the relocation construct farm buildings, and the
current landowner wants to use NWP 39 waters of the US, excluding non-tidal

of greater than 300 linear-feet
to authorize residential
commercial
or wetlands adjacent to tidal waters, for the

serviceable drainage ditches constructed ,
,
industrial development activities in construction or expansion of
non-tidal streams unless, for
drainage
waters of the US on the site
the recreational facilities, provided the

ditches constructed in intermittent non- ,
combined acreage loss authorized by activity meets all of the following

tidal streams, the District Engineer
NWPs 39 and 40 cannot exceed '/z-acre criteria:
waives this criterion in writing, and the (see General Condition 15)
(Section a, The discharge does not cause the
District Engineer has determined that .
404) loss of greater than 1/2-acre of non-tidal
the project complies with all terms and 41. Reshaping Existing Drainage waters of the US, excluding non-tidal
conditions of this NWP, and that any Ditches. Discharges of dredged or fill wetlands adjacent to tidal waters;
adverse impacts of the project on the material into non tidal waters of the US h. The discharge does not cause the
aquatic environment are minimal, both ,
excluding non-tidal wetlands adjacent loss of greater than
300
linear-feet of a

individually and cumulatively. For
to tidal waters, to modify the cross- o
r i
stream bed, unless for ntermittent
impacts exceeding 300-linear feet of sectional configuration of currently stream beds this criterion is waived in
impacts to existing serviceable ditches serviceable drainage ditches constructed writing pursuant to a determination by
constructed in intermittent non-tidal in waters of the US. The reshaping of the District Engineer, as specified
streams, the permittee must notify the the ditch cannot increase drainage below, that the project complies with all
District Engineer in accordance with the
" capacity beyond the original design terms and conditions of this NWP and
Notification" General Condition 13;
d capacity. Nor can it expand the area that any adverse impacts of the project
an
e. The term "farm tract" refers to a drained by the ditch as originally
designed (i.e., the capacity of the ditch on the aquatic environment are
minimal, both individually and
parcel of land identified by the Farm must be the same as originally designed cumulatively;
Service Agency. The Corps will identify
other waters of the US on the fa
t
t and it cannot drain additional wetlands c. 'The permittee notifies the District
E
rm
rac
,
NRCS will determine if a proposed or other waters of the US).
Compensatory mitigation is not required ngineer in accordance with the
"Notification" General Condition 13 for
agricultural activity meets the terms and
di because the work is designed to improve discharges exceeding 300 linear feet of
con
tions of paragraph a. of this NWP, water quality (e.g., by regrading the impact of intermittent stream beds. In
except as provided below. For those drainage ditch with gentler slopes such cases, to be authorized the District
activities that require notification, the
District Engineer will determine if a ,
which can reduce erosion, increase Engineer must determine that the

proposed agricultural activity is growth of vegetation, increase uptake of
nutrients and other substances b activity complies with the other terms
and conditions of the NWP
determine
authorized by paragraphs b., c., and/or
d. of this NWP
USDA Pro
r y
vegetation, etc.). ,
the adverse environmental effects are
.
g
am
participants, requesting authorization for Notification: The permittee must
notify the District Engineer in minimal both individually and
cumulatively, and waive this limitation
discharges of dredged or fill material
into waters of the US authorized b accordance with General Condition 13 if
t
h in writing before the permittee may
y
paragraphs (c) or (d) of this NWP, in
addition to paragraph (a)
must notif grea
er t
an 500 linear feet of drainage
ditch will be reshaped. Material
l
i
f proceed;
d. For discharges causing the loss of
,
y
the District Engineer in accordance with resu
t
ng
rom excavation may not be
permanently sidecast into waters but greater tlian '/io-acre of non-tidal waters
of the US, the permittee notifies the
General Condition 13 and the District
Engineer will determine if the
ti may be temporarily sidecast (up to three District Engineer in accordance with
en
re
single and complete project is months) into waters of the US, provided
the material is not placed in such a General Condition 13;
e. For discharges in special aquatic
authorized by this NWI . Discharges of
dredged or fill material into wate
f manner that it is dispersed by currents sites, including wetlands, the
rs o
the US associated with completing
required compensatory mitigation are or other forces. The District Engineer
may extend the period of temporary
sidecastin
not to exc
d
t
t
l
f notification must include a delineation
of affected special aquatic sites;
f
Th
d

authorized by this NW11. However, total g
ee
a
o
a
o
180
days, where appropriate. In general, this .
e
ischarge is part of a single and
complete project; and
impacts, including other authorized
impacts under this N4VP, may not NWP does not apply to reshaping
draina
e ditches const
t
d i g. Compensatory mitigation will

exceed the 1/2-acre limit of this NWP. g
ruc
e
n
uplands, since these areas are generally normally be required to offset the losses
of waters of the US
The
notificati

This NWP does not affect, or otherwise
regulate, discharges associated with
not waters of the US, and thus no permit
from the Corps is required
or to the .
,
on
must also include a compensatory
iti
ti
l

agricultural activities when the ,
maintenance of existing drainage m
ga
on proposa
to offset authorized
losses of waters of the US.
2088 Federal Register/Vol. 67, No. 10/Tuesday, January 15, 2002/Notices
For the purposes of this NWP, the
term ''recreational facility" is defined a greater than 1h-acre of non-tidal waters
s of the US, excluding non-tidal wetla
d that are exempt from Section 404 permit

a recreational activity that is integrated

into the natural landscape and does not n
s re uirements);
adjacent to tidal waters;
. The permittee must avoid and
. The dischar
e does
t

substantially change preconstruction
grades or deviate from nat
l l
d g
rio
cause the
loss of greater than 300 linear-feet of a minimize discharges into waters of the
US at the project site to the maximum
ura
an
scape stream bed, unless for intermittent
contours. For the purpose of this permit, stream beds this criterion is waiv
d i extent practicable, and the notification

the primary function of recreational
facilities does not include the use of e
n
writing pursuant to a determination by
the District Engineer
asspecified must include a written statement to the

g
District Enineer detailing compliance
,
motor vehicles, buildings, or impervious below, that the project colies with al
surfaces. Examples of recreati
l
s l discwithhthis condition r i e. n the
argemustoccur n waters of the
ona
facilities that may be authorized by this terms and condi ns of thi
NMI and
that any adverse impacts of the project
roject and why additional minimization
NWP include hiking trails, bike paths,
horse paths
nature cent
d on t144aquatic environment are ca
can
nnot be achieved);
g The stormwater management
,
ers, an
campgrounds (excluding trailer parks). minimal, both individually arid
cumulatively; y facility must comply with General
This NWP may authorize the

constru
ti c. For discharges causing the loss of
g Condition 21 and be designed using
BMPs and watershed
rotection
c
on or expansion of golf
courses and the expansion of ski areas greater than 300 linear feet of
intermittent stream beds
the
it p
techniques. Examples may include
,
provided the golf course or ski area does ,
perm
tee
notifies the District Engineer in forebays (deeper areas at the upstream

not substantially deviate from natural
landscape contours. Additionally, these
accordance with the "Notification"
General Condition 13
In such cases
t end of the stormwater management
facility that would be maintained

activities are designed to minimize .
,
o
be authorized the District Engineer must through excavation), vegetated buffers,

adverse effects to waters of the US and
riparian areas through the use of such
determine that the activity complies
with the other terms and conditions of and siting considerations to minimize
adverse effects to aquatic resources.

practices as integrated pest
the NWP, determine the adverse Another example of a BMP would be
management, adequate stormwater
management facilities; vegetated buffers, environmental effects are minimal both
individually and cumulatively
and bioengineering methods incorporated
into the facility design to benefit water
reduced fertilizer use, etc. The facility ,
waive this limitation in writing before quality and minimize adverse effects to
must have an adequate water quality the permittee may proceed; o aquatic resources from storm flows,
management plan in accordance with d. The discharges of dredged or fill especially downstream the facility,
General Condition 9, such as a material for the construction of new that provide, to the maxi mum extent
stormwater management facility, to stormwater management facilities in practicable, for long term aquatic
ensure that the recreational facility
results in no substantial adverse effects perennial streams is not authorized;
e. For discharges or excavation for the resource protection and enhancement;
Maintenance excavation will be in
to water quality. This NWP also construction of new stormwater c
accordance with an approved
authorizes the construction or
expansion of small support facilities, management facilities or for the
maintenance of existing stormwater maintenance plan and will not exceed
the original contours
the facility as
such as maintenance and storage
buildings and stables that are directly management facilities causing the loss
of greater than 1/,o-acre of non-tidal ct
approved and constructed; and
1• The discharge is part of a single and
related to the recreational activity. This
NWP does not authorize other waters, excluding non-tidal wetlands
adjacent to tidal waters
provided the complete project. (Section 44 cha
. l?lir
Activities. Discharges of

buildings, such as hotels, restaurants,
etc. The construction or expansion of ,
permittee notifies the District Engineer
in accordance with the "Notificati
" dre
dredged o or fill material into:
fill
(i) Isolated waters; streams where the

playing fields (e.g., baseball, soccer, or
football fields)
basketb
ll
d
i on
General Condition 13• In addition, the
tifi annual average flow is 1 cubic foot per
second or less, and non-tidal wetlands
,
a
an
tenn
s
courts, racetracks, stadiums, arenas, and no
cation must include:
(1) A maintenance plan. The adjacent to headwater streams, for

the construction of new ski areas are not
authorized by this NWP. (Section 404)
maintenance plan should be in
accordance with state and local a re ate minin
g g (i.e., sand, gravel, and
crush ed and broken stone) and
43. Storm water Management

Facilities. Discharges of dred
ed or fill requirements, if any such requirements

Y
exi
t
associated support activities;

l
00 Lower
perennial streams,
g
material into non-tidal waters of the us,
excluding non-tidal wetlands adjacent s
;
(2) For discharges inspecial aquatic
sites, including wetlands and excc
luding wetlands adjacent to lower
perennial streams, for aggregate mining

to tidal waters, for the construction and
maintenance of stormwater management
submerged aquatic vegetation, the
notification must include a delineation activities (support activities in lower
perennial streams or adjacent wetlands

facilities, including activities for the
of affected areas; and are not authorized by this N4VP); and/
excavation of stormwater ponds/
facilities, detention basins, and (3) A compensatory mitigation
proposal that offsets the loss of water or
(iii) Isolated waters and non-tidal

retention basins; the installation and
i s
of the US. Maintenance in constructed wetlands adjacent to headwater streams,
for hard rock/mineral mining activiti

ma
ntenance of water control structures,
outfall structures and emergency
areas will riot require mitigation
provided such maintenance is es
(i.e., extraction of metalliferous ores

spillways; and the maintenance
dredging of existin
stormwater
accomplished in designated
maint from subsurface locations) and
associated support activities, provided
g
management ponds/facilities and enance areas and not within
compensatory mitigation areas (i.e., the discharge meets the following

crit
i
detention and retention basins,
provided the activity meets all of the District Engineers may designate non-
maintenance areas
normall
at the er
a:
a. The mined area within waters
h

following criteria:

a. The discharge for the constructi ,
y ?
downstream end of the stormwater
t
e US, plus the acreage loss of waters
water
of the US resulting fro
m
support
on
of new stormwater management
facilities does not cause the loss
f management facility, in existing
stormwater management facilities). (No
i activities, cannot 'h-acre;
excee
d
b. The permittee must avoid and
o m
tigation will be required for activities minimize discharges into waters of the
Federal Register/Vol. 67, No. 10/Tuesday, )anuarv 15. 2002 / Nnticas )nno
US at the project site to the maximum
extent practicable, and the notification
most include a written statement
detailing compliance with this
condition (i.e., why the discharge must
occur in waters of the US and wlry
additional minimization cannot be
achieved);
c. In addition to General Conditions
17 and 20, activities authorized by this
permit must not substantially alter the
sediment characteristics of areas of
concentrated shellfish beds or fish
spawning areas. Normally, the
mandated water quality management
plan should address these impacts;
d. The permittee must implement
necessary measures to prevent increases
in stream gradient and water velocities
and to prevent adverse effects (e.g., head
cutting, bank erosion) to upstream and
downstream channel conditions;
e. Activities authorized by this permit
must not result in adverse effects on the
course, capacity, or condition of
navigable waters of the US;
f. The permittee must use measures to
minimize downstream turbidity;
g. Wetland impacts must be
compensated through mitigation
approved by the Corps;
h. Beneficiation and mineral
processing for hard rock/mineral mining
activities may not occur within 200 feet
of the ordinary high water mark of any
open waterbody. Although the Corps
does not regulate discharges from these
activities, a CWA section 402 permit
may be required;
i. Alt activities authorized must
comply with General Conditions 9 and
21. Further, the District Engineer may
require modifications to the required
water quality management plan to
ensure that the authorized work results
in minimal adverse effects to water
quality;
j. Except for aggregate mining
activities in lower•perennial streams, no
aggregate mining can occur within
stream beds where the average annual
flow is greater than 1 cubic foot per
second or in waters of the US within
100 feet of the ordinary high water mark
of headwater stream segments where the
average annual flow of the stream is
greater than 1 cuhic foot per second
(aggregate mining can occur in areas
immediately adjacent to the ordinary
high water mark of a stream where the
average annual flow is 1 cubic: foot per
second or less);
k. Single and complete project: The
discharge must be for a single and
complete project, including support
activities. Discharges of dredged or fill
material into waters of tine us for
multiple ruining activities on several
designated parcels of a single and
complete raining operation can be
authorized by this NWP provided the
'/z-acre limit is not exceeded; and
I. Notification. The permittee most
notify the District Engineer in
accordance with General Condition 13.
The notification must include: (1) A
description of waters of the US
adversely affected by the project; (2) A
written statement to the District
E'nginr;er detailing compliance with
paragraph (b), above (i.e., why the
discharge must occur in waters of the
US and why additional minimization
cannot be achieved); (3) A description of
measures taken to ensure that the
proposed work complies with
paragraphs (c) through (f), above; and (4)
A reclamation plan (for aggregate
mining in isolated watersand non-tidal
wetlands adjacent to headwaters and
hard rock/mineral mining only).
This NWP does not authorize hard
rock/mineral mining, including placer
mining, in streams: No hard rock/
mineral mining can occur in waters of
the US within loo feet of the ordinary
high water mark of headwater streams.
The term's "headwaters" and "isolated
waters" are defined at 33 CFR 330.2(4)
and (e), respectively. For the purposes
of this NWP, the term "lower perennial
stream" is defined as follows: "A stream
in which the gradient is low and water
velocity is slow, there is no tidal
influence, some water flows throughout
the year, and the substrate consists
mainly of sand and mud." (Sections 10
and 404)
C. Nationwide Permit General
Conditions
The following General Conditions
must be followed in order for any
authorization by an NWP 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. Soil Erosion arid Sediment
Controls. Appropriate soil erosion and
sediment controls must be used and
maintained in effective operating
condition during construction, arid all
exposed soil and other fills, as well as
any work below the ordinary high water
mark or hi-h tide line, must be
permanently stabilized at the earliest
practicable date. Pernrittees are
encouraged to perform work within
waters of the United States during
periods of low-flow or no-flow.
4. Aquatic Life Movements. No
activity may substantially disrupt the
necessary life-cycle movements of those
species of aquatic life indigenous to the
waterbody, including those species that
normally migrate through the area,
unless the activity's primary purpose is
to impound water. Culverts placed in
streams must be installed to maintain
low flow conditions.
5. Equipment. Heavy equipment
working in wetlands must be placed on
mats, or other measures must be taken
to minimize soil disturbance.
6. Regional arid Case-By-Case
Conditions. The activity must comply
with any regional conditions that may
have been added by the Division
Engineer (see 33 CFR 330.4(e)).
Additionally, any case specific
conditions added by the Corps or by the
state or tribe in its Section 401 Water
Quality Certification and Coastal 'Lone
Management Act consistency
determination.
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; unless the
appropriate Federal agency, with direct
management responsibility for such
river, has determined in writing that the
proposed activity will not adversely
affect the Wild and Scenic River
designation, or study status. Information
on Wild and Scenic Rivers may be
obtained from the appropriate Federal
land management agency in the area
(e.g., National Park Service, U.S. Forest
Service, Bureau of Land Management,
U.S. Fish and Wildlife 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. (a) In certain states
and tribal lands an individual 401 Water
Quality Certification must be obtained
or'waived (See 33 CFR 330.4(c)).
(b) For NWPs 12, 14, 17, 18, 32, 39,
40, 42, 43, and 44, where the state or
tribal 401 certification (either
generically or individually) does not
require or approve water quality
management measures, the permittee
must provide water quality management
measures that will ensure that the
authorized work does not result in more
than mininial degradation of water
quality (or the Corps determines that
compliance-, with state or local
standards, where applicable, will ensure
no more than nrinirnal adverse effect on
water quality). An important component
of water quality management includes
sLori nwater management that minimizes
degradation of the downstream aquatic
system, including water quality (refer to
General Condition 21 for storrnwater
.F
2090 Federal Register/Vol. 67, No. 10 / Tuesday, January 15, 2002/Notices
management requirements). Another
important component of water quality endspp.html and http://rvvviv,nfms.govl written notice from the District or
pr•ot
r•es/esohome
html res
ectiv
l

management is the establishment and _
.
p
e
y.
12. Historic Properties. No activit Division Engineer. Subsequently, the
'
y
maintenance of vegetated buffers next to which may affect historic properties
open waters, including streams (refer to listed, or eligible for listin
in the permittee
s right to proceed under the
MVP may be modified, suspended, or

General Condition 19 for vegetated
buffer requirements for the NWPs). g,
National Register of Historic Places is
authorized, until the District En
ine revoked only in accordance with the
procedure set forth in 33 CFR

This condition is only applicable to
projects that have the potential to affect g
er
has complied with the provisions of 33
CFR part 325, Appendix C
The 330.5(4)(2).
(b) Contents of Notification: The
water quality. While appropriate
measures must be taken, in most cases .
prospective permittee must notify the
District Engineer if the authorized notification must be writing and
include the following information:

it is not necessary to conduct detailed
studies to identify such measures or to
activity-may affect any historic
properties listed, determined to be (1) Name, address and telephone

numbers of the prospective permittee;
require monitoring. eligible, or which the prospective (2) Location of the proposed project;
10. Coastal Zone Management. In permittee has reason to believe may be Brief description
the proposed
certain states, an individual state coastal
zone management consistency eligible for listing on the National
Register of Historic Places, and shall no r
project;
roje project's purpose; direct and
t indirect adverse environmental effects
concurrence must be obtained or waived begin the activity until notified b the the project would cause; any other
(see Section 330.4(d)). District Engineer that the requirements NWP(s), Regional General Permit(s), or
11. Endangered Species. (a) No of the National Historic Preservation Ac t Individual Permit(s) used or intended to
activity is authorized under any NWP have been satisfied and that the activity be used to authorize any part of the
which is likely to jeopardize the is authorized. Information on the Prop
osed project
any related activity.
continued existence of a threatened or location and existence of historic Sk
etch
be
es should be provided when
endangered species or a species
proposed for such designation
as resources can be obtained from the State
Historic Preservation Office and the necessary show that the activity
complies wi th the terms of the NWP
,
identified under the Federal Endangered National Register of Historic Places (see (Sketches usually clarify the project and
Species Act (ESA), or which will 33 CFR 330.4(g)), For activities that may when provided result in a quicker
destroy or adversely modify the critical affect historic properties listed in, or decision.);
habitat of such species. Non-federal eligible for listing in, the National (4) For NW 7,
14, 18, 21,
38,
permittees shall notify the District Register of Historic Places, the th
39
,
41,
42, and d 43, the PCN nr
also
also
Engineer if any listed species or notification must state which historic ed
i
ncl
ude
a delineation of affected special
designated critical habitat might be property may be affected by the aquatic sites, including wetlands,
affected or is in the vicinity of the proposed work or include a vicinity vegetated shallows (e.g., submerged
project, or is located in the designated map indicating the location of the aquatic vegetation, seagrass beds), and
critical habitat and shall not begin work historic property, riffle aril pool complexes (see paragraph
on the activity until notified by the
District Engineer that the requirements 13. Notification.
(a) Timing; where required by the 13(x);
(5) For NWP 7 (Outfall Structures and
of the ESA have been satisfied and that terms of the NWP, the prospective Maintenance), the PCN must include
the activity is authorized. For activities Pelittee must notify the District information regarding the original
that may affect Federallylisted Engineer with a preconstruction desin capacities and configurations of
'
endangered or threatened species or
designated critical habitat
the notification (PCN) as early as possible.
The District Engineer must determine if those
areas of the facility where
maintenance dredging or excavation is
,
notification must include the name(s) of
t the
notification is complete within 30 proposed;
the endangered
threatened species
re y
days of the date of receipt and can (6) For NWP 14 (Linear
that may be affected
the proposed request additional information Transportation Crossings), the PCN
work or that utilize the designated necessary to make the PCN complete must include a compensatory mitigation
critical habitat that maybe affected b only once. However, if the prospective proposal to offset permanent losses of
the proposed work. Asa result of formal permittee does not provide all of the waters of the US and a statement
or informal consultation with the FWS
con Lilta requested information, then the District describing how temporary losses of
or NMFS
the'District ,
Engineer may add
Engineer will notify the prospective
waters of the US will be minimized to
species-specific regional endangered permittee that the notification is still the maximum extent practicable;
species conditions to the NWPs
e incomplete and the PCN review process (7) For NWP 21 (Surface Coal Mining
.
(b) Authorization of
activity b
y by a will not commence until all of the Activities), the PCN must include an

NWP does not authorize the "take" of a
threatened or endangered species as requested information has been received
by the District Engineer. The Office of Surface Mining (OSM) or state-
approved mitigation plan, if applicable.

defined under the ESA. In the absence
of separate authorization (e
ESA prospective permittee shall not begin
the activity: To be authorized by this NWP, the
District Engineer must determine that
.g., an
Section 10 Permit, a Biological Opinion (1) Until notified in writing by the
Di the activity complies with the terms and

with "incidental take" provisions, etc.)
from the USFWS or the NMFS
both strict Engineer that the activity may
proceed under the MVP with any conditions of the NWP and that the
adverse environmental effects are
,
lethal and non-lethal "takes" of special conditions imposed by the minimal both individually and

protected species are in violation of the
ESA. Information on the location
f District or Division Engineer; or
(2) If notified in writing by the District cumulatively and must notify the
project sponsor of this determination in
o
threatened and endangered species and
their critical habitat can be obt
i
d or Division Engineer that an Individual
Permit is required; or writing;
(8) For NWP 27 (Stream and Wetland
a
ne
directly from the offices of the USFWS
d N (3) Unless 45 clays have passed from
the District Engineer's receipt of the Restoration), the PCN must include
documentation of the
rior
diti
f
an
MFS or their world wide web
pages at lrttp://w?vrv.fws.gov/r9ends
/ complete notification and the
ros
ti p
con
on o
the site that will be reverted by the
pp p
pec
ve permittee has not received permittee;
Federal Register/Vol, 67, No. 10 / Tuesday, January 15, 2002/Notices 1091
(9) For NWP 29 (Single-Family
Housing), the PCN must also include: waters of the US or justification
explaining why compensator affected by the proposed work or utilize
h

(i) Any past use of this NbVP by the
Individual Permittee and/or the
' y
mitigation should not be required. 1`01'
discharges that cause the loss of
e
t t
e designated critical habitat that may
be affected by the proposed work; and
(1
F
gr
a
er
permittee
s spouse; than 300 linear feet of an intermittent
(ii) A statement that the single-famil
t
h 8)
or activities that may affect
historic properties listed in, or eligible

housing activity is for a personal
residence of the
ermitt y s
ream
ed, to be authorized, the Distri
Engineer must determine that the ct for listing in, the National Register of
Historic Places
the PCN must state
p
ee;
(iii) A description of the entire parce
including its size
and a delineation
f activity complies with the other terms
l, and conditions of the NWP, determine ,
which historic property may be affected
by the proposed work or include a
,
o
wetlands. For the purpose of this NWP,
parcels of land measurin
V
l adverse environmental effects are
minimal both individually and vicinity ma
the historic property?ng the location of
g
4-acre or
ess cumulatively, and waive the limitation
will not require a formal on-site (c) Form of Notification: The standard

delineation. However, the applicant on stream impacts in writing before the
i
i Individual Permit application form
perrn
t
ee may proceed;
shall provide an indication of where the (14) For NWP 40 (Agricultural
wetlands are and the amount
f (Form ENG 4345) may be used as the
notification but must clearly indicate
o
wetlands that exists on the property. Fo
parcels greater than 1/4-acre i
i Activities), the PCN must include a
r compensatory mitigation proposal to that it is a PCN and must include all of
the information required in (b) (1)-(18)
n s
ze,
formal wetland delineation must be offset losses of waters of the US. This
NWP does not authorize the rel
ti of General Condition 13. A letter
i

prepared in accordance with the curren
method required by the Cor
s
(See oca
on conta
ning the requisite information
t of greater than 300 linear-feet of existing may also be used.
i
bl
p
.
paragraph 13(0); serv
cea
e drainage ditches constructed (d) District Engineer's Decision: In
i

(ivl A written description of all land n non-tidal streams unless, for drainage
ditches constructed in intermittent iign- reviewing the PCN for the proposed
activity
the District En
i
ill
(including, if available, legal
descriptions) owned by the
ros
e
ti tidal streams, the District Engineer
i ,
g
neer w
determine whether the activity
p
p
c
ve
permittee and/or the prospective
' wa
ves this criterion in writing, and the
District Engineer has determined that authorized by the NWP will result in
more than minimal individual

permittee
s spouse, within a one mile
radius of the parcel, in any form of
the project complies with all terms and
conditions of this NWP
d
h or
cumulative adverse environmental
ff

ownership (including any land owned
as a
art , an
t
at any
adverse impacts of the project on the e
ects or may be contrary to the public
interest. The prospective permittee ma

p
ner, corporation, joint tenant,
co-tenant, or as a tenant-by-the-entirety)
aquatic environment are minimal, both
individually and cumulativel y
submit a proposed mitigation plan with
th
PCN t

and any land on which a purchase and y;
(15) For NWP 43 (Stormwater e
o expedite the process. The
District Engineer will consider

sale agreement or other contract for sale
orpurchase has been executed;
Management Facilities), the PCN must
include
for the constructi
f any
proposed compensatory mitigation the

(10) For NWP 31 (Maintenance of
Existin
Flood Cont
l P ,
on o
new
storrnwater management facilities, a applicant has included in the proposal
in determining whether the net adverse
g
ro
rojects), the
prospective permittee must either notify maintenance plan (in accordance with
state and local requirements
if environmental effects to the aquatic
e
i

the District Engineer with a PCN prior ,
applicable) and a compensatory nv
ronment of the proposed work are
minimal. If the District En
i

to each maintenance activity or submit
a five year (or less) maintenance plan
mitigation proposal to offset losses of
waters of the US
For dis
h
h g
neer
determines that the activity complies
h
.
In addition, the PCN must include all of .
c
arges t
at
cause the loss of greater than 300 linear wit
the terms and conditions of the
NWP and that the adverse effe
t
th

the following:
(i) Sufficient baseline information
feet of an intermittent stream bed, to be
authorized
the District En
i c
s on
e
aquatic environment are minimal, after
d

identifying the approved channel
depths and confi
urati
d ,
g
neer must
determine that the activity complies
i
h consi
ering mitigation, the District
Engineer will notify the permittee and
g
ons an
existing
facilities. Minor deviations are w
t
the other terms and conditions of
the NWP
determine ad include any conditions the District

authorized, provided the approved flood ,
verse
environmental effects are minimal both Engineer deems necessary. The District
Engineer must a

control protection or drainage is not
increased
individually and cumulatively, and pprove any
compensatory mitigation proposal
;
(ii) A delineation of any affected
i
l waive the limitation on stream impacts
in writing before the permittee may before the permittee commences work.
If the prospective permittee is re
uired
spec
a
aquatic sites, including
wetlands; and, proceed;
(16) For NWP 44 (Minin
Activities) q
to submit a compensatory mitigation
l

(iii) Location of the dredged material
disposal site ,
g
the PCN must include a description of
ll proposa
with the PCN, the proposal
may be either conceptual or detailed. If
;
(11) For NWP 33 (Temporary
Constr
ti a
waters of the US adversely affected
by the project, a description of measures the prospective permittee elects to
submit a compensatory miti
ation
la

uc
on, Access, and Dewatering),
the PCN must also include a rest
ti
taken to minimize adverse effects to
f g
p
n
with the PCN, the District Engineer will
ora
on
plan of reasonable measures to avoid waters o
the US, a description of
measures taken to comply with the expeditiously review the proposed
co
t

and minimize adverse effects to aquatic
resources
criteria of the NWP, and a reclamation mpensa
ory mitigation plan. The
District Engineer must review the plan
;
(12) For NWPs 39, 43 and 44, the, PCN plan (for all aggregate ruining activities
in isolated waters and
ti
i
l within 45 days of receiving a complete

must also include a written statement to
the District Engineer ex
lainin
how non-
c
a
wetlands adjacent to headwaters and
h PCN aril determine whether the
conceptual or specific proposed
p
g
avoidance and minimization for losses any
ard rock/mineral mining
activities); mitigation would ensure no more than

of waters of the US were achieved on
(17) For activities that may adversel minimal adverse effects on the aquatic
envir
t
If
h

the project site;
(13) For NWP 39 aril NWP 42
th y
affect Federally-listed endangered or onmen
.
t
e net adverse effects
of the project on the aquatic
,
e
PCN must include a compensatory threatened species, the PCN must
include the name(s) of those endan
er
d environment (after consideration of the

mitigation proposal to offset losses of g
e
or threatened species that may be compensatory mitigation proposal) are
determined by the District Engineer to
2092 Federal Register/Vol. 67, No. 10/Tuesday, January 15, 2002/Notices
be minimal, the District Engineer will
provide a timely written response to the
applicant. The response will state that
the project can proceed under the terms
and conditions of the NWP.
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 either: (1) That the project
does not qualify for authorization under
the NWP and instruct the applicant on
the procedures to seek authorization
under an Individual Permit; (2) that the
project is authorized under the NWP
subject to the applicant's submission of
a mitigation proposal that would reduce
the adverse effects on the aquatic
environment to the minimal level; or (3)
that the project is authorized under the
NWP with specific modifications or
conditions. Where the District Engineer
determines that mitigation is required to
ensure no more than minimal adverse
effects occur to the aquatic
environment, the activity will be
authorized within the.45-day PCN
period. The authorization will include
the necessary conceptual or specific
mitigation or a requirement that the
applicant submit a mitigation proposal
that would reduce the adverse effects on
the aquatic environment to the minimal
level. When conceptual mitigation is
included, or a mitigation plan is
required under item (2) above, no work
in waters of the US will occur until the
District Engineer has approved a
specific mitigation plan,
(e) Agency Coordination: The District
Engineer will consider any comments
from Federal and state agencies
concerning the proposed activity's
compliance with the terms and
conditions of the NWPs and the need for
mitigation to reduce the project's
adverse environmental effects to a
minimal level. ,
For activities requiring notification to
the District Engineer that result in the
loss of greater than 1/2-acre of waters of
the US, the District Engineer will
provide immediately (e.g., via facsimile
transmission, overnight mail, or other
expeditious manner) a copy to the
appropriate Federal or state offices
(USF'WS, state natural resource or water
quality agency, EPA, State Historic
Preservation Officer (SHPO), and, if
appropriate, the NMFS), With the
exception of NWP 37, these agencies
will then have 10 calendar days from
the (late the material is transmitted to
telephone or fax the District Engineer
notice that they intend to provide
substantive, site specific comments, If
so contacted by an agency, the District
Engineer will wait an additional 15
calendar days before making a decision
on the notification. The District
Engineer will fully consider agency
comments received within the specified
time frame, but will provide no
response to the resource agency, except
as provided below. The District
Engineer will indicate in the
administrative record associated with
each notification that the resource
agencies' concerns were considered, As
required by section 305(b)(4)(B) of the
Magnuson-Stevens Fishery
Conservation and Management Act, the
District Engineer will provide a
response to NMFS within 30 days of
receipt of any Essential Fish Habitat
conservation recommendations.
Applicants are encouraged to provide
the Corps multiple copies of
notifications to expedite agency
notification.
(f) Wetland Delineations: Wetland
delineations must be prepared in
accordance with the current method
required by the Coi•ps (For NWP 29 see
paragraph (b)(9)(iii) for parcels less than
0/4-acre in size). The permittee may ask
the Corps to delineate the special
aquatic site. There may be some delay
if the Corps does the delineation.
Furthermore, the 45-day period will not
start until the wetland delineation has
been completed and submitted to the
Corps, where appropriate.
14. Compliance Certification. Every
permittee who has received NWP
verification from the Corps will submit
a signed certification regarding the
completed work and any required
mitigation. The certification will be
forwarded by the Corps with the
authorization letter and will include:
(a) A statement that the authorized
work was done in accordance with the
Corps authorization, including any
general or specific conditions;
(b) A statement that any required
mitigation was completed in accordance
with the permit conditions; and
(c) The signature of the permittee
certifying the completion of the work
and mitigation.
15. Use of Multiple Nationwide
Permits. The use of more than one NWP
for a single and complete project is
prohibited, except when the acreage loss
of waters of the US authorized by the
NWPs does not exceed the acreage limit
of the NWP with the highest specified
acreage limit (e.g. if a road crossing over
tidal waters is constructed tinder NWP
14, with associated bank stabilization
authorized by NWP 13, the maxinnun
acreage loss of waters of the US for the
total project cannot exceed 1/3-acre).
16. Water Supply Intakes. No activity,
including structures and work in
navigable waters of the US or discharges
of dredged or fill material, may occur in
the proximity of a public water supply
intake except where the activity is for
repair of the public water supply intake
structures or adjacent bank stabilization.
17. Shellfish Beds. No activity,
including structures and work in
navigable waters of the US or discharges
of dredged or fill material, may occur in
areas of concentrated shellfish
populations, unless the activity is
directly related to a shellfish harvesting
activity authorized by NWP 4.
18, Suitable Material. No activity,
including structures and work in -
navigable waters of the US or discharges
of dredged or fill material, may consist
of unsuitable material (e.g., trash,
debris, car bodies, asphalt, etc.) and
material used for construction or
discharged must be free from toxic
pollutants in'toxic amounts (see section
307 of the CWA).
19. Mitigation. The District Engineer
will consider the factors discussed
below when determining the
acceptability of appropriate and
practicable mitigation necessary to
offset adverse effects on the aquatic
environment that are more than
minimal,
(a) The project must be designed and
constructed to avoid and minimize
adverse effects to waters of the US to the
maximum extent practicable at the
project site (i.e., on site).
(b) Mitigation in all its forms
(avoiding, minimizing, rectifying,
reducing or compensating) will be
required to the extent necessary to
ensure that the adverse effects to the
aquatic environment are minimal.
(c) Compensatory mitigation at a
minimum one-for-one ratio will be
required for all wetland impacts
requiring a PCN, unless the District
Engineer determines in writing that
spine other form of mitigation would be
more environmentally appropriate and
provides a project-specific waiver of this
requirement. Consistent with National
policy, the District Engineer will
establish a preference for restoration of
wetlands as compensatory mitigation,
with preservation used only in
exceptional circumstances.
(d) Compensatory mitigation (i.e.,
replacement or substitution of aquatic
resources for those impacted) will not
be used to increase the acreage losses
allowed by the acreage limits of some of
the NWPs. For example,'/4-acre of
wetlands cannot be created to change a
-/4-acre loss of wetlands to a 1/e-acre loss
associated with NWP 39 verification.
I lowever, 1/2-acre of created wetlands
can be used to reduce the impacts of a
1/2-acre loss of wetlands to the minimum
impact level in order to meet the
Federal Register / Vol. 67, No. 10 / Tuesday, January 15, 2002/Notices 2093
minimal impact requirement associated
wi
with NWPs accomplishing and/or complying with
discharges of dredged or fill material

•
(e) To be practicable, the mitigation
the mitigation plan.
20. Spawning Areas. Activities, ,
into breeding areas for migratory
waterfowl must be avoided to th

must be available and capable of being
Bona considering costs, existing
including structures and work in
navigable waters of the US or dis
h e
maximum extent practicable.

technology, and logistics in light of the c
arge
of dredged or fill material, in spawning s 24. liernoval of Temporory Fills. Any
temporary fills must be removed in their
overall project purposes. Examples of
mitigation that may be appropriate and areas during spawning seasons most be
avoided to the maximum extent entirety and the affected areas returned
to their preexisting elevation

practicable include, but are not limited
practicable. Activities that result in,the .
25. Designated Critical Resource
to: reducing the size of the project; physical destruction excavate, fill, Waters. Critical resource waters include

establishing and maintaining wetland or
or smother downstream by substantial ,
NOAA-designated marine sanctuaries

upland vegetated buffers to protect open
turbidity) of an important spawning are ,
a National Estuarine Research Reserves

waters such as streams; and replacing
are not authorized. ,
National Wild and Scenic Rivers

losses of aquatic resource functions and
21. Management of Water Flows. To ,
critical habitat for Federally listed
values by creating, restoring, enhancing, the maximum extent practicable, the threatened and endangered species,
or preserving similar functions and activity must be designed to maintain coral reefs, state natural heritage sites

values, preferably in the same
preconstruction downstream flow ,
and outstanding national resource
watershed, conditions (e.g., location, capacity, and waters or other waters officially
(f) Compensatory mitigation plans for flow rates). Furthermore, the activity designated by a state as having
projects in or near streams or other open 'rust not permanently restrict or impede particular environmental or ecological
waters will normally include a the passage of normal or expected high significance and identified by the
requirement for the establishment, flows (unless the primary purpose of the District Engineer after notice and
maintenance, and legal protection (e.g., fill is to impound waters) and the opportunity for public comment. The
easements, deed restrictions) of structure or discharge of dredged or fill District Engineer may also designate
vegetated buffers to open waters. In material must withstand expected high additional critical resource waters after
many cases, vegetated buffers will be flows. The activity must, to the notice and opportunity for comment.
the only compensatory mitigation maximum extent practicable, provide (a) Except as noted below, discharges
required. Vegetated buffers should for retaining excess flows from the site, of dredged or fill material into waters of
consist of native species. The width of provide for maintaining surface flow the US are not authorized by NWPs 7,
the vegetated buffers required will rates from the site similar to 1'2, 14, 16, 17, 21, 29, 31, 35, 39, 40, 42,
address documented water quality or preconstruction conditions, and provide 43, and 44 for any activity within, or
aquatic habitat loss concerns. Normally, for not increasing water flows from the directly affecting, critical resource
the vegetated buffer will be 25 to 50 feet project site, relocating water, or waters, including wetlands adjacent to
wide on each side of the stream, but the redirecting water flow beyond such waters. Discharges of dredged or
ightly
D
c
r
r reconson conons. Stream
c
r
t
d
r materials into waters of e as
ay
t
l
1
ider
ve etated
huffe?s
to addres h
anneli-r.i
n g
will be
r
educed to the
b
e
authorized by the above N
WPs in
documented water quality or habitat minimal amount necessary, and the National Wild and Scenic Rivers if the
loss concerns. Where both wetlands and
Where activity must, to the maximum extent activity complies with General
open waters exist
the project site, the practicable, reduce adverse effects such
as floodin
or ero
i
d Condition 7. Further, such discharges
Corps will determine the appropriate g
s
on
ownstream and may be authorized in designated critical
compensatory mitigation (e.g., stream upstream of the project site, unless the habitat for Federally listed threatened or
buffers or wetlands compensation) activity is part of a larger system
d
i endangered species if the activity

at
based on what is best for the aquatic es
gned to manage water flows. In most complies with General Condition 11 and
environment
oil a watershed basis. In cases, it will not be a requirement to
conduct detailed studies and
it
i the USFWS or the NMFS has concurred
i
cases where vegetated buffers are mon
or
ng
of water flow n a determination of compliance with
determined to be the most appropriate

form of compensatory mitigation
the .
This condition is only applicable to this condition.
(b) For NWPs 3, 8, 10, 13, 15, 18, 19,
,
District Engineer rjray waive or reduce projects that have the potential to affect
waterflows
Whil
i 22, 23, 25, 27, 28, 30, 33, 34, 36, 37, and

the requirement to provide wetland
compensatory miti
ation for wetla
d .
e appropr
ate measures
must be taken, it is not necessary to 38, notification is required in
accordance with General Condition 13

g
n
impacts.
conduct detailed studies to identify ,
for any activity proposed in the

(g) Compensatory mitigation such measures or require monitoring to designated critical resource waters

I roposals submitted with the ensure their effectiveness. Normally, the including wetlands adjacent to those

notification" may be either conceptual Corps will defer to state and local
authorities re
ardin
mana
t
f waters. The District Engineer may

or detailed. If conceptual plans are g
g
gemen
o
water flow authorize activities under these NWPs

approved under the verification, then .
22. Adverse Effects From only after it is determined that the

i
the Corps will condition the verification

to require detailed plans be submitted
Impoundments. [f the activity creates an mpacts the critical renounce waters
will be no o more than minimal.

and approved by the Corps prior to impoundment of water, adverse effects
to the aquatic system clue to the 26. Fills lVithin 100-Year FYoodploiris.
F

construction of the authorized activity
in waters of the [IS
acceleration of the passage of water, or purposes of this General Condition,
100-year floodplains will be identified
,
(h) Permittees may propose the use of and/or the restricting its flow shall be
i through the existing Federal Emergency

mitigation banks, in-lieu fee m
nimized to the maximum extent
practicable. '['his includes structures Management Agency's (FEMA) Flood
Insurance Rate Maps or FEMA-a
roved
arrangements or separate activity-
Specific compensatory miti
ation
In all and work in navigable waters of the US, pp
local floodplain maps.
g
.
cases that require compensatory or discharges of dredged or fill material.
23. Water fort'/ Breedin
Areas (a) Discharges in F'loodplain; Below
fl
d

mitigation, the mitigation provisions g
,
Activities, including structures and ea
waters. Discharges of dredged or
fill material into waters of the US withi

will specify the party responsible for
work in navigable waters of the US or n
the mapped 100-year floodplain, below
2094 Federal Register/Vol. 67, No. 10 / Tuesday, January 15, 2002/Notices
headwaters (i.e. five cfs), resulting in
permanent above-grade fills, are not
authorized by NWPs 39, 40, 42, 43, and
44.
(b) Discharges in Floodway; Above,
fleodrvaters. Discharges of dredged or
fill material into waters of the US within
the FEMA or locally mapped floodway,
resulting in permanent above-grade fills,
are not authorized by NWPs 39, 40, 42,
and 44.
(c) The perrnittee must comply with
any applicable FEMA-approved state or
local floodplain management
requirements.
27. Construction Period. For activities
that have not been verified by the Corps
and the project was commenced or
under contract to commence by the
expiration date of the NWP (or
modification or revocation date), the
work must be completed within 12-
months after such date (including anv
modification that affects the project).
For activities that have been verified
and the project was commenced or
under contract to commence within the
verification period, the work must be
completed by the date determined by
the Corps.
For projects that have been verified by
the Corps, an extension of a Corps
approved completion date maybe
requested. This request must be
submitted at least one month before the
previously approved completion date.
D. Further Information
1. District Engineers have authority to
determine if an activity complies with
the terms and conditions of an N`WP.
2. NWPs do not obviate the need to
obtain other Federal, state, or local
permits, approvals, or authorizations
required by law.
3. NWPs do not grant any property
rights or exclusive privileges.
4. NWPs do not authorize any injury
to the property or rights of others.
5. NWPs do not authorize interference
with any existing or proposed Federal
project.
E. Definitions
Best Management Practices (BMPs):
BMPs are policies, practices,
procedures, or structures implemented
to mitigate the adverse environmental
effects on surface water quality resulting
from development. BMPs are
categorized as structural or non-
structural. A BMP policy may affect the
limits on a development,
Compensatory Mitigation: For
Purposes of Section 10/404,
compensatory mitigation is the
restoration, creation, enhancement, or in
exceptional circumstances, preservation
of wetlands and/or other aquatic
resources for the purpose of
compensating for unavoidable adverse
impacts which remain after all
appropriate and practicable avoidance
and minimization has been achieved.
Creation: The establishment of a
wetland or other aquatic resource where
one did not formerly exist.
Enhoncement: Activities conducted in
existing wetlands or other aquatic
resources that increase one or more
aquatic'functions.
Ephemeral Stream: An ephemeral
stream`lras flowing water only during
and for a short duration after,
precipitation events in a typical year.
Ephemeral stream beds are located
above the water table year-round.
Groundwater is not a source of water for
the stream. Runoff from rainfall is the
primary source of water for stream flow.
Farm Tract: A unit of contiguous land
under one ownership that is operated as
a farm or part of a,farrn.
Flood Fringe: That portion of the 100-
year floodplain outside of the floodway
(often referred to as "floodway fringe").
Floodwoy: The area regulated by
Federal, state, or local requirements to
provide for the discharge of the base
flood so the cumulative increase in
water surface elevation is no more than
a designated amount (not to exceed one
foot as set by the National Flood
Insurance Program) within the 100-year
flood lain.
Independent Utility: A test to
determine what constitutes a single and
complete project in the Corps regulatory
program. A project is considered to have
independent utility if it would be
constructed absent the construction of
other projects in the project area.
Portions of a multi-phase project that
depend upon other phases of the project
do not have independent utility. Phases
of a project that would be constructed
even if the other phases were not built
can be considered as separate single and
complete projects with independent
utility.
Intermittent Stream: An intermittent
stream has flowing water during certain
times of the year, when groundwater
provides water for stream flow. During
dry periods, intermittent streanis may
not have flowing water. Runoff from
rainfall is a supplemental source of
water for stream flow.
Loss of Waters of the US: Waters of
the US that include the filled area and
other waters that are permanently
adversely affected by flooding,
excavation, or drainage because of the
regulated activity. Permanent adverse
effects include permanent above-grade,
at-grade, or below-grade fills that change
an aquatic area to dry land, increase the
bottom elevation of a waterbody, or
change the use of a waterbody. The
acreage of loss of waters of the US is the
threshold measurement of the impact to
existing waters for determining whether
a project may qualify for au MVP; it is
not a net threshold that is calculated
after considering compensatory
mitigation that may be used to offset
losses of aquatic functions and values.
The loss of stream bed includes the
linear feet of stream bed that is filled or
excavated. Waters of the US temporarily
filled, flooded, excavated, or drained,
but restored to preconstruction contours
and elevations after construction, are
not included in the measurement of loss
of waters of the US. Impacts to
ephemeral waters are only not included
in the acreage or linear foot
measurements of loss of waters of the
US or loss of stream bed, for the purpose
of determining compliance with the
threshold limits of the NWPs.
Non-tidal Wetland: A non-tidal
wetland is a wetland (i.e., a water of the
US) that is not subject to the ebb and
flow of tidal waters. The definition of a
wetland can be found at 33 CFR
328.3(b). Non-tidal wetlands contiguous
to tidal waters are located landward of
the high tide line (i.e., spring high tide
line).
Open Water: An area that, during a
year with normal patterns of
precipitation, has standing or flowing
water for sufficient duration to establish
an ordinary high water mark. Aquatic
vegetation within the area of standing or
flowing water is either non-emergent,
sparse, or absent. Vegetated shallows are
considered to be open waters. The term
"open water" includes rivers, streams,
lakes, and ponds. For the purposes of
the NWPs, this term does not include
ephemeral waters.
Perennial Stream: A perennial stream
has flowing water year-round during a
typical year, The water table is located
above the stream bed for most of the
year. Groundwater is the primary source
of water for stream flow. Runoff from
rainfall is a supplemental source of
water for stream flow.
Permanent Above-grade Fill: A
discharge of dredged or fill material into
waters of the US, including wetlands,
that results in a substantial increase in
ground elevation and permanently
converts part or all of the waterbody to
dry land. Structural fills authorized by
NWPs 3, 25, 36, etc. are not included.
Preservation: The protection of
ecologically important wetlands or other
aquatic resources in perpetuity through
the implementation of appropriate legal
and physical mechanisms. Preservation
may include protection of upland areas
adjacent to wetlands as necessary to
Federal Register / Vol. 67, No. 10/Tuesday, January 15, 2002/Notices 2n11q
ensure protection and/or enhancement
of the overall aquatic ecosystem.
Restoration: Re-establishment of
wetland and/or other aquatic resource
characteristics and function(s) at a site
where they have ceased to exist, or exist
in a substantially degraded state.
Riffle and Pool Complex: Riffle and
pool complexes are special aquatic sites
under the 404(6)(1) Guidelines. Riffle
and pool complexes sometimes
characterize steep gradient sections of
streams. Such stream sections are
recognizable by their hydraulic
characteristics. The rapid movement of
water over a course substrate in riffles
results in a rough flow, a turbulent
surface, and high dissolved oxygen
levels in the water. Pools are deeper
areas associated with riffles. A slower
stream velocity, a streaming flow, a
smooth surface, and a finer substrate
characterize pools.
Single and Complete Project: The
term "single and complete project" is
defined at 33 CFR 330.2(i) as the total
project proposed or accomplished by
one owner/developer or partnership or
other association of owners/developers
(see definition of independent utility).
For linear projects, the "single and
complete project" (i.e., a single and
complete crossing) will apply to each
crossing of a separate water of the US
(i.e., a single waterbody) at that location.
An exception is for linear projects
crossing a single waterbody several
times at separate and distant locations:
each crossing is considered a single and
complete project. However, individual
channels in a braided stream or river, or
individual arms of a large, irregularly
shaped wetland or lake, etc., are not
separate waterbodies.
Storm ivater Management: Stormwater
management is the mechanism for
controlling stormwater runoff for the
purposes of reducing downstream
erosion, water quality degradation, and
flooding and.mitigating the adverse
effects of changes in land use on the
aquatic environment.
Stormwater Management Facilities:
Stormwater management facilities are
those facilities, including but not
limited to, stormwater retention and
detention ponds and BMPs, which
retain water for a period of time to
control runoff and/or improve the
quality (i. e., by reducing the
concentration of nutrients, sediments,
hazardous substances and other
pollutants) of stormwater runoff.
Stream Bed: The substrate of the
stream channel between the ordinary
high water marks. The substrate may be
bedrock or inorganic particles that ranee
in size from clay to boulders. Wetlands
contiguous to the stream bed, but
outside of the ordinary high water
marks, are not considered part of the
stream bed.
Stream Channelization: The
manipulation of a stream channel to
increase the rate of water flow through
the stream channel. Manipulation may
include deepening, widening,
straightening, armoring, or other
activities that change the stream cross-
section or other aspects of stream
channel geometry to increase the rate of
water flow through the stream channel.
A channelized stream remains a water
of the US, despite the modifications to
increase the rate of water flow.
Tidal Wetland: A tidal wetland is a
wetland (i.e., water of the US) that is
inundated by tidal waters. The
definitions of a wetland and tidal waters
can be found at 33 CFR 328.3(b) and 33
CFR 328.3(0, respectively. Tidal waters
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 clue to masking by other waters,
wind, or other effects. Tidal wetlands
are located channelward of the high tide
line (i.e., spring high tide line) and are
inundated by tidal waters two times per
lunar month, during spring high tides.
Vegetated Buffer: A vegetated upland
or wetland area next to rivers, streams,
lakes, or other open waters which
separates the open water from
developed areas, including agricultural
land. Vegetated buffers provide a variety
of aquatic habitat functions and values
(e.g., aquatic habitat for fish and other
aquatic organisms, moderation of water
temperature changes, and detritus for
aquatic food webs) and help improve or
maintain local water quality. A
vegetated buffer can be established by
maintaining an existing vegetated area
or planting native trees, shrubs, and
herbaceous plants on land next to open-
waters. Mowed lawns are not
considered vegetated buffers because
they provide little or no aquatic habitat
functions and values. The establishment
and maintenance of vegetated buffers is
a method of compensatory mitigation
that can be used in conjunction with the
restoration, creation, enhancement, or
preservation of aquatic habitats to
ensure that activities authorized by
NWPs result in minimal adverse effects
to the aquatic environment. (See
General Condition 19.)
Vegetated Shallows: Vegetated
shallows are special aquatic sites under
the 404(b)(1) Guidelines. They are areas
that are permanently inundated and
under normal circumstances have
rooted aquatic vegetation, such as
seagrasses in marine and estuarine
systems and a variety of vascular rooted
plants in freshwater systems.
4aterbody: A waterbody is any area
that in a normal year has water flowing
or standing above ground to the extent
that evidence of an ordinary high water
mark is established. Wetlands
contiguous to the waterbody are
considered part of the waterbody.
(FR Doc. 02-539 Filed 1--14-02; 8:45 ant)
BILLING CODE 3710-92-P
6692 Federal Register/ Vol. 67, No. 30 / Wednesday, February 13, 2002 /Notices
ADDRESSES). The holding of such
hearing is at the discretion of the
Assistant Administrator for Fisheries,
NOAA. All statements and opinions
contained in the permit action
summaries are those of the applicant
and do not necessarily reflect the views
of NMFS.
Species Covered in This Notice
The following species are covered in
this notice:
Sea turtles
Threatened and endangered green
turtle (Chelonia mydas)
Endangered hawksbill turtle
(Eretmochelys imbricate)
Endangered Kemp's ridley turtle
(Lepidochelys kempii)
Endangered leatherback turtle
(Dermochelys coriacea)
Threatened loggerhead turtle (Caretto
caretta)
Application 1361
The applicant is applying for a 5-year
permit to trawl for turtles, as needed, at
dredge and other construction/
destruction sites to remove the turtles to
a safe location. The turtles will be
captured, tagged, measured and released
offshore away from the dredging
activities. The applicant expects to
capture and relocate 95 green, 11
hawksbill, 160 loggerhead, 14 Kemp's
ridley and 4 leatherback turtles on the
Atlantic coast and 105 green, 17
hawksbill, 160 loggerhead, 50 Kemp's
ridley and 11 leatherback turtles on the
Gulf coast.
Dated: February 7, 2002.
Jill Lewandowski,
Acting Chief, Permits, Conservation, and
Education Division, Office of Protected
Resources, National Marine Fisheries Service.
[FR Doc. 02-3522 Filed 2-12-02; 8:45 am]
BILLING CODE 3510-22-S
DEPARTMENT OF DEFENSE
Department of the Army, Corps of
Engineers
Issuance of Nationwide Permits;
Notice; Correction
AGENCY: Army Corps of Engineers, DoD
ACTION: Final notice; correction.
SUMMARY: This clocuarent contains
corrections to the final notice of
issuance of Nationwide Permits (NWPs)
which was published in the Federal
Register on Tuesday, January 15, 2002
(67 FR 2020-2095).
ADDRESSES: HQUSACE, ATTN: CECW-
OR, 441 "G" Street, NW., Washington,
DC 20314-1000.
FOR FURTHER INFORMATION CONTACT: Mr.
David Olson, at [phone], Mr.
Kirk Stark, at [phone] or Ms.
Leesa Beal at [phone] or access
the U.S. Army Corps of Engineers
Regulatory Home Page at: http://
www.usace•army.niiI/inet/functions/
cw/cecwo/reg/.
SUPPLEMENTARY INFORMATION: In the
SUMMARY section on page 2020, the third
and fourth sentences are corrected to
read: "All NWPs except NWPs 3, 7, 12,
14, 27, 39, 40, 41, 42, 43, and 44 expire
on February 11, 2002. Existing NWPs 3,
7, 12, 14, 27, 39, 40, 41, 42, 43, and 44
expire on March 18, 2002." In the last
sentence of the SUMMARY section, the
expiration date is corrected as "March
18, 2007", instead of "March 19, 2007".
On page 2020, in second sentence of
the DATES section, the expiration date is
corrected as "March 18, 2007", instead
of "March 19, 2007". Therefore, the,
NWPs published in the January 15,
2002; Federal Register will expire on
March 18, 2007, five years from their
effective date of March 18, 2002.
On page 2020, in the fifth paragraph
of the Background section, the third and
fourth sentences are corrected to read:
"All NWPs except NWPs 3, 7, 12, 14,
27, 39, 40, 41, 42, 43, and 44 expire on
February 11, 2002. Existing NWPs 3, 7,
12, 14, 27, 39, 40, 41, 42, 43, and 44
expire on March 18, 2002." The
expiration date in the last sentence of
this paragraph is corrected as "March
18, 2007", instead of "March 19, '2007".
On page 2020, the paragraph in the
section entitled "Grandfather Provision
for Expiring NWPs at 33 GFR 330.6" is
corrected to read: "Activities authorized
by the current NWPs issued on
December 13, 1996, (except NWPs 3, 7,
12, 14, 27, 39, 40, 41, 42, 43, and 44),
that have commenced or are under
contract to commence by February 11,
2002, will have until February 11, 2003,
to complete the activity. Activities
authorized by NWPs 3, 7, 12, 14, 27, 39,
40, 41, 42, 43, and 44, that were issued
on March 9, 2000, that are commenced
or under contract to commence by
March 18, 2002, will have until March
18, 2003, to complete the activity."
On page 2020, in the "Clean Water
Act Section 401 Water Quality
Certification (WQGJ and Coastal Zone
Management Act (CZMA) Consistency
Agreement" section, the date in the fifth
sentence is corrected as "February 11,
2002", instead of "February 11, 2001".
On page 2023, third column, last
sentence, the number 29 is replaced
with the number 19, because this
sentence refers to General Condition 19.
On page 2024, first column, in the
fourth sentence of the last paragraph the
phrase "less than" is replaced by
"greater than" because the 30 clay
completeness review period for NWP
pre-construction notifications is greater
than the 15 clay completeness review
period for standard permit applications.
On page 2031, second column, second
full paragraph, the number 31 is
replaced with the number 3 because this
paragraph refers to NWP 3.
On page 2044, second column, fourth
complete paragraph, the title is
corrected to read "Strearn and Wetland
Restoration Activities" because that is
the title of NWP 27.
On page 2054, second column, the
year cited in the third sentence of the
second paragraph is the year 2000, not
1996.
On page 2058, third column, in the
second sentence of the second complete
paragraph the word "intermittent" is
inserted before the phrase "stream bed"
because the waiver for filling or
excavating greater than 300 linear feet of
stream beds can apply only to
intermittent stream beds.
On page 2072, third column, last
sentence, the number 19 is inserted after
the term "General Condition" since this
sentence refers to General Condition 19.
On page 2076, second column, the
street address for the Walla Walla
District Engineer is corrected to read
"201 N. Third Avenue".
On page 2080, second column, third
paragraph from the top of the column
(in the "Notification" section of NWP
12), the word "or" at the end of
paragraph (e) is deleted and the period
at the end of the fourth paragraph
(paragraph (f)) is replaced with "; or".
On page 2080, second column,
paragraph (a) of NWP 13 is corrected to
read: "No material is placed in excess of
the minimum needed for erosion
protection;" The change was not
intended and we are correcting this
paragraph by reinstating the original
text as it appeared in the version of
NWP 13 published in the December 13,
1996, Federal Register (61 FR 65915).
On page 2080, third column, the word
"or" is inserted at the end of paragraph
(a)(1) of NWP 14, Linear Transportation
Projects. Paragraph (a) of NWP 14 is
corrected to read: "a. This NWP is
subject to the following acreage limits:
(1) For linear transportation projects in
non-tidal waters, provided the discharge
does not cause the loss of greater than
1/e-acre of waters of the US; or (2) For
linear transportation projects in tidal
waters, provided the discharge does not
cause the loss of greater than 1/3-acre of
waters of the US."
On page 2085, second column, the
last sentence of NWP 36 is corrected to
read as follows: "Dredging to provide
Federal Register/ Vol. 67, No. 30 / Wednesday, February 13, 2002 /Notices 6693
access to the boat ramp may he
authorized by another NWP, regional
general permit, or individual permit
pursuant to section 10 if located in
navigable waters of the United States.
* * *" The change was not intended
and we are correcting this paragraph by
reinstating the original text as it
appeared in the version of NWP 36
published in the December 13, 1996,
Federal Register (61 FR 65919).
On page 2086, in the second full
paragraph of the second column,
"paragraph (e)" in the second sentence
is replaced with "paragraph (f)" and
"paragraph (i)" in the third sentence is
replaced with "paragraph (j)" to
accurately cite the previous paragraphs
of NWP 39. The last two sentences of
the paragraph before the subdivision
paragraph were incorrectly divided into
two sentences from the original single
sentence and identified as being related
to General Condition 15. This change
was not intended and we are correcting
this paragraph by reinstating the
original last sentence as it exists in the
March 9, 2000, text of NWP 39 (65 FR
12890).
On page 2086, middle column, the
parenthetical statement at the end of the
Note at the end of NWP 39 is corrected
to read "* * * (except for ephemeral
waters, which do not require PCNs
under paragraph (c)(2), above; however,
activities that result in the loss of greater
than Vin acre of ephemeral waters
would require PCNs under paragraph
(c)(1), above)." The addition to the Note
was intended to clarify that under
paragraph (c)(2) only the loss of
ephemeral open waters were not
included in the requirement for a pre-
construction notification (PCN).
However, tinder paragraph (c)(1) all
ephemeral waters of the United States
are included in the measurement for the
Vro acre PCN requirement. The
correction is needed because the
statement in the parentheses could be
incorrectly interpreted to apply to
paragraph (0(1) and possibly to all
PCNs, not just those affected by
paragraph (c)(2).
For clarity, we are providing the text
of NWP 39 in its entirety, with the
corrections described above:
39. Residentiul. Commercial, and
Institutional Developments. Discharges
of dredged or fill material into non-tidal
waters of the U.S., excluding non-tidal
wetlands adjacent to tidal waters, for the
construction or expansion of residential,
commercial, and institutional building
foundations and building pads and
attendant features that are necessary for
the use and maintenance of the
structures. Attendant features may
include, but are not limited to, roads,
parking lots, garages, yards, utility lines
stormwater management facilities, and
recreation facilities such as
playgrounds, playing fields, and golf
courses (provided the golf course is all
integral part of the residential
development). The construction of new
ski areas or oil and gas wells is not
authorized b this NWP.
Residential developments include
multiple and single unit developments.
Examples of commercial developments
inclu,do retail stores, industrial facilities
restaurants, business parks, and
shopping centers. Examples of
institutional developments include
schools, fire stations, government office
buildings, judicial buildings, public
works buildings, libraries, hospitals,
and places of worship. The activities
listed above are authorized, provided
the activities meet all of the following
criteria:
a. The discharge does not cause the
loss of greater than 1/,z-acre of non-tidal
waters of the U.S., excluding non-tidal
wetlands adjacent to tidal waters;
b. The discharge does not cause the
loss of greater than 300 linear-feet of a
stream bed, unless for intermittent
stream beds this criterion is waived in
writing pursuant to a determination by
the District Engineer, as specified
below, that the project complies with all
terms and conditions of this NWP and
that any adverse impacts of the project
on the aquatic environment are
minimal, both individually and
cumulatively;
c. The permittee must notify the
District Engineer in accordance with
General Condition 13, if any of the
following criteria are met:
(1) The discharge causes the loss of
greater than'/io-acre of non-tidal waters
of the US, excluding non-tidal wetlands
adjacent to tidal waters; or
(2) The discharge causes the loss of
any open waters, including perennial or
intermittent streams, below the ordinary
hi h water mark (see Note, below); or
?:1) The discharge causes the loss of
greater than 300 linear feet of
intermittent stream bed. In such case, to
be authorized the District Engineer must
determine that the activity complies
with the other terms and conditions of
the NWP, determine adverse
environmental effects are minimal both
individually and cumulatively, and
waive the limitation on stream impacts
in writing before the permittee may
proceed;
d. For discharges in special aquatic:
sites, including wetlands, the
notification must include a delineation
of affected special aquatic sites;
e. The discharge is part of a single and
complete project;
f. The permittee must avoid and
minimize discharges into waters of the
US at the project site to the maximum
extent practicable. The notification,
when required, must include a written
statement explaining how avoidance
and minimization of losses of waters of
the US were achieved on the project
site. Compensatory mitigation will
normally be required to offset the losses
of waters of the US. (See General
Condition 19.) The notification must
also include a compensatory mitigation
proposal for offsetting unavoidable
losses of waters of the US. If an
applicant asserts that the adverse effects
of the project are minimal without
mitigation, then the applicant may
submit justification explaining why
compensatory mitigation should not be
required for,the District Engineer's
consideration;
g. When this NWP is used in
conjunction with any other NWP, any
combined total permanent loss of waters
of the US exceeding Vio-acre requires
that the permittee notify the District
Engineer in accordance with General
Condition 13;
It. Any work authorized by this NWP
roust not cause more than minimal
degradation of water quality or more
than minimal changes to the flow
characteristics of any stream (see
General Conditions 9 and 21);
i. For discharges causing the loss of
t/,o-acre or less of waters of the US, the
permittee must submit a report, within
30 days of completion of the work, to
the District Engineer that contains the
following information: (1) The name,
address, and telephone number of the
permittee; (2) The location of the work;
(3) A description of the work; (4) The
type and acreage of the loss of waters of
the US (e.g., r/z-acre of emergent
wetlands); and (5) The type and acreage
of any compensatory mitigation used to
offset the loss of waters of the US (e.g.,
1/z-acre of emergent wetlands created
on-site);
j. If there are any open waters or
streams within the project area, the
permittee will establish and maintain, to
the maximum extent practicable,
wetland or upland vegetated buffers
next to those open waters or streams
consistent with General Condition 19.
Deed restrictions, conservation
easements, protective covenants, or
other means of land conservation and
preservation are required to protect and
maintain the vegetated buffers
established on the project site.
Only residential, commercial, and
institutional activities with structures
oar the foundation(s) or building pad(s),
as well as the attendant features, are
authorized by this NWP. The
6694 Federal Register/ Vol. 67, No. 30 /Wednesday, February 13, 2002 /Notices
compensatory mitigation proposal that
is required in paragraph (f) of this NWP
may be either conceptual or detailed.
The wetland or upland vegetated buffer
required in paragraph (j) of this NWP
will be determined on a case-by-case
basis by the District Engineer for
addressing water quality concerns. The
required wetland or upland vegetated
buffer is part of the overall
compensatory mitigation requirement
for this NWP. If the project site was
previously used for agricultural
purposes and the farm owner/operator
used NWP 40 to authorize activities in
waters of the United States to increase
production or construct farm buildings,
NWP 39 cannot be used by the
developer to authorize additional
activities in waters of the United States
on the project site in excess of the
acreage limit for NWP 39 (i.e., the
combined acreage loss authorized under
NWPs 39 and 40 cannot exceed 1/2 acre).
Subdivisions: For residential
subdivisions, the aggregate total loss of
waters of US authorized by NWP 39 can
not exceed 1/2-acre. This includes any
loss of waters associated with
development of individual subdivision
lots, (Sections 10 and 404)
Note: Areas where wetland vegetation is
not present should be determined by the
presence or absence of an ordinary high
water mark or bed and bank. Areas that are
waters of the US based on this criterion
would require a PCN although water is
infrequently present in the stream channel
(except for ephemeral waters, which do not
require PCNs under paragraph (c)(2), above;
however, activities that result in the loss of
greater than I/lo acre of ephemeral waters
would require PCNs under paragraph (c)(1),
above).
On page 2088, in the sixth sentence of
the first paragraph in the first column,
the phrase "an adequate water quality
management plan" is replaced with the
phrase "adequate water quality
management measures" to reflect the
modified language in General Condition
9. This sentence is corrected to read
"The facility must have adequate water
quality management measures in
accordance with General Condition 9,
such as a stormwater management
facility, to ensure that the recreational
facility results in no substantial adverse
effects to water quality."
On page 2089, first column, the
second sentence of paragraph (c) of
NWP 44 is corrected to read "Normally,
the water quality management measures
required by General Condition 9 should
address these impacts;". In addition, the
second sentence of paragraph (i) of NWP
44 is corrected to read "Further the
District Engineer may require water
quality management measures to ensure
the authorized work results in minimal
adverse effects to water quality;" These
corrections are necessary to reflect the
modified language in General Condition
9.
On page 2089, third column, the text
of General Condition 6 is corrected to
read: "The activity must comply with
any regional conditions that may have
been added by the Division Engineer
(see 33 CFR 330.4(e)) and with any case
specific conditions added by the Corps
or by the state or tribe in its Section 401
Water Quality Certification and Coastal
Zone Management Act consistency
determination." The change to General
Condition 6 that was published in the
January 15, 2002, Federal Register was
not intended and we are correcting this
sentence by reinstating the original text
as it existed in the March 9, 2000,
NWPs.
On page 2090, first column, the word
"Section" in the parenthetical at the end
of General Condition 10 is replaced with
"33 CFR" so that the parenthetical reads
"(see 33 CFR 330.4(d))".
On page 2090, at the top of the second
column, the second Internet URL is
replaced with "* * * http:H
wrvw.nm fs.noao.gov/prot_res/overview/
es.html * * *" because the Internet
address for the National Marine
Fisheries Service home page for
endangered species has been changed.
On page 2090, third column, in
paragraph (b)(4) of General Condition
13, NWP 40 should be added to the list
of NWPs that require submission of
delineations of special aquatic sites with
pre-construction notifications.
Therefore, paragraph (b)(4) of General
Condition 13 is corrected to read "For
NWPs 7, 12, 14, 18, 21, 34, 38, 39, 40,
41, 42, and 43, the PCN must also
include a delineation of affected special
aquatic sites, including wetlands,
vegetated shallows (e.g., submerged
aquatic vegetation, seagrass beds), and
riffle and pool complexes (see paragraph
13(0);"
On page 2090, third column, in
paragraph (b)(6) of General Condition
13, the word "Projects" replaces the
word "Crossings", because the title of
NWP 14 is "Linear Transportation
Projects".
On page 2090, third column, ill
paragraph (b)(8) of General Condition
13, the word "Activities" is inserted
after the word "Restoration" because the
title of NWP 27 is "Stream and Wetland
Restoration Activities",
On page 2091, first column, in
paragraph (b)(10) of General Condition
13, the word "Projects" is replaced with
the word "Facilities" because the title of
NWP 31 is "Maintenance of Existing
Flood Control Facilities".
On page 2094, third column, we are
correcting the definition of "Loss of
Waters of the US" by deleting the last
sentence and inserting the following
sentence after the fourth sentence of this
definition: "Impacts to ephemeral
streams are not included in the linear
foot measurement of loss of stream bed
for the purpose of determining
compliance with the linear foot limits of
NWPs 39, 40, 42, and 43."
Due to the number of corrections
made to the definition of "Loss of
Waters of the US", we are providing the
text of this definition in its entirety,
with the corrections described above:
Loss of Waters of the US: Waters of
the US that include the filled area and
other waters that are permanently
adversely affected by flooding,
excavation, pr drainage because of the
regulated activity. Permanent adverse
effects include permanent above-grade,
at-grade, or below-grade fills that change
an aquatic area to dry land, increase the
bottom elevation of a waterbody, or
change the use of a waterbody. The
acreage of loss of waters of the US is the
threshold measurement of the impact to
existing waters for determining whether
a project may qualify for an NWP; it is
not a net threshold that is calculated
after considering compensatory
mitigation that may be used to offset
losses of aquatic functions and values.
The loss of stream bed includes the
linear feet of stream bed that is filled or
excavated. Impacts to ephemeral
streams are not included in the linear
foot measurement of loss of stream bed
for the purpose of determining
compliance with the linear foot limits of
NWPs 39, 40, 42, and 43. Waters of the
US temporarily filled, flooded,
excavated, or drained, but restored to
preconstruction contours and elevations
after construction, are not included in
the measurement of loss of waters of the
US.
In the January 15, 2002, Federal
Register, it was stated that the definition
was being revised (to clarify that
ephemeral waters and streams are not
included in the acreage or linear
thresholds for NWPs) to comport with
language in the preamble of the March
9, 2000 Federal Register notice.
However, the language in the preamble
of the March 9, 2000 Federal Register
notice (65 FR 12881, third column) does
not support this revision. Rather, the
referenced preamble states, "During our
review of the comments received in
response to the July 21, 1999, Federal
Register notice, we found an error in the
proposed definition of the term, "loss of
waters of the United States." In the
fourth sentence of the draft definition,
we stated that the loss of stream bed
Federal Register/Vol. 67, No. 30/Wednesday, February 13, 2002/Notices 6695
includes the linear feet of perennial or
intermittent stream bed that is filled or
excavated. This statement is inaccurate
because ephemeral stream bed that is
filled or excavated can also be
considered it loss of waters of the United
States. However, the 300 linear foot
limit for stream beds filled or excavated
does not apply to ephemeral streams.
We have modified this sentence to
define the loss of stream bed as the
linear feet of stream bed that is filled or
excavated." Thus, the modification of
this definition was intended to clarify
that activities that involve filling or
excavating ephemeral streams are not
included in the linear foot limits for
filling or excavating stream beds in
NWPs 39, 40, 42, and 43. However, it
was not intended to exempt ephemeral
waters or streams from calculations of
impacted acreages to determine PCN or
maximum acreage requirements in
accordance with NWPs 39, 40, 42, and
43.
In the August 9, 2001, Federal
Register notice (66 FR 42099) we
proposed to modify the definition of
"Loss of Waters of the US" by adding
the sentence "* * * The loss of stream
bed includes the linear feet of perennial
stream or intermittent stream that is
filled or excavated * * *". The
proposed change was in response to a
commitment to clearly state in the text
of the NWPs (which includes the
definitions) that the 300 linear foot limit
in NWPs 39, 40, 42, and 43 for filling
and excavating stream beds would only
apply to intermittent and perennial
streams, not to ephemeral streams.
In the January 15, 2002, Federal
Register notice (67 FR 2074-2075) we
erroneously stated that both the acreage
and linear limits of the NWPs do not
apply to ephemeral waters. This was
never intended to be adopted as policy
for the NWPs or the Corps regulatory
program. A previously stated, in the first
column of page 2075 of the January 15,
2002, Federal Register notice, we refer
to page 12881 of the March 9, 2000,
Federal Register notice, which only
discusses the 300 linear foot limit, not
the acreage limits of the NWPs. Our
intent is to continue to apply acreage
limits of NWPs to activities that result
in the permanent loss of ephemeral
waters, but the linear foot limits of the
NWPs (i.e., NWI's 39, 40, 42, and 43) for
filling or excavating stream beds would
not apply to activities that involve
filling or excavating ephemeral streams.
The last sentence of the definition of
"Loss of Waters of the US" as published
in the January 15, 2002, Federal
Register notice does not comport with
remainder of this NWP package.
'I'lierefore, we are correcting this
definition as described above.
We believe that correcting the text of
NWP 39 and the definition of "Loss of
Waters of the US" through the
publication of this correction notice is
appropriate. Nevertheless, in order to
give all interested parties further
opportunity to comment on this matter,
we intend to publish a Federal Register
notice to solicit public comments on
those two corrections. If we determine
that any other matter relating to the final
NWP§ requires correction or
clarification, but that matter was not
adequately dealt with in this correction
notice, we will address that additional
matter in the forthcoming Federal
Register notice, as well. We expect to
publish that Federal Register notice
within a few weeks.
Dated: February 7, 2002.
Lawrence A. Lang,
Assistant Chief, Operations Division,
Directorate of Civil 6Vorks.
[FR Doc. 02-3555 Filed 2-12-02; 8:45 anll
BILLING CODE 3710-92-P
DEPARTMENT OF DEFENSE
Uniformed Services University of the
Health Sciences
Sunshine Act Meeting
AGENCY HOLDING THE MEETING:
Uniformed Services University of the
Health Sciences.
TIME AND DATE: 8:00 a.m. to 4:00 p.m.,
February 5, 2002.
PLACE: Uniformed Services University
of the Health Sciences, Board of Regents
Conference Room (D3001), 4301 Jones
Bridge Road, Bethesda, MD 20814-4799.
STATUS: Open-under "Government in
the Sunshine Act" (5 U.S.C. 5526(e)(3)).
MATTERS TO BE CONSIDERED:
8:30 a.m. Meeting Board of Regents
(1) Approval of Minutes-November 14,
2001
(2) Faculty Matters
(3) Department Reports
(4) Financial Report
(5) Report-President, USUHS
(li) Report-Dean, School of Medicine
(7) Report-Dean, Graduate School of
Nursing
(8) COIIIIiieIlts--C;hairnar, Board of
Regents
(9) New Business
CONTACT PERSON FOR MORE INFORMATION:
Mr. Bobby D. Anderson, Executive
Secretary, Board of Regents, (301) 295-
3116.
Dated: February 8, 2002.
Linda Bynum,
OSD federal Register Liaison Officer,
Department of Defense.
[FR Doc. 02-3683 Filed 2-11-02; 3:32 pm]
BILLING CODE 500""
DEPARTMENT OF EDUCATION
Submission for OMB Review;
Comment Request
AGENCY: Department of Education.
SUMMARY: The Leader, Regulatory
Information Management Group, Office
of the Chief Information Officer invites
comments on the submission for OMB
review as required by the Paperwork
Reduction Act of 1995.
DATES: Interested persons are invited to
submit comments on or before March
15, 2002.
ADDRESSES: Written comments should
be addressed to the Office of
Information and Regulatory Affairs,
Attention: Lauren Wittenberg, Desk
Officer, Department of Education, Office
of Management and Budget, 725 17th
Street, NW., Room 10202, New
Executive Office Building, Washington,
DC 20503 or should be electronically
mailed to the internet address
Lauren-Witten [e-mail].
SUPPLEMENTARY INFORMATION: Section
3506 of the Paperwork Reduction Act of
1995 (44 U.S.C. Chapter 35) requires
that the Office of Management and
Budget (OMB) provide interested
Federal agencies and the public an early
opportunity to comment on information
collection requests. OMB may amend or
waive the requirement for public
consultation to the extent that public
participation in the approval process
would defeat the purpose of the
information collection, violate State or
Vederal law, or substantially interfere
with any agency's ability to perform its
statutory obligations. The Leader,
Regulatory Information Management
Group, Office of the Chief Information
Officer, publishes that notice containing
proposed information collection
requests prior to submission of these
requests to OMB. Each proposed
information collection, grouped by
office, contains the following: (1) Type
of review requested, e.g. new, revision,
extension, existing or reinstatement; (2)
'T'itle; (3) Summary of the collection; (4)
Description of the need for, and
proposed use of, the information; (5)
Respondetits and frequency of
collection; and (6) Reporting and/or
Recordkeeping burden. OMB invites
public comment.
U.S. ARMY CORPS OF ENGINEERS
WILMINGTON DISTRICT O 2 Q K?5
Action ID: 200200409 TIP No: State Project No: 6.5220701' County: Chatham
GENERAL PERMIT (REGIONAL AND NATIONWIDE) VERIFICATION
Applicant: North Carolina Department of Transportation
Address: W.F. Rosser, P.E., Division Engineer
North Carolina Department of Transportation
Division 8
P.O. Box 1067
Aberdeen, North Carolina 28315
Telephone Number: [phone] y l jl?'0.j ?S G'0d1S'
Size and Location of project (waterway, road name/number, town, etc.): 52 linear feet of 48-inch RCP culvert
with two FES at centerline station 60+15 on SR 2324 at an unnamed tributary to Falls Creek in Chatham County,
North Carolina.
Description of Activity: To replace 34 linear feet of 36-inch RCP with 52 linear feet of 48-inch RCP culvert with an
FES on each end bringing the total length to 64 feet. Traffic will be detoured onto existing roadways during
construction.
Applicable Law: X Section 404 (Clean Water Act, 33 U.S.C. 1344)
Section 10 (River and Harbor Act of 1899)
Authorization: 14 Nationwide Permit Number
Regional General Permit Number
Your work is authorized by this Regional General (RGP) or Nationwide (NWP) Permit provided it is accomplished
in strict accordance with the attached conditions and your submitted plans. If your activity is subject to Section 404
(if Section 404 block above is checked), before beginning work you must also receive a Section 401 water quality
certification from the N.C. Division of Environmental Management, telephone [phone]. For any activity
within the twenty coastal counties, before beginning work you must contact the N.C. Division of Coastal
Management, telephone [phone].
Please read and carefully comply with the attached conditions of the RGP or NWP. Any violation of the conditions
of the RGP or NWP referenced above may subject the permitter to a stop work order, a restoration order, and/or
appropriate, legal action.
This Department of the Army RGP or NWP verification does not relieve the permittee of the responsibility to obtain
any other required Federal, State, or local approvals/permits. The permittee may need to contact appropriate State
and local agencies before beginning work.
If there are any questions regarding this authorization or any of the conditions of the RGP or NWP, please contact
the Corps Regulatory Official specified below.
Date _8 April 2002
Corps Regulatory Official Richard __ __ _'1'elephone No. (9..10)251-4172
Expiration Date of Verification 8 April 2005
CF: NCDO'1' ( Division 8, attn: rt King)
DWQ, John Hennessey
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Federal Register/Vol. 67, No. 10/Tuesday, January 15, 2002/Notices 2077
New York
r
Now York District Engineer, ATTN: CENAN--
OP-R, 26 Federal Plaza, New York, NY
10278-0090
North Carolina
Wilmington District Engineer, ATTN:
CESAW-RG, P.O. Box 1890, Wilmington,
NC 28402 -1890
North Dakota
Omaha District F:ngincer, ATTN: CENWO-
OP-R, 106 South 15th Street, Omaha, NE
68102-1618
Ohio
Huntington District Engineer, ATTN:
CELRH-OR-F, 502 8th Street, Huntington,
WV 25701-2070
Oklahoma
Tulsa District Engineer, ATTN: CESWT-PE-
R, 1645 S. 101st East Ave, Tulsa, OK
74128-4609
Oregon
Portland District Engineer, ATTN: CF.NWP-
PE-G, P.O. Box 2946, Portland, OR 97208-
2946
Pennsylvania
Baltimore District Engineer, AT-fN: CENAB-
OP-R, P.O. Box 1715, Baltimore, MD
21203-1715
Rhode Island
New England District Engineer, AT TN:
CENAE-R, 696 Virginia Road, Concord,
MA 01742-2751
South Carolina
Charleston District Engineer, ATTN: CESAC-
CO-P, P.O. Box 919, Charleston, SC
29402-0919
South Dakota
Omaha District Engineer, ATTN: CENWO-
OP-R, 106 South 15th Street, Omaha, NE
68102-1618
Tennessee
Nashville District Engineer, ATTN: CELRN-
OP-F, P.O. Box 1070, Nashville, TN
37202-1070
Texas
Ft. Worth District Engineer, ATTN: CESWF--
PER-R, P.O. Box 17300, Ft. Worth, TX
76102--0300
Utah
Sacramento District Engineer, ATTN:
CESPK-CO-R, 1325 J Street, CA 95814--
2922
Vermont
New England District Engineer, ATTN:
CENAE: it, 696 Virginia Road, Concord,
MA 01742--2751
Virginia
Norfolk District E:ngincer, ATTN: CENAO
OP-R, 803 Front Street, Norfolk, VA
23510- -1096
Washington
Seattle District Engineer, AT" IN: CENWS-
OP-RG, P.O. Box 3755, Seattle, WA 98124-
2.255
West Virginia
I luntington District Engineer, ATTN:
CELRH-OR-F, 502 8th Street, I luntington,
WV 25701-2070
Wisconsin
St. Paul District Engineer, ATTN; CEMVP-
CO-R, 190 Fifth Street East, St. Paul, MN
55104-1638
Wvorning
Omaha District Engineer, ATTN: CENWO-
OP-R, 106 South 15th Street, Omaha, NE
68102-1618
District of Columbia
Baltimore District Engineer, ATTN: CENAI3--
0 P-R, P.O. Box 1715, Baltimore, MD
21203-1715
Pacific Territories (American Samoa, Go am
& Coin man wealth of, the Northern Mariana
Islands)
Honolulu District Engineer, ATTN: CEPOII-
EC-R, Building 230, Fort Shafter,
Honolulu, HI 96858-5440
Puerto Rico & Virgin Islands
Jacksonville District Engineer, AT-FN:
CESAJ--CO-R, P.O. Box 4970, Jacksonville,
FL 32202-4412
Dated: January 4, 2002.
Approved:
Robert H. Griffin,
Brigadier General, U.S. Army, Director of Civil
Works.
Nationwide Permits, Conditions,
Further Information, and Definitions
A. Index of Nationwide Permits,
Conditions, Further Information, and
Definitions
Nationwide Permits
1. Aids to Navigation
2. Structures in Artificial Canals
1 Maintenance
4. Fish and Wildlife Harvesting,
Enhancement, and Attraction Devices and
Activities
5. Scientific Measurement Devices
6. Survey Activities
7. Outfall Structures and Maintenance
8. Oil and Gas Structures
9. Structures in Fleeting and Anchorage
Areas
10. Mooring Buoys
11. Temporary Recreational Structures
12. Utility Line Activities
13. Bank Stabilization
14. Linear Transportation Projects
15. U.S. Coast Guard Approved Bridges
16. Return Water From Upland Contained
Disposal Areas
17. Hydropower Projects
18. Minor Discharges
19. Minor Dredging
20. Oil Spill Cleanup
21. Surface Coal Mining Activities
22. Removal of Vessels
23. Approved Categorical Exclusions
24. State Administered Section 40.1 Programs
25. Structurel Discharges
2G. (Reserved]
27. Stream and Wetland Restoration
Activities
28. Modifications of Existing Marinas
29. Single-family Housing
:30. Moist Soil Management for Wildlife
31. Maintenance of Existing Flood Control
Facilities
32. Completed Enforcement Actions
33. Temporary Construction, Access and
Dewatering
34. Cranberry Production Activities
35. Maintenance Dredging of Existing Basins
36. Boat Ramps
37. Emergency Watershed Protection and
Rehabilitation
36. Cleanup of I lazardous and Toxic Waste
39. Residential, Commercial, and
Institutional Developments
40. Agricultural Activities
41. Reshaping Existing Drainage Ditches
42. Recreational Facilities
43. Stormwater Management Facilities
44. Mining Activities
Nationwide Permit General Conditions
1. Navigation
2. Proper Maintenance
3. Soil Erosion and Sediment Controls
4. Aquatic Life Movements
5. Equipment
6. Regional and Case-by-Case Conditions
7. Wild and Scenic Rivers
8. Tribal Rights
9. Water Quality
10. Coastal "Lone Management
11. Endangered Species
12. Historic Properties
13. Notification
14. Compliance Certification
15. Use of Multiple Nationwide Permits.
16. Water Supply Intakes
17. Shellfish Beds
18. Suitable Material
19. Mitigation
20. Spawning Areas
21. Management of Water Flows
22. Adverse Effects from Impoundments
23. Waterfowl Breeding Areas
24. Removal of Temporary Fills
25. Designated Critical Resource Waters
26. Fills Within 100-year Floodplains
27. Construction Period
Further Information
Definitions
Best Management Practices (WAI's)
Compensatory Mitigation
Creation
Enhancement
Ephemeral Stream
Farm Tract
Flood Fringe
Floodway
Independent Utility
Intermittent Stream
Loss of Waters of the US
Non-tidal Wetland
Open Water
Perennial Stream
Permanent Above-grade Fill
Preservation
Restoration
Riffle and Pool Complex
Q
2078 federal Register/ Vol. 67, No. 10 /'Tuesday, January 15, 2002/Notices
Single and Complete Project
Stormwater Management
bridges, culverted road crossings, water clone primarily to obtain fill for an?-

Stormwater Management Facilities
Stream Bed
intake structures, etc.) and the
placement of new or additional riprap t '
restoration activities. The discharge of
o dredged or fill material and all related
Stream Channelization
Tidal Wetland protect the structure, provided the
permittee notifies the District En
inee work needed to restore the upland must
b

Vegetated Duffer
Vegetated Shallows g
r
in accordance with General Condition e part of a single and complete project.
This permit cannot be used in

Waterbody 13. The removal of sediment is limited conjunction with NWP 18 or NWP 19 to
to the minimum necessary to restore the restore damaged upland areas. This
B. Nationwide Permits waterway in the immediate vicinity of
the structure to the a
roximat permit cannot be used to reclaim
h
1. Aids to Navigation. The placement
of aids to navigation and Regulatory pp
e
dimensions that existed when the istoric: lands lost, over an extended
period, to normal erosion processes

markers which are approved by and
i
t
ll
d i
structure was built, but cannot extend
furthet than 200 feet in an
directi .
This permit does not authorize
ns
a
e
n accordance with the
requirements of the U.S. Coast Guard y
on
from the structure. The placement of rip maintenance dredging for the primary
purpose of navigation and beach

(USCG) (See 33 CFR, chapter I,
subchapter C part 66). (Section 10)
C p rap must be the minimum necessary to
protect the structure or to ensure the restoration. This permit does not

authorize new stream channel izatio

2. Strue
in Artificial Canals.
Structures constructed in artificial
safety of the structure. All excavated
materials must be deposited and n or
stream relocation projects. Any work
authorized by this permit fnust not
canals within principally residential
developments where the connection of retained in an upland area unless
otherwise specifically approved by the cause more than minimal degradation of
water quality
more than minimal
the canal to navigable water of the US
has been previously authorized (see 33 District Engineer under separate
authorization. Any bank stabilization ,
changes to the flow characteristics of the
str
i

CFR 322.5(8)). (Section 10)
3. Maintenance
Activities related t
measures not directly associated with
the structure will require a separate eam, or
ncrease flooding (See
General Conditions 9 and 21). (Sections
d
.
o:
(i) The repair, rehabilitation, or
l
authorization from the District Engineer. 10 an
404)
Note: This MVP authorizes the re
air

rep
acement of any previously
authorized, currently serviceable,
(iii) Discharges of dredged or fill
material, including excavation, into all p
,
rehabilitation, or replacement of any
previously authorized structure or fill that
structure, or fill, or of any currently waters of the US for activities associated does not qualify for the Section 404(0
serviceable structure or fill authorized with the restoration of upland areas exemption for maintenance.
by 33 CFR 330.3, provided that the
t damaged by a storm, flood, or other '4. Fish and Wildlife Harvesting

s
ructure or fill is not to be put to uses
differing from those uses specified or
discrete event, including the
construction, placement, or installation ,
Enhancement, and Attraction Devices
and Activities. Fish and wildlife
contemplated for it in the original
permit or the most recently authorized of upland protection structures and
minor dred
in
to
b harvesting devices and activities such as

modification. Minor deviations in the
' g
g
remove o
structions
in a water of the US. (Uplands lost as pound nets, crab traps, crab dredging,
eel pots, lobster traps
duck blinds
clam
structure
s configuration or filled area
including those due to changes in a result of a storm, flood, or other
discrete event can be re
laced with
t ,
,
and oyster digging; and small fish
attr
ti
d
i

materials, construction techniques, or p
ou
a Section 404 permit provided the ac
on
ev
ces such as open water
fish concentrators (sea kites
etc.)
This
current construction codes or safety
standards which are necessary to make uplands are restored to their original
pre-event location. This NWP is for the ,
.
NWP authorizes shellfish seeding
provided this activity does not occur in
repair, rehabilitation, or replacement are
permitted, provided the adverse activities in waters of the US associated
with the replacement of the uplands.) wetlands or sites that support
submerged aquatic vegetation (includin

environmental effects resulting from
such repair, rehabilitation, or
The permittee must notify the District
Engineer
in accordance with G
l g
sites where submerged aquatic
i

replacement are minimal. Currently ,
enera
Condition 13, within 12-months of the vegetat
on is documented to exist, but
may not be present in a given year
)

serviceable means useable as is or with
date of the damage and the work must .
.
This NWP does not authorize artificial
some maintenance, but not so degraded
as to essentially require reconstruction. commence, or be under contract to
commence, within two years of the date reefs or impoundments and serni-
impoundments of waters of the US f

This NWP authorizes the repair,
rehabilitation
or re
laceme
t
f th
of the damage. The permittee should
id or
the culture or holding of motile species
,
p
n
o
ose
structures or fills destroyed or damaged prov
e evidence, such as a recent
topographic survey or photographs, to such as lobster or the use of covered
oyster trays or clam racks
(Sections 10
by storms, floods, fire or other discrete justify the extent of the proposed .
and 404)
events, provided the repair,
rehabilitation, or replacement is restoration. The restoration of the
damaged areas cannot exceed th • 5. Scientific Measurement Devices.

commenced, or is under contract to e
contours, or ordinary high water mark, Devices, whose purpose is to measure
and record scientific data such as staff
commence, within two years of the date
of their destruction or darnage. In cases
f that existed before the darnage. The
District Engineer retains the right to gages, title gages, water recording
devices, water quality testing and
o
catastrophic events, such as
hurricanes or tornadoes, this two-year determine the extent of the pre-existing
conditions and the extent of an improvement devices and similar

limit may be waived by the District
Engineer, provided the
ermittee can y
restoration work authorized by this
er
it
Mi
d
d structures. Small weirs and flumes
constructed primarily to record water
p
demonstrate funding, contract, or other p
m
.
nor
re
ging to remove
obstructions from the adjacent quantity and velocity are also
authorized provided the dischar
e is
similar delays,
(ii) Discharges of dredged or fill waterbody is limited to 50 cubic yards
below the plane of the ordinar
hi
h g
limited to 25 cubic yards and further for
di
h

material, including excavation, into all
waters of the US to remove accumul
t
d y
g
water mark, and is limited to the sc
arges of 10 to 25 cubic yards
provided the permittee notifies the
a
e
sediments and debris in the vicinity of, amount necessary to restore the pre-
existing bottom contours of the District Engineer in accordance with the
"Notification" General C
diti

and within, existing structures (e.g.,
waterbody. The dredging may not be on
on.
(Sections 10 and 404)
Federal Register / Vol. 67, No. 10/Tuesday, January 15, 2002 /Notices 2079
' G. Survey Activities. Survey activities
including core sampling, seismic
exploratory operations, plugging of
seismic shot holes and other
exploratory-type bore holes, soil survey,
sampling, and historic resources
surveys. Discharges and structures
associated with the recovery of historic
resources are not authorized by this
NWP. Drilling and the discharge of
excavated material from test wells for
oil and gas exploration is not authorized
by this NWP; the plugging of such wells
is authorized. Fill placed for roads, pads
and other similar activities is not
authorized by this NWP. The MVP does
not authorize any permanent structures.
The discharge of drilling mud and
cuttings may require a permit under
section 402 of the CWA. (Sections 10
and 404)
-7. Outfall Structures and
Maintenance. Activities related to:
(i) Construction of outfall structures
and associated intake structures where
the effluent from the outfall is
authorized, conditionally authorized, or
specifically exempted, or are otherwise
in compliance with regulations issued
under the National Pollutant Discharge
Elimination System Program (Section
402 of the CWA), and
(ii) Maintenance excavation,
including dredging, to remove
accumulated sediments blocking or
restricting outfall and intake structures,
accumulated sediments from small
impoundments associated with outfall
and intake structures, and accumulated
sediments from canals associated with
outfall and intake structures, provided
that the activity meets all of the
following criteria:
a. The permittee notifies the District
Engineer in accordance with General
Condition 13;
b. The amount of excavated or
dredged material must be the rninimum
necessary to restoee the outfalls, intakes,
small impoundments, and canals to
original design capacities and design
configurations (i.e., de )tli and width);
C. The excavated or dredged material
is deposited and retained at an upland
site, unless otherwise approved by the
District Engineer under separate
authorization; and
d. Proper soil erosion and sediment
control pleasures are used to IrllrlinliZ.e
reentry of sediments into waters of the
Lis.
The construction of intake structures
is not authorized by this NWP, unless
they are directly associated with an
authorized outfall structure. For
maintenance excavation and dredging to
-remove accumulated sediments, the
notification must include information
regarding the original design capacities
and configurations of the facility and
le presence of special aquatic sites
e.g., vegetated shallows) in the vicinity
of the proposed work. (Sections 10 and
404)
. 8. Oil and Gas Structures. Structures
for the exploration, production, and
transportation of oil, gas, and minerals
on the outer continental shelf within
areas leased for such purposes by the
DO[, Minerals Management Service
(MMS).'Such structures shall not-be
placed within the limits of any
desigmited shipping safety fairway or
traffic: separation scheme, except
temporary anchors that comply with the
fairway regulations in 33 CFR 322.5(1).
(Where such limits have not been
designated, or where changes are
anticipated, District Engineers will
consider asserting discretionary
authority in accordance with 33 CFR
330.4(e) and will also review such
proposals to ensure they comply with
the provisions of the fairway regulations
in 33 CFR 322.5(1). Any Corps review
under this permit will be limited to the
effects on navigation and national
security in accordance with 33 CFR
.322.5(0). Such structures will not be
placed in established danger zones or
restricted areas as designated in 33 CFR
part 334: nor will such structures be
permitted in EPA or Corps designated
dredged material disposal areas.
(Section 10)
9. Structures in Fleeting and
Anchorage Areas. Structures, buoys,
floats and other devices placed within
anchorage or fleeting areas to facilitate
moorage of vessels where the USCG has
established such areas for that purpose.
(Section 10)
, 10. Mooring Buovs. Non-comniercial,
single-boat, mooring buoys. (Section 10)
11. Temporary Recreational
Structures. 't'emporary buoys, markers,
small floating clocks, and similar
structures placed for recreational use
during specific events such as water
skiing competitions and boat races or
seasonal use provided that such
structures are removed within 30 days
after use has been discontinued. At
Corps of Engineers reservoirs, the
reservoir Inanaser must approve each
buoy or marker individually. (Section
10)
412. Utility Line Activities. Activities
required for the construction,
maintenance and repair of utility lines
and associated facilities in waters of the
US as follows:
(i) Utility lines: The construction,
maintenance, or repair of utility lines,
including outfall and intake structures
and the associated excavation, back-fill,
or bedding for the utility lines, in all
waters of the US, provided there is no
change in precollstruction contours. A
"utility line" is defined as any pipe or
pipeline for the transportation of anv
gaseous, liquid, liquescent, or slurry
substance, for any purpose, and any
cable, line, or wire for the transmission
for any purpose of electrical energy,
telephone, and telegraph messages, and
radio and television communication
(see Note 1, below). Material resulting
from trench excavation may be
temporarily sidecast (up to three
months) into waters of the US, provided
that the material is not placed in such
a manner that it is dispersed by currents
or other forces. The District Engineer
play extend the period of temporary side
casting not to exceed a total of 180 days,
where appropriate. In wetlands, the top
G" to 12' of the trench should normally
be backfilled'with topsoil from the
trench. Furthermore, the trench cannot
be constructed in such a manner as to
drain waters of the US (e.g., backfilling
with extensive gravel layers, creating a
french drain effect). For example, utility
line trenches can be backfilled with clay
blocks to ensure that the trench does not
drain the waters of the US through
which the utility line is installed. Any
exposed slopes and stream banks must
be stabilized immediately upon
completion of the utility line crossing of
each waterbody.
(ii) Utility line substations: The
construction, maintenance, or
expansion of a substation facility
associated with a power line or utility
line in non-tidal waters of the US,
excluding non-tidal wetlands adjacent
to tidal waters, provided the activity
does not result in the loss of greater than
1/2-acre of non-tidal waters of the US.
(iii) Foundations for overhead utility
line towers, poles, and anchors: The
construction or maintenance of
foundations for overhead utility line
towers, poles, and anchors in all waters
of the US, provided the foundations are
the minimum size necessary anct
separate footings for each tower leg
(rather than a larger single pact) are used
where feasible.
(iv) Access roads: The construction of
access roads for the construction and
maintenance of utility lines, including
overhead power lines and utility line
substations, in non tidal waters of the
US, excluding non-tidal wetlands
adjacent to tidal waters, provided the
clischarges do not cause the loss of
greater than 1/ -acre of non-ticlal waters
of the US. Access roads shalt be the
nrininlum width necessary (see Note 2,
below). Access roads must be
constructed so that the length of the
road minimizes the adverse effects on
waters of the LIS and as near as possible
to prcconstruction contours and
2080 Federal Register / Vol. 67, No. 10/Tuesday, January 15, 2002/Notices
elevations (e.g., at grade corduroy roads (c) The utility line in waters of the
or geotextile/gravel roads). Access roads LIS, excluding overhead lines
ex
d expected high flows (properly anchored

constructed above preconstruction ,
cee
s
500 feet; trees and treetops may be used in low

contours and elevations in waters of the (d) The utility line is placed within a
US must be properly bridged or jurisdictional area (i
e
t
f
h ener.o y areas); and,
g. Tire activity is part of a single and
culverted to maintain surface flows.
The term "utilit
lin
" d .
., wa
er o
t
e US
and it runs parallel to a stream bed that
i
ithi
h ), complete project.
Bank stabilization activities in excess
y
e
oes not
include activities which drain a water o s w
n t
at jurisdictional area;
f (e) Discharges associated with the of 500 feet in length or greater than an

the US, such as drainage tile, or french
drains; however, i t does apply to pipes
construction of utility line substations
that result in the loss of greater than / average of one cubic yard per running
foot may be authorized if the permittee

conveying drainage from another area.
F
h ,o
acre of waters of the US; or notifies the District Engineer in
accordance with the "Notification"
or t
e purposes of this NWP, the loss
of waters of the US includes the filled (0 Petananent access roads
constructed above grade in waters of the General Condition 13 and the District

area plus waters of the US that are
d
US for e distance of more than 500 feet,
) P
( Engineer determines the activity
complies with the other terms and
a
versely affected by flooding,
excavation, or drainage as a result of the g
ermanent access roads
constructed in waters of the LIS with conditions of the NWP and the adverse

project. Activities authorized by
404) impervious materials. (Sections 10 and environmental effects are minimal both
individually and cumulatively
This
paragraph (i) through (iv) may not
exceed a total of 1/2-acre loss of waters
Note 1; Overhead utility lines constructed
S .
NWP may not be used for the
channelization of waters of the US

of the US. Waters of the US tem oraril
affected by filling
floodin
exc
por ri
y
t
over
ection 10 waters and utility lines that
are routed in or under Section 10 waters .

(Sections 10 and 404)
,
g,
ava
l
io
or drainage, where the project area is without a discharge of dredged or fill 14. Lin$or Transportation Projects.
A

restored to preconstruction contours material require a Section 10 permit; except
for pipes or pipelines used to transport ctivities required for the construction,
expansion, modification
or
and elevation, is not included in the
calculation of permanent loss of waters gaseous, liquid, liqugscent, or slurry
substances over navigable waters of the US ,
improvement of linear transportation

of the US. This includes temporary
constructi
t ,
which are considered to be bridges, not
utility lines
and ma
re
ui
f crossings (e.g., highways, railways,
trails, airport runways, and taxiways) in
on ma
s (e.g:, timber, steel,
geotextile) used during construction and ,
y
q
re a permit
rom
thh de USCG pursuant sAct 1899
u of to section 9 of the Rivers waters of the US, including wetlands, if
the activity meets the following criteria:
removed upon completion of the work.
Where certain functions and val
f .
discharges of dredged or fill material a. This NWP is subject to the
ues o
waters of the US are permanently associated with such pipelines will require a
Corps permit under Section 404. following acreage limits:
(1) For linear transportation projects
adversely affected, such as the
conversion of a forested wetland to a Note 2: Access roads used for both
construction and maintenance may be in non-tidal waters, provided the
discharge does not cause the loss of
herbaceous wetland in the permanently
maintained utility line right-of-way, authorized, provided they meet the terms and
conditions of this NWP. Access roads used greater than 1/2-acre of waters of the US;
(2) For linear transportation projects
mitigation will be required to reduce the solely for construction of the utility line must in tidal waters, provided the discharge
adverse effects of the project to the be removed upon completion of the work and does not cause the loss of greater than
minimal level,
Mechanized land clearin necessary
g y the area restored to preconstruction contours,
elevations, and wetland conditions.
T 1/3-acre of waters of the US.
b. The permittee must notify the

for the construction, maintenance, or emporary access roads for construction may
be authorized by NWP 33. District Engineer in accordance with
repair of utility lines and the
construction, maintenance and
Note 3: Where the proposed utility line is General Condition 13 if any of the
following criteria are met:

expansion of utility line substations,
foundations for overhead utilit
li constructed or installed in navigable waters
of the US (i.e., Section 10 waters), copies of (1) The discharge causes the loss of

reater than 'h
f
y
nes,
and access roads is authorized, provided the PCN and NIVP verification will be sent
by the Corps to the National Oceanic and o-acre o
g
waters of the US;
or
the cleared area is kept to the minimum Atmospheric Administration (NOAH), (2) There is a discharge in a special
necessary and preconstruction contours National Ocean Service (NOS), for charting aquatic site, including wetlands;
are maintained as"near as possible. The the utility line to protect navigation. c. The notification must include a
area of waters of the US that is filled, •13. Bank Stabilization. Bank compensatory mitigation proposal to
excavated, Of flooded must be limited to stabilization activities necessary for offset permanent losses of waters of the
the minimum necessary to construct the erosion prevention provided the activity US to ensure that those losses result
utility line, substations, foundations, meets all of the following criteria: only in minimal adverse effects to the
and access roads. Excess material must a. No material is placed more than the aquatic environment and a statement
be removed to upland areas
immediately upon completion of minimum needed for erosion protection;
b. The bank stabilization activity is describing how temporary losses will be
minimized to the maximum extent
construction. This NWP may authorize
utility lines in or affecting navigable less than 500 feet in length;
c. The activity will not exceed an practicable;
d. For discharges in special aquatic
waters of the LiS even if there is no
associated discharge of dredged or fill average of one cubic yard per running
foot placed along the bank below the sites, including wetlands, and stream
riffle and pool complexes, the
material (See 33 CFR part 322). Plane of the ordinary high water mark notification must include a delineation
Notification: The permittee must
if
h or the high tide line;
d. No material is placed in any s
ecial of the affected special aquatic sites;
e
The width of th
fill i
li
not
y t
e District Engineer in
accordance with General Condition 13, p
aquatic site, including wetlands;
e. No material is of the t
e
i .
e
s
mited to
the minimum necessary for the crossing;
f
Thi

if any of the following criteria are met:
(a) Mechanized land clearin
in a yp
, or
s
placed in any location, or in any .
s permit does not authorize
stream channelization, and the
g
forested wetland for the utility line manner, to impair surface water flow
i authorized activities must not cause

right of way; nto or out of any wetland area;
f. No material is placed in a manner more than minimal changes to the
hydraulic flow characteristi
f th

(b) A Section 10 permit is required;
that will be eroded by normal or cs o
e
stream, increase flooding, or cause more
Federal Register/Vol. 67, No. 10/Tuesday, January 15, 2002/Notices 2DA1
than minimal degradation of water
quality of any stream (see General
Conditions 9 and 21);
g. This permit cannot be used to
authorize non-linear features commonly
associated with transportation projects,
such as vehicle maintenance or storage
buildings, parking lots, train stations, or
aircraft hangars; and
h. The crossing is a single and
complete project for crossing waters of
the US. Where a road segment (i.e., the
shortest segment of a road with
independent utility that is part of a
larger project) has multiple crossings of
streams (several single and complete
projects) the Corps will consider
whether it should use its discretionary
authority to require an Individual
Permit. (Sections 10 and 404)
Note: Some discharges for the construction
of farm roads, forest roads, or temporary
roads for moving mining equipment may be
eligible for an exemption from the need for
a Section 404 permit (see 33 CFR 323.4).
• 15. U.S. Coast Guard Approved
Bridges. Discharges of dredged or fill
material incidental to the construction
of bridges across navigable waters of the
US, including cofferdams, abutments,
foundation seals, piers, and temporary
construction and access fills provided
such discharges have been authorized
by the USCG as part of the hriclge
permit. Causeways and approach fills
are not included in this NWP and will
require an individual or regional
Section 404 permit. (Section 404)
. 16. Return Water From Upland
Contained Disposal Areas. Return water
froirt upland, contained dredged
material disposal area. The dredging
itself may require a Section 404 permit
(33 CFR 323.2(d)), but will require a
Section 10 permit if located in navigable
waters of the US. The return water from
a contained disposal area is
administratively.defined as a discharge
of dredged material by 33 CFK 323.2(d),
even though the disposal itself occurs
on the upland and does not require a
Section 404 permit. This NWP satisfies
the technical requirement for a Section
404 permit for the return water where
the quality of the return water is
controlled by the state through the
Section 401 certification procedures.
(Section 404)
- 17, Hydropower Projects. Discharges
of dredged or fill material associated
with (a) small hydropower projects at
existing reservoirs where the project,
which includes the fill, are licensed by
the Federal Energy Regulatory
Commission (FERC) under the Federal
Power Act of 1920, as amended; and has
a total generating capacity of not more
than 5000 kW; and the perrnittee
notifies the District Engineer in
accordance with the "Notification"
General Condition; or (b) hydropower
projects for which the FERC has granted
an exemption from licensing pursuant
to section 408 of the Energy Security
Act of 1980 (16 U.S.C. 2705 and 2708)
and section 30 of the Federal Power Act,
as amended; provided the perrnittee
notifies the District Engineer in
accordance with the "Notification"
General Condition. (Section 404)
18..MinorDischarges, Minor
discharges of dredged or fill material
into all waters of the US if the activity
meets all of the following criteria:
a. The quantity of discharged material
and the volume of area excavated do not
exceed 25 cubic yards below the plane
of the ordinary high water mark or the
high tide line;
b. The discharge, including any
excavated area, will not cause the' loss
of more than '/,o-acre of a special
aquatic site, including wetlands. For the
purposes of this NGVP, the acreage
limitation includes the filled area and
excavated area plus special aquatic sites
that are adversely affected by flooding
and special aquatic sites that are
drained so that they would no longer be
a water of the US as a result of the
project;
c. If the discharge, including any
excavated area, exceeds 10 cubic yards
below the plane of the ordinary high
water mark or the high tide line or if the
discharge is in a special aquatic site,
including wetlands, the perrnittee
notifies the District Engineer in
accordance with the "Notification"
General Condition. For discharges in
special aquatic sites, including
wetlands, the notification must also
include a delineation of affected special
aquatic sites, including wetlands (also
see 33 CFR 330.1(e)); and
d. The discharge, including all
attendant features, both temporary and
permanent, is part of a single and
complete project and is not placed for
the purpose of a stream diversion.
(Sections 10 and 404)
19. Minor Dredf"ing. dredging of no
more than 25 cubic yards below the
plane of the ordinary high water mark
or the mean high water mark horn
navigable waters of the US (i.e., Section
10 waters) as part of a single and
complete project. This NWP does not
authorize the dredging or degradation
through siltation of coral reefs, sites that
support submerged aquatic vegetation
(including sites where submerged
aquatic vegetation is doCUmented to
exist, but may not be present in a given
year), anadrornous fish spawning areas,
or wetlands, or the connection of canals
or other artificial waterways to
navigable waters of the US (see 33 CFR
322.5(8)). (Sections 10 and 404)
20. Oil Spill Cleanup. Activities
required for the containment and
cleanup of oil and hazardous substances
which are subject to the National Oil
and Hazardous Substances Pollution
Contingency Plan (40 CFR part 300)
provided that the work is done in
accordance with the Spill Control and
Countermeasure Plan required by 40
CFR 112.3 and any existing state
contingency plan and provided that the
Regional Response Team (if one exists
in the area) concurs with the proposed
containment and cleanup action.
(Sections 10 and 404)
21. Surface Coal Mining Activities.
Discharges of dredged or fill material
into waters of the US associated with
surface coal mining and reclamation
operations provided the coal mining
activities are authorized by the DOI,
Office of Surface Mining (OSM), or by
states with approved programs under
Title V of the Surface Mining Control
and Reclamation Act of 1977 and
provided the permittee notifies the
District Engineer in accordance with the
"Notification" General Condition. In
addition, to be authorized by this NIVP,
the District Engineer must determine
that the activity complies with the terms
and conditions of the NWP and that the
adverse environmental effects are
minimal both individually and
cumulatively and must notify the
project sponsor of this determination in
writing. The Corps, at the discretion of
the District Engineer, may require a
bond to ensure success of the
mitigation, if no other Federal or state
agency has required one. For discharges
in special aquatic sites, including
wetlands, and stream riffle and pool
complexes, the notification must also
include a delineation of affected special
aquatic sites, including wetlands. (also,
see 33 CFK 330.1(e))
Mitigation: In determining the need
for as well as the level and type of
mitigation, the District Engineer will
ensure no more than minimal adverse
effects to the aquatic environment
occur. As such, District Engineers will
determine on a case-by-case basis the
requirement for adequate mitigation to
ensure the effects to aquatic systems are
inirniinal. In cases where OSM or the
state has required mitigation for the loss
of aquatic habitat, the Corps may
consider this in determining appropriate
mitigation under Section 404. (Sections
10 and 404)
22. Removal of Vessels. Temporary
structures or minor discharges of
dredged or fill material required for the
removal of wrecked, abandoned, or
disabled vessels, or the removal of man-
2082 Federal Register/Vol. 67, No. 10/Tuesday, January 15, 2002/Notices
made obstructions to navigation. This within the form prior to the discharge of bed and/or banks to restore or create
NWP does not authorize the removal
f
o
vessels listed or determined eligible for concrete, sand, rock, etc. This NWP
does not authorize filled struct
l stream meanders; the backfilling of

listing on the National Register of
Historic Places unless the Di
t
i ura
rnernhers that would support buildings, artificial channels and drainage ditches;
the removal of existing draina
e
s
r
ct
Engineer is notified and indicates that building pads, homes, house pads,
parking areas, stora
e areas and oth g
structures; the construction of small

there is compliance with the "Historic er
g
such structures. The structure itself nesting islands; the construction of open

Properties" General Condition. This
NWP does not authorize mainte ma
require a Section 10 permit if located in y water areas; the construction of oyster
habitat over unvegetated bottom in tidal
nance
dredging, shoal removal, or riverbank navigable waters of the US. (Section
404) waters; activities needed to reestablish
snagging. Vessel disposal in waters of
the US may need a permit from EPA 26. (Reserved)
27. Stream and Wetland Restoration vegetation, including plowing or discing
for seed bed preparation and the
(see 40 CFR 229.3). (Sections 10 and
404) Activities. Activities in waters of the US planting of appropriate wetland species;
mechanized land cleari
t

23. Approved Categorical Exclusions. ng
o remove
associated with the restoration of former
raded non-native invasive, exotic or
iance
waters, the enhancement of de
Activities undertaken, assisted,
authorized, regulated
funded
or g
tidal and non-tidal wetlands and
i
i ctiv
vegeThis NWP tation; and other related activities.
l
a
he
,
,
r
par
an areas, the creation of tidal and
financed, in whole or in part, by another non-tidal wetlands and ri
i conversion of
a stream
to another

Federal agency or department where
that agency or department has par
an areas,
and the restoration and enhancement of aquatic use, such as the creation of an
impoundment for waterfowl habitat

determined, pursuant to the Council on
non-tidal streams and non-tidal open
water areas as follows .
This NWP does not authorize stream

Environmental Quality Regulation for

Implementing the Procedural Provisions :
(a) The activity is conducted on:

(1) Non-Federal public lands and'
authorize c the he conversion NWP does not
of natural

of the National Environmental Policy ..
private lands, in accordance with the wetlands to another aquatic use, such as

Act (NEPA) (40 CFR part 1500 et seq.),
that the activity
work
or dischar
e i
terms and conditions of a binding
w
tl
d
h creation of waterfowl impoundments
where a forested wetland previously
,
,
g
s
categorically excluded from e
an
en
ancement, restoration, or
creation agreement between the existed. However, this NWP authorizes
environmental documentation, because
it is included within a cate
or
of landowner and the U.S. Fish and
Wildlif inclthe relocation tidnon-tidal waters,
uding non-tidal non-wetlands, the
g
y
actions which neither individually nor e Service (FWS) or the Natural
Resources Conservation Service (NRCS) project site provided there are net gains
i
ti

cumulatively have a significant effect on
the human environment
a
d th
Offi ,
the National Marine Fisheries Service, n aqua
c resource functions and
values. For example, this NWP may
,
n
e
ce
of the Chief of Engineers (ATTN: CECW- the National Ocean Service, or
voluntary wetland restoration
authorize the creation
an open water
OR) has been furnished notice of the
agency's or department's a
lication f ,
enhancement, and creation actions
d -t
wetland, provided the non-tidalergent
pp
or
the categorical exclusion and concurs ocumented by the NRCS pursuant to
NRCS re ulations; or emergent wetland is replaced by
with that determination. Before

approval for purposes of this NWP of (2) Reclaimed surface coal
mine
lands, in accordance with a S
f creating that wetland type on the project

site. This NWP does not authorize the

any agency's categorical exclusions, the
Chief of Engineers will solicit
ublic ur
ace
Mining Control and Reclamation Act
it i relocation of tidal waters or the
conversion of tidal waters, including
p
comment. In addressing these perm
ssued by the OSM or the
applicable state a
enc
(the futur tidal wetlands, to other aquatic uses,

comments, the Chief of Engineers may
require certain conditio
f y
e
g
reversion does not apply to streams or such as the conversion of tidal wetlands
into open water impoundments.
ns
or
authorization of an agency's categorical wetlands created, restored, or enhanced
as mitigation for the mi
i
i Reversion. For enhancement,

exclusions under this NWP. (Sections
10 and 404) n
ng
mpacts,
nor naturally due to hydrologic or restoration, and creation projects
conducted under paragraphs (a)(3), this

24. State Administered Section 404
Program. Any activity permitted by a topographic features, nor for a
mitigation bank); or
(3YAny other public
rivate or trib
l NWP does not authorize any future
discharge of dredged or fill material
i
d

state administering its own Section 404 , p
a
lands; assoc
ate
with the reversion of the area

permit program pursuant to 33 U.S.C.
1344(8)-(1) is permitted pursuant to
(b) Notification: For activities on any
public or private land that are not to its prior condition. In such cases a
separate permit would be required for

section 10 of the Rivers and Harbors Act
of 1899. Those activities that d
t
described by paragraphs (a)(1) or (a)(2) any reversion. For restoration,
enhancement, and creation projects
o no
involve a Section 404 state permit are

not included in this NWP
but certai above, the permittee must notify the
District Engineer in accordance with conducted under paragraphs (a)(1) and

(a)(2), this NWP also authorizes any
,
n
structures will be exempted by section
154 of Pub
L
94
5 General Condition 13; and
(c) Planting of only native species future discharge of dredged or fill
material associated with the reversion of
.
.
-
87, 90 Stat, 2917 (33
U.S.C. 591) (see 33 CFR 322.3(a)(2)). should occur oil the site,
Activities authorized by this NWP the area to its cocnulented prior

(Section 10)
25. Structural Dischar
es
Disch
include, to the extent that a Corps condition and use (i.e., prior to the
restoration, enhancement, or creation
g
.
arges
of material such as concrete, sand, rock, permit is required, but are not limited
to: the removal of accumulat
d activities). The reversion trust occur

etc., into tightly sealed forms or cells
where the material will be u
d e
sediments; the installation, removal, within five years after expiration of a
limited term wetland restoration or
se
as a
structural member for standard pile and maintenance of small water control
structures, dikes, and berms; the creation agreement or permit, even if the
dischar
e occurs aft
thi
NWP

supported structures, such as bridges,
transmission line footings, and
installation of current deflectors; the
enhancement
restoration
or
ti
f g
er
s
expires.
This NWP also authorizes the reversion

walkways or for general navigation,
such as moorin
cells
incl
di
th ,
,
crea
on o
riffle and pool stream structure; the of wetlands that were restored,
enhanced, or created our prior-converted
g
,
u
ng
e
excavation of bottom material from placement of in-stream habitat
structures; modifications of the stream cropland that has not been abandoned,
in accordance with a binding agreement
Federal Register/Vol. 67, No. 10/Tuesclay, January 15, 2002/Notices 2083
between the landowner and NRCS or
FWS (even though the restoration,
enhancement, or creation activity did
not require a Section 404 permit). The
five-year reversion limit does not apply
to agreements without time limits
reached under paragraph (a)(1). The
prior condition will be documented in
the original agreement or permit, and
the determination of return to prior
conditions will be made by the Federal
agency or appropriate state agency
executing the agreement or permit.
Before any reversion activity the
permittee or the appropriate Federal or
state agency must notify the District
Engineer and include the
documentation of the prior condition.
Once an area has reverted to its prior
physical condition, it will be subject to
whatever the Corps Regulatory
requirements will be at that future date.
(Sections 10 and 404)
Note: Compensatory mitigation is not
required for activities authorized by this
NWP, provided the authorized work results
in a net increase in aquatic resource
functions and values in the project area. This
NWP can be used to authorize compensatory
mitigation projects, including mitigation
banks, provided the permittee notifies the
District Engineer in accordance with General
Condition 13, and the project includes
compensatory mitigation for impacts to
waters of the US caused by the authorized
work. However, this MVP does not authorize
the reversion of an area used for a
compensatory mitigation project to its prior
condition. NWP 27 can be used to authorize
impacts at a mitigation bank, but only in
circumstances where it has been approved
under the Interagency Federal Mitigation
Bank Guidelines.
28. Modifications of Existing Marinas.
Reconfiguration of existing docking
facilities within an authorized marina
area. No dredging, additional slips, clock
spaces, or expansion of any kind within
waters of the US, is authorized by this
NWP. (Section 10)
29. Single-family Housing. Discharges
of dredged or fill material into non-tidal
waters of the US, 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'/ -acre of non-tidal
waters of the US, including non-ticlal
wetlands;
b. The permittee notifies the District
F;ngineer 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, )toms: stay need to be adjusted on-
site to avoid flooding of adjacent
property owners;
d. 1'he 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 Uso f '/4-acre for the entire
subdivision;
e. Air individual ntay 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 MVP may not be used in
conjunction with NWP 14 or NWP 18,
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 N1NP, the
acreage of loss of waters of the US
includes the filled area previously
permitted, the proposed filled area, and
any other waters of the US that are
adversely affected by flooding,
excavation, or drainage as a result of the
project. 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 tire 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)
30. Moist Soil Management for
Wildlife. Discharges of dredged or fill
material and maintenance activities that
are associated with moist soil
management for wildlife performed on
non-ticlal Federally-owned or managed,
state-owned or managed property, and
local government agency-owned or
managed property, for the purpose of
continuing ongoing, site-specific,
wildlife management activities where
soil manipulation is used to manage
habitat and feeding areas for wildlife.
Such activities include, but are not
limited to: The repair, maintenance or
replacement of existing water control
structures; the repair or maintenance of
dikes; and plowing or discing to impede
succession, prepare seed beds, or
estahlish fire breaks. Sufficient
vegetated buffers must be maintained
adjacent to all open water bodies,
streams, etc., to preclude water quality
degradation due to erosion and
sedimentation, This NWP does not
authorize the construction of new dikes,
roads, water control structures, etc,
associated with the management areas.
This NWP does not authorize converting
wetlands to uplands, impoundments or
other open water bodies. (Section 40-1)
31. Maintenance of Existing Flood
Control Facilities. Discharge of dredge
or fill material resulting from activities
associated with the maintenance of
existing flood control facilities,
including debris basins, retention/
detention basins, and channels that
(i) were previously authorized by the
Corps by Individual Permit, General
Permit, by 33 CFR 330.3, or did not
require a permit at the time it was
constructed, or
(ii) were constructed by the Corps and
transferred to a non-Federal sponsor for
operation and maintenance. Activities
authorized by this NWP are limited to
those resulting from maintenance
activities that are conducted within the
"maintenance baseline," as described in
the definition below. Activities
including the discharges of dredged or
fill materials, associated with
maintenance activities in flood control
facilities in any watercourse that has
previously been determined to he
within the maintenance baseline, are
authorized under this NWP. The MVP
does not authorize the removal of
sediment and associated vegetation from
the natural water courses except to the
extent that these have been included in
the maintenance baseline. All dredged
material must be placed in an upland
site or an authorized disposal site in
waters of the US, and proper siltation
controls must be used. (Activities of any
kind that result in only incidental
fallback, or only the cutting and
removing of vegetation above the
ground, e.g., mowing, rotary cutting,
and chainsawing, where the activity
neither substantially disturbs the root
system nor involves mechanized
pushing, dragging, or other similar
activities that redeposit excavated soil
material, do not require a Section 404
permit in accordance with 33 CFR
323.2(d)(2)).
Notification: After the maintenance
baseline is established, and before any
maintenance work is conducted, the
permittee must notify the District
Engineer in accordance with the
"Notification" General Condition. The
notification may be for activity-specific
2084 Federal Register / Vol. 67, No. 10/Tuesday, January 15, 2002/Notices
maintenance or for maintenance of the
entire flood control facility by However, if one-time ntitigatiatu is
required for impacts associat
d
ith activity subject to the terms and

submitting a five year (or less)
maintenance
plan e
w
maintenance activities, the District
E conditions of this NWP and the

settlement agreement, including a
.
Maintenance Baseline: The
maintenance baseli
i
d
i ngineer will not delay needed
maintenance, provided the District specified completion date; or
(ii) The terms of a final Federal court
ne
s a
escr
ption of
the physical characteristics (e.g., depth, Engineer and the permittee establish a
schedule for identification
a
l decision, consent decree, or settlement

width, length, location, configuration, o
design flood capacity
etc
) of a flood ,
pprova
,
r development, construction and agreement resulting from an
enforcement action brought by the U.S.
,
.
control project within which
maintenance activities are normall completion of any such required
litigation. Once the one-time under section 404 of the CWA and/or
section 10 of the Rivers and Harbors Act
y
authorized by NWP 31, subject to any mitigation described above has been
complet,bd, or a determination made of 1899; or
(iii) The terms of a final court
case-specific conditions required by the
District Engineer. The District Engineer that riUigation is not required, no
further miti
ation will b
i
d f decision, consent decree, settlement

will approve the maintenance baseline
based on the approved or constructed g
e requ
re
or
maintenance activities within the
i agreement, or non-judicial settlement
agreement resulting from a natural

capacity of the flood control facility,
whichever i
ll
i
l ma
ntenance baseline. In clet0rmining
appropriate mitigation, the District resource damage claim brought by a
trustee or trustees for natural resources
s sma
er,
nc
uding any
areas where there are no constructed Engineer will give special consideration
to natural water courses that have been (as defined by the National Contingency
Plan at 40 CFR subpart G) under section
channels, but which are part of the
facility. If no evidence of the included in the maintenance baseline 311 of the Clean Water Act (CWA),

constructed capacity exist, the approved and require compensatory mitigation
and/or BMPs as appropriate. section 107 of the Comprehensive
Environmental Response
Compensation
constructed capacity will be used. The Emergency Situations: In ernergetioy ,
and Liability Act (CERCLA or
prospective permittee will provide
documentation of the physical situations, this NWP may be used to
authorize maintenance a
ti
iti
i Superfund), section 312 of the National
M
i

characteristics of the flood control
facility (which will normall
consist of c
v
es
n
flood control facilities for which no
i ar
ne Sanctuaries Act (NMSA), section
1002 of the Oil Pollution Act of 1990
y
as-built or approved drawings) and
d ma
ntenance baseline has been
approved. Emergency situations are (OPA), or the Park System Resource
Protection Act at 16 U
S
C
'19jj
to the
ocumentation of the design capacities
of the flood control facility. The those which would result in an
unacceptable hazard to life, a significant .
.
.
,
extent that a Corps permit is required.
For either (i)
(cif) or (iii) above

documentation will also include BMPs
to ensure that the impacts to the aquatic
loss of property, or an immediate,
unforeseen, and significant economic ,
,
compliance is a condition of the NWP
itself. Any authorization under this
environment are minimal, especially in hardship if action is not taken before a NWP is automatically revoked if the
maintenance areas where there are no
constructed channels. (The Corps may maintenance baseline can be approved.
In such situations, the determination of permittee does not comply with the
terms of this NWP or the terms of the
request maintenance records in areas
where there has not bee
t mitigation requirements, if any, may be court decision, consent decree, or
n recen
maintenance.) Revocation or deferred until the emergency has been
resolved. Once the emergency has judicial/non-judicial settlement
agreement or fails to complete the work
modification of the final determination
of the maintenance baseline can onl
be ended, a maintenance baseline must be
t
bli
h by the specified completion date. This
y
done in accordance with 33 CFR 330
5 es
a
s
ed expeditiously, and NWP does not apply to any activities
.
.
Except in emergencies as described mitigation, including mitigation for
maintenance conducted during the occurring after the date of the decision,
decree, or agreement that are not for the
below, this NWP can not be used until
the District Engineer approves the emergency, must be required as purpose of mitigation, restoration, or

maintenance baseline and determines appropriate. (Sections 10 and 404)
32. Completed Enforcement Actions environmental benefit. Before reaching
any settlement agreement
the Cor
s
the need for mitigation and any regional .
Any structure, work or discharge of ,
p
will ensure compliance with the
or activity-specific conditions. Once
determined, the maintenance baseline dredged or fill material, retraining in
place, or undertaken for mitigation provisions of 33 CFR part 326 and 33
CFR 330.6 (d)(2) and (e)
(Sections 10
will remain valid for any subsequent ,
restoration, or environmental benefit in .
and 404)
reissuance of this NWP. This permit
does not authorize maintenance of a compliance with either:
(i) The terms of a final written Corps 33. Temporary Construction, Access
and Dewatering. Temporary structures

flood control facility that has been
abandoned. A flood control facilit
will
non-judicial settlement agreement
r
l
i
i
l ,
work and discharges, including
ff
d
y
be considered abandoned if it has eso
v
ng a v
o
ation of section 404 of
the CWA and/or section 10 of the Rivers co
er
ams, necessary for construction
activities or access fills or dewatering of
operated at a significantly reduced and Harbors Act of 1899; or the terms construction sites; provided that the
capacity without needed maintenance
heir g accomplished in a timel
mann of an EPA 309(a) order on consent associated primary activity is authorized
y
er.
Mitigotion: The District Engineer will resolving a violation of section 404 of
the CWA, provided that: by the Corps of Engineers or the USCG,
or for other construction activities not
determine any required mitigation one-
time only for impacts associated with a. The unauthorized activity affected subject to the Corps or USCG

maintenance work at the same time that no more than 5 acres of non-ticlal
wetlands or 1 acre of tidal wetlands; regulations. Appropriate measures must
be taken to maintain near normal
the maintenance baseline is approved.
Such one-time miti
ation will he b. The settlement agreement provides
f downstream flows and to minimize
g
required when necessary to ensure that or environmental benefits, to an equal
or greater degree, than the flooding. Fill must be of materials, and
placed in a manner
that will not be
adverse environmental impacts are no
more than minimal
both individ
ll environmental detriments caused by the ,
eroded by expected high flows. The use
,
ua
y
and cumulatively. Such mitigation will unauthorized activity that is authorized
b
this NWP
a
d of dredged material may be allowed if

only be required once for any specific y
;
n
c, The District Engineer issues a it is determined by the District Engineer
that it will not cause 11101'0 than minimal
reach of a flood control project, verification letter authorizing the adverse effects on aquatic resources.
Federal Register /Vol. 67, No. 10 /Tuesday, January 15, 2002 /Notices 2085
Temporary fill must be entirely remove
to upland areas, or dredged material
returned to its original location,
following completion of the
construction activity, and the affected
areas must be restored to the pre-project
conditions. Cofferdams cannot be used
to dewater wetlands or other aquatic
areas to change their use. Structures left
in place after cofferdams are removed
require a Section 10 permit if located in
navigable waters of the U.S. (See 33 CFR
part 322). The permittee must notify the
District Engineer in accordance with the
"Notification" General Condition. The
notification must also include a
restoration plan of reasonable measures
to avoid and minimize adverse effects to
aquatic resources. The District Engineer
will add Special Conditions, where
necessary, to ensure environmental
adverse effects is minimal. Such
conditions may include: limiting the
temporary work to the minimum
necessary; requiring seasonal
restrictions; modifying the restoration
plan; and requiring alternative
construction methods (e.g. construction
mats in wetlands where practicable.).
(Sections 10 and 404)
34. Cranberry Production Activities.
Discharges of dredged or fill material for
dikes, berms, pumps, water control
structures or leveling of cranberry beds
associated with expansion,
enhancement, or modification activities
at existing cranberry production
operations provided that the activity
meets all of the following criteria:
a. The cumulative total acreage of
disturbance per cranberry production
operation, including but not limited to,
filling, flooding, ditching, or clearing,
does not exceed 10 acres of waters of the
U.S., including wetlands;
b. The permittee notifies the District
Engineer in accordance with the
"Notification" General Condition. The
notification must include a delineation
of affected special aquatic sites,
including wetlands; and,
c. The activity does not result in a net
loss of wetland acreage. This NWP does
not authorize any discharge of dredged
or fill material related to other cranberry
production activities such as
warehouses, processing facilities, or
parking areas. For the purposes of this
NWP, the cumulative total of 10 acres
will be measured over the period that
this NWP is valid. (Section 404)
35. Maintenance Dredging of Existing
Rosins. Excavation and removal of
accumulated sediment for maintenance
of existing marina basins, access
channels to marinas or boat slips, and
boat slips to previously authorized
depths or controlling depths for ingress/
egress, whichever is less, provided the
d dredged iaterial is disposed of at an
upland site and proper siltation controls
are used. (Section 10)
36. Bont Ramps. Activities required
for the construction of boat ramps
provided:
a. The discharge into waters of the
U.S. does riot exceed 50 cubic yards of
concrete, rock, crashed stone or gravel
into forms, or, placement of pre-cast
concrete planks or slabs. (Unsuitable
material, that causes unacceptable
chemical pollution or is structurally
unstable is not authorized);
b. The boat ramp does not exceed 20
feet in width;
c. The base material is crushed stone,
gravel or other suitable material;
d. The excavation is limited to the
area necessary for site preparation and
all excavated material is removed to the
upland; and,
e. No material is placed in special
aquatic sites, including wetlands.
Another NW-P, Regional General
Permit, or Individual Permit may
authorize dredging to provide access to
the boat ramp after obtaining a Section
10 if located in navigable waters of the
U.S. (Sections 10 and 404)
37. Emergency Watershed Protection
and Rehabilitation. Work done by or
funded by:
a. The NRCS which is a situation
requiring immediate action under its
emergency Watershed Protection
Program (7 CFR part 624); or
b. The USFS under its Burned-Area
Emergency Rehabilitation Handbook
(FSH 509.13); or
c. The DOI for wildland fire
management burned area emergency
stabilization and rehabilitation (DOI
Manual part 520, Ch. 3).
For all of the above provisions, the
District Engineer must be notified in
accordance with the General Condition
13. (Also, see 33 CFR 330.1(e)).
(Sections 10 and 404)
38. Cleanup of Hazardous and Toxic
Waste. Specific activities required to
effect the containment, stabilization, or
removal of hazardous or toxic waste
materials that are performed, ordered, or
sponsored by a government agency with
established legal or regulatory authority
provided the permittee notifies the
District Engineer in accordance with the
"Notification" Ceneral Condition. For
discharges in special aquatic sites,
including wetlands, the notification
must also include a delineation of
affected special aquatic sites, including
wetlands. Court ordered remedial action
plans or related settlements are also
authorized by this NWP. This NWP does
not authorize the establishment of new
disposal sites or the expansion of
existing sites used for the disposal of
hazardous or toxic waste. Activities
s undertaken entirely on a
Comprehensive Environmental
Response, Compensation, and Liability
Act (CERCLA) site by authority of
CERCI,A as approved or required by
EPA, are not required to obtain permits
under section 404 of the CWA or section
10 of the Rivers and Harbors Act.
(Sections 10 and 404)
39. Residential, Commercial, and
Institutional Developments. Discharges
of dredged or fill material into non-tidal
waters of the U.S., excluding non-tidal
wetlands adjacent to tidal waters, for the
construction or expansion of residential,
commercial, and institutional building
foundations and building pads and
attendant features that are necessary for
the use and maintenance of the
structures. Attendant features may
include, but are not limited to, roads,
parking lots, garages, yards, utility lines,
stormwater management facilities, and
recreation facilities such as
playgrounds, playing fields, and golf
courses (provided the golf course is an
integral part of the residential
development), The construction of new
ski areas or oil and gas wells is not
authorized b this NW-P.
Residential developments include
multiple and single unit developments.
Examples of commercial developments
include retail stores, industrial facilities,
restaurants, business parks, and
shopping centers. Examples of
institutional developments include
schools, fire stations, government office
buildings, judicial buildings, public
works buildings, libraries, hospitals,
and places of worship. The activities
listed above are authorized, provided
the activities meet all of the following
criteria:
a. The discharge does riot cause the
loss of greater than 1/2-acre of non-tidal
waters of the U.S., excluding non-tidal
wetlands adjacent to tidal waters;
b. The discharge does not cause the
loss of greater than 300 linear-feet of a
stream bed, unless for intermittent
stream beds this criterion is waived in
writing pursuant to a determination by
the District Engineer, as specified
below, that the project complies with all
terms and conditions of this NWP and
that any adverse impacts of the project
on the aquatic environment are
minimal, both individually and
cumulatively;
c. 'l'ire permittee must notify the
District Engineer in accordance with
General Condition 13, if any of the
following criteria are met:
(1) The discharge causes the loss of
greater than 1ho-acre of non-tidal waters
of the US, excluding non-tidal wetlands
adjacent to tidal waters; or

2080 Federal Register/Vol. 67, No. 10 / Tuesday, January 15, 2002/ Notices
(2) The discharge causes the loss of of any compensatory mitigation used to include the installation, placement, or
any open waters, including perennial or offset the loss of waters of the US (e
con
t
ti
i
t
i
f d
.g.,
n
erm
ttent streams, below the ordinary 1/12-acre of emergent wetlands created
hi-h water mark (see Note
below)
or s
ruc
on o
rainage tiles, ditches,
or levees; mechanized land clearing;
,
;
?3) The discharge causes the loss of on-site);
j. If there are any open waters or land leveling; the relocation of existing

greater than 300 linear feet of
intermittent stream bed. In such case
t
streams within the project area, the
o serviceable drainage ditches constructed

waters of the US; and similar
,
permittee will establish and maintain,
be authorized the District Engineer must the maximum extent practicable
' ac
to activities, provided the permittee

determine that the activity complies
with the other terms and conditions of ,
_
wetland or upland vegetated buffers complies with the following terms and
conditions:

the NWP, determine adverse next to those open waters or streams

consistent with General Condition 19
a. F discharges into non-tidal

environmental effects are minimal both
individually and cumulativel
and ,
Deed restrictions, conservation wetlands to improve agricultural

production
the followin
criteri
y,
waive the limitation on stream impacts

i easements, protective covenants, or
other means of land conservation
d ,
g
a must
met if the permittee is
be an
United

n writing before the permittee may
proceed; an
preservation are required to protect and S
t
c
States Department of Agriculture
(USDA) Progra
ti
i

d. For discharges in special aquatic maintain the vegetated buffers
established on th m par
c
pant:
(1) The permittee must obtain a
sites, including wetlands, the
notification must include a delineation e project site.
Only residential, commercial, and
i
tit
i categorical minimal effects exemption,
minimal effect exemption
miti
ati

of affected special aquatic sites;
e. The discharge is part of a single and ns
ut
onal activities with structures
on the foundation(s) or building ad(s)
, ,c
g
on
with the fr from NRCS accordance
with the
provisions of the Food S
i

complete project;
f. The permittee must avoid
d as well as the attendant feature, are
authorized by this NWP. The ecur
ty
Act of 1985, as amended (16 U.S.C. 3801
an
minimize discharges into waters of the
US at the project site to the ma
i
compensatory mitigation proposal that
is required in paragraph (e) of this NWP et seq.);
(2) The discharge into non-tidal
x
mum
extent practicable. The notification,
when required
must include a w
itt
may be either conceptual or detailed.
The wetland or upland vegetated buffer wetlands does not result in the loss of
,
greater than acre non tidal
,
r
en
statement explaining how avoidance
and minimization of losses of
t
f required in paragraph W of this NWP
will be determined on a case-by-case wetlands on a ( farm tract;
The permittee must have NRCS
wa
ers o
the US were achieved on the project basis by the District Engineer for
addressi
t
l certified wetland delineation;
(4) The permittee must implement an
site. Compensatory mitigation will
normally be required to offset the losses ng wa
er qua
ity concerns. The
required wetland or upland vegetated NRCS-approved compensatory

of waters of the US. (See General
buffer is part of the overall
com
t mitigation plan that fully offsets
wetland losses, if required; and
Condition 19.) The notification must
also include a com
ensator
miti
ti pensa
ory mitigation requirement
for this NWP. If the project site was
(5) The permittee must submit a
p
y
ga
on
proposal for offsetting unavoidable previously used for agricultural report, within 30 days of completion of
the authorized work
to the Di
t
i
t
losses of waters of the US. If an
applicant asserts that the adverse eff
t purposes
and the farm owner/operator
used NWP 40 to authorize activities in ,
s
r
c
Engineer that contains the following
ec
s
of the project are minimal without
`Waters of the US to increase production
or c
t
t f information: (a) The name, address, and
telephone number of the
ermittee
(b)
mitigation, then the applicant may

submit justification explainin
wh ons
ruc
arm buildings, NWP 39
cannot be used by the developer to p
;
The location of the work; (c) A
g
y
compensatory mitigation should not be authorize additional activities. This is ddescription of the work;
) The type
a

required for the District Engineer's more than the acreage limit for NWP 39
i et
n
acreage (or square feet) of the loss
of wetlands (e
1/3-acre of

consideration;
g. When this NWP is used in mpacts to waters of the US (i.e., the

combined acreage loss authorized under .g.,
emergent
wetlands); and (e) The type, acreage (or

conjunction with any other NWP, any NWPs 39 arid 40 cannot exceed 1/z-acre, square feet), and location of

combined total permanent loss of waters
of the US exceeding 1/1o-acre re
i
see General Condition 15),
Subdivisions: For residential compensatory mitigation (e. acre of
emergent wetland on a farm tract;
qu
res
that the permittee notify the District
subdivisions, the aggregate total loss of credits purchased from a mitigation

bank); or
Engineer in accordance with General
Condition 13; waters of US authorized by NWP 39 can
not exceed 1/2-acre. This includes any b. For discharges into non-tidal

h. Any work authorized by this N1VP
loss of waters associated with wetlands to improve agricultural

must not cause more than minimal
degradation of water quality more
development of individual subdivision
lots. (Sections 10 and 404) production, the following criteria must
be met if the permittee is not a USDA
than minimal changes to the flow Note: Areas where wetland vegetation is Program participant (or a USDA
P
characteristics of any stream (see not present should be determined by the rogram participant for which the

General Conditions 9 and 21);
i. For discharges causing the loss of presence or absence of an ordinary high
water mark or bed and bank. Areas that are proposed work does not qualify for
authorization under paragraph (a) of this

'/1o-acre or less of waters of the US, the
permittee must submit a report
within waters of the US b
based on this criterion
would require a PCN although cvater is
i
f NWP):

(1) The discharge into non-tidal
,
30 days of completion of the work, to n
requently present in the stream channel
(except for ephemeral waters
whi
h d wetlands does not result in the loss of

the District Engineer that contains the ,
c
o not
require PCNs) greater than 1/2-acre of non-tidal

following information: (1) The name,
address, and telephone numb
f th .
40. Agricultural Activities. Discharges wetlands on a farm tract;
(2) The permittee must notify the
er o
e
permittee; (2) The location of the work;
(3) A description of the work
(4) Th of dredged or fill material into non-tidal
waters of the US, excluding non-tidal District Engineer ill accordance with
General Condition 13, if the discharge
;
e
type and acreage of the loss of waters of
the US (e
1/
-
f wetlands adjacent to tidal waters, for
improving agricultural production and results in the loss of greater than 1/10-
acre of non-tidal wetlands;
.g.,
12
acre o
emergent
wetlands); and (5) The type and acreage the construction of building pads for
farm buildings
Authorized
ti
iti (3) The notification must include a
.
ac
v
es delineation of affected wetlands; and
Federal Register/ Vol. 67, No. 10/Tuesday, January 15, 2002/Notices 2087
(4) The notification must include a
compensatory mitigation proposal to
offset losses of waters of the US; or
c. For the construction of building
pads for farm buildings, the discharge
does not cause the loss of greater than
'h-acre of non-tidal wetlands that were
in agricultural production prior to
December 23, 1985, (i.e., farmed
wetlands) and the permittee must notify
the District Engineer in accordance with
General Condition 13; and
d. Any activity in other waters of the
US is limited to the relocation of
existing serviceable drainage ditches
constructed in non-tidal streams. This
NWP does riot authorize the relocation
of greater than 300 linear-feet of existing
serviceable drainage ditches constructed
in non-tidal streams unless, for drainage
ditches constructed in intermittent non-
tidal streams, the District Engineer
waives this criterion in writing, and the
District Engineer has determined that
the project complies with all terms and
conditions of this NWP, and that any
adverse impacts of the project on the
aquatic environment are minimal, both
individually and cumulatively. For
impacts exceeding 300-linear feet of
impacts to existing serviceable ditches
constructed in intermittent non-tidal
streams, the permittee must notify the
District Engineer in accordance with the
"Notification" General Condition 13;
and
e. The term "farm tract" refers to a
parcel of land identified by the Farm
Service Agency. The Corps will identify
other waters of the US on the farm tract.
NRCS will determine if a proposed
agricultural activity meets the terms and
conditions of paragraph a. of this NWP,
except as provided below. For those
activities that require notification, the
District Engineer will determine if a
proposed agricultural activity is
authorized by paragraphs b., c., and/or
d. of this NWP. USDA Program
participants, requesting authorization for
discharges of dredged or fill material
into waters of the US authorized by
paragraphs (c) or (d) of this NWP, in
addition to paragraph (a), must notify
the District Engineer in accordance with
General Condition 13 and the District
Engineer will determine if the entire
single and complete project is
authorized by this NMI. Discharges of
dredged or fill material into waters of
the US associated with completing
required compensatory mitigation are
authorized by this NWP. Ilowever, total
impacts, including other authorized
impacts under this NWP, may not
exceed the'/ -acre limit of this NWf'.
This MVP does not affect, or otherwise
regulate, discharges associated with
agricultural activities when the
discharge qualifies for an exemption
under section 404(f) of the CWA, even
though a categorical minimal effects
exemption, minimal effect exemption,
or mitigation exemption from NKCS
pursuant to the Food Security Act of
1985, as amended, may be required.
Activities authorized by paragraphs a.
through d. may not exceed a total of/1-
acre on a single farm tract. If the site was
used for agricultural purposes and the
farm owner/operator used either
paragraphs a., b., or c. of this NWP to
authorize activities in waters of the US
to increase agricultural production or
construct farm buildings, and the
current landowner wants to use NWP 39
to authorize residential, commercial, or
industrial development activities in
waters of the US on the site, the
combined acreage loss authorized by
NWPs 39 and 40 cannot exceed'/2-acre
(see General Condition 15). (Section
404)
41. Reshaping Existing Drainage
Ditches. Discharges of dredged or fill
material into non-tidal waters of the US,
excluding non-tidal wetlands adjacent
to tidal waters, to modify the cross-
sectional configuration of currently
serviceable drainage ditches constructed
in waters of the US. The reshaping of
the ditch cannot increase drainage
capacity beyond the original design
capacity. Nor can it expand the area
drained by the ditch as originally
designed (i.e., the capacity of the ditch
must be the same as originally designed
and it cannot drain additional wetlands
or other waters of the US).
Compensatory mitigation is riot required
because the work is designed to improve
water quality (e.g., by regrading the
drainage ditch with gentler slopes,
which can reduce erosion, increase
growth of vegetation, increase uptake of
nutrients and other substances by
vegetation, etc.).
Notification: The permittee must
notify the District Engineer in
accordance with General Condition 13 if
greater than 500 linear feet of drainage
ditch will be reshaped. Material
resulting from excavation may not be
permanently sidecast into waters but
may be temporarily sidecast (up to three
months) into waters of the US, provided
the material is not placed in such a
manner that it is dispersed by currents
or other forces. The District Engineer
may extend lire period of temporary
sidecasting riot to exceed a total of 180
days, where appropriate. In general, this
MVP does not apply to reshapin-
drainage ditches constructed in
uplands, since these areas are generally
not waters of the US, and thus no permit
from the Corps is required, or to the.
maintenance of existing drainage
ditches to their original dimensions and
configuration, which does not require a
Section 404 permit (see 33 CFR
323.4(a)(3)). This MVP does not
authorize the relocation of drainage
ditches constructed in waters of the US;
the location of the centerline of the
reshaped drainage ditch must be
approximately the same as the location
of the centerline of the original drainage
ditch. This MVP does not authorize
stream cliannelization or stream
relocation projects. (Section 404)
42. Recreational Facilities. Discharges
of dredged or fill material into non-tidal
waters of the US, excluding non-tidal
wetlands adjacent to tidal waters, for the
construction or expansion of
recreational facilities, provided the
activity meets all of the following
criteria:
a, The discharge does not cause the
loss of greater than 1/2-acre of non-tidal
waters of the US, excluding non-ticial
wetlands adjacent to tidal waters;
b. The discharge does not cause the
loss of greater than 300 linear-feet of a
stream bed, unless for intermittent
stream beds this criterion is waived in
writing pursuant to a determination by
the District Engineer, as specified
below, that the project complies with all
terms and conditions of this NWP and
that any adverse impacts of the project
on the aquatic environment are
minimal, both individually and
cumulatively;
c. The permittee notifies the District
Engineer in accordance with the
"Notification" General Condition 13 for
discharges exceeding 300 linear feet of
impact of intermittent stream beds. In
such cases, to be authorized the District
Engineer must determine that the
activity complies with the other terms
and conditions of the NWP, determine
tyre adverse environmental effects are
m1ninral both individually and
cumulatively, and waive this limitation
in writing before the permittee may
proceed;
d. For discharges causing the loss of
greater than'/ro-acre of non-ticial waters
of the US, the permittee notifies the
District Engineer in accordance with
General Condition 13;
e. For discharges in special aquatic:
sites, including wetlands, the
notification must include a delineation
of affected special aquatic sites;
f The discharge is part of a single and
complete project; and
g. Compensatory mitigation will
normally be required to offset the losses
of waters of the US. The notification
must also include, a compensatory
mitigation proposal to offset authorized
losses of waters of the us.
2088 Federal Register/Vol. 67, No. 10 /'T'uesday, January 15, 2002/Notices
For the purposes of this NWP, the
term "recreational facility" is defined a greater than'/-z-acre of non-tidal waters
s of the US, excluding non-tidal wetla
d that are exempt from Section 404 permit

a recreational activity that is integrated
into the natural landscape and does not n
act)acent to tidal waters;
b. The discharge does not cause th s requirerrtents);
t. The permittee must avoid and
e
substantially change preconstruction loss of greater than 300 linear-Feet of a
grades or deviate from natural landscape stream bed
unless for i
t
i minimize discharges into waters of the
US at the project site to the maximum

contours. For the purpose of this permit
the primary function of recreati
l ,
n
erm
ttent
, stream beds this criterion is waived in
i
i extent practicable, and the notification
must include a written statement to the
ona
facilities does not include the use of wr
t
ng pursuant to a determination by
the District Engineer
as specified District Engineer detailing compliance
,
motor vehicles, buildings, or impervious below, that the project complies with al
surfaces. Examples of recreatio
l t
d with this condition (i.e. why the
l discharge must occur in waters of the
na
facilities that may be authorized by this erms an
conditions of this NWP and
that any adverse impacts of the project US and why additional minimization

NWP include hiking trails, bike paths,
horse paths
nature cent
d
on th06aquatic environment are cannot be achieved);
g. The stormwater management
,
ers, an
campgrounds (excluding trailer parks). minimal, both individually and
cumulatively; facility must comply with General

This NWP may authorize the
const
ti
c. For discharges causing the loss of Condition 21 and be designed using
BMPs and watershed
rotection g
ruc
on or expansion of golf
courses and the expansion of ski areas, greater than 300 linear feet of
intermittent stream beds
the permittee p
techniques. Examples may include

provided the golf course or ski area does
not substantially deviate from natural ,
notifies the District Engineer in
accordance with the ''Notification" forebays (deeper areas at the upstream
end of the stormwater management

landscape contours. Additionally, these
activities are designed to minimize
General Condition 13. In such cases, to
be authorized the District Engineer must facility that would be maintained
through excavation), vegetated buffers,

adverse effects to waters of the US and
riparian areas through the use of such
determine that the activity complies
with the other terms and conditions of and siting considerations to minimize
adverse effects to aquatic resources.

practices as integrated pest
management, adequate stormwater
the NWP, determine the adverse
environmental effects are minimal both Another example of a BMP would be
bioengineering methods incorporated

management facilities; vegetated buffers,
reduced fertilizer use, etc. The facility
individually and cumulatively, and
waive this limitation in wv
iti
a b
f into the facility design to benefit water

quality and minimize adverse effects to
must have an adequate water quality r
n
e
ore
the permittee may proceed; o aquatic resources from storm flows,
management plan in accordance with
General Condition 9, such as a d. The discharges of dredged or fill
material for the construction of new especially downstream of the facility,
that provide, to the maximum extent
stormwater management facility, to stormwater management facilities in p
for long term aquatic
ensure that the recreational facility
results in no substantial adverse effects perennial streams is not authorized;
e. For discharges or excavation for the rotection
resource protection and enhancement;
Maintenance excavation will be in
to water quality. This NWP also construction of new stormwater accordance with an approved
authorizes the construction or
expansion of small support facilities, management facilities or for the
maintenance of existing stormwater maintenance plan and will not exceed
the original contours
the facility as
such as maintenance and storage
buildings and stables that are directl management facilities causing the loss
of greater than 'ho-acre
f
tid
l ct
approved and constructed; and
r. The discharge is part of a single and
y
related to the recreational activity. This
NWP does not authorize other o
non-
a
waters, excluding non-tidal wetlands
adjacent to tidal waters
provided the complete project. (Section 44 cha
. Mining Activities. Discharges of

buildings, such as hotels, restaurants,
etc. The construction or expansion of ,
permittee notifies the District Engineer
in accordance with the "Notificati
" dredged or fill material into:
(i) Isolated waters; streams where the

playing fields (e.g., baseball, soccer, or
football fields), basketball and tennis on
General Condition 13. In addition, the
notification must include: annual average flow is 1 cubic foot per
second or less, and non-tidal wetlands

courts, racetracks, stadiums, arenas, and
(1) A maintenance plan. The adjacent to headwater streams, for

the construction of new ski areas are not
maintenance plan should be in aggregate mining (i.e., sand, gravel, and
crushed and broken stone)
d
authorized by this NWP. (Section 404)
43. Storm water Management accordance with state and local
requirements, if any such requirements an
associated support activities;

Facilities. Discharges of dredged or fill
exist; (ii) Louver perennial streams,

material into non-tidal waters of the US,
excluding non-tidal wetlands adjacent
(2) For discharges in special aquatic
sites, including wetlands and excluding wetlands adjacent to lower
perennial streams, for aggregate mining

to tidal waters, for the construction and
maintenance of stormwater management
submerged aquatic vegetation, the
notification must include a delineation activities (support activities in lower
perennial streams or adjacent wetlands

facilities, including activities for the
of affected areas; and are not authorized by this NWP); and/

excavation of stormwater ponds/
facilities, detention basins, and
(3) A compensatory mitigation
proposal that offsets the loss of water or
(iii) Isolated waters and non-tidal

retention basins; the installation and s
of the US. Maintenance in constructed wetlands adjacent to headwater streams,
for hard rock/mineral minin
a
ti
iti

maintenance of water control structures,
outfall structures and emergency
areas will not require mitigation
provided such maintenance is g
c
v
es
(i.e., extraction of metalliferous ores

spillways; and the maintenance
dred
in
of existin
t
accomplished in designated
i from subsurface locations) and
associated support activities, provided
g
g
g s
ormwater
management ponds/facilities and ma
ntenance areas and not within
compensatory mitigation areas (i
e the discharge meets the following

detention and retention basins,
provided the activity meets all of the .
.,
District Engineers may designate non-
maintenance areas
normall
at the
criteria:
a. The mined area within waters of
h

following criteria:
a. The discharge for the constru
ti ,
y
downstream end of the stormwater t
e US, plus the acreage loss of waters
of the US resulting from support
c
on
of new stormwater management
f rnanagemerit facility, in existing
stormwater management facilities). (No activities, cannot exceed '/z-acre;
b
The permittee must avoid
d
acilities does not cause the loss of mitigation will be required for activities .
an
minimize discharges into waters of the
Federal Register/ Vol. 67, No. 10/Tuesday, Januarv 15. 2002/ Nntiraa 9noo
US at the project site to the maximum
extent practicable, and the notification
must include a written statement
detailing compliance with this
condition (i.e., why the discharge must
occur in waters of the US and why
additional minimization cannot be
achieved);
c. In addition to General Conditions
17 and 20, activities authorized by this
permit must not substantially alter the
sediment characteristics of areas of
concentrated shellfish beds or fish
spawning areas. Normally, the
mandated water quality management
plan should address these impacts;
d. The permittee must implement
necessary measures to prevent increases
in stream gradient and water velocities
and to prevent adverse effects (e.g., head
cutting, bank erosion) to upstream and
downstream channel conditions;
e. Activities authorized by this permit
must not result in adverse effects on the
course, capacity, or condition of
navigable waters of the US;
f. The permittee must use measures to
minimize downstream turbidity;
g. Wetland impacts must be
compensated through mitigation
appproved by the Corps;
h. Beneficiation and mineral
processing for hard rock/mineral raining
activities may not occur within 200 feet
of the ordinary high water mark of any
open waterbody. Although the Corps
does not regulate discharges from these
activities, a CWA section 402 permit
may be required;
i. All activities authorized must
comply with General Conditions 9 and
21. Further, the District Engineer may
require modifications to the required
water quality management plan to
ensure that the authorized work results
in minimal adverse effects to water
quality;
j. Except for aggregate mining
activities in lower•perennial streams, no
aggregate rnjning can occur within
stream beds where the average annual
flow is greater than 1 cubic foot per
second or in waters of the US within
100 feet of the ordinary high water mark
of headwater stream segments where the
avera-e annual flow of the stream is
greater than 1 cubic foot per second
(a-re-ate mining can occur in areas
immediately adjacent to the ordinary
high water mark of a stream where the
avera-e annual flow is I cubic foot per
second or less);
k. Single and complete project: The
discharge must be for a single and
complete project, including support
activities. Discharges of dredged or fill
material into waters of the US for
multiple mining activities on several
designated parcels of a single and
complete mining operation can he
authorized by this NWP provided the
1/2-acre limit is not exceeded; and
I. Notification: The permittee must
notify the District Engineer in
accordance with General Condition 13.
Tire notification must include: (1) A
description of waters of the US
adversely affected by the project; (2) A
written statement to the District
Engineer detailing compliance with
paragraph (b), above (i.e., why the
discharge must occur in waters of the
US and why additional minimization
cannot be achieved); (3) A description o
measures taken to ensure that the
proposed work complies with
paragraphs (c) through (f), above; and (4)
A reclamation plan (for aggregate
mining in isolated waters and non-tidal
wetlands adjacent to headwaters and
hard rock/mineral mining only).
This NWP does not authorize hard
rock/mineral mining, including placer
mining, in streams: No hard rock/
mineral mining can occur in waters of
the US within 100 feet of the ordinary
hi-fi water mark of headwater streams.
The term's "headwaters" arid ''isolated
waters'' are defined at 33 CFR 330.2(d)
and (e), respectively. For the purposes
of this NWP, the term "lower perennial
stream'' is defined as follows: "A stream
in which the gradient is low and water
velocity is slow, there is no tidal
influence, some water flows throughout
the year, and the substrate consists
mainly of sand and mud." (Sections 10
and 404)
C. Nationwide Permit General
Conditions
The following General Conditions
must be followed in order for any
authorization by an NWP 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. Soil F,rosion and Sediment
Controls. Appropriate soil erosion and
sediment controls must be used anti
maintained in effective operating
condition during construction, and all
exposed soil and other fills, as well as
any work below the ordinary high water
mark or high tide line, must be
permanently stabilized at the earliest
practicable date. Perrnittees are
encoura-ed to perform work within
waters of the United States during
periods of loco-flow or no-flow.
4. Aquatic Life Movements. No
activity may substantially disrupt the
necessary life-cycle movements of those
species of aquatic: life indigenous to the
waterbody, including those species that
normally migrate through the area,
unless the activity's primary purpose is
to impound water. Culverts placed in
streams must be installed to maintain
low flow conditions.
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 that may
have been added by the Division
f Engineer (see 33 CFR 330.4(e)).
Additionally, any case specific
conditions added by the Corps or by the
state or tribe in its Section 401 Water
Quality Certification and Coastal Zone
Management Act consistency
determination.
7. Wild once 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; unless the
appropriate Federal agency, with direct
management responsibility for such
river, has determined in writing that the
proposed activity will not adversely
affect the Wild and Scenic River
designation, or study status. Information
on Wild and Scenic Rivers may be
obtained from the appropriate Federal
land management agency in the area
(e.g., National Park Service, U.S. Forest
Service, Bureau of Land Management,
U.S. Fish and Wildlife 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. (a) In certain states
and tribal lands an individual 401 Water
Quality Certification must be obtained
or'waived (See 33 CFR 330.4(c)).
(b) For NWPs 12, 14, 17, 18, 32, 39,
40, 42, 43, and 44, where the state or
tribal 401 certification (either
generically or individually) does not
require or approve water quality
nranagernent measures, the permittee
must provide water quality management
measures that will ensure that the
authorized work does not result in more
than minimal degradationr of water
quality (or the Corps determines that
compliance with state or local
standards, where applicable, will ensure
no more than minimal adverse effect on
water quality). An important component
of water quality management includes
stormwater management that minimizes
degradation of the downstream aquatic
system, including water quality (refer to
General Condition 21 for stormwater
2090 Federal Register/Vol, 67, No. 10 / Tuesday, January 15, 2002/Notices
management requirements). Another
important component of water quality endspp.html and http://vvwrv,nfms.govl written notice from the District or
prot_res/esohome.html respectivel
Di
i
i

management is the establishment and y.
12. Historic Pro
erti
N
i v
s
on Engineer. Subsequently, the
p
es.
o act
vity
maintenance of vegetated buffers next to which may affect historic properties
open waters, including streams (refer to listed, or eligible for listin
in the permittee's right to proceed under the
MVP may be modified, suspended, or

General Condition 19 for vegetated
buffer requirements for the NWPs). g,
National Register of Historic Places is
authorized, until the District En
in revoked only in accordance with the
procedure set forth in 33 CFR

This condition is only applicable to
projects that have the potential to affect g
eer
has complied with the provisions of 33
CFR part 325, Appendix C
The 330.5(4)(2).
(b) Contents of Notification: The

water quality. While appropriate
measures must be taken, in most cases .
prospective permittee must notify the
District Engineer if the authorized notification must be in writing and
include the following information:
it is not necessary to conduct detailed
studies to identify such measures or to activity may affect any historic
propetrties listed, determined to be (1) Name, address and telephone
numbers of the prospective permittee;
require monitoring,
10. Coastal Zone Management. In eligible, or which the prospective
permittee has reason to believe may be (2) Location of the proposed project;
(3) Brief description of the proposed
certain states, an individual state coasta
zone management consistency l eligible for listing air the National
Register of Historic Places, and shall not Project; the project's purpose; direct and
indirect adverse environmental effects
concurrence must be obtained or waived begin the activity until notified by the the project would cause; any other
(see Section 330.4(d)). District Engineer that the requirements NWP(s), Regional General Permit(s), or
11. Endangered Species. (a) No
activity is authorized under any NWP of the National Historic Preservation Act Individual Permit(s) used or intended to
have been satisfied and that the activity be used to authorize any part of the
which is likely to jeopardize the is authorized. Information on the proposed project or any related activity.
continued existence of a threatened or location and existence of historic Sketches should be provided when
endangered species or a species resources can be obtained from the State necessary to show that the activity
proposed for such desi
nation
as Historic Preservation Office and the complies with the terms of the MVP
,
g
identified under the Federal Endangered National Register of Historic Places (see (Sketches usually clarify the project and
Species Act (ESA), or which will 33 CFR 330.4(8)), For activities that may when provided result in a quicker
destroy or adversely modify the critical affect historic properties listed in, or decision.);
habitat of such species. Non federal eligible for listing in, the National (4) For NWPs 7, 12, 14, 18, 21, 34, 38,
permittees shall notify the District Register of Historic Places, the 39, 41, 42, and 43, the PCN must also
Engineer if any listed species or notification must state which historic include a delineation of affected special
designated critical habitat might be
might property may be affected by the aquatic sites, including wetlands,
affected or is in the vicinity
the proposed work or include a vicinity vegetated shallows (e.g., submerged
project, or is located in the designated map indicating the location of the aquatic vegetation, seagrass beds), and
critical habitat and shall not begin work historic property. riffle and pool complexes (see paragraph
on the activity until notified by the
District Engineer that the requirements 13. Notification.
(a) Timing; where required by the 13(f));
(5) For NWP 7 (Outfall Structures and
of the ESA have been satisfied and that terms of the NWP, the prospective Maintenance), the PCN must include
the activity is authorized. For activities permittee must notify the District information regarding the original
that may affect Federally-listed Engineer with a preconstruction design capacities and configurations of
endangered or threatened species or
designated critical habitat
the notification (PCN) as early as possible,
The District Engineer must determine if those areas of the facility where
maintenance dredging or excavation is
,
notification must include the name (s) of
the endangered t threatened species
re the notification is complete within 30
days of the date of receipt and can proposed;
(6) For NWP 14 (Linear
that maybe affected
the proposed request additional information Transportation Crossings), the PCN
work or that utilize the designated necessary to make the PCN complete must include a compensatory mitigation
critical habitat that may be affected by only once. However, if the prospective proposal to offset permanent losses of
the proposed work. Asa result of formal permittee does not provide all of the waters of the US and a statement
or informal consultation with the FWS requested information, then the District describing how temporary losses of
or NMFS the'District Engineer may add Engineer will notify the prospective waters of the US will be rninirnized to
species-specific regional endangered permittee that the notification is still the maximum extent practicable;
species conditions to the NWPs incomplete and the PCN review process (7) For NWP 21 (Surface Coal Mining
.
(b) Authorization of an activity by a will not commence until all of the Activities), the PCN must include an

NWP does not authorize the ''take" of a requested information has been received Office of Surface Mining (OSM) or state-

threatened or endangered species as by the District Engineer. The approved mitigation plan, if applicable.

defined tinder the ESA. In the absence prospective permittee shall riot begin
the activit To be authorized by this NWP, the
Di
t
i
t E
i

of separate authorization (e.g., an ESA
Section 10 Permit, a Biological Opinion y:
(1) Until notified in writing by the s
r
c
ng
neer must determine that
the activity complies with the terms and

with ''incidental take" provisions, etc.)
from the USFWS or the NMFS
both District Engineer that the activity may
proceed under the NWP with any conditions of the NWP and that the
adverse environmental effects are
,
lethal and non-lethal "takes" of special conditions imposed by the minimal both individually and

protected species are in violation of the
ESA. Information on the locatio
f District or Division Engineer; or
(2) If notified in writing by the District cumulatively and must notify the
project sponsor of this determination in
n o
threatened and endangered species and
their critical habitat can b
bt
i
d or Division Engineer that an Individual
Permit is required; or writing;
(8) For NMI 27 (Stream and Wetland
e o
a
ne
directly from the offices of the USFWS
d (3) Unless 45 days have passed from
the District Engineer's receipt of the Restoration), the PCN must include
documentation of the
rior c
diti
f
an
NMFS or their world wide web
pages at http://vnv v.fws.-ovlr9endsp
l complete notification and the
ros
ti p
on
on o
the site that will be reverted by the
p p
pec
ve permittee has riot received permittee;
Federal Register/Vol. 67, No. 10/Tuesday, January 15, 2002/Notices 2091
(9) For NWI' 29 (Single-Family
Hou sing), the I'CN must also include: waters of the US or justification
explaining why com
ensator affected by the proposed work or utilize

W Any past use of this NWI, by the
Individual Perruittee and/or the
' p
y
mitigation should not be required. For
discharges that cause the loss of
re
t the designated critical habitat that rnav
be affected by the proposed work; and
(18
F

permittee
s spouse;
(ii) A statement that the sin
le-famil g
a
er
than 300 linear feet of an intermittent )
or activities that may affect
historic properties listed in
or eligible
g
y
housing activity is for a personal
residence of the permittee; stream bed, to be authorized, the Distri
Engineer must determine that the ,
ct for listing in, the National Register of
Historic Places, the PCN must state

(iii) A description of the entire parcel
includin
it
i
d activity complies with the other terms
, and conditions of the NWP, determine which historic property may be affected
by the pro
osed work
i
l
d

g
s s
ze, an
a delineation of
wetlands. For the purpose of this NWI
adverse environmental effects are p
or
nc
u
e a
vicinity map indicating the location of
, minimal both individually and
parcels of land measuring'/4-acre or less cumulatively, and waive the limitation
will not require a formal on-site the historic property.
(c) Form of Notification: The standard

delineation. However, the applicant on stream impacts in writing before the
i
( Individual permit application form
shall provide an indication of where the

wetlands are and the amount
f t
ee may proceed;
perm
(14) For NWI' 40 ( b
Agriculhural (Form LING 4345) may be used the
notification but must clearly indi dicate
o
wetlands that exists on the property. For
parcels greater than 1/4-acre i
i Activities), the PCN must include a
compensatory mitigation proposal to that it is a PCN and must include all of
the information required in (b) (1) -(18)
n s
ze,
formal wetland delineation must be offset losses of waters of the LIS. This
NWP does not authorize the r
l
i of General Condition 13. A letter
i

prepared in accordance with the current
method required b
the C
S e
ocat
on conta
ning the requisite information
of greater than 300 linear-feet of existing may also be used.
y
orps. (
ee
paragraph 13(0); serviceable drainage ditches constructed
i (d) District Engineer's Decision: In

(iv? A written description of all land n non-tidal streams unless, for drainage
ditches constructed in intermittent non- reviewing the PCN for the proposed
activity
the District Engin
ill
(including, if available, legal
descriptions) owned by the prospective tidal streams, the District Engineer
waives this criterion in writing, and the ,
eer w
determine whether the activity
authorized by the NWP will result i

permittee and/or the prospective
permittee's spouse, within a one mile
District Engineer has determined that
the project complies with all terms and n
more than minimal individual or
cumulative adverse enviro
t
l
radius of the parcel, in any form of
ownership (including any land owned conditions of this MVP, and that any
adverse impacts of the
roject
th nmen
a
effects or may be contrary to the public
int
t
Th

as a partner, corporation, joint tenant,
t p
on
e
aquatic environment are minimal, both eres
.
e prospective permittee may
submit a proposed mitigation plan with
co-
enant, or as a tenant-by-the-entirety)
and any land on which a purchase and individually and cumulatively;
(15) For NWP 43 (Stormw
t the PCN to expedite the process. The
Di

sale agreement or other contract for sale
or
urchase has b
d a
er
Management Facilities), the PCN must
i
l strict Engineer will consider any
proposed compensatory mitigation the
p
een execute
;
(10) For NWP 31 (Maintenance of nc
ude, for the construction of new
stormwater management facilities, a applicant has included in the proposal
in determining whether the net ad

Existing Flood Control Projects), the
prospective permittee must either notify
maintenance plan (in accordance with
state and local requirements
if verse
environmental effects to the aquatic
i

the District Engineer with a PCN prior ,
applicable) and a compensatory env
ronment of the proposed work are
minimal. If the District En
ineer
to each maintenance activity or submit
a five year (or less) maintenance plan. mitigation proposal to offset losses of
waters of the US. For discharges that g
determines that the activity complies
with the terms and conditions of th

In addition, the PCN must include all of
th
f
ll
i
cause the loss of greater than 300 linear e
NWP and that the adverse effects on the
e
o
ow
ng:
(i) Sufficient baseline information feet of an intermittent stream bed, to be
authorized
the District En
ineer
t aquatic environment are minimal, after
id
i

identifying the approved channel
depths and configurations and existing ,
g
mus
determine that the activity complies
with the other terms and
diti
f cons
er
ng mitigation, the District
Engineer will notify the permittee and
i
l

facilities. Minor deviations are
authorized
rovided the
d fl con
ons o
the NWP, determine adverse
i nc
ude any conditions the District
Engineer deems necessary. The District
, p
approve
ood
control protection or drainage is not env
ronmental effects are minimal both
individually and cumulativel
and Engineer must approve any
com
e
t
i
i

increased;
(ii) A delineation of an
affe
t
d y,
waive the limitation on stream impacts
i
iti
b
f p
nsa
ory m
t
gation proposal
before the permittee commences work.
y
c
e
special aquatic sites, including n wr
ng
e
ore the permittee may
proceed; If the prospective permittee is required

wetlands; and,
(iii) Location of the dredged material
(16) For NWP 44 (Mining Activities),
the PCN must include a descri
tion of to submit a compensatory mitigation
proposal with the PCN, the proposal
b
h

disposal site;
(11) For NWP 33 ("l,,m
orar p
all waters of the US adversely affected
b
th may
e eit
er conceptual or detailed. If
the prospective permittee elects to
p
y
Construction, Access, and Dewatering), y
e project, a description of measures
taken to minimize adverse effects to submit a compensatory mitigation plan
with th
PCN
h

the PCN must also include a restoration
plan of reasonable measures to
id
waters of the LJS, a description of e
, t
e District Engineer will
expeditiously review the proposed
avo
and minimize adverse effects to aquatic
resource measures taken to comply with the
criteria of the NWP, and a reclamation compensatory mitigation plan. The
District Engineer must review the plan
s;
(12) For NWT's 39, 43 and 44, the PCN plan (for all aggregate mining activities
in isolated waters and non-tidal within 45 clays of receiving a complete
PCN and determine wh
th
th

must also include a written statement to
the District Engineer explaining how
wetlands adjacent to headwaters and
any hard rock/mineral mini e
er
e
conceptual or specific proposed
i
i

avoidance and minimization for losses
of waters of the LJS were
hi
d ng
activities); m
t
gation would ensure no more than
minimal adverse effects on the aquatic
ac
eve
on
the project site; (17) For activities that may adversely
affect Federally-listed endan
d environment. If the net adverse effects

(13) For NWP 39 and NWP 42, the
PCN must include a compensator gere
or
threatened species, the PCN must
i
l
l
h of the project on the aquatic
environment (after consideration of the
y
mitigation proposal to offset losses of nc
uc
e t
e name(s) of those endangered
or threatened species that may be compensatory mitigation proposal) are
determined by the District Engineer to
-r
2092 Federal Register/ Vol. 67, No. 10/Tuesday, January 15, 2002/Notices
be minimal, the District Engineer will
provide a timely written response to the
applicant. The response will state that
the project can proceed under the terms
and conditions of the NWP.
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 either: (1) That the project
does not qualify for authorization under
the NWP and instruct the applicant on
the procedures to seek authorization
under an Individual Permit; (2) that the
project is authorized under the NWP
subject to the applicant's submission of
a mitigation proposal that would reduce
the adverse effects on the aquatic
environment to the minimal level; or (3)
that the project is authorized under the
NWP with specific modifications or
conditions. Where the District Engineer
determines that mitigation is required to
ensure no more than minimal adverse
effects occur to the aquatic
environment, the activity will be
authorized within the.45-day PCN
period. The authorization will include
the necessary conceptual or specific
mitigation or a requirement that the
applicant submit a mitigation proposal
that would reduce the adverse effects on
the aquatic environment to the minimal
level. When conceptual mitigation is
included, or a mitigation plan is
required under item (2) above, no work
in waters of the US will occur until the
District Engineer has approved a
specific mitigation plan.
(e) Agency Coordination: The District
Engineer will consider any comments
from Federal and state agencies
concerning the proposed activity's
compliance with the terms and
conditions of the NWPs and the need for
mitigation to reduce the project's
adverse environmental effects to a
minimal level, ,
For activities requiring notification to
the District Engineer that result in the
loss of greater than 1/2-acre of waters of
the US, the District Engineer will
provide immediately (e.g., via facsimile
transmission, overnight mail, or other
expeditious manner) a copy to the
appropriate federal or state offices
(USFWS, state natural resource or water
quality agency, EPA, State Historic
Preservation Officer (SHPO), and, if
appropriate, the NMFS). With the
exception of NWP 37, these agencies
will then have 10 calendar days from
the date the material is transmitted to
telephone or fax the District Engineer
notice that they intend to provide
substantive, site-specific comments. If
so contacted by an agency, the District
Engineer will wait an additional 15
calendar days before making a decision
on the notification. The District
Engineer will fully consider agency
comments received within the specified
time frame, but will provide no
response to the resource agency, except
as provided below. The District
Engineer will indicate in the
administrative record associated with
each notification that the resource
agencies' concerns were considered. As
required by section 305(b)(4)(B) of the
Magnuson-Stevens Fishery
Cous4vation and Management Act, the
District Engineer will provide a
response to NMFS within 30 clays of
receipt of any Essential Fish Habitat
conservation recommendations.
Applicants are encouraged to provide
the Corps multiple copies of
notifications to expedite agency
notification.
(f) Wetland Delineations: Wetland
delineations must be prepared in
accordance with the current method
required by the Corps (For NWP 29 see
paragraph (b)(9)(iii) for parcels less than
(1/4-acre in size). The permittee may ask
the Corps to delineate the special
aquatic site. There may be some delay
if the Corps does the delineation.
Furthermore, the 45-day period will not
start until the wetland delineation has
been completed and submitted to the
Corps, where appropriate.
14. Compliance Certification. Every
permittee who has received NWP
verification from the Corps will submit
a signed certification regarding the
completed work and any required
mitigation. The certification will be
forwarded by the Corps with the
authorization letter and will include:
(a) A statement that the authorized
work was done in accordance with the
Corps authorization, including any
general or specific conditions;
(b) A statement that any required
mitigation was completed in accordance
with the permit conditions; and
(c) The signature of the permittee
certifying the completion of the work
and mitigation.
15. Use of Multiple Nationwide
Permits. The use of more than one NWP
for a single and complete project is
prohibited, except when the acreage loss
of waters of the US authorized by the
NWPs does not exceed the acreage limit
of the NWP with the highest specified
acreage limit (e.g. if a road crossing over
tidal waters is constructed under NWP
14, with associated bank stabilization
authorized by NWP 13, the maxinnun
acreage loss of waters of the US for the
total project cannot exceed 1/3-acre).
16. Water Supply Intakes. No activity,
including structures and work in
navigable waters of the US or discharges
of dredged or fill material, may occur in
the proximity of a public water supply
intake except where the activity is for
repair of the public water supply intake
structures or adjacent bank stabilization.
17. Shellfish Beds. No activity,
including structures and work in
navigable waters of the US or discharges
of dredged or fill material, may occur in
areas of concentrated shellfish
populations, unless the activity is
directly related to a shellfish harvesting
activity authorized by NWP 4.
18. Suitable Material. No activity,
including structures and work in
navigable waters of the US or discharges
of dredged or fill material, may consist
of unsuitable material (e.g., trash,
debris, car bodies, asphalt, etc.) and
material used for construction or
discharged must be free from toxic
pollutants in'toxic amounts (see section
307 of the CWA).
19. Mitigation. The District Engineer
will consider the factors discussed
below when determining the
acceptability of appropriate and
practicable mitigation necessary to
offset adverse effects on the aquatic
environment that are more than
minimal.
(a) The project must be designed and
constructed to avoid and minimize
adverse effects to waters of the US to the
maximum extent practicable at the
project site (i.e., on site).
(b) Mitigation in all its forms
(avoiding, minimizing, rectifying,
reducing or compensating) will be
required to the extent necessary to
ensure that the adverse effects to the
aquatic environment are minimal.
(c) Compensatory mitigation at a
minimum one-for-one ratio will be
required for all wetland impacts
requiring a PCN, unless the District
Engineer determines in writing that
some other form of litigation would be
more environmentally appropriate and
provides a project-specific waiver of this
requirement. Consistent with National
policy, the District Engineer will
establish a preference for restoration of
wetlands as compensatory mitigation,
with preservation used only in
exceptional circumstances.
(d) Compensatory mitigation (i.e.,
replacement or substitution of aquatic
resources for those impacted) will not
be used to increase the acreage losses
allowed by the acreage limits of some of
the NWPs. For example, 1/4-acre of
wetlands cannot be created to change a
3/4-acre loss of wetlands to a 1h-acre loss
associated with NbVP 39 verification.
I lowever, '/?.-acre of created wetlands
can be used to reduce the impacts of a
1/2-acre loss of wetlands to the minimum
impact level in order to meet the
Federal Register / Vol_ 67, No. 10 / 1'utesday, January 15, 2002/Notices 2093
minimal impact requirement associated
with NWPs accomplishing and/or complying with discharges of dredged or fill material

.
(e) To be practicable, the mitigation
the mitigation plan.
20. Sparr•ning Areas. Activities, ,
into breeding areas for migratory
waterfowl mast be avoided to the
must be available and capable of being
cforte considering costs, existing including structures and work in
navigable waters of the US or dischar
es maximum extent practicable.
24
R
l

technology, and logistics in light of the g
of dredged or fill material, in spawning .
emova
of Temporary Fills. Any
temporary fills must be removed in [heir
overall project purposes. Examples of areas during spawning seasons must be, entirety and the affected areas returned
mitigation that may he appropriate and avoided to the maximum extent to their preexisting elevation

practicable include, but are not limited
practicable. Activities that result in-the .
25. Designated Critical Resource
to: reducing the size of the project; physical destruction (e.g., excavate, fill, Waters. Critical resource waters include

establishing and maintaining wetland or
or smother downstream by substantial ,
NOAA-designated marine sanctuaries

upland vegetated buffers to protect open
turbidity) of an important spawning area ,
National Estuarine Research Reserves

waters such as streams; and replacing
are not authorized. ,
National Wild and Scenic Rivers

losses of aquatic resource functions and
21. MmOgernent of 6Voter Flows. To ,
critical habitat for Federally listed
values by creating, restoring, enhancing, the maximum extent practicable, the threatened and endangered species,
or preserving similar functions and activity must be designed to maintain coral reefs, state natural }tentage sites

values, preferably in the same
Preconstruction downstream flow ,
and outstanding national resource
watershed. conditions (e.g., location, capacity, and waters or other waters officially
(0 Compensatory mitigation plans for flow rates). Furthermore, the activity designated by a state as having
projects in or near streams or other open
waters will normally include a must not permanently restrict or impede
the passage of normal or expected high particular environmental or ecological
significance and identified by the
requirement for the establishment, flows (unless the primary purpose of the District Engineer after notice and
maintenance, and legal protection (e.g., fill is to impound waters) and the opportunity for public comment. The
easements, deed restrictions) of structure or discharge of dredged or fill District Engineer may also designate
vegetated buffers to open waters. In material must withstand expected high additional critical resource waters after
many cases, vegetated buffers will be flows. The activity must, to the notice and opportunity for comment.
the only compensatory mitigation maximum extent practicable, provide (a) Except as noted below, discharges
required. Vegetated buffers should for retaining excess flows from the site, of dredged or fill material into waters of
consist of native species. The width of provide for maintaining surface flow the US are not authorized by NWPs 7,
the vegetated buffers required will rates from the site similar to 1'2, 14, 16, 17, 21, 29, 31, 35, 39, 40, 42,
address documented water quality or Preconstruction conditions, and provide 43, and 44 for any activity within, or
aquatic habitat loss concerns. Normally, for not increasing water flows from the directly affecting, critical resource
the vegetated buffer will be 25 to 50 feet project site, relocating water, or waters, including wetlands adjacent to
wide on each side of the stream, but the redirecting water flow beyond such waters. Discharges of dredged or
District Engineers may require slightly
wider vegetated buffers to address cbannelizirngrwill be reduced to the belauthorized rby the above NWPs in may
by
documented water quality or habitat minimal amount necessary, and the National Wild and Scenic Rivers if the
loss concerns. Where both wetlands and
Where activity must, to the maximum extent activity complies with General
open waters exist
the project site, the
Corps will determine the appropriate practicable, reduce adverse effects such
as flooding or erosion downstream and Condition 7. Further, such discharges
may be authorized in designated critical

compensatory mitigation (e.g., strearn upstream of the project site, unless the habitat for Federally listed threatened or

buffers or wetlands compensation) activity is part of a lamer system
g
designed to manage water flows
In
t endangered s ecies if the activit
P y
l
based on what is best for the aquatic .
mos comp
ies with General Condition 11 and
environment on a watershed basis. In
cases where vegetated buffers are cases, it will not be a requirement to
conduct detailed studies and monitoring the USFWS or the NMFS has concurred
in a determination of compliance with
determined to be the most appropriate

form of compensatory mitigation
the of water flow.
This condition is only applicable to this condition,
(b) For NWPs 3, 8, 10, 13, 15, 18, 19,
,
District Engineer gray waive or reduce
the requirement to provide wetland projects that have the potential to affect
waterflows. While appropriate measures 22, 23, 25, 27, 28, 30, 33, 34, 36, 37, and
38, notification is required in

compensatory rnitigation for wetland
im
acts must be taken, it is not necessary to
conduct detailed studies to identify accordance with General Condition 13,
for any activity
ro
osed in the
p
.
(g) Compensatory mitigation such measures or require monitoring to p
p
designates} critical resource waters

proposals submitted with the ensure their effectiveness. Normally, the
Corps will defer to state and l
l including wetlands adjacent to those

notification" may be either conceptual
or detailed. If conceptual plans are oca
authorities regarding rnanagenrent of waters. The District Engineer may
authorize activities under these NWPs

approved under the verification, then water flow,
22. Adverse Effects From only after it is determined that the
the Corps will condition the verification

to require detailed plans be submitted
Impoundmrnts. If the activity creates an impacts the critical resource waters
will he no o more than minimal.

anti approved by the Corps prior to impoundment of water, adverse effects
to the aquatic system clue to the 26. Fills Within 100-Year F'loodploins.
F

construction of the authorized activity
in waters of the US
acceleration of the passage of water, or purposes of this General Condition,
100-year floodplains will be identified
•
(h) Permittees may propose the use of and/or the restricting its flow shall be
minimized to the maximum extent through the existing Federal Emergency
M
'

mitigation banks, in-lieu fee
a
practicable. This includes structures anagement Agency
s (FEMA) Flood
Insurance Rate Maps or FEMA-approved
rrangements or separate activity-
specific compensatory rnitigation. In all and work in navigable waters of the US,
or discharges of dredged or fill material. local floodplain maps.
(a) Discharges in Floodploin; Below
cases that require compensatory
mitigation
the miti
ati
i
i 23. 1,1/oterfowl Breeding Areas. Headwaters, Discharges of dredges( or
,
g
on prov
s
ons
will specify the party responsible for Activities, including structures and
work in navigable waters of the LIS or fill material into waters of the US within
the mapped 100-year floodplain, below
2094 Federal Register / Vol. 67, No. 10 / Tuesday, Januarv 15. 2002 / NnticP.c
headwaters (i.e. five cfs), resulting in
permanent above-grade fills, are not
authorized by NWI's 39, 40, 42, 43, and
44.
(b) Discharges in F'loodway, Above
Headwaters, Discharges of dredged or
fill material into waters of the US within
the FEMA or locally mapped floodway,
resulting in permanent above-grade fills,
are not authorized by NWPs 39, 40, 42,
and 44.
(c) The permittee must comply with
any applicable FEMA-approved state or
local floodplain management
requirements.
27. Construction Period. For activities
that have not been verified by the Corps
and the project was commenced or
under contract to commence by the
expiration date of the NWP (or
modification or revocation date), the
work must be completed within 12-
months after such date (including any
modification that affects the project).
For activities that have been verified
and the project was commenced or
under contract to commence within the
verification period, the work must be
completed by the date determined by
the Corps.
For projects that have been verified by
the Corps, an extension of a Corps
approved completion date maybe
requested. This request must be
submitted at least one month before the
previously approved completion date.
D. Further Information
1. District Engineers have authority to
determine if an activity complies with
the terms and conditions of an NWP,
2. NWPs do not obviate the need to
obtain other Federal, state, or local
permits, approvals, or authorizations
required by law.
3. NWPs do not grant any property
rights or exclusive privileges.
4. NWPs do not authorize any injury
to the property or rights of others.
5. NWPs do not authorize interference
with any existing or proposed Federal
project.
E. Definitions
Best Management Practices (BMPs):
BMPs are policies, practices,
procedures, or structures implemented
to mitigate the adverse environmental
effects on surface water quality resulting
from development. BMPs are
categorized as structural or non-
structural. A BMP policy may affect the
limits on a development.
Compensatory Mitigation: For
Purposes of Section 10/404,
compensatory mitigation is the
restoration, creation, enhancement, or in
exceptional circumstances, preservation
of wetlands and/or other aquatic
resources for the purpose of
compensating for unavoidable adverse
impacts which remain after all
appropriate and practicable avoidance
and minimization has been achieved.
Creation: The establishment of a
r wetland or other aquatic resource where
one did not formerly exist.
Enhancement: Activities conducted in
n
existing wetlands or other aquatic
resources that increase one or more
aquatic'functions.
Eph,erneral Strearn: An ephemeral
streamhas flowing water only during
and for a short duration after,
precipitation events in a typical year.
Ephemeral stream beds are located
above the water table year-round.
Groundwater is not a source of water for
the stream. Runoff from rainfall is the
primary source of water for stream flow.
Farm Tract: A unit of contiguous land
under one ownership that is operated as
a farm or part of a farm.
Flood Fringe: That portion of the 100-
year floodplain outside of the floodway
(often referred to as "floodway fringe").
Floodrvoy: The area regulated by
Federal, state, or local requirements to
provide for the discharge of the base
flood so the cumulative increase in
water surface elevation is no more than
a designated amount (not to exceed one
foot as set by the National Flood
Insurance Program) within the 100-year
flood lain,
Independent Utility: A test to
determine what constitutes a single and
complete project in the Corps regulatory
program. A project is considered to have
independent utility if it would be
constructed absent the construction of
other projects in the project area.
Portions of a multi-phase project that
depend upon other phases of the project
do not have independent utility. Phases
of a project that would be constructed
even if the other phases were not built
can be considered as separate single and
complete projects with independent
utility.
Intermittent Stream: An intermittent
stream has flowing water during certain
times of the year, when groundwater
provides water for stream flow, During
dry periods, intermittent streams may
not have flowing water. Runoff from
rainfall is a supplemental source of
water for stream flow.
Loss of Waters of the US: Waters of
the US that include the filled area and
other waters that are permanently
adversely affected by flooding,
excavation, or drainage because of the
regulated activity. Permanent adverse
effects include permanent above-grade,
at-grade, or below-grade fills that change
an aquatic area to dry land, increase the
bottom elevation of a waterbody, or
change the use of a waterbodv. T'he
acreage of loss of waters of the US is the
threshold measurement of the impact to
existing waters for determining whether
a project may qualify for an N1-VI'; it is
not a net threshold that is calculated
after considering compensatory
mitigation that may be used to offset
losses of aquatic functions and values.
The loss of stream bed includes the
linear feet of stream bed that is filled or
excavated. Waters of the US temporarily
filled, flooded, excavated, or drained,
but restored to preconstruction contours
and elevations after construction, are
not included in the measurement of loss
of waters of the US. Impacts to
ephemeral waters are only not included
in the acreage or linear foot
measureinents of loss of waters of the
US or loss of stream bed, for the purpose
of determining compliance with the
threshold limits of the NWPs.
Non-tidal Wetland: A non-tidal
wetland is a wetland (i.e., a water of the
US) that is not subject to the ebb and
flow of tidal waters. The definition of a
wetland can be found at 33 CFR
328.3(b). Non-tidal wetlands contiguous
to tidal waters are located landward of
the high tide line (i.e., spring high tide
line).
Open Water: An area that, during a
year with normal patterns of
precipitation, has standing or flowing
water for sufficient duration to establish
an ordinary high water mark. Aquatic
vegetation within the area of standing or
flowing water is either non-emergent,
sparse, or absent. Vegetated shallows are
considered to be open waters. The term
"open water" includes rivers, streams,
lakes, and ponds. For the purposes of
the NWPs, this term does not include
ephemeral waters.
Perennial Stream: A perennial stream
has flowing water year-round during a
typical year. The water table is located
above the stream bed for most of the
year. Groundwater is the primary source
of water for stream flow. Runoff from
rainfall is a supplemental source of
water for stream flow.
Permanent Above-grade Fill: A
discharge of dredged or fill material into
waters of the US, including wetlands,
that results in a substantial increase in
ground elevation and permanently
converts part or all of the waterbody to
dry land. Structural fills authorized by
NWPs 3, 25, 36, etc. are not included.
Preservation: The protection of
ecologically important wetlands or other
aquatic resources in perpetuity through
the implementation of appropriate legal
and physical mechanisms. Preservation
may include protection of upland areas
adjacent to wetlands as necessary to
Federal Register/Vol. 67, No. 10/Tuesday, January 15, 2002/Notices 2095
ensure protection and/or enhancement
of the overall aquatic ecosystem.
Restoration: Re-establishment of
wetland and/or other aquatic resource
characteristics and Function(s) at a site
where they have ceased to exist, or exist
in a substantially degraded state.
Riffle and Pool Complex: Riffle and
pool complexes are special aquatic sites
under the 404(6)(1) Guidelines. Riffle
and pool complexes sometimes
characterize steep gradient sections of
streams. Such stream sections are
recognizable by their hydraulic
characteristics. The rapid movement of
water over a course substrate in riffles
results in a rough flow, a turbulent
surface, and high dissolved oxygen
levels in the water. Pools are deeper
areas associated with riffles. A slower
stream velocity, a streaming flow, a
smooth surface, and a finer substrate
characterize pools.
Single and Complete Project: The
term "single and complete project'?
is
defined at 33 CFR 330.2(i) as the total
project proposed or accomplished by
one owner/developer or partnership or
other association of owners/developers
(see definition of independent utility).
For linear projects, the "single and
complete project'' (i.e., a single and
complete crossing) will apply to each
crossing of a separate water of the US
(i.e., a single waterbody) at that location.
An exception is for linear projects
crossing a single waterbody several
times at separate and distant locations:
each crossing is considered a single and
complete project. However, individual
channels in a braided stream or river, or
individual arms of a large, irregularly
shaped wetland or lake, etc., are not
separate waterbodies.
StormwaterManagement: Storrnwater
management is the mechanism for
controlling stormwater runoff for the
purposes of reducing downstream
erosion, water quality degradation, and
flooding and mitigating the adverse
effects of changes in land use on the
aquatic environment.
Storrnwater A9anagerrrent Facilities:
Stormwater management facilities are
those facilities, including but not
limited to, stormwater retention and
detention ponds and BMPs, which
retain water for a period of time to
control runoff and/or improve the
quality (i.e., by reducing the
concentration of nutrients, sediments,
hazardous substances and other
pollutarits) of stormwater runoff.
Stream Bed: The substrate of the
stream channel between the ordinary
high water marks. The substrate may be
bedrock or inorganic particles that rane
in size from clay to boulders. Wetlands'
contiguous to the stream bed, but
outside of the ordinary high water
marks, are not considered part of the
stream bed.
Stream Chan nelization: The
manipulation of a stream channel to
increase the rate of water flow through
the stream channel. Manipulation may
include deepening, widening,
straightening, armoring, or other
activities that change the stream cross-
section or other aspects of stream
channel geometry to increase the rate of
water flow through the stream channel.
A channelized stream remains a water
of the US, despite the modifications to
increase the rate of water flow.
Tidal Wetland: A tidal wetland is a
wetland (i.e., water of the US) that is
inundated by tidal waters. The
definitions of a wetland and tidal waters
can be found at 33 CFR 328.3(b) and 33
CFR 328.3(0, respectively. Tidal waters
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 clue to masking by other waters,
wind, or other effects. Tidal wetlands
are located channelward of the high tide
line (i.e., spring high tide line) and are
inundated by tidal waters two times per
lunar month, during spring high tides.
Vegetated Huffer: A vegetated upland
or wetland area next to rivers, streams,
lakes, or other open waters which
separates the open water from
developed areas, including agricultural
land. Vegetated buffers provide a variety
of aquatic habitat functions and values
(e.g., aquatic habitat for fish and other
aquatic organisms, moderation of water
temperature changes, and detritus for
aquatic food webs) and help improve or
maintain local water quality. A
vegetated buffer can be established by
maintaining an existing vegetated area
or planting native trees, shrubs, and
herbaceous plants on land next to open-
waters. Mowed lawns are not
considered vegetated buffers because
they provide little or no aquatic habitat
functions and values. The establishment
and maintenance of vegetated buffers is
a method of compensatory mitigation
that can be used in conjunction with the
restoration, creation, enhancement, or
preservation of aquatic habitats to
ensure that activities authorized by
NWPs result in minimal adverse effects
to the aquatic environment. (See
General Condition 19.)
Vegetated Shallows: Vegetated
shallows are special aquatic sites under
the 404(b)(1) Guidelines. They are areas
that are permanently inundated and
under normal circumstances have
rooted aquatic vegetation, such as
seagrasses in marine and estuarine
systems and a variety of vascular rooted
plants in freshwater systems.
Waterhody: A waterbody is any area
that in a normal year has water flowing
or standing above ground to the extent
that evidence of an ordinary high water
mark is established. Wetlands
contiguous to the waterbody are
considered part of the waterbody.
[FR Doc. 02-539 Filed 1--14-02; 8:45 am]
BILLING CODE 3714-92-P
6692 Federal Register/ Vol. 67, No, 30 / Wednesday, February 13, 2002 /Notices
ADDRESSES). The holding of such
hearing is at the discretion of the
Assistant Administrator for Fisheries,
NOAA. All statements and opinions
contained in the permit action
summaries are those of the applicant
and do not necessarily reflect the views
of NMFS.
Species Covered in This Notice
The following species are covered in
this notice:
Sea turtles
Threatened and endangered green
turtle (Chelonia mydas)
Endangered hawksbill turtle
(Eretrnoche/ys imbricate)
Endangered Kemp's ridley turtle
(Lepidochelys kempii)
Endangered leatherback turtle
(Dermochelys coriacea)
Threatened loggerhead turtle (Caretta
caretta)
Application 1361
The applicant is applying for a 5-year
permit to trawl for turtles, as needed, at
dredge and other construction/
destruction sites to remove the turtles to
a safe location. The turtles will be
captured, tagged, measured and released
offshore away from the dredging
activities. The applicant expects to
capture and relocate 95 green, 11
hawksbill, 160 loggerhead, 14 Kemp's
ridley and 4 leatherback turtles on the
Atlantic coast and 105 green, 17
hawksbill, 160 loggerhead, 50 Kemp's
riclley and 11 leatherback turtles on the
Gulf coast,
Dated: February 7,'2002.
Jill Lewandowski,
Acting Chief, Permits, Conservation, and
Education Division, Office of Protected
Resources, National Marine Fisheries Service.
[FR Doc. 02-3522 Filed 2-12-02; 8:45 am]
BILLING CODE 3516-22-S
FOR FURTHER INFORMATION CONTACT: Mr.
David Olson, at [phone], Mr.
Kirk Stark, at [phone] or Ms.
Leesa Beal at [phone] or access
the U.S. Army Corps of Engineers
Regulatory Home Page at: http://
www.tisace.army.mil/inet/functions/
cw/cecwo/reg/.
SUPPLEMENTARY INFORMATION: In the
SUMMARY section on page 2020, the third
and fourth sentences are corrected to
read: "All NWPs except NWPs 3, 7, 12,
14, 27, 39, 40, 41, 42, 43, and 44 expire
on February 11, 2002. Existing NWPs 3,
7, 12, 14, 27, 39, 40, 41, 42, 43, and 44
expire on March 18, 2002." In the last
sentence of the SUMMARY section, the
expiration date is corrected as "March
18, 2007", instead of "March 19, 2007".
On page 2020, in second sentence of
the DATES section, the expiration date is
corrected as "March 18, 2007", instead
of "March 19, 2007". Therefore, the.
NWPs published in the January 15,
2002; Federal Register will expire on
March 18, 2007, five years from their
effective date of March 18, 2002.
On page 2020, in the fifth paragraph
of the Background section, the third and
fourth sentences are corrected to read:
"All NWPs except NWPs 3, 7, 12, 14,
27, 39, 40, 41, 42, 43, and 44 expire on
February 11, 2002. Existing NWPs 3, 7,
12, 14, 27, 39, 40, 41, 42, 43, and 44
expire on March 18, 2002." The
expiration date in the last sentence of
this paragraph is corrected as "March
18, 2007", instead of "March 19, 2007".
On page 2020, the paragraph in the
section entitled "Grandfather Provision
for Expiring NWPs at 33 CFR 330.6" is
corrected to read: "Activities authorized
by the current NWPs issued on
December 13, 1996, (except NWPs 3, 7,
12, 14, 27, 39, 40, 41, 42, 43, and 44),
that have commenced or are under
contract to commence by February 11,
2002, will have until February 11, 2003,
to complete the activity. Activities
authorized by NWPs 3, 7, 12, 14, 27, 39,
40, 41, 42, 43, and 44, that were issued
on March 9, 2000, that are commenced
or under contract to continence by
March 18, 2002, will have until March
18, 2003, to complete the activity."
On page 2020, in the "Clean Water
Act Section 401 Water Quality
Certification (WQ(,) and Coastal Zone
Management Act (CZMA) Consistency
Agreement" section, the date in the fifth
sentence is corrected as "February 11,
2002", instead of "February 11, 2001".
On page 2023, third column, last
sentence, the number 29 is replaced
with the number 19, because this
sentence refers to General Condition 19.
On page 2024, first column, in the
fourth sentence of the last paragraph the
phrase "less than" is replaced by
"greater than" because the 30 day
completeness review period for NWP
pre-construction notifications is greater
than the 15 day completeness review
period for standard permit applications.
Oil page 2031, second column, second
full paragraph, the number 31 is
replaced with the number 3 because this
paragraph refers to NWP 3.
On page 2044, second column, fourth
complete paragraph, the title is
corrected to read "Stream and Wetland
Restoration Activities" because that is
the title of NWP 27.
On page 2054, second column, the
year cited in the third sentence of the
second paragraph is the year 2000, not
1996.
On page 2058, third column, in the
second sentence of the second complete
paragraph the word "intermittent" is
inserted before the phrase "stream bed"
because the waiver for filling or
excavating greater than 300 linear feet of
stream beds can apply only to
intermittent stream beds.
On page 2072, third column, last
sentence, the number 19 is inserted after
the term "General Condition" since this
sentence refers to General Condition 19.
On page 2076, second column, the
street address for the Walla Walla
District Engineer is corrected to read
"201 N. Third Avenue",
On page 2080, second column, third
paragraph from the top of the column
(in the "Notification" section of NWP
12), the word "or" at the end of
paragraph (e) is deleted and the period
at the end of the fourth paragraph
(paragraph (f)) is replaced with "; or".
On page 2080, second cohurrn,
paragraph (a) of NWP 13 is corrected to
read: "No material is placed in excess of
the minimum needed for erosion
protection;" The change was not
intended and we are correcting this
'paragraph by reinstating the original
text as it appeared in the version of
NWP 13 published in the December 13,
1996, Federal Register (61 FR 65915).
On page 2080, third column, the word
"c '' is inserted at the end of paragraph
(a)(1) of NWP 14, Linear Transportation
Projects. Paragraph (a) of NWP 14 is
corrected to read: "a. This NWP is
subject to the following acreage limits:
(1) For linear transportation projects in
non-ticlal waters, provide(] the discharge
does not cause the loss of greater than
1/2-acre of waters of the US; or (2) For
linear transportation projects in tidal
waters, provided the discharge does not
cause the loss of greater than I/i-acre of
waters of the US."
On page 2085, second column, the
last sentence of NWP 36 is corrected to
read as follows: "Dredging to provide
DEPARTMENT OF DEFENSE
Department of the Army, Corps of
Engineers
Issuance of Nationwide Permits;
Notice; Correction
AGENCY: Army Corps of Engineers, DoD
ACTION: Final notice; correction.
SUMMARY: This document contains
corrections to the final notice of
issuance of Nationwide Permits (NWPs)
which was published in the Federal
Register on Tuesday, January 15, 2002
(67 FR 2020-2095).
ADDRESSES: HQUSACE, ATTN: CECW-
OR, 441 "G" Street, NW., Washington,
DC 20314-1000.
Federal Register/ Vol. 67, No. 30 / Wednesday, February 13, 2002 /Notices 6693
access to the boat ramp may be
authorized by another NWP, regional
general permit, or individual permit
pursuant to section 10 if located in
navigable waters of' the United States.
* * *" The change was not intended
and we are correcting this paragraph by
reinstating the original text as it
appeared in the version of NWP 36
published in the December 13, 1996,
Federal Register (61 FR 65919).
On page 2086, in the second full
paragraph of the second column,
"paragraph (e)" in the second sentence
is replaced with "paragraph (f)" and
"paragraph (i)" in the third sentence is
replaced with "paragraph (j)" to
accurately cite the previous paragraphs
of NWP 39. The last two sentences of
the paragraph before the subdivision
paragraph were incorrectly divided into
two sentences from the original single
sentence and identified as being related
to General Condition 15. This change
was not intended and we are correcting
this paragraph by reinstating the
original last sentence as it exists in the
March 9, 2000, text of NWP 39 (65 FR
12890).
On page 2086, middle column, the
parenthetical statement at the end of the
Note at the end of NWP 39 is corrected
to read "* * * (except for ephemeral
waters, which do not require PCNs
tinder paragraph (c)(2), above; however,
activities that result in the loss of greater
than Vi o acre of ephemeral waters
would require PCNs under paragraph
(c)(1), above)." The addition to the Note
was intended to clarify that under
paragraph (c)(2) only the loss of
ephemeral open waters were not
included in the requirement for a pre-
construction notification (PCN).
However, antler paragraph (c)(1) all
ephemeral waters of the United States
are included in the measurement for the
I/,o acre PCN requirement. The
correction is ndeded because the
statement in the parentheses could be
incorrectly interpreted to apply to
paragraph (0(1) and possibly to all
PCNs, not just those affected by
paragraph (c)(2).
For clarity, we are providing the text
of NWP 39 in its entirety, with the
corrections described above:
39. Residential. Cori unerciol, and
Institutional Developments. Discharges
of dredged or fill material into non-tidal
waters of the U.S., excluding non-tidal
wetlands adjacent to tidal waters, for the
construction or expansion of residential,
commercial, and institutional building
foundations and building pads and
attendant features that are necessary for
the use and maintenance of the
structures. Attendant features may
include, but are not limited to, roads,
parking lots, garages, yards, utility lines
stonnwater management facilities, and
recreation facilities such as
playgrounds, playing fields, and golf
courses (provided the golf course is an
integral part of the residential
development). The construction of new
ski areas or oil and gas wells is not
authorized b this NWP.
Residential developments include
multiple and single unit developments.
HAaraples of commercial developments
inclu,do retail stores, industrial facilities
restaurants, business parks, and
shopping centers. Examples of
institutional developments include
schools, fire stations, government office
buildings, judicial buildings, public,
works buildings, libraries, hospitals,
and places of worship. The activities
listed above are authorized, provided
the activities meet all of the following
criteria:
a. The discharge does not cause the
loss of greater than V, 2-acre of non-tidal
waters of the U.S., excluding non-tidal
wetlands adjacent to tidal waters;
b. The discharge does not cause the
loss of greater than 300 linear-feet of a
stream bed, unless for intermittent
stream beds this criterion is waived in
writing pursuant to a determination by
the District Engineer, as specified
below, that the project complies with all
terms and conditions of this NWP and
that any adverse impacts of the project
on the aquatic environment are
minimal, both individually and
cumulatively;
c. The permittee must notify the
District Engineer in accordance with
General Condition 13, if any of the
following criteria are met:
(1) The discharge causes the loss of
greater than V,o-acre of non-tidal waters
of the US, excluding non-tidal wetlands
adjacent to tidal waters; or
(2) The discharge causes the loss of
any open waters, including perennial or
intermittent streams, below the ordinary
hi h water mark (see Note, below); or
The discharge causes the loss of
greater than 300 linear feet of
intermittent stream bed. In such case, to
be authorized the District Engineer must
determine that the activity complies
with the other terms and conditions of
the NWP, determine adverse
environmental effects are minimal both
individually and cumulatively, and
waive the limitation on stream impacts
in writing before the permittee may
proceed;
d. For discharges in special aquatic:
sites, including wetlands, the
notification in list include a delineation
of affected special aquatic sites;
e. The discharge is part of a single and
complete project;
C The permittee must avoid and
minimize discharges into waters of the
US at the project site to the maximum
extent practicable. The notification,
when required, must include a written
statement explaining ]row avoidance
and minimization of losses of waters of
the US were achieved on the project
site. Compensatory mitigation will
normally be required to offset the losses
of waters of the US. (See General
Condition 19.) The notification must
also include a compensatory mitigation
proposal for offsetting unavoidable
losses of waters of the US. If an
applicant asserts that the adverse effects
of the project are minimal without
mitigation, then the applicant may
submit justification explaining why
compensatory mitigation should not be
required for,the District Engineer's
consideration;
g. When this NWP is used in
conjunction with any other NWP, any
combined total permanent loss of waters
of the US exceeding Vio-acre requires
that the permittee notify the District
Engineer in accordance with General
Condition 13;
Ii. Any work authorized by this NWP
must not cause more than minimal
degradation of water quality or more
than minimal changes to the flow
characteristics of any stream (see
General Conditions 9 and 21);
i. For discharges causing the loss of
I/,o-acre or less of waters of the US, the
permittee must submit a report, within
30 clays of completion of the work, to
the District Engineer that contains the
following information: (1) The name,
address, and telephone number of the
permittee; (2) The location of the work;
(3) A description of the work; (4) The
type and acreage of the loss of waters of
the US (e.g., 1/2-acre of emergent
wetlands); and (5) The type and acreage
of any compensatory mitigation used to
offset the loss of waters of the US (e.g.,
1/7.-acre of emergent wetlands created
on-site);
j. If there are any open waters or
streams within the project area, the
permittee will establish and maintain, to
the maximum extent practicable,
wetland or upland vegetated buffers
next to those open waters or strearns
consistent with General Condition 19.
Deed restrictions, conservation
easements, protective covenants, or
other means of land conservation and
preservation are required to protect and
maintain the vegetated buffers
established on the project site.
Only residential, commercial, and
institutional activities with structures
on the foundation(s) or building pact(s),
as well as the attendant features, are
authorized by this NWP. The
6694 Federal Register/Vol. 67, No. 30/Wednesday, February 13, 2002/Notices
compensatory mitigation proposal that
is required in paragraph (t) of this NWP
may be either conceptual or detailed.
The wetland or upland vegetated buffer
required in paragraph (j) of this NWP
will be determined on a case-by-case
basis by the District Engineer for
addressing water quality concerns. The
required wetland or upland vegetated
buffer is part of the overall
compensatory mitigation requirement
for this NWP. If the project site was
previously used for agricultural
purposes and the farm owner/operator
used NWP 40 to authorize activities in
waters of the United States to increase
production or construct farm buildings,
NWP 39 cannot be used by the
developer to authorize additional
activities in waters of the United States
on the project site in excess of the
acreage limit for NWP 39 (i.e., the
combined acreage loss authorized under
NWPs 39 and 40 cannot exceed 1/2 acre).
Subdivisions: For residential
subdivisions, the aggregate total loss of
waters of US authorized by NWP 39 can
not exceed 1/2-acre. This includes any
loss of waters associated with
development of individual subdivision
lots. (Sections 10 and 404)
Note: Areas where wetland vegetation is
not present should be determined by the
presence or absence of an ordinary high
water mark or bed and bank. Areas that are
waters of the US based on this criterion
would require a PCN although water is
infrequently present in the stream channel
(except for ephemeral waters, which do not
require PCNs under paragraph (c)(2), above;
however, activities that result in the loss of
greater than'/,o acre of ephemeral waters
would require PCNs under paragraph (c)(1),
above).
On page 2088, in the sixth sentence of
the first paragraph in the first column,
the phrase "an adequate water quality
management plan" is replaced with the
phrase "adequate water quality
management measures" to reflect the
modified language in General Condition
9. This sentence is corrected to read
"The facility must have adequate water
quality management measures in
accordance with General Condition 9,
such as a stormwater management
facility, to ensure that the recreational
facility results in no substantial adverse
effects to water quality."
On page 2089, first column, the
second sentence: of paragraph (c) of
NWP 44 is corrected to read "Normally,
the water quality management measures
required by General Condition 9 should
address these impacts;". In addition, the
second sentence of paragraph (i) of NWP
44 is corrected to read "Further the
District Engineer may require water
quality management measures to ensure
the authorized work results in minimal
adverse effects to water quality;" These
corrections are necessary to reflect the
modified language in General Condition
9.
On page 2089, third column, the text
of General Condition 6 is corrected to
read: "The activity must comply with
any regional conditions that may have
been added by the Division Engineer
(see 33 CFR 330.4(e)) and with any case
specific conditions added by the Corps
or by the state or tribe in its Section 401
Water Quality Certification and Coastal
Zone )management Act consistency
determination." The change to General
Condition 6 that was published in the
January 15, 2002, Federal Register was
not intended and we are correcting this
sentence by reinstating the original text
as it existed in the March 9, 2000,
NWPs.
On page 2090, first column, the word
"Section" in the parenthetical at the end
of General Condition 10 is replaced with
"33 CFR" so that the parenthetical reads
"(see 33 CFR 330.4(d))".
On page 2090, at the top of the second
column, the second Internet URL is
replaced with "* * * bttp://
www.nrn fs.noaa,gov/prot_res/overview/
es.html * * *" because the Internet
address for the National Marine
Fisheries Service home page for
endangered species has been changed.
On page 2090, third column, in
paragraph (b)(4) of General Condition
13, NWP 40 should be added to the list
of NWPs that require submission of
delineations of special aquatic sites with
pre-construction notifications.
Therefore, paragraph (b)(4) of General
Condition 13 is corrected to read "For
NWPs 7, 12, 14, 18, 21, 34, 38, 39, 40,
41, 42, and 43, the PCN must also
include a delineation of affected special
aquatic sites, including wetlands,
vegetated shallows (e.g., submerged
aquatic vegetation, seagrass beds), and
riffle and pool complexes (see paragraph
13(f));"
On page 2090, third column, in
paragraph (b)(6) of General Condition
13, the word "Projects" replaces the
word "Crossings", because the title of
NWP 14 is "Linear Transportation
Projects".
On page 2090, third column, in
paragraph (b)(8) of General Condition
13, the word "Activities" is inserted
after the word "Restoration" because the
title of NWP 27 is "Stream and Wetland
Restoration Activities".
On page 2091, first column, in
paragraph (b)(10) of General Condition
13, the word "Projects" is replaced with
the word "Facilities" because the title of
NWP 31 is "Maintenance of Existing
Flood Control Facilities".
Oil page 2094, third column, we are
correcting the definition of "Loss of
Waters of the US" by deleting the last
sentence and inserting the following
sentence after the fourth sentence of this
definition: "Impacts to ephemeral
streams are not included in the linear
foot measurement of loss of stream bed
for the purpose of determining
compliance with the linear foot limits of
NWPs 39, 40, 42, and 43."
Due to the number of corrections
made to the definition of "Loss of
Waters of the US", we are providing the
text of this definition in its entirety,
with the corrections described above:
Loss of Waters of the US: Waters of
the US that include the filled area and
other waters that are permanently
adversely affected by flooding,
excavation, or drainage because of the
regulated activity. Permanent adverse
effects include permanent above-grade,
at-grade, or below-grade fills that change
an aquatic area to dry land, increase the
bottom elevation of a waterbody, or
change the use of a waterbody. The
acreage of loss of waters of the US is the
threshold measurement of the impact to
existing waters for determining whether
a project may qualify for an NWP; it is
not a net threshold that is calculated
after considering compensatory
mitigation that may be used to offset
losses of aquatic functions and values.
The loss of stream bed includes the
linear feet of stream bed that is filled or
excavated. Impacts to ephemeral
streams are not included in the linear
foot measurement of loss of stream bed
for the purpose of determining
compliance with the linear foot limits of
NWPs 39, 40, 42, and 43. Waters of the
US temporarily filled, flooded,
excavated, or drained, but restored to
preconstruction contours and elevations
after construction, are not included in
the measurement of loss of waters of the
US.
In the January 15, 2002, Federal
Register, it was stated that the definition
was being revised (to clarify that
ephemeral waters and streams are not
included in the acreage or linear
thresholds for NWPs) to comport with
language in the preamble of the March
9, 2000 Federal Register notice.
however, the language in the preamble
of the March 9, 2000 Federal Register
notice (65 FR 12881, third column) does
not support this revision. Rather, the
referenced preamble states, "During our
review of the continents received in
response to the July 21, 1999, Federal
Register notice, we found an error in the
proposed definition of the term, "loss of
waters of the United States." In the
fourth sentence of the draft definition,
we stated that the loss of stream bed
Federal Register/ Vol. 67, No. 30 / Wednesday, February 13, 2002 /Notices 6695
includes the linear feet of perennial or
intermittent stream bed that is filled or
excavated. This statement is inaccurate
because ephemeral stream bed that is
filled or excavated can also be
considered a loss of waters of the United
States. However, the 300 linear foot
limit for stream beds filled or excavated
does not apply to ephemeral streams.
We have modified this sentence to
define the loss of stream bed as the
linear feet of stream bed that is filled or
excavated." Thus, the modification of
this definition was intended to clarify
that activities that involve filling or
excavating ephemeral streams are not
included in the linear foot limits for
filling or excavating stream beds in
NWPs 39, 40, 42, and 43. However, it
was not intended to exempt ephemeral
waters or streams from calculations of
impacted acreages to determine PCN or
maximum acreage requirements in
accordance with NWPs 39, 40, 42, and
43.
In the August 9, 2001, Federal
Register notice (66 FR 42099) we
proposed to modify the definition of
"Loss of Waters of the US" by adding
the sentence "* * * The loss of stream
bed includes the linear feet of perennial
stream or intermittent stream that is
filled or excavated * * *". The
proposed change was in response to a
commitment to clearly state in the text
of the NWPs (which includes the
definitions) that the 300 linear foot limit
in NWPs 39, 40, 42, and 43 for filling
and excavating stream beds would only
apply to intermittent and perennial
streams, not to ephemeral streams.
In the January 15, 2002, Federal
Register notice (67 FR 2074-2075) we
erroneously stated that both the acreage
and linear limits of the NWPs do not
apply to ephemeral waters. This was
never intended to be adopted as policy
for the NWPs or the Corps regulatory
program. A previously stated, in the first
column of page 2075 of the January 15,
2002, Federal Register notice, we refer
to page 12881 of the March 9, 2000,
Federal Register notice, which only
discusses the 300 linear foot limit, not
the acreage limits of the NWPs. Our
intent is to continue to apply acreage
limits of NWPs to activities that result
in the permanent loss of ephemeral
waters, but the linear foot limits of the
NWPs (i.e., NWPs 39, 40, 42, and 43) for
filling or excavating stream beds would
not apply to activities that involve
filling or excavating ephemeral streams.
The last sentence of the definition of
"Loss of Waters of the US" as published
in the January 15, 2002, Federal
Register notice does not comport with
remainder of this NWP package.
Therefore, we are correcting this
definition as described above.
We believe that correcting the text of
NWP 39 and the definition of "Loss of
Waters of the US" through the
publication of this correction notice is
appropriate. Nevertheless, in order to
give all interested parties further
opportunity to comment on this matter,
we intend to publish a Federal Register
notice to solicit public comments on
those two corrections. If we determine
that any other matter relating to the final
NWP§ requires correction or
clarification, but that matter was not
adequately dealt with in this correction
notice, we will address that additional
matter in the forthcoming Federal
Register notice, as well. We expect to
publish that Federal Register notice
within a few weeks.
Dated: February 7, 2002.
Lawrence A. Lang,
Assistant Chief, Operations Division,
Directorate of Civil 6Vorks.
[FR Doc. 02-3555 Filed 2-12-02; 8:45 am)
BILLING CODE 3710-92-P
DEPARTMENT OF DEFENSE
Uniformed Services University of the
Health Sciences
Sunshine Act Meeting
AGENCY HOLDING THE MEETING:
Uniformed Services University of the
Health Sciences.
TIME AND DATE: 8;00 a.m. to 4:00 p.m.,
February 5, 2002.
PLACE: Uniformed Services University
of the Health Sciences, Board of Regents
Conference Room (D3001), 4301 Jones
Bridge Road, Bethesda, MD 20814-4799.
STATUS: Open-under "Government in
the Sunshine Act" (5 U.S.C. 552b(e)(3)).
MATTERS TO BE CONSIDERED:
8:30 a. m. Meeting Board of Regents
(1) Approval of Minutes-November 14,
2001
(2) Faculty Matters
(3) Department Reports
(4) Financial Report
(5) Report-President, USUHS
(6) Report-Dean, School of Medicine
(7) Report-Dean, Graduate School of
Nursing
(8) Continents--Chairman, Board of'
Regents
(9) New Business
CONTACT PERSON FOR MORE INFORMATION:
Mr. Bobby D. Anderson, Executive
Secretary, Board of Regents, (301) 295-
3116.
Dated: February 8, 2002.
Linda Bynum,
OSD Federal Register Linison Officer,
Department of Defense.
[FR Doc. 02-3683 Filed 2-11-02; 3:32 pull
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