20020456 Ver 1_Complete File_20020326

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
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NCDENR
NORTH CAROLINA DEPARTMENT OF
ENVIRONMENT AND NATURAL RESOURCES
DWQ Project No.: vzt-->4 s _ County: C?A"rrwi
Applicant: r1a.. -Q, F , 1?"515En ?pE? 1 Q? uisI v.J F'oC., 1L
Project Name: SP_ 1 R.!51
_
Date of Issuance of 401 Water Quality Certification: I,-- Z°l, 2m? _
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
I, -, 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 he 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's Certification
I, (n„u-t F. St-aa o 1J fL 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. pp
Signature: *? ?. Date: `y-Z.
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
Date
Registration No.
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
1 ffl.?IWA •
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
April 29, 2002
Chatham County
DWQ Project No. 020456
APPROVAL of 401 Water Quality Certification
Mr. W.F. Rosser, P.E.
NCDOT, Division 8
PO Box 1067
Aberdeen, NC 28315
Dear Mr. Rosser:
Division Engineer
You have our approval, in accordance with the attached conditions and those listed below, to place till
material in 60 linear feet of streams for the purpose of improving and paving SR 1951 (Mt. Zion Road)
from SR 1012 to dead end in Chatham County. The project shall be constructed in accordance with your
application dated April 1, 2002. After reviewing your application, we have decided that this fill is covered
by General Water Quality Certification Number 3375. 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
Complr Lion Form" to_nutity_V_WQ when all work -included in the 401 Certificatinahas_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 27699-1 62 1
Telephone [phone] FAX [phone]
An Equal Opportunity Affirmative Action Employer 50n 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
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 or Steve Mitchell at 919-
571-4700.
Attachment
cc: Wilmington District Corps of Engineers
Corps of Engineers Raleigh Field Office
DWQ Raleigh Regional Office
File Copy
Central Files
c:\ncdot\SR 1951\wqc\020456wgc.doc
;ne y,
I. Tho' e, Ph.D.
irector

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 consumer paper
State of North Carolina
Department of Environment
and Natural Resources
Division of Water Quality .
Michael F. Easley, Govemor
William G. Ross, Jr., Secretary
Gregory J. Thorpe, Ph.D., Acting Director
/ •
NCDENR
NORTH CAROLINA DEPARTMENT OF
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 or Steve Mitchell at 919-
571-4700.
Attachment
cc: Wilmington District Corps of Engineers
Corps of Engineers Raleigh Field Office
DWQ Raleigh Regional Office
File Copy
Central Files
c:\ncdot\SR 1951\wqc\020456wgc.doc
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Telephone [phone]
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Raleigh, North Carolina 27699-1621
FAX [phone]
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020456
STATE OF NORTH CAROLINA
DEPARTMENT OF TRANSPORTATION
MICHAEL F. EASLEY DIVISION OF HIGHWAYS LYNDO TIPPETT
GOVERNOR SFURE,I"ARY
March 18, 2002
Mr. Rob Riding Q s
Division of Water Quality
401 Wetlands Unit
1650 Mail Service Center
Raleigh, North Carolina 27699-1650 ?WEI ANDS
M WraT?r? G F °uP
sECrlorr
Dear Mr. Ridings:
Enclosed is the permit application for the following project:
Description: SR 1951 Mt Zion Rd - Chatham County
Work Order 6.522460
TIP Number: N/A
Fee Category: $200.00
Please submit for automated payment.
PAYMENT
Sincerely, RECEIVED
a c. Li-"
Art C. King
Division Environmental Officer
0 020 6
STATE OF North CAROLINA
DEPARTMENT OF TRANSPORTATION
MICI1AEL F. EASLEY DIVISION OF HIGHWAYS LYNDO TIPPETT
GOVERNOR SECRETARY
March 15, 2002
Mr. Rob Ridings
Divsion of Water Quality
401 Wetlands Unit PAYMENT
1650 Mail Service Center
Raleigh, North Carolina 27699-1650 RECEIVED
Dear Mr. Ridings:
Subject: Chatham - SR 1951 Mount Zion Road
In an effort to obtain the permits needed for pipe replacement on SR 1951 (Mount Zion Road) in
Chatham County, we are providing the pre construction notification application and the
supporting materials.
A site survey for the presence of the Cape Fear Shiner and it's habitat has been requested. The
results of the survey will be forwarded upon completion.
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
Number 14. Any detours required for this project will be done off site.
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,
Art C. King
Division Environmental Officer
P.O. BOX 1067, ABERDEEN, NORTri CAROLINA 28315
PHONE [phone] FAX [phone]
Office Use Only: 0 2 0 4 5 6 Form Version October 2001
USACE Action ID No. DWQ No.
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
1. Check all of the approval(s) requested for this project: tIU MAR 2 6 ?_D'
® Section 404 Permit
? Section 10 Permit WETLANDS GROU.'
® 401 Water Quality Certification WATER QUALM SECTICN
? Riparian or Watershed Buffer Rules
2. Nationwide, Regional or General Permit Number(s) Requested: Nationwide #14
3. If this notification is solely a courtesy copy because written approval for the 401 Certification
is not required, check here: ?
4. If payment into the North Carolina Wetlands Restoration Program (NCWRP) is proposed for
mitigation of impacts (see section VIII - Mitigation), check here: ?
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: [e-mail]
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] Far Number: 919-742-3986
E-mail Address: [e-mail]
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: SR 1951 Mount Zion Road
2. T.I.P. Project Number or State Project Number (NCDOT Only): 6.522460
Property Identification Number (Tax PIN):
4. Location
County: Chatham Nearest Town: Pittsboro
Subdivision name (include phase/lot number): N/A
Directions to site (include road numbers, landmarks, etc.): From Pittsboro take US 151501
south to SR 1012 south. SR 1951 is the first state maintained road on the left.
5. Site coordinates, if available (UTM or Lat/Long):N35° 41' 49" W79° 09' 25" = Sta. 5+83
Center Line (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 Crossing
7. Property size (acres): N/A Roadway
8. Nearest body of water (stream/river/sound/ocean/lake): Robertson Creek
9. River Basin: Cane F
(Note - this must be one of North Carolina's seventeen designated major river basins. The
River Basin map is available at http:/ih2o.enr.state.nc.us/admin/maps/.)
Page 6 of 12
10. Describe the purpose of the proposed work: Pipe replacement and upgrade inconjunction
with Secondary Road Improvement Project. Grade, Drain Base, Pave & Erosion Control
on SR 1951 (Mount Zion Road) from SR 1012 to Dead End.
11. List the type of equipment to be used to construct the project: Bulldozer, trackhoe,
backhoe, motor grader, pan, compactor & dump trucks.
12. Describe the land use in the vicinity of this project: Rural Agriculture & Private homes
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:
N/A
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 ma
Type of Impact* Area of
Impact
acres Located within
100-year Floodplain**
es/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://w-%vw. 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 ma
Type of Impact* Length of
Impact
linear feet
Stream Name** Average Width
of Stream
Before Impact Perennial or
Intermittent?
leasespecify)
P 60' UT Robertson Creek 2'-3' 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
w w.usQs.aov. Several internet sites also allow direct download and printing of USGS maps (e.g., w w.topozone.com,
w w.manquest.com, etc.).
Cumulative impacts (linear distance in feet) to all streams on site:
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 ma
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 and identify temporary impacts. Impacts include but are not limited to: fill, excavation, dredging,
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): ? uplands ? stream ? 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.
N/A
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://h2o.enr.state.nc.us/ncwetlands/strm.gide.html.
1. 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.
N/A
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 htm://h2o.enr.state.nc.uS/N?ip/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 (federal/state/local)
land?
Yes ® No ?
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 30 feet perpendicular from near bank of channel; "Lone 2 extends an
additional 20 feet from the edge of Zone 1.
Page I I 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.
XH. 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.
X111. Violations (DWQ Only)
Is this site in violation of DWQ Wetland Rules (15A NCAC 2H .0500) or any Buffer Rules?
Yes ? No
Is this an after-the-fact permit application?
Yes ? 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).
W1 t\ " ('ZaoZ,
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 Ill: 200200654 TIP No: State Project No: 6.522460 County: Chatham
GENERAL PERMIT (REGIONAL AND NATIONWIDE) VERIFICATION
Applicant: North Carolina Department of Transportation - m
Address: W.F. Rosser, P.F,., Division Engineer v
North Carolina Department of Transportation 5W
Division 8 A? t>ulr?
P.O. Box 1067
Aberdeen, North Carolina 28315 WETLANDS GROUP
Telephone Number: [phone]
Size and Location of project (waterway, road name/number, town, etc.): 44 linear feet of 30-inch RCP culvert
with two FES at centerline station 5+83 on SR 1951 at an unnamed tributary to Robertson Creek in Chatham County,
North Carolina.
Description of Activity: To replace 28 linear feet of 24-inch RCP with 44 linear feet of 30-inch RCP culvert with an
FES on each end bringing the total length to 60 feet. Traffic will be detoured onto existing roadways during
constriction.
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 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 tine RGP or NWP, please contact
the Corps Regulatory Official specified below.
Date 10 April 2002 Corps Regulatory Official- Richard K. Spencer-- _ Telephone No. [phone]
Expiration Date of Verification ]0 April 2005
CF: NCDO"T ( Division 8, attn: Art King)
DWQ, John Hennessey
USF&WS, David Rabon
SPECIAL CONDITIONS
Action ID: 200200654 TIP No: State Project No: 6.522460 County: Chatham
1. All in-stream work shall be conducted in the "Dry". Work shall not be done while there is active flow
within the stream channel.
2. If cofferdams are required to meet condition #1, they shall be constructed by the use of sandbags and stream
flow will be pumped around the construction area.
3. Dewatering of the constriction site shall be accomplished in such a manner as to restrict any sediment from
entering the stream from the return water.
4. All necessary sediment and erosion control measures shall be in place and functional prior to any
disturbance within the construction area. These measures shall remain in place until the construction area
has been stabilized.
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Federal Register/Vol. 67, No. 10 / Tuesday, January 15, 2002 / Notices 2077
New York
New York District Engineer, ATTN: CI-:NAN--
OP-R, 26 Federal Plaza, New York, NY
10278-0090
North Carolina
Washington
Seattle District F:epineor, ATTN: CENWS
OP--KG, Y.O. Box 3755, Seattle, WA 08124-
2255
23. Approved Categorical Exclusions
24. State Administered Section 4o-1 Prograrns
25. Structural Discharges
26.[Rescrved)
27. Scream and Wetland Restoration
Activities
28. Moclificalio:)s of Existing Marinas
29. Single-family Housing
30. Moist Soil Management for Wildlife
31. Maintenance of Existing Flond 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. krucLguucy Watershed Protection and
Rehabilitation
3ti. Cleanup of Hazardous and Toxic Waste
39. Residential, Commercial, and
Institutional Developments
40. Agriccilturit 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 QualitV
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
24. Removal of Temporary Fills
25. Designated Critical Resource Waters
26. Fills Within 100-year F'loodplains
27. Construction Period
West Vo,wio
Wilmington District Engineer, AT TN: Huntington District Engineer, A"1TM
CESAW-RG, P.O. Box 1690, Wilmington, CF;LR[I-OR--F, 502 8th Street, HUntillt;t0n
NC 28402-1890 WV 25707-7.070
North Dakota
Omaha District Engineer, ATTN: CENWO-
OP-R, 106 South 15th Street, Omaha, NE
68102-1618
Ohio
Huntington District Engineer, ATTN:
CELRI-t-OR-F, 502 8th Street, Huntington,
WV 25701-2070
Oklahoma
Tulsa District Engineer, AATTN: CESWT-PE-
R, 1645 S. 101st East Ave, Tulsa, OK
74128-4609
Oregon
Portland District Engineer, A'rl'N: CENWP-
PE G, P.O, Box 2946, Portland, OR 97208-
2946
Pennsylvania
Baltimore District Engineer, ATTN: CEN'\B-
OP-R, P.O. Box 1715, Baltimore, MD
21203-1715
Rhode Island
New Englarrd District Engineer, ATTN:
CENAE-R, 696 Virginia Road, Concord,
MA 01742-2751
South Garolinn
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-P, P.O. Box 1070, Nashville, TN
37202--1070
Texas
Ft. Worth District Engineer, ATTN: CESWF--
PER-R, P.O. Box 17300, Ft. Wortli, 'I'X
76102--0300
Utah
Sacramento District Engineer, ATI'N:
CESPK-CO-R, 1325 J Street, CA 95814-
2922
Vermont
New England District Engineer, ATTN:
CENAE-R, 6061 Virginia Road, Concord,
MA 01742-2751
Virginia
Norfolk District Engineer, ATTN: CF.NAO-
OP-R, 803 Front Street, Norfolk, VA
23510-1096
Wisconsin
St. Paul District Engineer, A'ITN: CEMVI'-
CO--R, 190 Fifth Street Eiast, St. Paul, MN
55 16?1--1638
Wvorning
Ouraha District Engineer, ATTN: CENWO--
OP-R, 106 ;;occur 1501 Street, Omaha, NF
68102 - -161 8
District of Columbia
Baltimore District Engineer, ATTN: (;ENAB-
OP-R, P.O. Flax 1715, Baltimore, MI)
21203-1715
Pncif,,c Territories (American Samoa, Guam,
u Comtttouwoulth of, the Northern Marinno
Islands)
Honolulu District Engineer, ATTN: CEPOI t--
EC--R, Building 230, Fort Shafter,
Honolulu, HI 96858-5440
Puerto Rico & Virgin Islands
Jacksonville District Engineer, A'l'FN:
CESAJ-CO-R, P.O. Box 4970, Jacksouv,ile,
FL32202-4412
Dated: January 4, 2002.
Approved:
Robert If. Griffin,
Brigadier General, U.S. Army, Direclor of Civil
Works.
Nationwide Permits, Conditions,
Further Information, and Delirlitions
A. Index of Nationwide Permits,
Conditions, FurtherJnformotion, and
Definitions
Nationwide Porruits
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. 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
Further Information
Definitions
Best Management Practices (BMPs)
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
Permcuient Above-grade Fill
Preservation
Restoration
Riffle and Pool Complex

2078 Federal Register/ Vol. (37, No. 7.0 / Tuesday, January 7 5, 2002/Notices
Siup;lE and Complete Project
Stormwater Management briclgos, culverted road crossings, water done primarily to obtain fill for an
y

Stor mwater Management Facilities
Stream Bed make structures, etc.) and the

placoment of 11ew or additional ri(proT t
restrnI'aliuu activities. The discharqo of
o dyed, od or fill material and all related
Stream Channelization protect the structure, provided the work needed to restore the upland must
Tidal Wetland permittun notifies the District Engineer be part of it single and complete project.
Vegetated Buffer
Vegetated Shallows in accordance with General Condition
13. 'T'ile removal of sediment is li
it
d This permit cannot be used ill

Waterbody m
e
to the minimum necessary to restore the conjunction with NWP 18 or NWP 19 to
restore damaged upland areas. This
B. Nationwide Permits waterway in the immediate vicinity of permit cannot be used to reclailn

1. Aids to Navigation. The placement the structure to the approximate
dimensions that existed wh
th historic, lands lost, over an extended

of aids to navigation and Regulatory
markers which are approved by and en
e
structure was built, but cannot extend period, to normal erosion processes,

This permit does not authorize
installed in accordance with the
i filrthet• than 200 foot in any direction
from the structure. The placement of rip maintenance dredging for the primauy
f

requ
rements of the U.S, Coast Guard
(USCG) (See 33 CFR, chapter I
rap must be the miniulum necessary to purpose o
navigation and beach
restoration. 'I'bis permit does ant
,
subchapter C part 66). (Section 10)
'
hapC protect the structure or to ensure the

safety of the structure
All excavat
d author izu new stream c:hannolization or
L.
pin Artificial Canals.
Structures constructed Artificial
artificial
res .
e
materials must be deposited and stream relocation projects. Any work

authorized by this permit must not
canals
n principally residential
developments where the connection of retained in an upland area unless
otherwise specifically approved by the cause morn 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
stream
or increase floodin
(See
CFR 322.5(8)). (Section '10) measures not directly associated with ,
g
General Conditions 0 and 21). (Sections
3. Maintenance. Activities related to; the structure will require it separate 10 and 404)
(i) The repair, rehabilitation, or authorization from the District Engineer. Note: This NWP authorizes 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 structure or Fill that
structure, or fill, or of any currently waters of the US for activities associated does not qualify for the Section "O4 )
serviceable structure or fill authorized with the restoration of upland areas exemption for maintenance.
by 33 CFR 330.3, provided that the damaged by a storm, flood, or other 4. Fish and Wildlife Flarvesting,
structure or fill is not to be put to uses discrete event, including the Enhancement, and Attraction Devices
differing from those uses specified or construction, placement, or installation and Activities. Fish 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, clans
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
environmental effects resulting from with the replacement of the uplands.)
The permittee must notif
th
Di
t
i
t submerged aquatic vegetation (includin(i
sit
h
b
d

such repair, rehabilitation, or y
e
s
r
c
Engineer, in accordance with General es w
ere su
merge
aquatic
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 bolding 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 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.
D

commenced, or is under contract to e
contours, or ordinary high water mark, evices, whose purpose is to measure
and record scientific data such as staff
commence, within two years of the date that existed before the damage. The gages, tide 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
hurricanes or tornadoes, this two-year determine the extent of the pre-existing
conditions and the extent of an improvement devices and similar
t
t
S
ll

limit may be waived by the District y
restoration work authorized by this s
ruc
ures.
ma
weirs and flumes
constructed primarily to record water
Engineer, provided the permittee can permit. Minor dredging to rernove 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 of 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-
existin
bottom contou
f th District Engineer in accordance with the
''
"
,
and within, existing structures (e.g., g
rs o
e
waterbody. The dredging may not be Notification
General Condition.
(Sections 10 and 404)
Federal Register / Vol. 67, No. lo/Tuesday, January 15, 2002 / Notices 2079
' 6. Survey Activities. Survey activities
including core sampling, seismic
exploratory operations, plugging of
seismic: stint 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
NVVP. 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 NVVP duos
not authorize any permanent structures.
The discharge of drilling mud and
cuttings may require a permit under
section 402 of the CVVA. (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 CVVA), and
(ii) Maintenance excavation,
including dredging, to remove
accumulated sediments blocking or
restricting outfall and intake structures,
accuunulated 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
Lis,
Tbc 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 trust include information
regarding the original design capacities
and configurations of the facility and
u presence of special aquatic sites
e.g., vegetated shallows) it) the vicinity
of the proposed work. (,Sections to and
404)
, 8. Oil and Gas Structrars. Structures
for the exploration, production, and
transportation of nil, gas, and minerals
oil the outfa• continental shelf within
areas leased for such purposes by the
DOf, 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(l).
(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, hillited to the
effects on navigation and national
security in accordance with 33 CFK
322.5(f)). Such structures will not be
placed in established danger zones or
restricted areas is designated in 33 CFR
part 334: nor will such structures be
permitted in EPA or Corps designated
dredged material disposal areas.
(Section 10)
' 0. 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 1.0)
r 11. Ternporory BecreationoI
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 nso provided that such
structures are removed within ;30 days
after use has been discontinued. At
Corps of F.n;;ineers reservoirs, the
reservoir manager must approve each
buoy or marker individually. (Section
10)
.12. Utilityl,ineActivities. Activities
required for the construction,
maintenance and repair of utility lilies
and associated facilities in waters of the
US as follows:
(i) Utility lines: The construction,
maintenance, or repair of utility lines,
including outfall Gild 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 [)reconstruction contours. A
"utility line'' is defined as any pipe or
pipeline for the transportation of any
gaseous, ligrcid, licluescerrt, or slurry
substance, for any purpose, and an}'
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 side:cast (up to three
urontlis) into waters of the US, provided
that the material is not placed in such
a mamwi that it is dispersed by currents
oe other forces. The District Engineer
may extend the period of temporary side
casting not to exceed a total of 1130 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., backfillirrg
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 riot
drain the waters of the US through
which the utility line is installed. Any
exposed slopes and strearn banks must
be stabilized immediately upon
completion of the utility line crossing of
each waterbody.
(ff) Utility line substations: The
construction, ?taintenance, 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/:--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 milrimum size necessary and
separate footings for each tower leg
(rather that) 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-ticlal waters of the
US, excluding non-tidal wetlands
adjacent to tidal waters, provided the
discharges do not cause the loss of
greater than '/nacre of non-tidal waters
of the US. Access roads shall be the
nlinimurn 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
20130 Federal Register / Vol. C)7, No. 10 /Tuesday, January 15, 2002 / Notices
elevations at grade corduroy roads
or gcotextile/gravel roads). Access road.
constructed above preconstruction
contours and elevations ill waters of the
US must be properly bridged or
culverte'd to maintain surface flows.
The term "utility line" does not
include activities which drain if water o
the US, such as drainage tile, or french
drains; however, it does apply to pipes
conveying drainage from another area.
For the purposes of this NWP, the loss
of waters of the US includes the filled
area plus waters of the US that are
adversely affected by flooding,
excavation, or drainage ns a result of the
project. Activities authorized by
paragraph (i) through (iv) may not
exceed a total of ?/?-acre loss of waters
of the US. Waters of the US temporarily
affected by filling, flooding, excavation,
or drainage, where the project area is
restored to prec:onstruction contours
and elevation, is not included in the
calculation of permanent loss of waters
of the US. This includes temporary
construction foals (e.g., timber, steel,
geotextile) used during construction and
removed upon completion of the, work.
Where certain functions and values of
waters of the US are permanently
adversely affected, such as the
conversion of a forested wetland to a
herbaceous wetland in the permanently
maintained utility line right-of-way,
mitigation will be required to reduce the
adverse effects of the project to fife
ininirnal level.
Mechanized laird clearing necessary
for the construction, maintenance, or
repair of utility lines and the
construction, maintenance and
expansion of utility line substations,
foundations for overhead utility lines,
and access roads is authorized, provided
the cleared area is kept to the minimum
necessary and pipconstruction contours
are maintained is near as possible. The
area of waters of the US that is filled,
excavated, or flooded most be limited to
the minimum necessary to construct the
utility line, substations, foundations,
and access roads. Excess material must
be removed to upland areas
immediately upon completion of
construction. This NWP may authorize
utility lines in or affecting navigable
waters of the US even if there is no
associated discharge of dredged or fill
material (See 33 CFh part 322).
Notification: 'I'll(, permittee must
notify the District Engineer in
accordance with General Condition 13,
if any of the following criteria are met:
(a) Mechanized land clearing in a
forested wetland, for the utility line
right-of-way;
(b) A Section 10 permit is required;
(c) The utility line in waters of the
s US, excluding overhead lines, exceeds
500 feet;
(d) Tire utility line is placed within a
jurisdictional area (Lo., water of the US)
and it runs parallel to a stream Berl that
is within that jurisdictional area;
f (o) Discharges associated with the
construction of utility line substations
that result in the loss of greater than
acre of waters of the US; or
(t) Pei'manert access roads
constrlrcted above grade in waters of the
US for a distance of more than 500 feet.
(g) Permanent access roads
constructed in waters of the 115 with
impervious materials. (Sections LO aud
404)
Note .i: Overlte,id utility lines constructed
over Section 10 waters and utility lilies that
are routed in or under Section to waters
without a discharge of dredged or fill
material require a Section 10 permit; execpt
for pipes or pipelines used to transport
gaseous, liquid, liquescent, or slurry
substances over navigable waters of the D.` ,
which are considered to he bridges, not
utility lines, and may require a permit from
the USCG pursuant to section 9 of the Rivers
and I )arbors Act of 169!1. I Iowever, any
discharges of dredged or fit' material
associated with such pipch;ws will require ;r
Corps permit under Section 404.
Note 2: Access roads used for both
construction and maintenatice im v be
authorized, provided they meet the terms turd
conditions of this NWP. Access roads used
solely for construction of the utility line mist
be removed upon completion of the work and
the area restored to prec:onstruction contours,
elevations, and wetland conditions.
Temporary access roads for construction entry
he authorized by NWP 33.
Note 3: Where the proposed utility line is
constructed or installer) in navigable waters
of the US (i.e., Section 10 waters), c.opias of
the PCN mud MVP verification will be sent
by the Corps to the National Oceanic and
Atmospheric Adntinistation (NOAH),
National Ocean Service (NOS), fnr chartin,;
t_lie utility line to protect navigation.
•13. Flank Stabilization. Bank
stabilization activities necessary for
erosion prevention provided the activity
meets all of the following criteria:
a. No inaterial is placed more than the
mininnun needed for erosion protection;
b. The bank stabilization activity is
less than 500 feet in length;
c. The activity will not exceed an
average Of one cubic yard per running
foot placed along the bank below the
plane of the ordinary high water rhark
or the high tide line;
d. No material is placed in any special
aquatic: site, including wetlands;
e, No material is of the type, or is
placed in any location, or in any
inanner, to impair surface water flow
into or out of any wetland area;
f. No material is placed in a ninnner
that will be eroded by normal or
expected high flows (properly anchored
trees and treetops may bu used in low
energy areas); and,
The activity is part (-)I ,;l single mol
cnunplcte project,
f3ank stahilization activities in excess
of 500 feet ill length or greater than an
average of one cubic yard per rmininp1
foot niay he authorized if the permittee
notifies the District Eugiueer ill
accordance with the "Notification"
General Condition 13 and the District
Engineer determines the activity
complies with the other terms and
e:ondilions of the NVVP and the adverse
environmental effects are minimal both
individually and cumulatively. This
NWP may not he usect for the
channelizat inn of waters of the US.
(,sections 10 and 404)
114. Lin?ar,Fransportation Projects.
Activities required for the construction,
expansion, modification, or
improvement of linear transportation
crossings (n, highways, railways,
trails, airport runways, and taxiways) in
waters of the US, including wetlands, if
the activity meets true following criteria:
a. '['his 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 thair '/.:-acre of waters of the US;
(2) For linear transportation projects
in tidal waters, provided the discharge
does not cause the loss of greater than
V.3-acre of waters of the US.
h. The permittee must notify the
District h:ngineer in accordance with
General Condition 13 if any of the
following criteria are met:
(1)'rbe discharge causes the loss of
greater than 1/lo-acre of waters of the US;
Of'
(2) There is a discharge in a special
ac[uatic: site, including wetlands;
, c. The notification must include a
compensatory mitigation proposal to
offset permanent losses of waters of the
US to ensure: that those lassos result
only in minimal adverse effects to the
aquatic environment and a statement
describing hove temporary losses will he
minimized to the maxirtlunf extent
practicable;
d. For discharges in special aquatic:
sites, including wetlands, and stream
riffle and pool complexes, the
notification must include a delineation
of the affected special ac uatic sites;
e. The width of the fill is limited to
the ininimuni necessary for the crossing;
f. This permit does not authorize
stream channefization, and the
authorized activities must not cause
more than minimal changes to the
hydraulic flow characteristics of the
stream, increase flooding, or cause inure
Federal Register/ Vol. 07, No. 10 / Tuesday, January 15, 2002 /Notices 2081
than minimal degradation of water
quality of any stream (see General
Conditions 9 and 21);
E. This permit catnlot he used to
authorize non-linear features commonly
associated with transportation projects,
such as vehicle tnaiutenanca 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 !he construction
of faint roads, forest roads, or temporary
roads for moving niining equipment nnay bo
eligible for an exemption from the need for
n Section 404 permit (see 33 CFR 323.4).
• X15, 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 benn authorized
by the USCG as part of the bridge
pernnit. 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
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
administratively.defined as a discharge
of dredged material by 33 CFR 3212(d),
even though the disposal itself occurs
on the upland and does not require a
Section 404 permit. This MVP 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 permittee
notifies the District Engineer in
accordance with the "Notification"
Generat Condition; or (b) hydropower
projects for which the FRRC has grmltf,!d
an exemption from licensing pursuant
to section 408 of the Energy Security
Act of 198o ('t 6 U.S.C. 2705 and 2708)
and section 30 of the Federal Power Act,
as anceuch'-d; provided the pertttittbe
notifies file District Eugfneer in
accordance with the "Notification"
General Condition. (Section 404)
1 8..Minor Discharges. Minor
discharges of dredged or fill material
into all waters of the CIS if the activity
meet:, all of the following criteria:
a. 't'he quantity of discharged material
and the volunus of area excavated do not
exceed 25 cubic yards below the platy!
of the ordinary high water mark or file
high tide him:;
h. The discharge, including any
excavated area, will not cause the loss
of more than '/u,-acre of a special
aquatic rile, 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 flondinq
and special aquatic sites that are
drained so that they would no longer he
a water of the t IS 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 wttlands, the permittee
notifies the District Engineer in
accordance with the "Notification"
General Condition. For discharges in
special aquatic sites, including
wetlands, the notification mast 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 coo
snore than 25 cohic 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 that
support submerged aquatic vegetation
(including sites where submerged
aquatic vegetation is documented to
exist, but may not be present ill a given
year), anadromous fish spawning areas,
or wetlands, or the connection of canals
or other artificial waterways to
navigable waters of the US (see 33 CFI
322.5(,,)). (Sections 10 and 404)
20. Oil Spill Cleanup. Activities
required for the containment allot
cleanup of oil and hazardous substanaa
which are subject to the National ()it
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 rxisting state
coutinr',ency plan and provided that the
Regional Response foam (if one exists
in the area) concurs with the proposed
containment and cleanup action.
(Sections 10 and 404)
21. Surface Coal Alining Activities.
Discharges of dreclged or fill material
into waters of tloe US associated with
surface cial mining and rectamation
operations provided tile, coal mining
activities are authorized by the DO[,
Office of Surface Mining (OSM), or by
states with approved programs under
'l'ithe 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
ill 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 330A M)
Miti-ation: In determining the need
for as well as the level and type of
mitigation, the District Engineer will
ensure no more than ciiiuimal 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
ensure the effects to aquatic systems are
minirnal. In cases where OSM or the
state has required mitigation for the loss
of aquatic habitat, the Corps may
consider this in determining appropriate
nnitigution under Section 404. (Sections
to and 404)
22. Removal of Vessels. Temporary
structures or minor discharges of
drudged or fill material required for the
removal of wrecked, abandoned, or
disabled vessels, or the removal of ntan-
2082 Federal Register/Vol. 67, No. 10/1'uesday, );inrtary 15, 2002/Notices
made obstructions to navigation. This
NWP does not authorize the remov
l
f within the form prior to the discharge of bed and/or banks to restore or create
a
o
vc sels listed or determined eligible for
listing oil the National R
t
f concrete, sand, rock, etc. This NWP
does not authorize filled structural steam meanders; the backfilling of
artificial channels and drainage ditches

egis
er o
Ilrstoric Places unless the District
members that would support buildings
building pads, homes
house pads ,
, the removal of, existing drainage
t
t
h

Engineer is notified and indicates that
there is compliance with the "Hi
t
i ,
,
parking areas, storage areas and other s
ruc
ures; t
e construction of small
nosting islands; the construction of open
s
or
c
Properties" General Condition. This
N such structures. The structure itself ma
require a Section 10 permit if located in y water areas; the construction of oyster
habitat over urrve
etat
d b
tt
i
id
l
WP does not authorize maintenance
dredging, shoal removal, or riverbank navi-ahle waters of the US. (Section
404) g
e
o
om
n t
a
waters; activities needed to reestablish

snagging. Vessel disposal in waters of
fit(,, US ma
need a
ermit f
EPA
26. [Reservedj
27
S vegetation, including plowing or discing
for seed bed preparation and the
y
p
rom
(see 40 CFR 229.3). (Sections 10 and .
tream and Wetland Restoratiorn planting of appropriate wetland species;
Activities. Activities in waters of the US mechanized land cl
i
t

404)
23. Approved Categorical Exclusions.
associated with the restoration of forme
waters, the enhancement of degraded ear
ng
o remove
r non-native invasive, exotic or nusiance

Activities undertaken, assisted,
authorized
regulated
funded
or
tidal and non-tidal wetlands and
i
i vegetation; ;rust other related activities.
'['his NWl' sloes not authorize the
,
,
,
financed, in whole or in part, by another r
par
an areas, the creation of tidal and
non-tidal wetlands aucl ri
arian a conversion of a stroam to another

Federal agency or department where
that agency or department has p
reas,
and fhe restoration and enhance tneut of aquatic use, such as the creation of all
inrpoulldrrtout for waterfowl habitat.

determined, pursuant to the Council on non-tidal streams and non-tidal open
water areas as follo 'Phis NWP doe:; not authorize stream

Environmental Quality Regulation for
Implementing the Procedural Provisions ws:
(a) The octivityis conducted on:
(1
) Non-Federal
uhlic land
d channelizatiou. This NWP does not
authorize fhe conversion of natural

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

Act (NEPA) (40 CFR part 1500 et seq.),
th
t th
i
terms and conditions of a binding creation of waterfowl impoundme4nts
where a forested wetland previousl

a
e act
vity, work, or discharge is
categorically excluded from
wetland enhancement, restoration, or
ti y
existed. However, this NWI' authorizes

environmental documentation, because crea
on agreement between the
landowner and the U
S
Fish
d the relocation of non-tidal waters,

it is included within a category of
ti
hi
h .
.
an
Wildlife Service (17M) or the Natural including non-tidal wetlands, on the
project site provided there are net
ains
ac
ons w
c
neither individually nor
cumulatively have a significant effect on Resources Conservation Service (NR(:S),
the National Marine Fisheri
S
i g
in aquatic resource functions and

the human environment, and the Office es
erv
ce,
the National Ocean Service, or values. For example, this NWI' may
authorize the creatio
f

of the Chief of Engineers (ATTN: CE:CW-
OR) has been furnished notice
f th
voluntary wetland restoration, n o
an open water
impoundment in a non-tidal emergent
o
e
agency's or department's application for enhancement, and creation actions
documented by the NRCS
ursua
t t wetland, provided the non-tidal

the categorical exclusion and concurs
with that determination
Before p
n
o
NRCS regulations; or
(2) R
l
i
d emergent wetland is replaced by
creating that wetland type on the project
.
approval for purposes of this NWP of
' ec
a
me
surface coal mine
lands, in accordance with a Surface site. This NWP does not authorize the
relocation of tidal waters or the
ally agency
s categorical exclusions, the
Chief of En
ineers will solicit
bli Nfining Control and Reclamation Act conversion of tidal waters, including
g
pu
c
comment. In addressing these permit issued by the OSM or the
applicable state agency (the future tidal wetlands, to other aquatic uses,
such as the conversion of tidal wetla
d

comments, the Chief of Engineers may
require certain conditions for
reversion does not apply to streams or
wetlands created
restor
d
h
d n
s
into open water impoundments.
R

authorization of an agency's categorical
l ,
e
, or en
ance
as mitigation for the ruining impacts, eversion. For enhancement,
restoration, and creation projects
exc
usions under this NWP. (Sections
10 and 404) nor naturally due to hydrologic or conducted under paragraphs (a)(3), this

24. State Administered Section 404 topographic features, nor for a
mitigation hack); or NWI' dons not authorize any future
discharge of dredged or fill material
Program. Any activity permitted by a
state: administering its own Section 404 (3YAuy other public, private or tribal
lands; associated with the reversion of the area

permit program pursuant to 33 U.S.C.
1344(-)-(1) is permitted
ursuant t
(b) Notification: For activities on ally
bli to its prior condition. In such cases a
separate permit would be required for
p
o
section 10 of the Rivers and Harbors Act
f pu
c or private land that are not
described by paragraphs (a)(1) or (a)(2) any reversion, For restoration,
enhancement, and creation
rojects
o
1899. Those activities that do not
involve a Section 404 state
ermit are above, the permittee must notify the
Di
t
i p
conducted under paragraphs (a)(1) and
p
not included in this NWP, but certain s
r
ct Eu-ineer in accordance with
General Condition 13; and (a)(2), this NWP also authorizes any
future discharge of dredged or fill
structures will be exempted by section
154 of Pub. L. 94-587, 90 Stat. 2917 (33 (c) Planting of only native species
should occur on the sit material associated with the reversion of

U.S.C. 591) (see 33 CFR 322.3(x)(2)). e.
Activities authorized by this NWI' the area to its documented prior
condition and ttse (i
e
prior to the,
(Section 10)
25. Structurol Discharges. Discharges include, to the extent that a Corps
permit is required
but are not limited .
.,
restoration, (nhancement, or creation

of material such as concrete, sand, rock, ,
to: the removal of accumulated activities). The reversion must occur
within five years after ex
iration of a
etc., into tightly sealed forms or cells
where the material will be used as a sediments; the installation, removal,
and maintenance of small water contr
l p
limited term wetland restoration or

structural member for standard pile o
structures, dikes, and berms; the creation agreement or permit, even if the
discharge occurs alter this NWP ex
ire

supported structures, such as bridges,
transmission line footings, and
installation of current deflectors; the
enhancement
restoration
ti
f p
s.
This NWh also authorizes the reversion

walkways or for general navigation, ,
, or crea
on o
riffle and pool stream structrue; the of wetlands that were restored,
enhanced, or created on prior-converted
such as mooring cells, including the placement of in-stream habitat cropland that has not been abandoned

excavation of bottom material from
structures; modifications of the stream ,
in accordance with a hindin- agreement
Federal Register/Vol. 67, No. to/Tuesday, Januiuy 15, 2002/Nutic.cs 20133
between the lnndownur and NRCS or
FVVS (even though the restoration,
enhancement, or creation activity did
not require it Section 40It permit). 'Fllf.
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 nntst notify the District
Engineer and include the
documentation of file prior condition.
Once an area has reverted to its prior
physical condition, it will be subject to
whatever the Corps Regulatory
requirements will he at that future date.
(Sections 10 and 404)
Note: Compensatory mitigation is not
required for activities authorized by this
NWI', provided the authorized work reSUlts
in it net increase ill aquatic resource
functions and valuos in the project area. 'T'his
NWP can be used to authorize compensatory
mitigation projects, including mitigation
banks, provided thn p,rmittee 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
wort:. However, this NMI does not authorir.c
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 beuik, but only in
circumstances where it has been approved
under the Interagency Federal Mitigation
Bank Guidelines.
28..Wodificatrous 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,
drivoway, storage shed, and/or septic
field) for an Individual Permittee
provided that the activity meets all of
the following criteria:
a. 'The dischar-e does not cause the
loss of more than ',!e-acre of non-tidal
waters of tine US, including non-tidal
wetlands;
b. The perntittee notifies the District
Engineer in accordance with the
"Notification" General Condition;
c.'I'he perrnittee has taken all
practicable actions to minimize the on-
site and off-site impacts of the
discluu?.Ie. For exafill) le, the location of
the homy' may need to he adjusted on-
sitc to avoid flooding of adjacent
property owners;
d. The discharge: is part of it single
and complete project; furthermore, that
for ,uty subdivision created on or after
Novetuber 22, 1991, the discharges
authorized under this NVVP may not
exceed an aggregate total loss of waters
of the US of 1/i acre for tile. entire
subdivision;
e. Nri individual may use this NWI'
only for a single-family hwne for a
personal residence;
f. This NWP may be used only once
per parcel;
g. This NVVP snny not be used in
c.ornjuuction with NVVP 14 or NW1' 18,
for any parcel; and,
It. Sufficient vegetated buffers most be
maintained adjacent to all open wah;r
bodies, streams, etc., to Itrer.lude water
quality degradation due to erosion and
sedirne,ntatiat.
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
ally 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 it corporation,
partnership, or similar entity. For the
purposes of this NVVP, 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 he 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 tVlanagernent for
Wildlife. Discharges of dredged or fill
material and maintenance activities that
are associated with racist 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 managP,ntent 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
successiott, prepare seed beds, or
estahlish fire hrcaks. Sufficient
vegetated huffers roust be maintained
adjacent to all open water bodies,
stroams, etc., to preclude water quality
degradation duo to erosion and
sedimentation. This NMI does not
authorize the construction of new dikes,
roads, water control structures, etc.
associated with the management areas.
'I'bis NWI' 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 dehris basins, retention/
detonation basins, and channels that
(i) were previously authorized by the
Corps by individual Permit, General
Permit, by 33 CUR 330.3, or did not
require a permit at the lime 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
"maintenanc:e baseline," as described in
the definition below. Activities
including the discharges of drudged 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 NWP
does not authorize the removal of
sediment and associated vegetation front
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
fallhack, or only the cutting and
removing of vegetation above the
ground, e.g., snowing, rotary cutting,
and chainsawirng, where the activity
neither substantially disturbs the root
system not, 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
perrnittee most notify the District
Engineer in accordance with the
"Notification" General Condition. The
notification may be for activity-specific
2084 Federal Rebister / Val. G7, No, lo/Tuesday, January 15, 2002/ Notices
maintenance or for maintenance of the
entire flood control facility by however, if one-tune mitigation is
required for impacts associated with ctivity subject to the terms till
condilions of this NVVP and the
submitting a five year (or less) mainteuance activities, the District settlement agreerneut, includio;l a
uminteuanco plan
Mointerrunce Ruseline The Enginoer will not delay needed specified completion date or

mainteuance haseline is a description of mainteuance, provided the District
Engineer and the permittee establish a (ii) The terms of s fiu?11 Federal court
decision
i oosent decree
or settleient
the physical characteristics depth,
width, length, location, configuration, or schedule for identification, approval,
development, construction and ,
,
agreement resulting hour all
cnforcement action hrought by the U
S

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

maintenance activities are normally na
t
gatio11. Once the one-time
mitigation described above has been section 10 of the Rivers and Ilarbors Act
of H309; or
authorized by NWP 31, subject to any completed, or a determination made (iii) The terans of a final court
case-specific conditions required by the that mitigation is not required, no decision, consent decree
settlement
District Engiooor. The District Engineer
will approve the main tell arrce baselim' further mitigation will he required for
i ,
agreement or non-judicial settlement

based on the approved or constructed 111a
nle11anCe activities within the
maintenance baseliou. In detornriuin(; arreemerltresulting from a liatirral
resource damage claim brought by a
capacity of the flood control facility,
whichever is smaller
including an appropriate mitigation, the District
E
i
ill trustee or trustees for natural resources
,
y
areas where there are no constructed ng
neer w
give special consideration
to natural water courses that have been (as defined by the National Contingency
Plan at to CFR subpart (;) tinder section
channels, hilt which are part of the
facility
If no evidence of t11e included in the maintenance baseline 3 1.1 of the Clean Water Act (MA),
.
constructed capacity exist, the approved a11d require compensatory mitigation
and/or BMPs as appropriate. section 107 or die Comprehensive
Environmental Response, Compensation
constructed capacity will be used. The Emergency Sittiulious: In oiuergeticy and Liability Act (CERCLA or
prospective permittee will provide situations, this NWP may be used to Supcrfurrd), section 312 of the National
documentation of the physical
characteristics of the flood control authorize maintenance activities in
flood control facilities for which no Marine Sanctuaries Act (NMSA), section
1002 of the. Oil Pollution Act of 1990
facility (which will normally consist of maintenance baseline has been (OPA), or the Park System Resource
as-built or approved drawings) and
documentation of the design capacities approved. Emergency situations are
those which w
ld
lt i Prolection Act at 16 U.S.C. 'Mjj, to then

of the flood control facility. The ou
resu
n an
unacceptable hazard to life, it significmit extent that a Corps permit is required.
For eilher (i), (if) or (iii) above

documentation will also include f3MPs
loss of property, or au immediate, ,
compliance is a condition of the NWP
to ensure that the impacts to the aquatic unforeseen, and significant econoutic itself. Any authorization under this
environment are minimal, especially in hardship if action is not taken before n NWP is automatically revoked if the
maintenance areas where there are no maintenance baseline can be approved. perrnittee does not Comply with the
constructed channels. (The Corps may Ill such situations, the duternafuatiot, of terms of this NVVP or the terms of the
request maintenance records in areas
where there has not been recent mitigation requirements, if any, may be
deferred until the emergency has been court decision, consent decree, or
judicial/11011-judicial settlement
mainteuance.) 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
done in accordance with 3,3 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 MVP can not be used until erergency, must be required as purpose of mitigation, restoration, or
the District Engineer approves the appropriate. (Sections M and 404) environiental benefit Before reachio-
maintenance baseline and determines 32. Completed Enforcement Aclioris, any settlement agroernent, 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 niiti;atioo, CFI: 330.1; (d)(2) and (e). (Sections 10
will remain valid for any subsequent restoration, or envirouinontal benefit in ,and 404)
rei,ssuance of this NWP, This permit compliance with either: 33. Temporary Construction, Access
does not authorize maintenance of a (i) The terms of a final written Corps rand Oul,vutering. Temporary structures,
flood control facility that has been non-judicial settlement a
,recmenl work and discharges, including
abandoned. A flood control facility will ;
resolving a violation of section 404 of cofferdams, necessary for constructioir
he 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. tarots c:onstru ction sites; provided that the
capacity without needed maintenance of ao EPA 309(x) order on consent associated primary activity is authorized
being accomplished in a timely manner. resolving a violation of section 404 of by tho Corps of Engineers or [Ile USCG,
Mitigation: The District Engineer will the CWA, provided that: or for other construction activities not.
determine any required mitigation one- a, The uuouthorizod 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
lnaintenarice work at the saine time that
the maintenance baseline is approved. wetlands or 1 acre of tidal wetlands;
b. The settlement agreement provides be taken to maintain near normal
downstream Vows and to urinimize
Such one-time mitigation will be
required when necessar
to ensure that for environmental benefits, to an equal
d flooding. Fill lriust be of materials, and
y
adverse cuvironmental impacts are no or -reater
ogree, than the
environmental cletriments caused by the placed in it nwnnur, that will not be
eroded by expected high flows. The use
more than minimal, both individually
and cumulativel
Such miti
ation will unauthorized activity that is authorized
b of' clredged material may be allowed if
y.
g
only be required once for any specific y this NVVP; and
c. The District Engineer issues a it is determined by the District Engineer
that it will 1101
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 2085
Temporary fill must be entirely removed
to upland areas, or dredged material
returned to its original location,
following r_ompletion 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 CPR
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. CranherrvPrnduction 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 tot, 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 MVP is valid. (Section 404)
35. Maintenance Dredging of Existino
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
dredged material is disposed of at an
upland site and proper siltation control
are used. (Section 10)
36. Boat /lamps. Activities required
for the cunstmction of boat ramps
provided:
a. The discharge into waters of the
U.S. does riot 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
cheini-:al 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 NVVP, 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 bv:
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
(FS11 509.13); or
c. The DO[ for wildland. fire
management burned area emergency
stabilization and rehabilitation (DOI
Manual [part (320, 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 "l0 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
s undertaken entirely on a
Comprehensive Environmental
Response, Compensation, and Liabilitv
Act (CERCI.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. Bnsidantiol, 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.
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 planes 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 MVP 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 I/.o-acre of non-tidal waters
of the US, excluding lion-tidal wetlands
adjacent to tidal waters; or
2086 Federal Register/Vol. 67, No. 10/'Tuesday, January 15, 2002/Notico.s
(2) The discharge causes the loss of
any open waters, including perennial or
intermittent streams, below the ordinary
high 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 corplies
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'F,o-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
1/ro-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) 'T'he
type and acreage of the loss of waters of i
the US (e.g., /,?.-acre of emergent t
wetlands); and (5) The type and acreage
of any compensatory mitigation used to
offset the loss of waters of the US (e.g.,
?/,-acre of emergent wetlands created
orl,si to);
j. If there are any open waters or
streams within the project area, the
permittee will establish and rlraintain, to
the maximurn extent practicable,
wetlaud or upland vegetated buffers
next to those Opel' 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
compensatory mitigation proposal that
is required in paragraph (o) 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 linrit for NWP 39
impacts to waters of the US (i.e., the
combined acreage loss authorized under
NWI's 39 and 40 cannot exceed 1/2-acre,
see General Condition 15).
Subdivisions: For residential
subdivisions, the aggregate total loss of
waters of US authorized by NWP 39 can
rrot exceed 1/nacre, 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
wators of the US based on this criterion
world require a PCN although waiter is
infrequently present in the streaar channel
(except for ephemeral waters, which do not
eequire 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 i
mproving agricultural production and
lie construction of building pads for
farm buildings, Authorized activities c
include the installation, placement, or
construction of' drainage tiles, ditches,
or levees; mechanized land cloining;
land leveling; the relocation of existing
serviceable drainage ditches constructed
ill waters of the US; and similar
activities, provided the permittee
complies with the following terms and
conditions:
a. For discharges into non-tidal
wetlands to improve agricultural
production, the following criteria must
h0 suet 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 (1(i IJ.S.C. 3801
Ct seq.);
(2) 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;
(3) The permittee must have NRCS-
certified wetland delineation;
(4) The permittee must implement an
NRCS-approved compensatory
mitigation plan that fully offsets
wetland losses, if required; and
(5) The permittee must submit a
report, within 30 days 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; (n) 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. 1/:3-acre of
emergent wetland on a farm tract;
credits purchased from a mitigation
bank); or
b. For discharges into nou-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 Vz-acre of non-tidal
wetlands oil 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 1/ro-
rcre of non-tidal wetlands;
(3) The notification must include a
lelineation of affected wetlands; and
Federal Register/Vol. 07, No. 10/Tuesday, January 15, 2002/Notices 20£37
(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 eff
t configuration, which does not require a
S

c. For the construction of building
pads for farm buildings, the discharge ec
s
exemption, rniuimal effect exemption,
or initi
ti
i e_.tion 404 permit (see 33 CFR
3'23.4(a)(3)). This NWP does not

does not cause; the loss of greater than t;a
on exempt
on front NRC;S
pursuant to the Food Security Act of authorize the relocation of drainage
ditches constructed in waters of the US

/z-acre of Wort tidal wetlands that were
in agricultural production prior to
1985, as amended, may be required.
A
ti
i
i
h ;
the location of the centerline of the

December 23, 1085, (i.e., farmed c
v
t
es aut
orized by paragraphs a.
through d. inay not exceed a total of V- reshaped drainage ditch must be
approximately the same as the tocation
wetlands) and the permittee must notify
the District Engineer in accordance with acre on a single farm tract. I1' the site was of the centerline of the original drainage
used for agricultural
ur
oses and the d

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

US is limited to the relocation of a i
a 1hs a., b., or c. 0f this NMI to
Iarg 1
authorize activities in waters of the US
relocation projects. (Section 404)

existing serviceable drainage ditches
constructed ill non-tidal streams
This
to increase agricultural production ui' '12. Recreational Facilities. Discharges
of dredged or fill material into 11011-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
5
of greater than 300 linear-feet of existing ?? to authority residential
commercial
o
r ot
adjacent to tidal waters, for the

serviceable drainage ditches constructed
in non-tidal streams unless
for draina ,
,
industrial development activities in truc
c onsh?ur.
tion or expansion of
recreational Facilities, provided the
,
ge
ditches constructed ill intermittent non waters of the US oat the site, the

combined acreage loss authorized b
activity meets all of the following

tidal streams, the District 13ngineer
waives this criterion in writing ad the
o, ; l y
NWPs 3J and 40 cannot exceed 1/7.-acre

(see General Condition 15)
(Section criteria:

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 E.visting Drainage welters 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 b. 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- stream hed, unless for intermittent
impacts exceeding 300-linear feet of
im
acts to exi
ti
g
i
bl
di
h sectional configuration of currently stream beds this criterion is waived in
writin
ur
t t
d
t
i
i
b
p
s
n
serv
cea
e
tc
es serviceable drainage ditches constructed g p
suan
o a
e
erm
on
nat
y
constructed in intermittent non-tidal ? waters of the T1S. 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 arid
Notification" General Condition '13;
capacity. Nor can it expand the area that any adverse impacts of the project
and
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 cunrtdatively;
Service Agency.
[
he Corps will identify and it cannot drain additional wetlands 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
agricultural activity meets the terms and Compensatory mitigation is not required
because the work is designed to improve "Notification" General Condition 13 for
discharges exceeding 300 linear feet of
conditions of paragraph a. of this NWP, water quality by regrading the inipact 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
proposed agricultural activity is ,
growth of vegetation, increase uptake of
nutrients and other substances by activity complies with the other terms
and conditions of the NMI, determine
authorized by paragraphs b., c., and/or vegetation, etc.). 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 ditch will be reshaped. Material d. For discharges causing the loss of
addition to paragraph (a), mast notify
the District En
ineer in accordan
ith resulting from excavation may not be greater than '/io-acre of non-tidal waters
g
ce w
General Condition 13 and the District permanently sidecast into waters but
may be temporarily sidecast (ill) to three of the US, the permittee notifies the
District [:ngineer in accordance with
Engineer will determine if the entire months) into waters of the [IS, 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. I'or 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, iucludillg wetlands, the
notification must include a delineation
the US associated with completing may extend the period of teniporary of affected special aquatic sites;
required compensatory mitigation are
authorized by this NMI. However
total sidecasting not to exceed a total of 180
da
s
where a
i
t
I
l
h I. The discharge is part of a single and
l
,
impacts, including other authorized y
,
ppropr
a
e.
n genera
, t
is
NMI does not apply to reshaping comp
ete project; and
g. Compensatory mitigation will
impacts under this NWP, may not
exceed the 1/2-acre limit of this NM-1. drainage ditches constructed in
uplands, since these areas are generally normally be required to offset the losses
of waters of the 13S
The notification
This NMI does not affect, or otherwise
regulate, discharges associated with not waters of the US, and thus no permit
from the Corps is re
uired
or to the .
must also include a compensatory
iti
ti

agricultural activities when the q
,
maintenance of existing drainage m
ga
on proposal to offset authorized
losses of waters of the US.
2088 Federal Register/Vol. 67, No. 10/'1'uesda u10, Z _ Y• January ? 00?
? /Notices
For the purposes of this NWP, the ilreater than'/z-acre of non-tidal waters
term "recreational facility'' is defined as of the US
excluding uon-ti(Jal wetla
d that are exempt from Section 404 peru:it
i

a recreational activity that is integrated ,
n
s
adjacent to tidal waters; rec u
roments);
fl. The permittee must avoid and
into the natural landscape and does not
substantially change preconstruction b. The discharge dons not cause the
loss of greater than 300 Linear-f
t
f minimize discharges into waters of the

grades or deviate from natural landscap ee
o
a
e stream bed, unless for intermittent US at the 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 this condition (i.e, why the
motor vehicles, buildings, or impervious below, that the project complies with all discharge must occur in waters of the
surfaces. Examples of recreational
facilities that may be authorized by this terms and conditions of this NVVP and
that any adverse impacts of the project US and wiry additional minimization
b

NWP include hiking trails, bike paths,
on th'd aquatic environment are cannot
e achieved);
g. The stormwater management
horse paths, nature centers, and minimal, both individually and facility must comply with General
campgrounds (excluding trailer parks).
This NWP may authorize the cumulatively;
c. For discharges causing the loss of' Condition 21 and be designed using
B
'

construction or expansion of golf
greater than 300 linear feet of MI
s and watershed protection
techniques. Examples may include
courses and the expansion of ski areas, intermittent stream beds, the pernittee foreba
s (deeper areas at the upstream
provided the golf course or ski area does notifies the District Engineer in y
end of the stormwater mana
ement
not substantially deviate from natural
landscape contours. Additionally
these accordance with the ''Notification"
General Condition 13
In such cases
to g
facility that would be maintained
,
activities are designed to minimize .
,
be authorized the District Engineer must through excavation), vegetated buffers,
and siting considerations to minimize
adverse effects to waters of the US and determine that the activity complies adverse effects to aquatic resources

riparian areas through the use of such
with the other terms and conditions of ,
Another example of a BMP would be
practices as integrated pest
management, adequate stormwater the NWP, determine the adverse
environmental effects are minimal both bioengineering methods incorporated

management facilities, vegetated buffers,
individually and cumulatively, allot into the facility design to benefit water
quality and minimize adverse effects t

reduced fertilizer use, etc. The facility
must have an adequate water quality
waive this limitation in writing before
the permittee may proceed; o
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;

results in no substantial adverse effects
e. For discharges or excavation for the h. Maintenance excavation will be in
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 is part of a single and

related to the recreational activity. This
waters, excluding non-tidal wetlands complete project. (Seciion 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 (o,g., baseball, soccer, or General Condition 13. Pn addition, the second or less
and non-tidal wetlands
football fields), basketball and tennis notification must include: ,
adjacent to headwater st eams
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 NtiVP. (Section 404)
accordance with state and local crushed and broken stone) and
associated support activities;
43. StormwaterNlanagement requirements, if any such requirements (ii) Lower perennial streams

Facilities. Discharges of dredged or fill
exist; ,
excluding wetlands adjacent to lower
material into non-tidal waters of the US, (2) For discharges in special aquatic perennial streams, for aggregate minin;
excluding non-tidal wetlands adjacent sites, including wetlands and 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
facilities, including activities for the notification must include a delineation
of affected areas; and are not authorized by this NWP); and/
.
excavation of stormwater ponds/ (3) A compensatory mitigation oi
(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 and
of the US. Maintenance in constructed ,
for hard rock/miner;d mining activities
maintenance of water control structures, areas will not require mitigation (i.e.
extraction of metalliferous ores
outfall structures and emergency provided such maintenance is ,
from subsurface locations) and
spillways; and the maintenance
dredging of existing stormwater accomplished in designated
maintenance areas and not withi associated support activities, provided

management ponds/facilities and n
compensatory mitigation areas (i.e., the discharge meets the following
criteria:
detention and retention basins, District Engineers may designate non- a. 1'he mined area within waters of
provided the activity meets all of the
following criteria: maintenance areas, normally at the
downstream end of the
t
t the US, plus the acreage loss of waters

a. The discharge for the construction s
ormwa
er
management facility, in existing of the US resulting from support
activities
cannot exceed 1/2
-acre;
of new stormwater management stormwater management facilities). (No ,
.
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 2089
lJS at the project site to tile IllaXillIL1111
extent practicahle, and the notification
must include a written statement
detailing compliance with this
condition (i.c., why tite discharge rout
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 managmneut
plan should address these impacts;
d. The permittee must implement
necessary treasures to prevent increases
ill 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
navigahle waters of the US;
f. The permittee must use measures to
minimize downstream turbidity;
g. Wetland impacts must be
compensated through mitigation
rp roved by the Corps;
P1. Beneficiation and mineral
processing for hard rock/mineral training
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 mining can occur within
stream beds where the average amoral
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 cubic 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 the US for
multiple mining activities on several
designated parcels of a single and
conrPlete mining operation can be
authorized by this NWP provided the
V2-acre limit is not exceeded; and
I. Notilir:ution: The permittee [oust
notify the District Engineer in
accordance with General Condition 13.
The notification must include: (1) A
description of waters of the t ,S
adversely affected by the project; (2) iA
written statement to the District
Engineer detailing compliance with
paragraph (b), above (i.e., why tlu;
disch"irge uutst 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 (0, above.; and 4)
A reclamation plan (for aggregate
utinin? in isolated waters and nun-tidal
wetlands adjacent to headwaters and
hard rock/mineral minim only).
This NWP does not authorize hard
rock/mineral mining, including planer
mining, in streams. No hard rock/
mineral mining can ocrur in waters of
the US within 100 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 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
inftuencu, some water flows througlurut
the year, and the suhstrate 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 oil
navigation.
2. Proper Maintenance. Any structure
or fill authorized shall be properly
maintained, including maintenance to
ensure public safety.
3. Soil £'rosion 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
any 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-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
stcuatns 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. Tho 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
?ilanagement Act consistency
determinirtioil.
7. Wild and Scenic Rivers. No activity
may occur in a component of the
National Wild and Scenic River Systern;
or in it river officially designated by
Congress as a ''study river''
for possible
inclusion its the system, while the river
is in an official study status; unless the
appropriate Federal agencv, 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 Ilights. 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,
-10, 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 (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
storrwater management that minimizes
degradation of the downstream aquatic
system, including water quality (refer to
General Condition 21 for stormwater
2090 Federal Register/Vol, h7, No. 10/'Tuesday, January 15, 2002/Notices
management requirements). Another endspp.lctml and http:;/rvww.r?fnis.?,rw/ written notice from the District or
important component of water quality prot-_ro s/esohorne.11 till l respectively. Division 1?ugineer. Subsequently
the
management is the establishment and
maintenance of vegetated buffers next to 12. historic Properlies. No activity
which may affect historic properties ,
perrnittee s riglit to proceed under the,
MVP
b

open waters, including streams (refer to
listed, or eligible for listing, iu the may
o modified, suspended, or
revoked only in accordance with the
General Condition 19 for vegetated
buffer requirements for the NVVPs), National Register of Historic Places is
authorized
until the District En
i procedure set forth in 33 CFR

This condition is only applicable to ,
g
neer
has complied with the provisions of 33 330.5(d)(2).
(b) Contents of'Notificotion:'I'he
projects that have the potential to affect CFR part 325, Appendix C. 'Clue notification must be in writin
and
water quality. While appropriate pro:;pect.ive perrnittee must notify the g
include the following information:
measures must be taken, in most cases
i
i District Engineer if the authorized (1) Name, address and telephone,
t
s not necessary to conduct detailed
studies to identify such measures or to activity may affect any historic
properties listed, determined to bo numbers of the prospective perrnittee;

require monitoring,
eligibte, or which the prospective (2) Location of the proposed project;
(3) Brief description of the proposed
10. Coastal Zone Ntonagernent. In
certain states, an individual state coastal permittee has reason to believe may Im
eligiblo for listing on the National project; the purpose; direct and
zone mana

gement consistency Register of I Iistnric Places, and shall not

b
effects
the prt wouelld cause; any any environmental other
the project wo
concurrence must be obtained or waived
(see Section 330.4(4)). egin the activity until notified by the
District Engineer that the requiremonts NWP(s), Rogional General I'erinit(s), or

11. Endangered Species. (a) No
of the National Historic Preservation Act
h Individual Permit(s) used or intended to
be used to authorize any part of the
activity is authorized under any NWP
which is likely to jeopardize the ave, been satisfied and that the activity
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

complies with tlic ternis of the NWI'
proposed for such designation, as
identified under the Federal Endangered iistoric Preservation Office and the
National Register of Historic: places (Soo (Sketches usually clarify the project and
Species Act (ESA), or which will 33 CFR 330.4(8)). For activities that uiay recision )vided result in a quicker
destroy or adversely modify the critical

habitat of such species. Non-federal affect historic properties listed in, or
eligible for listing in, the National
(4) For NWI's 7, 12, 14, 18, 21, 34, 3U,

permittees shall notify the District
E
Register of Historic Places, the
notification must state which hi
t
i 3J, 41, 42, and 43, the PCN must also
include a delineation of affected special
ngineer if any listed species or

designated critical habitat might be s
or
c
property may be affected by the
aquatic sites, including wetlands,

affected or is in the vicinit of the
y o
proposed work or include a vicinity vegetated shallows e.?? suhmered
( d ? ? b-

project, or is located in the designated
i
i
l map indicating the location of the
historic property aquatic vegetation, seagrass beds), and.
riffle and pool complexes (see paragraph
cr
t
ca
habitat and shall not begin work ,
13. Notification l3(f));
on the activity until notified by the
District Engineer that the requirements .
(a) Ti
Timing; where required by the (5) For NWP 7 (Outfall Structures and

of the ESA have been satisfied and that terms of the NVVP, the prospective Maintenance), the 1 CN must include

the activity is authorized, For activities perrnittee must notify the District
E
i information regarding the original
d
i

that may affect Federally-listed ng
neer with a preconstruction es
gn capacities and configurations of

endangered or threatened species or notification (PCN) as early as possible, those areas of the facility where

designated critical habitat
the The District Engineer must determine if maintenance dredging or excavation is
,
notification must include the name(s) of the notification is complete within 30
clays of the date of receipt and can proposed;
(5) For NWP 14 (Linear
the endangered or threatened species
that may be affected by the proposed request additional information Transportation Crossings), the PCN

work or that utilize the desi
nated necessary to make the PCN complete must include a compensatory mitigation
g
critical habitat that may be affected by only once. However, if the prospective proposal to offset permanent losses of

the proposed work. As a result of formal perrnittee 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 NMF'S the District Engineer may add Engineer will notify the prospective
perrnittee that the notification is still waters of the US will be minimized to
the
maxi
mum
extent
p
e;

species specific regional endangered
species conditions to the NWI's
incomplete and the PCN review process (7)
For
NWP 21
(Sur
face Coal
MiniMl
,
(b) Authorization of an activity by a will not commence until all of the Activities), the PCN must include an

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

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

protected species are in violation of the District or Division Engineer; or
(2) If notified in writing by the District cumulatively and must notify the
project sponsor of this determination in
ESA. Information on the location of or Division Engineer that an Individual writing;
threatened and endangered species and
their critical habitat can be obtained Permit is required; or
(3) Unless 45 da
s have
assed from (8) For NWI' 27 (Stream and Wetland
R
t
ti
h
P
'

directly from the offices of the USFWS y
p
the District Engineer's receipt of the es
ora
on), t
e
(-
.N must include
documentation of' the prior condition of
and NMFS or their world wide web complete notification and the the site that will be reverted by the
pages at littl);//wivvv.fws.gov/r9endspp/ prospective perrnittee has not received permittee;
Federal Register/Vol. 67, No. 1.0 /'T'uesday, January 15, 2002/Notices 2091
(9) For NWP 29 (Single-Family
Housing), the PCN must also include:
M Any past use of this NWP by the
Individual Permittee and/or the
permittee's spouse;
(ii) A statement that the single-family
housing activity is for a personal
residence of the pennittee;
(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 1/4-acre or les
will not require a formal on-site
delineation. However, the applicant
shall provide an indication of where the
wetlands are and the amount of
wetlands that exists on the property. Fo
parcels greater than 1/4-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 tenantby-the-entirety)
and any land on which a purchase and
sale agreement or other contract for sale
or urchase has been executed;
(110) 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 must include all of
the following:
(i) 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 NMI 33 ('t'emporary
Construction, Access, and Dewatering),
the PCN must also include a restoration
plan of reasonable measures to avoid
and minirnize 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 NWP 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. Fol.
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;
e (?14) For NWP 40 (Agricultural
Activities), the PCN must include a
r compensatory mitigation proposal to
offset losses of waters of the US. This
NWP does not authorize the relocation
of greater tl'an 300 linear-feet of existing
serviceable drainage ditches constructed
in non-tidal streams unless, for drainage
ditches constructed in intermittent uon-
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 o" the
aquatic environment are minimal, both
individually and cumulatively;
(15) For NWP 43 (Stormwater
Management Facilities), the PCN must
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 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;
(16) For NWP 44 (Mining Activities),
the PCN must 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 a reclamation
plan (for all aggregate mining activities
in isolated waters and non-tidal
wetlands adjacent to headwaters and
arty hard rock/mineral mining
activities);
(17) For activities that may adversely
affect Federally-listed endangered or
threatened species, the PCN must
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
be affected by the proposed work; and
(18) For activities that may affect
historic properties listed in, or eligible
ct for listing in, the National Register of
Historic Places, the PCN must state
which historic property may be affectccl
by the proposed work or include a
vicinity 'nap indicating the location of
the historic property.
(c) Form of Notificotion: 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)--(m)
of General Condition 13. A letter
containing the requisite information
g may also be used.
d (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 must 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 / Tuesclay, January 15, 2002 / Notices
be minimal, the District Engineer will
)rovide a timely written response to the
applicant. The response will state that
the project can proceed under the ternis
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 tile 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)(13) of the
Magnuson-Stevens Fishery
Conservation and Management Act, the
District Engineer will provide a
response to NMF'S 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/}-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 maximum
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
l 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 [IS 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 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, Vi-acre of
wetlands cannot be created to change a
s/a-acre loss of wetlands to a V---acre loss
associated with NtiVP 39 verification.
However, Ih-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. G7, No. 10/"Tuesday, januarv 15, 2002/Notices ?nn r
minimal impact requirement assor.iated
with NWps.
(e) TO be practicable, t_lre 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 he appropriate and
practicable include, but ere not limited
to: reducing the size of the project;
establishing and maintaining wetland n
or
upland vegetated buffers to protect open
waters such as streams; and replacing
losses of aquatic resource functions and
values by creating, restoring, enhancing,
OF preserving similar functions and
values, proferahly in the same
watershed.
(f) Compensatory mitigation plans for
projects in or near streams or other open
waters will normally include o
requirement for the establishment,
maintenance, and legal protection (e.g.,
easements, deed restrictions) of
vegetated buffers to open waters. In
many cases, vegetated huffors will be
the only compensatory ruitigantion
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 he 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
eases where vegetated buffers are
determined to be the most appropriate
form of compensatory mitigation, the
District Engineer Imay waive or reduce
the requirement to provide wetland
compensatory mitigation for wetland
impacts.
(g) Compensatory mitigation
proposals submitted with the
"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.
(h) 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
acconplishing and/or complying with
the rnitu,atiou plan,
20. Spnivning /trees. Activities,
includilr; stritr,tures and work in
navigable waters of the US or discharge
of dredged or fill material, in spawning
areas during spawning Seasons must be
avoided to the maximum extent -
praeticahlu. Activities that result in the
physical destructioll excavate, fill,
OF smother downstream by substantial
turbidity) ()"all important spawning are;
are llbJ authorized.
21. rblano,o,ernenl of Water Flows. To
file maximum extent practicable, the
activity must be designed to maintain
preconstruction downstream flow
conditions (U., 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 mast withstand expected high
flows. The activity must, to the
maximum extent practicable, provide
for retaining excess flows frunl the site,
provicle for maintaining surface flow
rates from the site similar to
preconstruction conditions, and provide
for not increasing water flows from the
project site, relocating water, or
redirecting water flow heyoud
preconstruction conditions. Stream
channelizing will be reduced to the
minimal amount necessary, and the
activity must, to the unaxinruin extent
practicable, reduce adverse effects such
as flooding or erosion downstream and
upstream of the project site, unless the
activity is part of it larger systein
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
roust 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 inanagemuut of
water flow.
22. Advorse Fffects From
Impoundmonts. If the activity creates an
inipuundmunt 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 maximum extent
practicable. This includes structures
and work in navigable waters of the US,
or discharges of dredged of fill material.
23. Water fowl 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 34. Removol of Temporary Fills. Any
temporary fills must be removed in their
entirety and the affected areas returned
to their preexisting elevation.
25. Designntr?d Critical Resource
Waters. Critical resource waters include,
NOAA-designated marine sanctuaries,
i National Estruirine 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 it state as having
particular environmental or c-:cological
significance and identified by the
Iistrict 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 drudged or fill material into waters of
the US are not authorized by NWI's 7,
12, 14, 16, 17, 21, 29, 31, 35, 39, 40. 42,
43, and 44 for any activity within, r
directly affecting, critical resource
-1ters, including wetlands adjacent to
such waters. Discharges of dredged or
fill materials into waters of the US may
be authorized by the above NWI,s in
National Wild and Scenic Rivers if the
activity complies with General
Condition 7. Further, such discharges
may he 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 NMFS has coucurred
in a determination of compliance with
this condition.
(b) For NWI's 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-Yeor Flaodplains.
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 lloodplain maps.
(a) Dischrmges in Floodplaiu; Below
Headwaters. Discharges of dredged or
fill material into waters of the US within
the mapped 100-year lloodplain, below
2094 Federal register / Vol. 67, No. 1 0 /'I'uescfay, January 1.5, 2002 / Notices
headwaters (i.e. five cfs), resulting in
permanent above-grade fills, are not
authorized by NVVPs 39, 40, 42, 43, and
44.
(b) Disehar;es in Floodwav; Above
lleudwoters. Discharges of dredged or
fill material into waters of the US .vitbill
the FF,'MA or locally mapped floodway,
resulting in perau rent above-grade fills,
are, not authorized by NWPs 39, 40, 42,
and 'l4.
(c) The pormittee must comply with
any applicable FRMA-approved state or
local floodplairr management
requ irornents.
27. Construction Period. For activities
that have not been verified by the Corps
and the project was commenced or
tinder 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. '['iris 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 NVVP.
2. NWFs 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. NVVPs 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.
H. 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 BM1' policy may affect the
limits on a development.
Con apernsatoryMitigation: For
purposes of Section 10/404,
compensatory mitigation is the
restoration, creation, enhancement, or in
exceptional circumstances, preservation
of wetlands and/or other aquatic
reSOru'ces for the purpose of
compensating for unavoidable adverse
impacts which remain after all
appropriate and practicable avoidance
and minimization bas beau achieved.
Crcution: The establishment Of a
wetland or other aquatic resource whore
one did not formerly exist.
F,nlrancernent: ;Activities conducted in
existing wetlands or other aquatic
resources that iuereasc one or more
aquatic' functions.
Li'phemerul Stream: An eplnernural
stream has flowing water only during
and for a short duration after,
precipitation events in a typical yea.
Ephemeral stream buds ?rr, 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.
Forma 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 ftoodplain outside of the floodway
(often referred to as 'floodway fringe").
Floodrvay; 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 flairr.
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 pray
not have flowing water. Runnoff front
rainfall is a supplemental source of
water for stream flow.
Loss of Waters of the US: Waters of
the US that includr 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
au aquatic area to dry land, increase the
bottom elevation of a waterbody, or
cluurge the trio of a waterbody. The
acreage of foss of waters of the US is the
threshold rueasurement of, the iurpact to
existing wuturs for determining "vlrether
a project nray qualify for an NWI'; it is
not a net threshold that is calculated
after considering compensatory
mitigation that may be used to offset
losses of aquatic functions and value:,.
The loss of stream bed includes thi?
linear feet of stream beat that is filled or
excavated. Waters of the US tonnporarify
filled, flooded, excavated, or drained,
but restored to preconstruction contours
and elevations after construction, are
not included in the rueasurcroomt of loss
of waters of the US. Impacts to
ephonneral waters are only not included
in the acreage or linear foot
measurer rents of loss of waters of the
US or loss of?stream bed, for the purpose
of dutermiuing compliance with the
threshold limits of the NVVPs.
Non-tidal Wetlund: 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 cart he found at 33 Cl-V
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 terra
"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 froul
rainfall is a supplemental source of
water for stream flow.
Permanent Above-groch? Fill: A
discharge of dredged or fill material into
waters of the US, including wetlands,
that results in a substantiat increase in
ground elevation and permanently
converts part or all of the waterbody to
dry land. Structural fills authorized by
NWI's 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, 2001/Notices 2095
ensure protection and/or enhancement
of the overall aquatic ecosystem.
Restorution: 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 (;omplex: Riffle and
pool complexes are special aquatic sites
under the 404(b)(t) Guidelines. Riffle
and pool complexes sometimes
characterize steep gradient sections of
streams. Such stream sections are
recognizable by their hydraulic
characteristics. Thc; 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.
Singh,, 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 waterhody) 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 waterbodios.
StormwaterManogement: 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 eltvironntnnt.
Storm water rVlaugt;ement Focilities:
Stormwater management facilities are
those facilities, including but not
limited to, storinwater retention and
detention ponds and BIVII s, 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 Hed: The substrate of the
stream channel between the ordinary
high water marks. The substrate may be
bedrock or inorganic particles that range
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
strearn beet.
Stream Channelization:'The
manipulation of a stream channel to
increase the rate of water flow through
the, stream channel. Manipulation may
iltclude deepening, widening,
straightening, armoring, or other
activities that change Lite stream cross-
section or other aspects of streaur
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.
Tidol 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(h) and 33
CFR 328.3(0, respectively. Tidal waters
rise and tall in a predictable and
measurable rhythm or cycle dire to the
gravitational pulls of the moon and still.
Vidal waters end where the rise and fall
of the water surface can no longer be
practically measured in a predictable
rhytlun due 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 a-ricultural
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
tempcratm'e; chances, and detritus for
aquatic: food webs) and help improve or
maintain local water quality. A
vegetated buffer can be established by
maintaining an existin; 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 establishmen'
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
NVVPs result in minimal adverse effect;
to the aquatic environment. (See
General Condition 10.)
Vegc?tuted 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.
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 waterhody are
considered part of the waterhody.
(FR Doc. 02-589 Filed 1--14-02; 8:45 and
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 irr Cho permit action
summaries are those of the applicant
anal do not necessarily reflect the views
of NMF'S.
Species Covered in This Notice
The following species are covered in
this notice:
Sea tru'th's
Threatened and endangered green
turtle (Chelonia rrmydas)
Endangered hawksbill turtle
(Eretrnochelys hrrbricato)
Endangered Kemp's ridley turtle
(Lepidochelys kempii)
Endangered leatherback turtle
(Dennochelys coriacea)
Threatened loggerhead turtle (Caretta
caretto)
Application 7361
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 Kenrp'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, Notiouul Marine Fisheries Service.
[FR Doc. 02-3522 Filed 2-12-02; 8:45 aml
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: hinal 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: 1IQUSACE, ATTiN: 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 (202) 76"1-4599 or access
the U.S. Army Corps of Engineers
Regulatory flou1c Page at: http://
wvvw.tisace.,irmy.mil/iuet/functions/
cw/cecwo/reg/.
SUPPLEMENTARY INFORMATION: 111 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, Ii lid 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 soutouce 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 X18, 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." Tire
expiration date in the last sentence of
this paragraph is corrected as "March
18, 2007", instead of "March 10, 2007".
On page 2020, the paragraph in the
section entitled "CrandfatbarProvision
for Expiring NYVPs at 33 C1'R 330.6" is
corrected to react: "Activities authorized
by the current NWPs issued on
December 13, 19%, (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 (WQC) and Coustal Zone
Management Act ((.LMA) Consistency
A, reernent" 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 NVVP
pre-constructiou notiticatioos is greater
than tho 15 dory completeness review
period for stanclard 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 react "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
sec:oud paragraph is the year 2000, not
1996.
On page 2058, third colunur, 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 Conoral Condition 19.
Oil 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 front 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 (1)) 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 colunur, the word
"o r" 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
Vz-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 IA-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 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 arid identified as being related
to General Condition 15. '['his 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 Via 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, undor paragraph (c)(1) all
ephemeral waters of the United States
are included in the measurement for the
'/,o 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
paragra ith (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,
stormwater maua8ement facilities, and
recreation facilities such as
playgrounds, playing fields, and golf
courses (provided the golf course is an
integral part of the residential
dc- olopnient). 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
inclr>;de 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:
it. The discharge does not cause the
loss of greater than I/,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 lfuear-feet of it
stream bed, unless for intermittent
stream beds this criterion is waived in
writing pursuant to a determination by
the I)istrict 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 'ho-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 lr 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 pray
proceed;
d. For discharges in special aquatic
sites, iuchrding wetlands, the
notification must include a delineation
of affected special aquatic sites;
o. The discharge is part of a single and
complete project;
f. The permittee must avoid and
nrin[urize discharges into waters of the
t J,S at the project site to the maximum
extent practicable. The notification,
when required, must include a written
staterent explaining how avoidance
and minimization of losses of waters of
the US wore achieved on the project
site. Compensatory mitigation will
normally be required to offset the losses
of waters of the IJS. (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 offects
of the project ?rre 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 '/,(,-acre requires
that the permittee notify the District
Engineer in accordance with General
Condition 13;
It. Any work authorized by this NWP
must not cause more than minimal
deCr'adatiOrr of water quality or more
than minimal changes to the flow
characteristics of any stream (see
General Conditions 9 and 21);
i. 1, or discharges causing the loss of
'/I a-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 IJS (e.g., c/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.,
c/%-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 maxinrum 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, Fehruary 7;1, 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 nuclei-
NWPs 39 and 40 cannot exceed l/z 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 ire
waters of the US based on this criterion
would require a PCN although water is
infrequently present in the streani channel
(except for ephemeral waters, which do not
require PCNs under paragraph (c)(2), above;
however, activities that result in the loss of
groater than '/i a acre of ephemeral waters
would require, 1'CNs 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 react
"'I'lie 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 react "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 tho
modified language in General Condition
9.
Oil page 2089, third column, tlce text
of General Condition fi is corrected to
read: "The activity must comply with
any regional conditions that inay have
been added by the Division Engineer
(sou 33 CFR 330A(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 cmd
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 URI, is
replaced with "* * * http://
www.nrnjs.noao.,govlprot res/overview/
es.htnd * * *" 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 tho list
of NWPs that require submission of
delineations of special aquatic: sites with
pre-construction notifications.
Therefore, paragraph (b)(4) of General
Condition X13 is corrected to react "For
NWPs 7, 12, 14, 78, 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, soagrass beds), and
riffle and pool complexes (see paragraph
13(1));,,
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 "Iestoration" because [lie
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
tho 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
NWT's 39, 40, 42, and 43."
Due to [lie number of corrections
niado 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-grfule, Or below-grade fills that change
vi 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
alter 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
me,( 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 tiro
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 feat of perennial or
intermittent stroam hed that is filled or
excavated. This statement is inaccurate
because ephemeral stream beet that is
filled or excavated can also be
considered a loss of waters of the United
Slates. 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 epheineral 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
"boss 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 riot
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., NWT'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.
'T'herefore, 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 dint additional
matter in the forthcoming Federal
Register notice, as well. We expect to
publish that Federal Register notice
within a few weeks.
Dated: Fohriiary 7, 2002.
Lawrence A. Lang,
Assistant Chief, Operations Division,
Directorate of Civil Works.
[FR Doc. 02-3555 Filed 2-12-02; 8:45 and
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 (133001), 4,301 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 fAinutes-November 14,
2001
(2) Faculty Matters
(3) Department Reports
(4) Financial Report
(5) Report--President, USUI IS
(6) Report-Dean, School of Medicine
(7) Report-Dean, Graduate School of
Nursing
(t3) Connueuts-Z,liairman, Board of
Regents
(9) New Business
CONTACT PERSON FOR MORE INFORMATION:
Mr. Bobby D. Anderson, Executive
Secretary, Hoard of Regents, (301) 295-
3116.
Dated: Febrearv 13, 2002.
Linda Bynum,
O.SDI'urlrrnl RegisterGiaison Officor,
Ihrparfrncnt of l)rfonsc.
[FR Doc. 02-3083 Filed 2-11-02; 3:32 pin)
BILLING CODE 5001-08-M
DEPARTMENT OF EDUCATION
Submission for OMB Review;
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