20020697 Ver 1_Complete File_20020506

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
NCDENR
NORTH CAROLINA DEPARTMENT OF
ENVIRONMENT AND NATURAL RESOURCES
May 9, 2002
Chatham County
DWQ Project No. 020697
APPROVAL of 401 Water Quality Certification
Mr. W.F. Rosser, P.E., Manager
NCDOT, Division 8
PO Box 1067
Aberdeen, NC 28315
Dear Mr. Rosser:
You have our approval, in accordance with the attached conditions and those listed below, to place fill
material in 60 linear feet of streams for the purpose of grade and pave SR 1579 in Chatham County. The
project shall be constructed in accordance with your application dated April 29, 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
Completion Form" to notify DWQ when all work included in the 401 Certification has been completed.
The responsible party shall complete the attached form and return it to the 401/Wetlands Unit of the
Division of Water Quality upon completion of the project.
If you do not accept any of the conditions of this certification, you may ask for an adjudicatory hearing.
You must act within 60 days of the date that you receive this letter. To ask for a hearing, send a written
petition that conforms to Chapter 150B of the North Carolina General Statutes to the Office of
Administrative Hearings, P.O. Box 27447, Raleigh, N.C. 27611-7447. This certification and its conditions
are final and binding unless you ask for a hearing.
Wetlands/401 Unit 1650 Mail Service Center Raleigh, North Carolina 27699-1621
Telephone [phone] FAX [phone]
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
A14?
Michael F. Easley, Governor NC ENR
William G. Ross, Jr., Secretary NORTH CAROLINA DEPARTMENT OF
Gregory J. Thorpe, Ph.D., Acting Director ENVIRONMENT AND NATURAL RESOURCES
This letter completes the review of the Division of Water Quality under Section 401 of the Clean Water
Act. If you have any questions, please contact John Hennessy at 919-733-5694 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 1579\wqc\020697wgc.doc
Sincerely,
Gregory J. Thorpe, Ph.D.
Acting Director
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
U511 f
020697
STATE OF NORTH CAROLINA
DEPARTMENT OF TRANSPORTATION
MICHAEL F. EASLEY DIVISION OF HIGHWAYS LYNDO TIPPETT
GOVERNOR SFCREIARY
April 29, 2002
Mr. Rob Ridings
Division Of Water Quality
401 Wetlands Unit MAY _ 6 ZW?
1650 Mail Service Center _J
Raleigh, NC 217699-1650
ta, l (LANDS GROUP
WAIL', U+"1IIY SECTION
Dear Mr. Ridings:
Subject: Chatham County - SR 1579 - Arthur Teague Road
In an effort to obtain the permits needed for pipe replacement and to grade and pave on SR 1579
in Chatham County, we are providing the pre construction notification application and the
supporting materials.
The project is on an intermittent stream that is outside of the critical habitat area for the Cape Fear
Shiner.
To our knowledge there are No High Quality Waters or Outstanding Water Resources occurring
in the project area. We anticipate that these activities will be authorized under Nationwide Permit
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,
0?0
Art C. King
Division Environmental Officer
cc: W. F. Rosser, PE
J. Picklesimer, PE
B. F. Sloan
Agent
File
PAYMENT
RECEIVED
P.O. BOX 1067, ABERDEEN, Noini-i CAROUNA 28315
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State of North Carolina
Department of Environment
and Natural Resources
Division of Water Quality
Michael F. Easley, Governor
William G. Ross, Jr., Secretary
Gregory J. Thorpe, Ph.D., Acting Director
DWQ Project N? 0? DT) ` -7
Applicant: LJ . F . s
Project Name: S2- 1577.?__ _ _
Date of Issuance of 401 Water Quality Certification:
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NC ENR
NORTH CAROLINA DEPARTMENT OF
ENVIRONMENT AND NATURAL RESOURCES
County: CH&:7, A/" I

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 be built
within substantial compliance and intent of the 401 Water Quality Certification and Buffer Rules, the
approved plans and specifications, and other supporting materials.
Signature:
Date:
Agent's Certification
I, 4Nq ` O4,+ 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:
Engineer's Certification
Partial Final
I, 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 27699-1621
Telephone [phone] FAX [phone]
An Equal Opportunity Affirmative Action Employer 5017e, recycled/ post consumer paper
Office Use Only: 020697 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:
N Section 404 Permit MAY - s?
? Section 10 Permit T ._.. M?
1aKOs
N 401 Water Quality Certification 4u,;,eur
? 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: ?
H. 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: brosserna,dot.state.nc.us
2. Agent Information (A signed and dated copy of the Agent Authorization letter must be
attached if the Agent has signatory authority for the owner/applicant.)
Name:_ Benny F. Sloan
Company Affiliation: NC Department of Transportation
Mailing Address: 1404 East Raleigh Street
Siler City, North Carolina 27344
Telephone Number: [phone] Fax Number: 919-742-3986
E-mail Address: [e-mail]
PAYMf_ N T
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-5-
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 1579 (Arthur Teague Rd)
2. T.I.P. Project Number or State Project Number (NCDOT Only): 6.522391
3. Property Identification Number (Tax PIN):
4. Location
County: Chatham Nearest Town: Pittsboro
Subdivision name (include phase/lot number):
Directions to site (include road numbers, landmarks, etc.): Travel east on US 64 towards
Pittsboro. Make a left onto SR 1500. Travel North 2.2 miles to SR 1579
5. Site coordinates, if available (UTM or Lat/Long): N35°5'2.64" W79°21'37.82"
(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:
Existing secondary road
7. Property size (acres):
8. Nearest body of water (stream/river/sound/ocean/lake): Dry Creek
9. River Basin: Cape Fear
(Note - this must be one of North Carolina's seventeen designated major river basins. The
River Basin map is available at littp://h2o.enr.state.nc.us/admin/maps/.)
-6-
10. Describe the purpose of the proposed work: Pipe replacement and grade and pave SR 1579
in Chatham County.
11. List the type of equipment to be used to construct the project: Motorg aL der, trackhoe,
bulldozer, scraper. etc.
12. Describe the land use in the vicinity of this project: Residential/agricultural
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.
-7-
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, fit
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-%Nw.1ema2ov.
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?
(please seci
I Permanent Pipe 60' UT of Rocky River 2' -39 I

- List each impact separately and identity 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-N%-%%.uses.aov. Several intemet sites also allow direct download and printing of USGS traps (e.g., Nv`Ntiv.topozone.com,
a\%-%v.maNuest.com, etc.).
Cumulative impacts (linear distance in feet) to all streams on site: 60'
-8-
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 separateiv and identity 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.
-9-
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/strmizide,htmi.
Provide a brief description of the proposed mitigation plan. The description should provide
as much information as possible, including, but not limited to: site location (attach directions
and/or map, if offsite), affected stream and river basin, type and amount (acreage/linear feet)
of mitigation proposed (restoration, enhancement, creation, or preservation), a plan view,
preservation mechanism (e.g., deed restrictions, conservation easement, etc.), and a
description of the current site conditions and proposed method of construction. Please attach
a separate sheet if more space is needed.
2. Mitigation may also be made by payment into the North Carolina Wetlands Restoration
Program (NCWRP) with the NCWRP's written agreement. Check the box indicating that
you would like to pay into the NCWRP. Please note that payment into the NCWRP must be
reviewed and approved before it can be used to satisfy mitigation requirements. Applicants
will be notified early in the review process by the 401/Wetlands Unit if payment into the
NCWRP is available as an option. For additional information regarding the application
process for the NCWRP, check the NCWRP website at littp://li2o.enr.state.nc.us/Nv[p/index.litin. 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):
- 10-
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.
Neither the current impervious cover (gravel road bed) nor the new proposed impervious cover
(asphalt pavement) will exceed 30% of the total site area Erosion control devices appropriate to
the site will be utilized on this project which may include silt fences check dams and storm
water retaining basins.
XII. Sewage Disposal (DWQ Only)
Clearly detail the ultimate treatment methods and disposition (non-discharge or discharge) of
wastewater generated from the proposed project, or available capacity of the subject facility.
XIII. Violations (DWQ Only)
Is this site in violation of DWQ Wetland Rules (15A NCAC 2H .0500) or any Buffer Rules?
Yes F? No
Is this an after-the-fact permit application?
Yes El 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).
Applicant/Agent's Signature Date
(Agent's signature is valid only if an authorization letter from the applicant is provided.)
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.w STNi °
e STATE OF NORTH CAROLINA
DEPARTMENT OF TRANSPORTATION
MICHAEL F. EASLEY DIVISION OF HIGHWAYS
GOvRRNOR
May 3, 2002
Mr. Rob Riding 09 9 7
Division of Water Quality
401 Wetlands Unit
1650 Mail Service Center
Raleigh, North Carolina 27699-1650
Dear Mr. Ridings:
Enclosed is the permit application for the following project:
Description: SR 1579- Chatham County
Work Order #: 6.522391
TIP Number: N/A
Fee Category: $200.00
Please submit for automated payment.
Sincerely,
Art C. King
Division Environmental Officer
LYNDo TIPPETT
SF('RIEI ARY
;i
MAY-6M
?_ ? LANf), aR0 P .?
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i
U.S. ARMY CORPS OF ENGINEERS 0 17
WILMINGTON DISTRICT
Action ID: 200200788 TIP No: State Project No: 6.522391 County: Chatham
GENERAL PERMIT (REGIONAL AND NATIONWIDE) VERIFICATION
Applicant: North Carolina Department of "I'ransportation
Address: W.F. Rosser, Y.E., Division Engineer
North Carolina Department of Transportation
Division 8 JW 1 4W
R
P.O. Box 1067 g f
Aberdeen, North Carolina 28315 WETLANDS GROUP
NI?i7E? li„t.ITY SECTION
Telephone Number: [phone]
Size and I..ocation of project (waterway, road name/number, town, etc.): 44 linear feet of 42-inch RCP culvert
at centerline station 38-+80 on SR 1579 in an unnamed tributary to Rocky River in Chatham County, North Carolina.
Description of Activity: To replace 40 linear feet of existing 24-inch RCP culvert with 44 linear feet of 42-inch RCP
culvert with 2 FES for a total length of 60 linear feet. 'traffic will be detoured onto existing roadways during
construction.
Applicable Law: X Section 404 (Clean Water Act, 33 U.S.G. 1344)
Section 10 (River and Ilarbor 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.
't'his Department of the Army RGP or NWP verification does not relieve the permittee of the responsibility to obtain
any other required Federal, State, or local approvals/permits. The permittee may need to contact appropriate State
and local agencies before beginning work.
If there are any questions regarding this authorization or any of the conditions of the RGP or NWP, please contact
the Corps Regulatory Official specified below.
Date 12 June 202____ _ ???? ???----_
Corps Regulatory Official Richard K SRencer _ Telephone No. [phone]
Expiration Date of Verification 12 Junc 2005 __
CF: NCDO F, Art King (Division 8
NCDWQ, John Ilcnnessy?
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Federal Register/Vol. 67, No. 10/Tuesday, January 15, 2002/Notices 2077
New York
New York District Engineer, ATTN: CENAN-
OP-R, 26 Federal Plaza, New York, NY
10278-0090
North Carolina
Wilmington District Engineer, ATTN:
CESAW-RG, P.O. Box 1690, Wilmington
NC 28402-1890
North Dakota
Omaha District Engineer, ATTN: CENWO-
OP-R, 106 South 15th Street, Omaha, NE
68102-1618
Ohio
Huntington District Engineer, ATTN:
CELRH-OR-F, 502 8th Street, Huntington
WV 25701-2070
Oklahoma
Tulsa District Engineer, ATTN: CESWT-PE--
R, 1645 S. 101st East Ave, Tulsa, OK
74128-4609
Oregon
Portland District Engineer, ATTN: CEMVP-
PE-G, P.O. Box 2946, Portland, OR 97208-
2946
Pennsylvania
Baltimore District Engineer, ATTN: CENAB-
OP-R, P.O. Box 1715, Baltimore, IvID
21203-1715
Rhode Island
New England District Engineer, ATTN:
CENAE-R, 696 Virginia Road, Concord,
MA 01742-2751
South Carolina
Charleston District Engineer, ATTN: CESAC-
CO-P, P.O. Box 919, Charleston, SC
29402-0919
South Dakota
Omaha District Engineer, ATTN: CENWO-
OP-R, 106 South 15th Street, Omaha, NE
68102-1618
Tennessee
Nashville District Engineer, ATTN: CF.LRN-
OP-F, P.O. Box 1070, Nashville, TN
37202-1070
Texas
Ft. Worth District Engineer, ATTN: CESWF--
PER-R, P.O. Box 17300, Ft. Worth, TX
76102-0300
Utah
Sacramento District Engineer, ATTN:
CESPK-CO-R, 1325 J Street, CA 95814-
2922
Vermont
New England District Engineer, ATTN:
CENAF.-R, 696 Virginia Road, Concord
MA 01742-2751
Virgi II is
Norfolk District Engineer, ATTN: CENAO
OP-R, 803 Front Street, Norfolk, VA
23510--1096
Washington
Seattle District Engineer, ATTN: CENWS-
OP-RG, P.O. Box 3755, Seattle, WA 98124--
2255
West Virginia
Huntington District Engineer, ATTN:
CEL,RH-OR-F, 502 8th Street, Huntington,
WV 25701-2070
Wisconsin
St. Paul District Engineer, ATTN: CFMVP-
CO-,R, 1(jo Fifth Street East, St. Paul, tvlN
551P1-1638
Wvaming
Omaha District Engineer, ATTN: CF.NWO-
OP-R, 106 South 15th Street, Omaha, NE
68102-1618
District of Columbia
Baltimore District Engineer, ATTN: CENAB-
OP-R, P.O. Box 1715, Baltimore, MD
21203-1715
Pacific Territories (American Samoa, Guarn,
& Commonwealth of the Northern Moriona
Islands)
Honolulu District Engineer, ATTN: CEPOH-
EC-R, Building 230, Fort Shafter,
Honolulu, III 96858-5440
Puerto Rico & Virgin Islands
Jacksonville District Engineer, ATTN:
CESAJ-CO-R, P.O. Box 4970, Jacksonville,
FL 32202-4412
Dated: January 4, 2002.
Approved:
Robert 1-I. Griffin,
Brigadier General, U.S. Army, Director of Civil
Works.
Nationwide Permits, Conditions,
Further Information, and Definitions
A. Index of Nationwide Permits,
Conditions, Further Information, and
Definitions
Nationwide Permits
1. Aids to Navigation
2. Structures in Artificial Canals
3. Maintenance
4. Fish and Wildlife Harvesting,
Enhancement, and Attraction Devices and
Activities
5. Scientific Measurement Devices
6. Survey Activities
7. Oulfall Structures and Maintenance
8. Oil and Gas Structures
9. Structures in Fleeting and Anchorage
Areas
10. Mooring Buoys
11. 't'emporary 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. Hvdropower Projects
18. Minor Discharges
19. Minor Dredging
20. Oil Spill Cleanup
21. Surface Coal Mining Activities
22. Removal of Vessels
23. Approved Categorical Exclusions
24. State Administered Section 404 Programs
25. Structural Discharges
26. lReserved)
27. Stream and Wetland Restoration
Activities
28, Modifications of Existing Marinas
29. Single-family housing
30. Moist Soil Management for Wildlife
31. Maintenance of Existing Flood Control
Facilities
32. Completed Enforcement Actions
33. Temporary Construction, Access and
Dewatering
34. Cranberry Production Activities
35. Maintenance Dredging of Existing Basins
36. Boat Ramps
37. Emergency Watershed Protection and
Rehabilitation
38. Cleanup of Hazardous and Toxic Waste
39. Residential, Commercial, and
Institutional Developments
40. Agricultural Activities
41. Reshaping Existing Drainage Ditches
42. Recreational Facilities
43. Stormwater Management Facilities
44. Mining Activities
Nationwide Permit General Conditions
1. Navigation
2. Proper Maintenance
3. Soil Erosion and Sediment Controls
4. Aquatic Life Movements
5. Equipment
6. Regional and Case-by-Case Conditions
7. Wild and Scenic Rivers
8. Tribal Rights
9. Water Quality
10. Coastal Zone Management
11. Endangered Species
12. Historic Properties
13. Notification
14. Compliance Certification
15. Use of Multiple Nationwide Permits.
16. Water Supply Intakes
17. Shellfish Beds
18. Suitable Material
19. Mitigation
20. Spawning Areas
21. Management of Water Flows
22. Adverse Effects frorn Impoundments
23. Waterfowl Breeding Areas
24. Removal of Temporary Fills
25. Designated Critical Resource Waters
26. Fills Within 100-year Floodplains
27. Construction Period
Further Information
Definitions
Best Management Practices (BMI's)
Compensatory Mitigation
Creation
Enhancement
Ephemeral Stream
Farm Tract
Flood Fringe
Floodway
Independent Utility
Intermittent Stream
Loss of Waters of the US
Non-tidal Wetland
Open Water
Perennial Stream
Permanent Above-grade Fill
Preservation
Restoration
Riftle and Pool Complex
2078 Federal Register/Vol. 67, No. 10/Tuesday, January 15, 2002/Notices
Single and Complete Project
Stormwater Management bridges, culverted road crossings, water done primarily to obtain fill for an

Stormwater Management Facilities
Stream Bed
intake structures, etc.) and the

placement of new or additional riprap to y

restoration activities. Tile discharge of
dredged or fill material and all related
Stream Channelization
'
' protect the structure, provided the work needed to restore the upland must
T
idal Wetland permittee notifies the District Engineer be part of a single and complete project.
Vegetated Buffer
Vegetated Shallows in accordance with General Condition
13. The removal of sediment is li
it
d This permit cannot be used in

Waterbody m
e
to the minimum necessary to restore the conjunction with NWP 18 or NW11 19 to
restore damaged upland areas. This
B. Nationwide Permits waterway in the immediate vicinity of permit cannot be used to reclaim

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

and
P
ro
rker wh
a
h a
e en
e
structure was built, but cannot extend period, to normal erosion processes.
This permit does not authorize
m
stalled in coan
c
nd
e
v
h t B
i further than 200 feet in anv direction
from tine structure. The placernent of ri maintenance dredging for the primary
f
i

requ
rements of the U.S. Coast Guard
(USCG) (See 33 CFR, chapter I p
rap must be the minimum necessar y to
5 purpose o
nav
gation and beach
restoration. This permit does not
,
subchapter C part 66). (Section 10)
` protect the structure or to ensure the
safety of the structure
All excavat
d authorize new stream channelization or
2. Structures in Artificial Canals.
Structures constructed in artificial .
e
materials must be deposited and stream relocation projects. Any work
authorized by this permit must not
canals within principally residential
developments where the connection of retained in an upland area unless
otherwise specifically approved by the cause more than minimal degradation of
water quality, more than minimal
the canal to navigable water of the US
h District Engineer under separate
authorization
An
bank stabili
ti changes to the flow characteristics of the
as been previously authorized (see 33
CF'R 322.5(0g)). (Section 10) .
y
za
on
measures not directly associated with stream, or increase flooding (See
General Conditions 9 and 21). (Sections
-3. Maintenance. Activities related to: the structure will require a separate 10 and 404)
(i) The repair, rehabilitation, or authorization from the District Engineer. Note: This MVP 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 404(f)
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 Harvesting,
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

nHodification. Minor deviations in the
'
in a water of the US. (Uplands lost as ,
eel pots, lobster traps, duck blinds, clam
structure
s configuration or filled area a result of a storm, flood, or other and oyster digging; and small fish
including those due to changes in discrete event can be replaced without attraction devices such as open water
materials, construction techniques, or a Section 404 permit provided the fish concentrators (sea kites, etc.). This
current construction codes or safety uplands are restored to their original NWP authorizes shellfish seeding
standards which are necessary to make pre-event location. This NWP is for the provided this activity does not occur in
repair, rehabilitation, or replacement are activities in waters of the US associated wetlands or sites that support
permitted, provided the adverse with the replacement of the uplands.) submerged aquatic vegetation (including
environmental effects resulting from The permittee must notify the District sites where submerged aquatic
such repair, rehabilitation, or Engineer, in accordance with General vegetation is documented to exist
but
replacement are minimal. Currently Condition 13, within 12-months of the ,
may not be present in a given year.).
serviceable means useable as is or with date of the damage and the work must This NWP does riot authorize artificial
some maintenance, but not so degraded commence, or be under contract to reefs or impoundments and serni-
as to essentially require reconstruction. commence, within two years of the date impoundments of waters of the US for
This NWP authorizes the repair, of the damage. The permittee should the culture or holding of motile species
rehabilitation, or replacement of those provide evidence, such as a recent such as lobster or the use of covered
structures or fills destroyed or damaged topographic survey or photographs, to oyster trays or clarn racks. (Sections 10
by storms, floods, fire or other discrete justify the extent of the proposed and 404)
events, provided the repair,
rehabilitation, or replacement is restoration. The restoration of the
damaged areas cannot exceed the • 5. Scientific Measurement Devices.
Devices, whose purpose is to measure
commenced, or is under contract to contours, or ordinary high water mark, and record scientific data such as staff
commence, within two years of the (late that existed before the damage. The gages, tide gages, water recording
of their destruction or damage. In cases
of catastro
hic events
su
h District Engineer retains the right to
d
t
i
h devices, water quality testing and
p
,
c
as
hurricanes or tornadoes, this two-year e
erm
ne t
e extent of the pre-existing
conditions and the extent of any improvement devices and similar
structures. Small weirs and flurries
limit may be waived by the District restoration work authorized by this constructed primarily to record water
Engineer, provided the permittee can permit. Minor dredging to remove quantity and velocity are also
demonstrate funding, contract, or other obstructions from the adjacent authorized provided the discharge is
similar delays.
(ii) Discharges of dredged or fill waterbody is limited to 50 cubic yards
below the plane of the ordinary high limited to 25 cubic yards and further for
discharges of 10 to 25 cubic yards
material, including excavation, into all water mark, and is limited to the provided the permittee notifies the
waters of the US to remove accumulated
sediments and debris in the vicinity of amount necessary to restore the pre-
existin
bottom contou
f th District Engineer in accordance with the
"
"
,
and within, existing structures (e.g., rs o
e
g
waterbody. The dredging may not be Notification
General Condition.
(Sections 10 and 404)
Federal Register/Vol. 67, No. 10/Tuesday, January 15, 2002/Notices 2079
' 6. Survey Activities. Survey activities
including core sampling, seismic
exploratory operations, plugging of
seismic shot holes and other
exploratory-type bore holes, soil survey,
sampling, and historic resources
surveys. Discharges and structures
associated with the recovery of historic
resources are not authorized by this
NWP. Drilling and the discharge of
excavated material from test wells for
oil and gas exploration is not authorized
by this NWP; the plugging of such wells
is authorized. Fill placed for roads, pads
and other similar activities is not
authorized by this NWP. The NWP does
not authorize any permanent structures.
The discharge of drilling mud and
cuttings may require a permit under
section 402 of the CWA. (Sections 10
and 404)
-7. Out/'all Structures and
Maintenance. Activities related to:
(i) Construction of outfall structures
and associated intake structures where
the effluent from the outfall is
authorized, conditionally authorized, or
specifically exempted, or are otherwise
in compliance with regulations issued
under the National Pollutant Discharge
Elimination System Program (Section
402 of the CWA), and
(ii) Maintenance excavation,
including dredging, to remove
accumulated sediments blocking or
restricting outfall and intake structures,
accumulated sediments from small
impoundments associated with outfall
and intake structures, and accumulated
sediments from canals associated with
outfall and intake structures, provided
that the activity meets all of the
following criteria:
a. The permittee notifies the District
Engineer in accordance with General
Condition 13;
b. The amount of excavated or
;dredged material must be the minimum
necessary to restore the outfalls, intakes,
small impoundments, and canals to
original design capacities and design
configurations (i.e., depth and width);
C. The excavated or dredged material
is deposited and retained at an upland
site, unless otherwise approved by the
District Engineer under separate
authorization; and
d. Proper soil erosion and sediment
control measures are used to minimize
reentry of sediments into waters of the
US.
The construction of intake structures
is not authorized by this NWP, unless
they are directly associated with an
authorized outfall structure. For
maintenattcu excavation and dredging to
remove accumulated sediments, the
notification must include information
regarding the original design capacities
and configurations of the facility and
e presence of special aquatic sites
e.g., vegetated shallows) in the vicinity
of the proposed work. (Sections 10 and
404)
8. Oil and Gas Structures. Structures
for the exploration, production, and
transportation of oil, gas, and minerals
on the outer continental shelf within
areas leased for such purposes by the
DO[, Minerals Management Service
(MMS).'Sucli structures shall not.be
placed within the limits of any
designated shipping safety fairway or
traffic separation scheme, except
temporary anchors that comply with the
fairway regulations in 33 CFR 322.5(1).
(Where such limits have not been
designated, or where changes are
anticipated, District Engineers will
consider asserting discretionary
authority in accordance with 33 CFR
330.4(e) and will also review such
proposals to ensure they comply with
the provisions of the fairway regulations
in 33 CFR 322.5(1). Any Corps review
under this permit will be limited to the
effects on navigation and national
security in accordance with 33 CFR
.322.5(0). Such structures will not be
placed in established danger zones or
restricted areas as designated in 33 CFR
part 334: nor will such structures be
permitted in EPA or Corps desinated
dredged material disposal areas'.'
(Section 10)
9. Structures in Fleeting and
Anchorage Areas. Structures, buoys,
floats and other devices placed within
anchorage or fleeting areas to facilitate
moorage of vessels where the USCG has
established such areas for that purpose.
(Section 10)
, 10. Mooring Buoys. Non-commercial,
single-boat, mooring buoys. (Section 10)
11. Temporary Recreational
Structures. Temporary buoys, markers,
small floating docks, and similar
structures placed for recreational use
during specific events such as water
skiing competitions and boat races or
seasonal use provided that such
structures are removed within 30 days
after use has been discontinued. At
Corps of Engineers reservoirs, the
reservoir manager must approve each
buoy or marker individually. (Section
10)
#12. Utility Line Activities. Activities
required for the construction,
maintenance and repair of utility lines
and associated facilities in waters of the.
US as follows:
(i) Utility lines: The construction,
maintenance, or rupair of utility lines,
including outfall and intake structures
and the associated excavation, backfilt,
or bedding for the utility lines, in all
waters of the US, provided there is no
change in preconstruction contours. A
"utility line" is defined as any pipe or
pipeline for the transportation of anv
gaseous, liquid, liquescent, or slurry'
substance, for any purpose, and any
cable, line, or wire for the transmission
for any purpose of electrical energy,
telephone, and telegraph messages, and
radio and television communication
(see Note 1, below). Material resulting
from trench excavation may be
temporarily sidecast (up to three
months) into waters of the US, provided
that the material is not placed in such
a manner that it is dispersed by currents
or other forces. The District Engineer
may extend the period of temporary side
casting not to exceed a total of 180 days,
where appropriate. In wetlands, the top
6" to 12' of the trench should normally
be backfilled'with topsoil from the
trench. Furthermore, the trench cannot
be constructed in such a manner as to
drain waters of the US (e.g., backfilling
with extensive gravel layers, creating a
french drain effect). For example, utility
line trenches can be backfilled with clay
blocks to ensure that the trench does not
drain the waters of the US through
which the utility line is installed. Any
exposed slopes and stream banks must
be stabilized immediately upon
completion of the utility line crossing of
each waterbody.
(ii) Utility line substations: The
construction, maintenance, or
expansion of a substation facility
associated with a power line or utility
line in non-tidal waters of the US,
excluding non-tidal wetlands adjacent
to tidal waters, provided the activity
does not result in the loss of greater than
1/2-acre of non-tidal waters of the US.
(iii) Foundations for overhead utility
line towers, poles, and anchors: The
construction or maintenance of
foundations for overhead utility line
towers, poles, and anchors in all waters
of the US, provided the foundations are
the minimum size necessary and
separate footings for each tower leg
(rather than a larger single pad) are used
where feasible.
(iv) Access roads: The construction of
access roads for the construction and
maintenance of utility lines, including
overhead power lines and utility line
substations, in non-tidal waters of the
US, excluding non-tidal wetlands
adjacent to tidal waters, provided the
clischarges clo not cause the loss of
greater than 1/2-acre of non-tidal waters
of the US. Access roads shall be the
minimum width necessary (see Note 2,
below). Access roads must be
constructed so that the length of the
road minimizes the adverse effects on
waters of the US and as near as possible
to preconstruction contours and
2080 Federal Register/Vol. 67, No. 10/Tuesday, January 15, 2.002/Notices
elevations (e.g., at grade corduroy roads
or geotextile/gravel roads). Access roads
constructed above preconstruction
contours and elevations in waters of the
US must be properly bridged or
culverted to maintain surface flows.
The term "utility line" does not
include activities which drain a water of
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 as a result of the
project. Activities authorized by
paragraph (i) through (iv) may not
exceed a total of 1/2-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 preconstruction contours
and elevation, is not included in the
calculation of permanent loss of waters
of the US. This includes temporary
construction mats (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 the
minimal level.
Mechanized land 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 preconstruction contours
are maintained as near as possible. The
area of waters of the US that is filled,
excavated, or flooded must 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 CFR part 322).
Notification: The permittee must
notify the District Engineer in
accordance with General Condition 13,
if any of the following criteria are rnet:
(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
US, excluding overhead lines, exceeds
500 feet;
(d) The utility line is placed within a
jurisdictional area (i.e., water of the CJs),
and it runs parallel to a stream bed that
is within that jurisdictional area;
(e) Discharges associated with the
construction of utility line substations
that result in the loss of greater than 1/io-
acre of waters of the US; or
(f) Pet manent access roads
consfructed above grade in waters of the
US for a distance of more than 500 feet.
(g) Permanent access roads
constructed in waters of the US with
impervious materials. (Sections 10 and
404)
Note 1: Overload utility tines constructed
over Section 10 waters and utility lines that
are routed in or under Section 10 waters
without a discharge of dredged or fill
material require a Section 10 permit; except
for pipes or pipelines used to transport
gaseous, liquid, liquescent, or slurry
substances over navigable waters of the US,
which are considered to be bridges, not
utility lines, and may require a permit from
the USCG pursuant to section 9 of the Rivers
and Harbors Act of 1899. However, any
discharges of dredged or fill material
associated with such pipelines will require a
Corps permit under Section 404.
Note 2: Access roads used for both
construction and maintenance may be
authorized, provided they meet the terms and
conditions of this NWP. Access roads used
solely for construction of the utility line must
be removed upon completion of the work and
the area restored to preconstruction contours,
elevations„and wetland conditions.
Temporary access roads for construction may
be authorized by NWP 33.
Note 3: Where the proposed utility line is
constructed or installed in navigable waters
of the US (i.e., Section 10 waters), copies of
the PCN and N1-VP verification wit[ be sent
by the Corps to the National Oceanic and
Atmospheric Administration (NOAA),
National Ocean Service (NOS), for charting
the utility line to protect navigation.
•13. Bank Stabilization. Bank
stabilization activities necessary for
erosion prevention provided the activity
meets all of the following criteria:
a. No material is placed more than the
minimum 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 mark
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
manner, to impair surface water flow
into or out of any wetland area;
f. No material is placed in a manner
that will be eroded by normal or
expected high flows (property anchored
trees and treetops may be used in low
energy areas); and,
g. The activity is part of a single and
complete project.
Bank stabilization activities in excess
of 500 feet in length or greater than an
average of one cubic yard per running
foot may be authorized if the permittee
notifies the District Engineer in
accordance with the "Notification"
General Condition 13 and the District
Engineer determines the activity
complies with the other terms anti
conditions of the NWP acid the adverse
environmental effects are minimal both
individually and cumulatively. This
NWP may not be used for the
channelization of waters of the US.
(Sections 10 and 404)
014. Linear Transportation Projects.
Activities required for the construction,
expansion, modification, or
improvement of linear transportation
crossings (e.g., highways, railways,
trails, airport runways, and taxiways) in
waters of the US, including wetlands, if
the activity meets the following criteria:
a. This NWP is subject to the
following acreage limits:
(1) For linear transportation projects
in non-tidal waters, provided the
discharge does not cause the loss of
greater than 1/2-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
1/3-acre of waters of the US.
b. 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 1ho-acre of waters of the US;
or
(2) There is a discharge in a special
aquatic 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 losses result
only in minimal adverse effects to the
aquatic environment and a statement
describing how temporary losses will be
minimized to the maximum extent
practicable;
d. For discharges in special aquatic
sites, including wetlands, and strearn
riffle and pool complexes, the
notification must include a delineation
of the affected special aquatic sites;
e. The width of the fill is limited to
the minimum necessary for the crossing;
f. This permit does not authorize
stream charinelization, and the
authorized activities must not cause
more than minimal changes to the
hydraulic flow characteristics of the
stream, increase flooding, or cause more
Federal Register / Vol. 67, No. lo/Tuesday, January 15, 2002/Notices
2081
than minimal degradation of water
quality of any stream (see General
Conditions 9 and 21);
g. This permit cannot be used to
authorize non-linear features commonly
associated with transportation projects,
such as vehicle maintenance or storage
buildings, parking lots, train stations, or
aircraft hangars; and
h. The crossing is a single and
complete project for crossing waters of
the US. Where a road segment (i.e., the
shortest segment of a road with
independent utility that is part of a
larger project) has multiple crossings of
streams (several single and complete
projects) the Corps will consider
whether it should use its discretionary
authority to require an Individual
Permit. (Sections 10 and 404)
Note: Some discharges for the construction
of farm roads, forest roads, or temporary
roads for moving mining equipment may be
eligible for an exemption (Tom the need for
a Section 404 permit (see 33 CFR 323.4).
• 15. U.S. Coast Guard Approved
Bridges. Discharges of dredged or fill
material incidental to the construction
of bridges across navigable waters of the
US, including cofferdams, abutments,
foundation seals, piers, and temporary
construction and access fills provided
such discharges have been authorized
by the USCG as part of the bridge
permit. Causeways and approach fills
are not included in this NWP and will
require an individual or regional
Section 404 permit. (Section 404)
16. Return Water 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
adrninistratively.defined as a discharge
of dredged material by 33 CFR 323.2(cl),
even though the disposal itself occurs
on the upland and does not require a
Section 404 permit. This NWP satisfies
the technical requirement for a Section
404 permit for the return water where
the quality of the return water is
controlled by the state through the
Section 401 certification procedures.
(Section 404)
- 17. Hydropower Projects. Discharges
of dredged or fill material associated
with (a) small hydropower projects at
existing reservoirs where. the project,
which includes the fill, are licensed by
the Federal 1?11eru Regulatory
Commission (FERC) under the Federal
Power Act of 1920, as amended; and has
a total generating capacity of not more
than 5000 k%V; and the permittee
notifies the District Engineer in
accordance with the "Notification"
General Condition; or (b) hydropower
projects for which the FERC has granted
an exemption from licensing pursuant
to section 408 of the Energy Security
Act of 1980 (16 U.S.C. 2705 and 2708)
and section 30 of the Federal Power Act,
as amended; provided the permittee
notifies the District Engineer in
accordance with the "Notification"
General Condition. (Section 404)
18..MinorDischarges. Minor
discharges of dredged or fill material
into all waters of the US if the activity
meets all of the following criteria:
it. The quantity of discharged material
and the volume of area excavated do not
exceed 25 cubic yards below the plane
of the ordinary high water mark or the
high tide line;
b. The discharge, including any
excavated area, will not cause the loss
of more than 1/ro-acre of a special
aquatic site, including wetlands. For the
purposes of this NWP, the acreage
limitation includes the filled area and
excavated area plus special aquatic sites
that are adversely affected by flooding
and special aquatic sites that are
drained so that they would no longer be
a water of the US as a result of the
project;
c. If the discharge, including any
excavated area, exceeds 10 cubic yards
below the plane of the ordinary high
water mark or the high tide line or if the
discharge is in a special aquatic site,
including wetlands, the permittee
notifies the District Engineer in
accordance with the "Notification"
General Condition. For discharges in
special aquatic sites, including
wetlands, the notification must also
include a delineation of affected special
aquatic sites, including wetlands (also
see 33 CFR 330.1(e)); and
d. The discharge, including all
attendant features, both temporary and
permanent, is part of a single and
complete project and is not placed for
the purpose of a stream diversion.
(Sections 10 and 404)
19. Minor Dredging. Dredging of no
more than 25 cubic yards below the
plane of the ordinary high water mark
or the mean high water rnark from
navigable waters of the LIS (i.e., Section
10 waters) as part of a single and
complete project. This NWP does not
authorize the dredging or degradation
through siltation of coral reefs, sites that
support submerged aquatic: vegetation
(including sites where submerged
aquatic vegetation is documented to
exist, but may not be present in a given
year), nnadromous fish spawning areas,
or wetlands, or the connection of canals
or other artificial waterways to
navigable waters of the US (see 33 CFR
322.5(8)). (Sections 10 and 404)
20. Oil Spill Cleanup. Activities
required for the containment and
cleanup of oil and hazardous substances
which are subject to the National Oil
and Hazardous Substances Pollution
Contingency Plan (40 CFR part 300)
provided that the work is done in
accordance with the Spill Control and
Countermeasure Plan required by 40
CFR 112.3 and any existing state
contingency plan and provided that the
Regional Response Team (if one exists
in the area) concurs with the proposed
containment and cleanup action.
(Sections 10 and 404)
21. Surface Coal Mining Activities.
Discharges of dredged or fill material
into waters of the US associated with
surface coal Mining and reclamation
operations provided the coal mining
activities are authorized by the DOI,
Office of Surface Mining (OSM), or by
states with approved programs under
Title V of the Surface Mining Control
and Reclamation Act of 1977 and
provided the permittee notifies the
District Engineer in accordance with the
"Notification" General Condition. In
addition, to be authorized by this NWP,
the District Engineer must determine
that the activity complies with the terms
and conditions of the NWP and that the
adverse environmental effects are
minimal both individually and
cumulatively and must notify the
project sponsor of this determination in
writing. The Corps, at the discretion of
the District Engineer, may require a
bond to ensure success of the
mitigation, if no other Federal or state
agency has required one. For discharges
in special aquatic sites, including
wetlands, and stream riffle and pool
complexes, the notification must also
include a delineation of affected special
aquatic sites, including wetlands. (also,
see 33 CFR 330.1(e))
Mitigation: In determining the need
for as well as the level and type of
ritigation, the District Engineer will
ensure no more than minimal adverse
effects to the aquatic environment
occur. As such, District Engineers will
determine on a case-by-case basis the
requirement for adequate mitigation to
ensure the effects to aquatic systems are
minimal. In cases where OSM or the
state has required mitigation for the loss
of aquatic habitat, the Corps may
consider this in determining appropriate
mitigation under Section 404. (Sections
10 and 40-t)
22. Removal of Vessels. Temporary
structures or ruiuor discharges of
dredged or fill material required for the
removal of wrecked, abandoned, or
disabled vessels, or the removal of man-
2082 Federal Register / Vol. 67, No. 10 /'Tuesday, January 15, 2002/Notices
made obstructions to navigation, This
NWP does not authorize the
e
l
f within the form prior to the discharge of bed and/or banks to restore or create
r
mova
o
vessels listed or determined eligible for concrete, sand, rock, etc. This NWI'
does not authorize filled structural stream meanders; the backfilling of
artificial channels and draina
e dit
h

listing on the National Register of
Historic places unless the District
ruembers that would support buildings,
building pacts
homes
house
ads g
c
es;
the removal of existing drainage
t
t
h

Engineer is notified and indicates that
there is com
liance with the "Hi
t
i ,
,
p
,
parking areas, storage areas and other
h s
ruc
ures; t
e construction of small
nesting islands; the construction of open
p
s
or
c
Properties" General Condition. This suc
structures. The structure itself may
require a Section 10 permit if located in water areas; the construction of oyster
habitat over unvegetated bottom in tid
l
NWP does not authorize maintenance
dredging, shoal removal, or riverbank navigable waters of the US. (Section
404) a
waters; activities needed to reestablish

snagging. Vessel disposal in waters of
26. [Reserved) vegetation, including plowing or discing
for seed bed preparation and the
the US may need a permit front EPA
(see 40 CF'R 229.3). (Sections 10 and 27. Stream and Wetland Restoration
Activities
Activities in waters of the US planting of appropriate wetland species;

404)
23. Approved Categorical Fxclusions, .
associated with the restoration of former
waters
the enhancement of de
raded mechanized land clearing to remove
non-native invasive, exotic or nusianc.e

Activities undertaken, assisted, ,
g
tidal and non-tidal wetlands and vegetation; and other related activities.
This NWP does not authorize the
authorized, regulated, funded, or
financed, in whole or in part, by another riparian areas, the creation of tidal and
non-tidal wetlands and ri
arian areas conversion of a stream to another
ti
h

Federal agency or department where p
,
and the restoration and enhancement of aqua
c use, suc
as the creation of an
impoundment for waterfowl habitat

that agency or department has
determined
pursuant to the Council on
non-tidal streams and non-ticlal open
t .
'['his NWP does not authorize stream
,
Environmental Quality Regulation for wa
er areas as follows:
(a) The activity is conducted art: channelization. This NWP does not
authorize the conversion of natural
Implementing the Procedural Provisions (1) Non-Federal public lands and'. wetlands to another aquatic use
such as
of the National Environmental Policy
Act (NEPA) (40 CFR part 1500 et seq
) private lands, in accordance with the
terms and conditions of a bindi ,
creation of waterfowl impoundments
.
,
that the activity, work, or discharge is ng
wetland enhancement, restoration, or where a forested wetland previously
existed. However
this NWP authori

categorically excluded from
creation agreement between the ,
zes
the relocation of non-tidal waters

environmental documentation, because
landowner and the U.S. Fish and ,
including non-tidal wetlands
on the
it is included within a category of Wildlife Service (FWS) or the Natural ,
project site provided there are net gains
actions which neither individually nor
cumulatively have a significant effect on Resources Conservation Service (MRCS),
the National Marine Fishe
i
S
i in aquatic resource functions and

the human environment, and the Office r
es
erv
ce,
the National Ocean Service, or values. For example, this NWP may
authorize the creation of an open water
of the Chief of Engineers (ATTN: CECW-
OR) has been furnished notice of the
' voluntary wetland restoration,
enhancement, and creation actions impoundment in a non-tidal emergent
wetland, provided the non-tidal
agency
s or department's application for
the categorical exclusion and concurs documented by the NRCS pursuant to
NRCS re-ulatio emergent wetland is replaced by

with that determination. Before ns; or
(2) Reclaimed surface coal mine creating that wetland type on the project
site. This NWP does not authorize the
approval for purposes of this NWP of lands, in accordance with a Surface relocation of tidal waters or the
any agency's categorical exclusions, the
Chief of Engineers will solicit public Mining Control and Reclamation Act
permit issued by the OSM or the conversion of tidal waters, including
tidal wetlands, to other aquatic uses

comment. In addressing these
comments, the Chief of Engineers may
applicable state agency (the future
reversion does not ap
l
to streams or ,
such as the conversion of tidal wetlands
i
t
t
i
d

require certain conditions for p
y
wetlands created, restored, or enhanced n
o open wa
er
mpoun
ments.
Reversion. For enhancement

authorization of an agency's categorical
exclusions under this NWP
(Sections
as mitigation for the mining impacts, ,
restoration, and creation projects
.
10 and 404) nor naturally due to hyclrologic or conducted under paragraphs (a)(3), this

24. State Administered Section 404 topographic features, nor for a
mitigation bank); or NWP does not authorize any future
clischarge of dredged or fill material
Program. Any activity permitted by a
state administering its own Section 404 (3YAny other public, private or trihal
lands associated with the reversion of the area

permit program pursuant to 33 U.S.C. ;
(b) Notification: For activities our any to its prior condition. In such cases a
separate permit would be required for
1344(8)-(l) is permitted pursuant to
section 10 of the Rivers and Harbors Act public or private land that are not
described by paragraphs (a)(1) or (a)(2) any reversion. For restoration,
enhancement
and
ti

of 1890, Those activities that do not
ahove, the pernrittee must notify the ,
crea
on projects
conducted uncler paragraphs (a)(1) and
involve a Section 404 state permit are District Engineer in accordance with (a)(2), this NWP also authorizes any
not included in this NWP, but certain General Condition I i; and future discharge of dredged or fill
structures will be exempted by section (c) Planting of only native species material associated with the reversion of
154 of Pub. 1., 94-587, 90 Stat. 2917 (33 should occur on the site. the area to its ducuntented prior
U.S.C. 591) (see 33 CFR 322.3(x)(2)),
(Section 10) Activities authorized by this NWI'
i
l
d condition and use (i.e., prior to the

25. Structural Discharges. Discharges nc
u
e, to the extent that a Corps
permit is required, but are not limited restoration, enhancement, or creation
activities). The reversion must occur
of material such as concrete, sand, rock, to: the removal of acccunulated within five years after expiration 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 limited terra wetland restoration or
i

structural member for standard pile o
structures, dikes, and beans; the creat
on agreernent or permit, even if the
discharge occurs after this NWI' expirt?s.
supported structures, such as bridges, installation of current cleflectors; the This MVP also authorizes the reversion
transmission line footings, and enhancement, restoration, or creation of of wetlands that were restored

walkways or for general navigation,
riffle and pool stream structure; tho ,
entranced, or created on prior-convorted
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 ,
ill accordance with a binding xgreoment
Federal Register / Vol. 67, No. 10 / Tuesday, January 15, 2002/Notices 2083
between the landowner and NRCS or
FWS (even though the restoration,
enhancement, or creation activity did
not require a Section 404 permit). The
five-year reversion limit does not apply
to agreements without time limits
reached under paragraph (a)(1). The
prior condition will be documented in
the original agreement or permit, and
the determination of return to prior
conditions will be made by the Federal
agency or appropriate state agency
executing the agreement or permit.
Before any reversion activity the
permittee or the appropriate Federal or
state agency must notify the District
Engineer and include the
documentation of the prior condition.
Once an area has reverted to its prior
physical condition, it will be subject to
whatever the Corps Regulatory
requirements will be at that future date.
(Sections 10 and 404)
Note: Compensatory mitigation is not
required for activities authorized by this
NWP, provided the authorized work results
in a net increase in aquatic resource
functions and values in the project area. 'T'his
NWP can be used to authorize compensatory
mitigation projects, including mitigation
banks, provided the permittee notifies the
District Engineer in accordance with General
Condition 13, and the project includes
compensatory mitigation for impacts to
waters of the US caused by the authorized
work. However, this NWP does not authorize
the reversion of an area used for a
compensatory mitigation project to its prior
condition. NWP 27 can be used to authorize
impacts at a mitigation bank, but only in
circumstances where it has been approved
under the Interagency Federal Mitigation
Bank Guidelines.
28. ,%,fodificotions of Existing Marinas.
Reconfiguration of existing docking
facilities within au authorized marina
area. No dredging, additional slips, clock
spaces, or expansion of any kind within
waters of the US, is authorized by this
NWP. (Section 10)
29. Single-family Housing. Discharges
of dredged or fill material into non-tidal
waters of the US, including non-tidal
wetlands for the construction or
expansion of a single-family home and
attendant features (such as a garage,
driveway, storage shed, and/or septic
field) for an Individual Perin ittee
provided that the activity meets all of
the following criteria:
a.'I'he discharge does not cause the
loss of more than '/i-acre of non-tidal
waters of the CIS, including non-ticlal
wetlands;
b. The permittee notifies the District
Engineer in accordance with the
"Notification" General Condition;
c. The permittee has taken all
practicable actions to minimize the on-
site and off-site impacts of the
discharge. For example, the location of
the home may need to he adjusted on-
site to avoid flooding of adjacent
property owners;
d. The discharge is part of a single
and complete project; furthermore, that
for any subdivision created on or after
November 22, 1991, the discharges,
authorized under this NWP may riot
exceed an aggregate total loss of waters
of the US of /„-acre for the entire
subdivision;
e. A•n individual may use this NWP
only for a single-family home for a
personal residence;
f. This NWP may be used only once
per parcel;
g. This MVP may not be used in
conjunction with NWP 14 or NWP 18,
for any aarcel; and,
h. Sulficient vegetated buffers must be
maintained adjacent to all open water
bodies, streams, etc., to preclude water
quality degradation due to erosion and
sect imentation.
For the purposes of this NWP, the
acreage of loss of waters of the US
includes the filled area previously
permitted, the proposed filled area, and
any other waters of the US that are
adversely affected by flooding,
excavation, or drainage as a result of the
project. This NWP authorizes activities
only by individuals; for this purpose,
the term "individual" refers to a natural
person and/or a married couple, but
does not include a corporation,
partnership, or similar entity. For the
purposes of this NMI, a parcel of land
is defined as "the entire contiguous
quantity of land in possession of,
recorded as property of, or owned (in
any form of ownership, including land
owned as a partner, corporation, joint
tenant, etc.) by the same individual
(and/or that individual's spouse), and
comprises not only the area of wetlands
sought to be filled, but also all land
contiguous to those wetlands, owned by
the individual (and/or that individual's
spouse) in any form of ownership."
(Sections 10 and 404)
30. Moist Soil Management for
Wildlife. Discharges of dredged or fill
material and maintenance activities that
are associated with moist soil
management for wildlife performed on
non-tidal Federally-owned or managed,
state-owned or managed property, and
local government agency-owned or
managed property, for the purpose of
continuing ongoing, site-specific,
wildlife nanagement 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
(likes; and plowing or discing to impede
succession, prepare seed beds, or
establish fire breaks. Sufficient
vegetated buffers must be maintained
adjacent to all open water bodies,
streams, etc., to preclude water quality
degradation due to erosion and
sedirnentation. This NWP does riot
authorize the construction of new dikes,
roads, water control structures, etc.
associated with the management areas.
This NWP does not authorize converting
wetlands to uplands, impoundments or
other open water bodies. (Section 404)
31. Maintenance of Existing Flood
Control Facilities. Discharge of dredge
or fill material resulting from activities
associated with the maintenance of
existing flood control facilities,
including debris basins, retention/
detention basins, and channels that
(i) were previously authorized by the
Corps by Individual Permit, General
Permit, by 33 CFR 330.3, or did riot
require a permit at the time it was
constructed, or
(ii) were constructed by the Corps and
transferred to a non-Federal sponsor for
operation and maintenance. Activities
authorized by this NWP are limited to
those resulting from maintenance
activities that are conducted within the
"maintenance baseline," as described in
the definition below. Activities
including the discharges of dredged or
fill materials, associated with
maintenance activities in flood control
facilities in any watercourse that has
previously been determined to be
within the maintenance baseline, are
authorized under this NNVP. The NWP
does riot authorize the removal of
sediment and associated vegetation from
the natural water courses except to the
extent that these have been included in
the maintenance baseline. All dredged
material must be placed in an upland
site or an authorized disposal site in
waters of the US, and proper siltation
controls must be used. (Activities of any
kind that result in only incidental
fallback, or only the cutting and
removing of vegetation above the
ground, a.g., mowing, rotary cutting,
and chainsawing, where the activity
neither substantially disturbs the root
system nor involves mechanized
pushing, dragging, or other similar
activities that redeposit excavated soil
material, do not require a Section 40;
permit in accordance with 33 CFR
323.2(4)(2)).
Notification: After the maintenance
baseline is established, and before any
maintenance work is conducted, the
permittee must notify the District
Engineer in accordance with the
"Notification" General Condition. The
notification may be for activity-specific
2084 Federal Register / Vol. 67, No. 10 / Tuesday, January 15, 2002/Notices
maintenance or for maintenance of the
entire flood control facility by
submitting a five year (or less)
maintenance plan.
Maintenance Baseline: The
maintenance baseline is a description of
the physical characteristics (e.g., depth,
width, length, location, configuration, or
design flood capacity, etc.) of a flood
control project within which
maintenance activities are normally
authorized by NWP 31, subject to any
case-specific conditions required by the
District Engineer. The District Engineer
will approve the maintenance baseline
based on the approved or constructed
capacity of the flood control facility,
whichever is smaller, including any
areas where there are no constructed
channels, but which are part of the
facility. If no evidence of the
constructed capacity exist, the approved
constructed capacity will be used. The
prospective permittee will provide
documentation of the physical
characteristics of the flood control
facility (which will normally consist of
as-built or approved drawings) and
documentation of the design capacities
of the flood control facility. The
documentation will also include BMPs
to ensure that the impacts to the aquatic
environment are minimal, especially in
maintenance areas where there are no
constructed channels. (The Corps may
request maintenance records in areas
where there has not been recent
maintenance.) Revocation or
modification of the final determination
of the maintenance baseline can only be
done in accordance with 33 CFR 330.5.
Except in emergencies as described
below, this NWP can not be used until
the District Engineer approves the
maintenance baseline and determines
the need for mitigation and any regional
or activity-specific conditions. Once
determined, the maintenance baseline
will remain valid for any subsequent
reissuance of this NWP. This permit
does not authorize maintenance of a
flood control facility that has been
abandoned. A flood control facility will
be considered abandoned if it has
operated at a significantly reduced
capacity without needed maintenance
being accomplished in a timely manner.
Mitigation: The District Engineer will
determine any required mitigation one-
time only for impacts associated with
maintenance work at the same time that
the maintenance baseline is approved.
Such one-time mitigation will be
required when necessary to ensure that
adverse environmental impacts are no
more than minimal, both individually
and curttulatively. Such mitigation will
only be required once for any specific
reach of a flood control project.
However, if one-time mitigation is
required for impacts associated with
maintenance activities, the District
Engineer will not delay needed
maintenance, provided the District
Engineer and the permittee establish a
schedule for identification, approval,
development, construction and
completion of any such required
mitigation. Once the one-time
mitigation described above has been
completed, or a determination made
that mltigation is not required, no
further mitigation will be required for
maintenance activities within the
maintenance baseline. In determining
appropriate mitigation, the District
Engineer will give special consideration
to natural water courses that have been
included in the maintenance baseline
and require compensatory mitigation
and/or BMPs as appropriate.
Emergency Situations: In emergency
situations, this NWP ntav be used to
authorize maintenance activities in
flood control facilities for which no
maintenance baseline has been
approved. Emergency situations are
those which would result in art
unacceptable hazard to life, a significant
loss of property, or an immediate,
unforeseen, and significant economic
hardship if action is not taken before a
maintenance baseline can be approved.
In such situations, the determination of
mitigation requirements, if any, may be
deferred until the emergency has been
resolved. Once the emergency has
ended, a maintenance baseline must be
established expeditiously, and
mitigation, including mitigation for
maintenance conducted during the
emergency, must be required as
appropriate. (Sections 10 and 404)
32. Completed Enforcement Actions.
Any structure, work or discharge of
dredged or fill material, remaining in
place, or undertaken for mitigation,
restoration, or environmental benefit in
compliance with either:
(i) The terms of a final written Corps
non-judicial settlement agreement
resolving a violation of section 404 of
the CWA and/or section 10 of the Rivers
and Harbors Act of 1899; or the terms
of an EPA 309(x) order on consent
resolving a violation of section 404 of
the CWA, provided that:
a. The unauthorized activity affucted
no more than 5 acres of non-tidal
wetlands or 1 acre of tidal wetlands;
b. The settlement agreement provides
for environmental benefits, to an equal
or greater degree, than the
environmental detriments caused by the
unauthorized activity that is authorized
by this NWP; and
c. The District Engiuec;r issues a
verification letter authorizing the
activity subject to the terms and
conditions of this NWP and the
settlement agreement, including a
specified completion date; or
(ii) The terms of a final Federal court
decision, consent decree, or settlement
agreement resulting from an
enforcement action brought by the U.S.
under section 404 of the CWA and/or
section 10 of the Rivers and harbors Act
of 1899; or
(iii) The terms of a Final court
decision, consent decree, settlement
agreement, or non-judicial settlement
agreement resulting from a natural
resource damage claim brought by a
trustee or trustees for natural resources
(as defined by the National Contingency
Plan at 40 CF'R subpart G) under section
311 of the Clean Water Act (CWA),
section 107 of the Comprehensive
Environmental Response, Compensation
and Liability Act (CERCLA or
Superfund), section 312 of the National
Marine Sanctuaries Act (NMSA), section
1002 of the Oil Pollution Act of 1990
(OPA), or the Park System Resource
Protection Act at 16 U.S.C. '19jj, to the
extent that a Corps permit is required.
For either (i), (ii) or (iii) above,
compliance is a condition of the NWP
itself. Any authorization under this
NWP is automatically revoked if the
permittee does not comply with the
terms of this NWP or the terms of the
court decision, consent decree, or
judicial/non-judicial settlement
agreement or fails to complete the work
by the specified completion date. This
NWP does not apply to any activities
occurring after the date of the decision,
decree, or agreement that are not for the
purpose of mitigation, restoration, or
environmental benefit. Before reaching
any settlement agreement, the Corps
will ensure compliance with the
provisions of 33 CFR part 326 and 33
CFR 330.6 (d)(2) and (e). (Sections 10
and 404)
33. Temporary Construction, Access
and Dewotering. 'T'emporary structures,
work and discharges, including
cofferdams, necessary for construction
activities or access fills or dewatering of
construction sites; provided that the
associated primary activity is authorized
by the Corps of Engineers or the USCG,
or for other construction activities not
subject to the Corps or USCG
regulations. Appropriate measures must
be taken to maintain near normal
downstream flows and to minimize
flooding. Fill must be of materials, and
placed in a mariner. that will not be
eroded by expected High flows. The use
of dredged material may be allowed if
it is determined by the District Engineer
that it will not cause more than minimal
adverse effects on aquatic resources.
Federal Register/Vol. 67, No. 10/Tuesday, January 15, 2002/Notices 2085
Temporary fill must be entirely removed dredged material is disposed of at an hazardous or toxic waste. Activities
to upland areas, or dredged material upland site and pro
er siltation c
t
l
d
k

returned to its original location,
following com
letion of the p
on
ro
are used. (Section 10)
36
B s un
erta
en entirely on a
Comprehensive Environmental
p
construction activity, and the affected .
oat Romps. Activities required
for the construction of boat ramps Response, Compensation, and Liability
Act (CERCLA) site by authority of
areas must be restored to the pre-project
conditions. Cofferdams cannot be used provided:
a. The discharge into waters of the CERCLA as approved or required by

to dewater wetlands or other aquatic
U.S. does not exceed 50 cubic yards of EPA, are riot required to obtain permits
under section 404 of the CWA or section
areas to change their use. Structures left
in place after cofferdams are removed concrete, rock, crushed stone or gravel
into forms
or placement of
re-cast 10 of the Rivers arid Harbors Act.
S

require a Section 10 permit if located in ,
p
concrete planks or slabs. (Unsuitable (
ections 10 and 404)
39. Residential
Commercial
and
navigable waters of the U.S. (See 33 CFR material that causes unacceptable ,
,
Institutional Developments. Discharges
part 322). The permittee must notify the chemical pollution or is structurally of dredged or fill material into non-tidal
District Engineer in accordance with the
"Notification'' General Condition. The unstable is not authorized);
b. The boat ramp does not exceed 20 waters of the U.S., excluding non-tidal
wetlands adjacent to tidal waters
for the
notification must also include a
restoration plan of reasonable measures feet in width;
c. The base material is crushed stone, ,
construction or expansion of residential,
commercial, and institutional buildin

to avoid and minimize adverse effects to
gravel or other suitable material; g
foundations and building pads arid
aquatic resources. The District Engineer d. The excavation is limited to the attendant features that are necessary for
will add Special Conditions, where area necessary for site preparation and the use and maintenance of the
necessary, to ensure environmental
adverse effects is minimal
Such all excavated material is removed to the
upland; and structures. Attendant features may
.
conditions may include: limiting the ,
e. No material is placed in special include, but are not limited to, roads,
parking lots, garages, yards, utility lines

temporary work to the minimum
necessary; requiring seasonal
aquatic sites, including wetlands.
Another NWP
Regional General ,
storrnwater management facilities, and

restrictions; modifying the restoration ,
Permit, or Individual Permit may recreation facilities such as
playgrounds, playing fields
and golf
plan; and requiring alternative authorize dredging to provide access to ,
courses (provided the golf course is an
construction methods (e.g. construction the boat ramp after obtaining a Section integral part of the residential
mats in wetlands where practicable.). 10 if located in navigable waters of the development). The construction of new
(Sections 10 and 404) U.S. (Sections 10 and 404) ski areas or oil and gas wells is not
34. Cranberry Production Activities. 37. Emergency Watershed Protection authorized by this NWP

Discharges of dredged or fill material for
and Rehabilitation. Work done by or .
Residential developments include
dikes, berms, pumps, water control funded by: multiple and single unit developments.
structures or leveling of cranberry beds a. The NRCS which is a situation Examples of commercial developments
associated with expansion, requiring immediate action under its include retail stores
industrial facilities

enhancement, or modification activities
emergency Watershed Protection ,
,
restaurants, business parks, and
at existing cranberry production Program (7 CFR part 624); or shopping centers. Examples of
operations provided that the activity b. The USFS under its Burned-Area institutional developments include
meets all of the followinqg criteria:
a. The cumulative total acreage of Emergency Rehabilitation Handbook
(FSH 509
13); or schools, fire stations, government office

disturbance per cranberry production .
c. The DO[ for wildland fire buildings, judicial buildings, public
works buildings, libraries, hospitals

operation, including but not limited to,
filling, flooding, ditching, or clearin
management burned area emergency
stabilization and rehabilitation (DOI ,
and places of worship. The activities
g,
does not exceed 10 acres of waters of the
Manual part 620, Ch. 3). listed above are authorized, provided
the activities meet all of the followin

U.S., including wetlands;
For all of the above provisions, the g
criteria:
b. The permittee notifies the District District Engineer must be notified in a. The discharge does not cause the
Engineer in accordance with the
"
" accordance with the General Condition loss of greater than'/1-acre of non-tidal
Notification
General Condition. The
notification must include a delineation 13. (Also, see 33 CFR 330.1(e)).
(Sections 10 arid 404) waters of the U.S., excluding non-tidal

of affected special aquatic sites,
38. Cleanup of Hazardous and Toxic wetlands adjacent to tidal waters;
b. The discharge does not cause the
including wetlands; and,
c. The activity does not result in a net GYoste. Specific activities required to
effect the containment
stabilizatio loss of greater than 300 linear feet of a

loss of wetland acreage. This NWP does ,
n, or
removal of hazardous or toxic waste stream bed, unless for intermittent
stream beds this criterion is waived in
riot authorize any discharge of dredged
or fill material related to other cranberry materials that are performed, ordered, or
sponsored by a goveniunent a
enc
with writing pursuant to a determination by

production activities such as g
y
established legal or regulatory authority the District Engineer, as specified
below, that the project complies with all
warehouses, processing facilities, or
parking areas. For the purposes of this provided the permittee notifies the
District I-:11gineer in accordance with th terius and conditions of this NWP and

NWP, the cunndative total of 10 acres e
''Notification" General Condition. For that any adverse impacts of the project
on the aquatic environment are
will be measured over the period that discharges in special aquatic sites, minimal
both individually and
this NWP is valid. (Section 404) including wetlands, the notification ,
cumulatively;
35. Maintenance Dredging of Existing
Basins
Excavation and
l
f must also include a delineation of c. '1•fie, permittee mast notify the
.
remova
o
accumulated sediment for maintenance affected special aquatic sites, including-
wetlands. Court ordered remedial action District Engineer in accordance with
General Condition 13
if any of the
of existing marina basins, access
channels to marinas or boat slips, and plans or related settlements are also
authorized by this NWl'. This NWl' does ,
following criteria are met:
(1) The discharge causes the loss of
boat slips to previously authorized not authorize tare establishment of' new greater than 1/ho-acre of non-tidal waters
depths or controlling depths for ingress/ disposal sites or the expansion of of the US, excluding non-tidal wetlands
egress, whichever is less, provided the existing sites used for the disposal of adjacent to tidal waters; or
2086 Federal Register / Vol. 67, No. 10 /Tuesday, January 15, 2002/Notices
(2) The discharge causes the loss of
any open waters, including perennial or of any compensatory mitigation used to
offset the loss of waters of the US (e include the installation, placement, or

intermittent streams, below the ordinary
hi- li water mark (see Note
below)
or .g.,
1/12-acre of emergent wetlands created construction of drainage tiles, ditches,
or levees; mechanized land clearing;
,
;
'(3) The discharge causes the loss of on-site);
j. If there are any open waters or land levelin the relocation of existill"

greater than 300 linear feet of
i
i
streams within the project area, the serviceable drainage ditches constructed

in waters of the US
and si
il

nterm
ttent stream bed. In such case, to
be authorized the District Engineer must ;
m
ar
permittee will establish and maintain, to activities, provided the permittee
the maximum extent practicable
-

determine that the activity complies ,
wetland or upland ve
etated buffe complies with the following terms and

with the other terms and conditions of
the NWP
determine adverse g
rs
next to those open waters or streams conditions:
a. For discharges into non-ticlal
,
environmental effects are minimal boor consistent with General Condition 19.
Deed restrictions
conservation wetlands to improve agricultural
individually and cumulatively, and
Y, tn
waive the limitation on stre
i ,
easements, protective covenants, or production, the following criteria must
be met if the permittee is an United
am
mpacts
in writing before the ermittee ma
° P Y other means of land conservation and

preservation are required to protect and
States Department of Agriculture
(USDA) P
i

proceed;
d. For discharges in special aquatic
maintain the vegetated buffers
established on the site
project rogram part
cipant:
([) The permittee must obtain a
sites, including wetlands, the .
Only residential
commercial
and categorical minimal effects exemption,
notification must include a delineation ,
,
institutional activities with structures minimal effect exemption, or mitigation
of affected special aquatic sites;
e. The discharge is art sites; single and
p
on the foundation(s) or building pad(s), exemption from NRCS in accordance
with the provisions of the Food Securit

°
complete project;
as well as the attendant features, are
authorized by this NWP
The y
Act of 1985, as amended (16 U.S.C. 3801
f. The permittee must avoid and . et seq.);
minimize discharges into waters of the
US at
the project site to the maximum compensatory mitigation proposal that

is required in paragraph (e) of this NWP (2) The discharge into non-tidal

wetlands does not result in the loss of
extent practicable: The notification,
when required, must include a written may be either conceptual or detailed.
The wetland or upland vegetated buffer greater than 1/2-acre of non-tidal
wetlands on a farm tract;
statement explaining how avoidance
and minimization of l
f
f required in paragraph (i) of this NWP
will be determined on a case-by-case (3) The permittee must have NRCS-
f
osses o
waters o
the US were achieved on the project
basis by the District Engineer for

'
' certi
ied wetland delineation;
I
(4) The >ermittee must implement an
site. Compensatory mitigation will
normally be required to offset th
l addressing water ualit concerns. The
° qualit
y
Y
required wetland or upland vegetated NKCS-approved compensatory
iti
i
l
e
osses
of waters of the US. (See General
buffer is part of the overall m
gat
on p
an that fully offsets
wetland losses, if required; grid
Condition 19.) The notification must
also include a compensator
miti
ation compensatory mitigation requirement
this
NWP
.
If
project the
site
was (5) The permittee must submit a
r
t
ithi
d
y
g
proposal for offsetting unavoidable previously rev
iously u
s
e
d for
agricultura
l epor
, w
n 30
ays of completion of
the authorized work
to the District
losses of waters of the US. If an
applicant asserts that the ad
ff purposes and the farm owner/operator
used NWP 40 to authorize activities in ,
Engineer that contains the following
i
f
verse e
ects
of the project are minimal without
waters of the US to increase production n
ormation: (a) The name, address, and
telephone number of the permittee; (b)
mitigation, then the applicant may

submit justification explaining why or construct farm buildings, MVP 39
cannot be used by the developer to The location of the work; (c) A

descr
pti
on of the work;
) The t
(d)
e
compensatory mitigation should not be
' authorize additional activities. This is
more than the acrea
e limit for NWP 39 an
d a
et
yp
crea
and ag e ( or square f e
of the loss
required for the District Engineer
s
consideration; g
impacts to waters of the US (i.e., the of wetlands (e.g., 1/3-acre of emergent
wetlands); and (e) The type
acrea
e (or
g. When this NWP is used in
conjunction with any other NtiVP
any combined acreage loss authorized under
NWI's 39 and 40 cannot exceed 1/2-acre, ,
g
square feet), and location of
com
e
t
i
i
i
1
,

combined total permanent loss of waters
see General Condition 15).

Subdivisions: For resid
ti
l p
nsa
ory m
gat
t
on (e.g.
/3-acre of
emergent wetland on a farm tract;
of the US exceeding 1/ro-acre requires
that the permittee notify the District en
a
subdivisions, the aggregate total loss of credits purchased from a mitigation
bank); or
Engineer in accordance with General
Condition 13; waters of US authorized by NWP 39 can
not exceed 1/2-acre. This includes any b. For discharges into non-tidal

h. Any work authorized by this MVP
Y Y
t l
loss of waters associated with
development of individual subdi
i
i wetlands to improve agricultural

production, the following criteria must
mus
not cause more than minimal
degradation of water
ualit v
s
on
lots. (Sections 10 and 404) be met if the permittee is not a USDA
q
y or more
than minimal changes to the flow
Note: Areas where wetland vegerrtion is Program participant (or a USDA
Program participant for which the
characteristics of any stream (see

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

i. For discharges causing the loss of
water mark or bed and bank. Arens chat are authorization under pa ,h
P' ° E O of this

1/ro-acre or less of waters of the US, the waters of the, LIS based on this criterion
would require a PCN although water is NMI):
(1) The discharge into non-tidal
permittee must submit a report, within
30 days of completion of the work
t infrequently present in the stream chancel
(
f wetlands does not result in the loss of
,
o
the District Engineer that contains the except
or ephemeral waters, which do not
require PCNs) greater than '/z-acre of non-tidal

following information: (1) The name, .
40. Agricultural Activities. Discharges wetlands on a farm tract;
(2) The permittee must notify the
address, and telephone number of the
permittee; (2) The location
f th
k of dredges) or fill material into non-tidal District Engineer in accordance with
o
e wor
;
(3) A clescription of the work; (4) I'll(, waters of the US, excluding non-tidal
wetlands adjacent to tidal waters, for General Condition 13, if the discharge
results in the loss of greater than Vio-
type and acreage of the loss of waters of improving agricultural production and acre of non-ticlal wetlands;
the US (e.g., 1/12-acre of emergent
wetlands); and (5) The type and acreage the construction of building pads for
farm buildings. Authorized activities (3) The notification must include a
deli
ti
f
ff
d
l
nea
on o
a
ecte
wet
ands; and
Federal Register/Vol. 67, No. 10/Tuesday, January 15, 2002/Notices 2087
(4) The notification must include a discharge qualifies for an exemption ditches to their original dimensions and
compensatory mitigation proposal to
offset losses of waters of the US; or under section 404(f) of the CWA, even
though a categorical minimal eff
t configuration, which does not require a
S

c. For the construction of building
pads for farm buildin
s
the dischar
e ec
s
exemption, minimal effect exemption, ection 404 permit (see 33 CFR
323.4(x)(3)). This N6VP does not
g
,
g
does not cause the loss of greater than
1 or mitigation exemption from NRCS
pursuant to the Food Security Act of authorize the relocation of drainage
ditches constructed in wate
f th
US

/2-acre of non-tidal wetlands that were
in agricultural production prior to
1985, as amended, may be required.
Activities authorized by para
ra
hs a rs o
e
;
the location of the centerline of the
h
d d

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

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

US is limited to the relocation of .,
.,
.
authorize activities in waters of the US relocation projects. (Section 404)

existing serviceable drainage ditches
constructed in non-tidal streams
This
to increase agricultural production or 42. Recreational Facilities. Discharges
of dredged or fill material into non-tidal
.
NWP does riot authorize the relocation construct farm buildings, and the
current landowner wants to use NWP 39 waters of the US, excluding non-tidal

o 300 aid near-feet
s
rv

to authorize residential
commercial
or wetlands adjacent to tidal waters, for the
e
iceable d
constructed
constructed
rain se
m ,
,
industrial development activities in construction or expansion of
non tidal strea
s unless, for
rai
e waters of the US on the site
the recreational facilities, provided the
ditches constructed in intermittent non- ,
combined acreage loss authorized by activity meets all of the following

tidal streams, the District Engineer
waives this criterion in writing, and the
NWPs 39 and 40 cannot exceed 1/2-acre
(see General Condition 15). (Section criteria:

a. The discharge does not cause the
District Engineer has determined that 404) loss of greater than /z-acre of non-tidal
the project complies with all terms and 41. Reshaping Existing Drainage waters of the US, excluding non-tidal
conditions of this NWP, and that any Ditches. Discharges of dredged or fill wetlands adjacent to tidal waters;
adverse impacts of the project on the material into non-tidal waters of the US 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- o
r i
stream bed, unless for ntermittent
impacts exceeding 300-linear feet of sectional configuration of currently stream beds this criterion is waived in
impacts to existing serviceable ditches serviceable drainage ditches constructed `^ riting pursuant to a determination by
constructed in intermittent non-tidal in waters of the US. The reshaping of the District Engineer, as specified
streams, the permittee must notify the the ditch cannot increase drainage below, that the project complies with all
District Engineer in accordance with the
" capacity beyond the original design terms and conditions of this NWP and
Notification" General Condition 13; 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 cumulatively;
Service Agency. The 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 "Notification" General Condition 13 for
di
h

conditions of paragraph a, of this NWP, because the work is designed to improve
water quality (e.g., by regrading the sc
arges exceeding 300 linear feet of
impact of intermittent stream beds. In
except as provided below. For those drainage ditch with gentler slopes such cases, to be authorized the District
activities that require notification, the ,
which can reduce erosion
increase Engineer must determine that the
District Engineer will determine if a
proposed agricultural activit
i ,
growth of vegetation, increase uptake of activity complies with the other terms
y
s
authorized by paragraphs b., c., and/or nutrients and other substances by
vegetation
etc.), and conditions of the NWP, determine
the adverse environmental effects are
d. of this NWP. USDA Program ,
Notification: The permittee must minimal both individually and
participants, requesting authorization for
discharges of dredged or fill material notify the District Engineer in cumulatively, and waive this limitation

into waters of the US authorized by accordance with General Condition 13 if
greater than 500 linear feet of drainage in writing before the permittee may
proceed;
paragraphs (c) or (d) of this NWP, in
ddi
i ditch will be reshaped. Material d. For discharges causing the loss of
a
t
on to paragraph (a), must notify
the District Engineer in accordan
ith resulting from excavation may not be greater than 1/,e-acre of non-tidal waters
ce w
General Condition 13 and the District permanently sidecast into waters but
may be temporarily sidecast (up to three of the US, the permittee notifies the
District Engineer in accordance with
Engineer will determine if the entire
single and complete project is months) into waters of the US, provided
h General Condition 13;

authorized by this NWP. Discharges of t
e material is not placed in such a
manner that it is dispersed by currents e. For discharges in special aquatic
sites, including wetlands
the
dredged or fill material into waters of
the US associated with com
leti or other forces. The District Engineer ,
notification must include a delineation
p
ng
required compensatory mitigation are may extend the period of temporary
sidecasting riot to exceed a total of 180 of affected special aquatic. sites;
f. The discharge is
art of a sin
le and
authorized by this NWP. I Iowever, total
impacts, including other authorized clays, where appropriate. In general, this
NWP does not apply to resha
in p
g
complete project; and
C

impacts under this NWP, may not p
g
drainage ditches constructed in g.
ompensatory mitigation will
normally he required to offset the losses
exceed the 1/z-acre limit of this NWP.
This NWP does riot affect
or oth
i uplands, since these areas are generally of waters of the US. The notification
,
erw
se
regulate, discharges associated with not waters of the US, and thus no permit
from the Corps is required, or to the must also include a compensatory
mitigation
ro
osal to offset auth
i
d
agricultural activities when the maintenance of existing drainage p
p
or
ze
losses of waters of the US.
2088 Federal Register/Vol, 67, No. 10 /'Tuesday, January 15, 2002/Notices
For the purposes of this NWP, the
term ''recreational facility'' is defined as
a recreational activity that is integrated
into the natural landscape and does not
substantially change preconstruction
grades or deviate from natural landscape
contours. For the purpose of this permit,
the primary function of recreational
facilities does not include the use of
motor vehicles, buildings, or impervious
surfaces. Examples of recreational
facilities that may be authorized by this
NWP include hiking trails, bike paths,
horse paths, nature centers, and
campgrounds (excluding trailer parks).
This NWP may authorize the
construction or expansion of golf
courses and the expansion of ski areas,
provided the golf course or ski area does
not substantially deviate from natural
landscape contours. Additionally, these
activities are designed to minimize
adverse effects to waters of the US and
riparian areas through the use of such
practices as integrated pest
management, adequate stormwater
management facilities, vegetated buffers,
reduced fertilizer use, etc. The facility
must have an adequate water quality
management plan 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. This NWP also
authorizes the construction or
expansion of small support facilities,
such as maintenance and storage
buildings and stables that are directly
related to the recreational activity. This
NWP does not authorize other
buildings, such as hotels, restaurants,
etc. The construction or expansion of
playing fields (e.g., baseball, soccer, or
football fields), basketball and tennis
courts, racetracks, stadiums, arerias, and
the construction of new ski areas are not
authorized by this NWP, (Section 404)
43. Storm ivater Managemen t
Facilities. Discharges of dredged or fill
material into non-tidal waters of the US,
excluding non-tidal wetlands adjacent
to tidal waters, for the construction and
maintenance of stormwater management
facilities, including activities for the
excavation of stormwater ponds/
facilities, detention basins, and
retention basins; the installation and
maintenance of water control structures,
outfall structures and emergency
spillways; and the maintenance
dredging of existing stormwater
management ponds/facilities and
detention and retention basins,
provided the activity meets all of the
following criteria:
a. The discharge for the construction
of new stormwater management
facilities does not cause the loss of
greater than 1/z-acre of non-tidal waters
of the US, excluding non-tidal wetlands
id)1acent to tidal waters;
F. The discharge does not cause the
loss of greater than 300 linear-feet of a
stream bed, unless for intermittent
stream beds this criterion is waived in
writing pursuant to a determination by
the District Engineer, as specified
below, that the project complies with all
terms and conditions of this NWP and
that any adverse impacts of the project
on the aquatic environment are
minimal, both individually and
cumulatively;
c. For discharges causing the loss of
greater than 300 linear feet of
intermittent stream beds, the permittee
notifies the District Engineer in
accordance with the "Notification"
General Condition 13. In such cases, to
be authorized the District Engineer must
determine that the activity complies
with the other terms and conditions of
the NWP, determine the adverse
environmental effects are minimal both
individually and cumulatively, and
waive this limitation in writing before
the permittee may proceed;
d. The discharges of dredged or fill
material for the construction of new
stormwater management facilities in
perennial streams is not authorized;
e. For discharges or excavation for the
construction of new stormwater
management facilities or for the
maintenance of existing stormwater
management facilities causing the loss
of greater than 1/lo-acre of non-tidal
waters, excluding non-tidal wetlands
adjacent to tidal waters, provided the
permittee notifies the District Engineer
in accordance with the "Notification"
General Condition 13. In addition, the
notification must include:
(1) A maintenance plan. The
maintenance plan should be in
accordance with state and local
requirements, if any such requirements
exist;
(2) For discharges in special aquatic
sites, including wetlands and
submerged aquatic vegetation, the
notification must include a delineation
of affected areas; and
(3) A compensatory mitigation
proposal that offsets the lass of waters
of the US. Maintenance in constructed
areas will riot require mitigation
provided such maintenance is
accomplished in designated
maintenance areas and not within
compensatory mitigation areas (i.e.,
District Engineers may designate nou-
maintenance areas, normally at the
downstream end of the storniwater
management facility, in existing
storniwater management facilities). (No
mitigation will be required for activities
that are exempt from Section 404 permit
re( iiirements);
l'. -I'lie permittee must avoid and
minimize discharges into waters of the
US at the project site to the maximum
extent practicable, and the notification
must include a written statement to the
District Engineer detailing compliance
with this condition (i.e. why the
discharge must occur in waters of the
US and why additional minimization
cannot be achieved);
g. The stormwater management
facility must comply with General
Condition 21 and be designed using
BMPs and watershed protection
techniques. Examples may include
forebays (deeper areas at the upstream
end of the stormwater management
facility that would be maintained
through excavation), vegetated buffers,
and siting considerations to minimize
adverse effects to aquatic resources.
Another example of a BMP would be
bioengineering methods incorporated
into the facility design to benefit water
quality and minimize adverse effects to
aquatic resources from storm flows,
especially downstream of the facility,
that provide, to the maximum extent
practicable, for long term aquatic
resource protection and enhancement;
h. Maintenance excavation will be in
accordance with an approved
maintenance plan and will not exceed
the original contours of the facility as
approved and constructed; and
i. The discharge is part of a single and
complete project. (Section 404)
44. Mining Activities. Discharges of
dredged or fill material into:
(i) Isolated waters; streams where the
annual average flow is 1 cubic foot per
second or less, and non-tidal wetlands
adjacent to headwater streams, for
aggregate mining (i.e., sand, gravel, and
crushed and broken stone) and
associated support activities;
(ii) Lower perennial streams,
excluding wetlands adjacent to lower
perennial streams, for aggregate mining
activities (support activities in lower
perennial streams or adjacent wetlands
are not authorized by this NWP); and/
or
(iii) Isolated waters arid rion-tidal
wetlands adjacent to headwater streams,
for hard rock/lnineral mining activities
(i.e., extraction of metalliferous ores
from subsurface locations) and
associated support activities, provided
the discharge meets the following
criteria:
a. The mined area within waters of
the US, plus the acreage loss of waters
of the US resulting from support
activities, cannot exceed 1/7-acre;
b. The permittee must avoid and
minimize discharges into waters of the
Federal Register/Vol. 67, No. 10/Tuesday, January 15, 2002/Notices 2089
US at the project site to the maximum
extent practicable, and the notification
must include a written statement
detailing compliance with this
condition (i.e., why the discharge must
occur in waters of the US and why
additional minimization cannot be
achieved);
c. In addition to General Conditions
17 and 20, activities authorized by this
permit must not substantially alter the
sediment characteristics of areas of
concentrated shellfish beds or fish
spawning areas. Normally, the
mandated water quality management
plan should address these impacts;
d. The permittee must implement
necessary measures to prevent increases
in stream gradient and water velocities
and to prevent adverse effects (e.g., head
cutting, bank erosion) to upstream and
downstream channel conditions;
e. Activities authorized by this permit
must not result in adverse effects on the
course, capacity, or condition of
navigable waters of the US;
f. The permittee must use measures to
minimize downstream turbidity;
g. Wetland impacts must be
compensated through mitigation
aph. pproved by the Corps;
Beneficiation and mineral
processing for hard rock/mineral mining
activities may not occur within 200 feet
of the ordinary high water mark of any
open waterbody. Although the Corps
does not regulate discharges from these
activities, a CWA section 402 permit
may be required;
i. 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 annual
flow is greater than 1 cubic foot per
second or in waters of the US within
100 feet of the ordinary high water mark
of headwater stream segments where the
average annual flow of the stream is
greater than I 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 i cubic foot per
second or less);
k. Single and complete project: The
discharge must be for a single and
complete project, including support
activities. Discharges of dredged or fill
material into waters of the US for
multiple ruining activities on several
designated parcels of a single and
complete mining operation can be
authorizer) by this NWP provided the
viz-acre limit is not exceeded; and
1. Not fication: The permittee must
notify the District Engineer in
accordance with General Condition 13.
The notification must include: (1) A
description of waters of the [IS .
adversely affected by the project; (2) A
written statement to the District
Engineer detailing compliance with
paragraph (b), above (i.e., why the
discharge must occur in waters of the
US and why additional minimization
cannot be achieved); (3) A description of
measures taken to ensure that the
proposed work complies with
paragraphs (c) through (f), above; and (4)
A reclamation plan (for aggregate
mining in isolated waters and non-tidal
wetlands adjacent to headwaters and
hard rock/mineral mining only).
This NWP does not aut%orize hard
rock/mineral mining, including placer
mining, in streams. No hard rock/
mineral mining can occur in waters of
the US within 100 feet of the ordinary
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
influence, some water flows throughout
the year, and the substrate consists
mainly of sand and mud." (Sections 10
and 404)
C. Nationwide Permit General
Conditions
The following General Conditions
must be followed in order for any
authorization by an NWP to be valid:
1. Navigation. No activity may cause
more than a minimal adverse effect on
navigation.
2. Proper Maintenance. Any structure
or fill authorized shall be properly
maintained, including maintenance to
ensure public safety.
3. Soil Erosion 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. Perinittees 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,
sinless the activity's primary purpose is
to impound water. Culverts placed in
streams must be installed to maintain
low flow conditions.
5. Equipment. Heavy equipment
working in wetlands must be placed on
mats, or other measures must be taken
to minimize soil disturbance.
G. Regional and Case-By-Case
Conditions. The activity must comply
with any regional conditions that may
have been added by the Division
Engineer (see 33 CFR 330.4(e)).
Additionally, any case specific
conditions added by the Corps or by the
state or tribe in its Section 401 Water
Quality Certification and Coastal Zone
Management Act consistency
determination.
7. Wild and Scenic Rivers. No activity
may occur iii a component of the
National Wild and Scenic River System;
or in a river officially designated by
Congress as a "study river" for possible
inclusion in the system, while the river
is in an official study status; unless the
appropriate Federal agency, with direct
management responsibility for such
river, has determined in writing that the
proposed activity will not adversely
affect the Wild and Scenic River
designation, or study status. Information
on Wild and Scenic Rivers may be
obtained from the appropriate Federal
land management agency in the area
(e.g., National Park Service, U.S. Forest
Service, Bureau of Land Management,
U.S. Fish and Wildlife Service).
8. Tribal Rights. No activity or its
operation may impair reserved tribal
rights, including, but not limited to,
reserved water rights and treaty fishing
and hunting rights.
9. Water Quality. (a) In certain states
and tribal lands an individual 401 Water
Quality Certification must be obtained
or waived (See 33 CFR 330.4(c)).
(b) For NWPs 12, 14, 17, 18, 32, 39,
40, 42, 43, and 44, where the state or
tribal 401 certification (either
generically or individually) does not
require or approve water quality
management measures, the permittee
must provide water quality management
measures that will ensure that the
authorized work does not result in more
than niininial 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
storniwater managetent that miiiiinizes
degradation of the downstream aquatic
system, including water quality (refer to
General Condition 21 for storniwater

2090 Federal Register/ Vol. 67, No. 10 / Tuesclay, January 15, 2002/Notices
management requirements). Another
important component of water quality endspp.html and http:1Avtivrv.nf1ns.,ov1
prot_res/esohome.html respectivel written notice from the District or
Di
i
i

management is the establishment and
maintenance of vegetated buffers next t y.
12. F-iistor•ic Properties. No activity
o which may affect historic
ro
rti v
s
on Engineer. Subsequently, the
permittee's right to proceed under the

open waters, including streams (refer to
General Condition 19 for vegetated p
pe
es
listed, or eligible for listing, in the
National Register of Historic Places i NWP may be modified, suspended, or
revoked only in accordance with the

buffer requirements for the NWPs). s
authorized, until the District Engineer procedure set forth in 33 CFR
330
5(4)(2)

This condition is only applicable to
projects that have the potential to affect
has complied with the provisions of 33
CFR part 325, Appendix C
The .
.
(b) Cori tents of Notification: The

water quality, While appropriate .
prospective permittee must notify the notification must be in writing and
include the followin
inform
ti

measures must be taken, in most cases
it is not necessary to conduct detailed
District Engineer if the authorized
activity may affect any historic g
a
on:
(1) Name, address and telephone

studies to identify such measures or to
re
uire
it
i
properties listed, determined to be
li
ibl numbers of the prospective rmittee;
(2) Location of the pro
osed
roject

q
mon
or
ng.
10. Coastal Zone Management. In
e
g
e, or which the prospective
permittee has reason to believe may be p
p
;
(3) Brief description of the proposed
certain states, an individual state coastal eligible for listing on the National
R
i project; the project's purpose; direct and
indirect adverse environment
l
ff
zone management consistency
concurrence must be obtained or waived eg
ster of Historic places, and shall not
begin the activity until notified by the a
e
ects
the project would cause; any other
(see Section 330.4(4)). District Engineer that the requirements General Permit(s), or

11. Endangered Species. (a) No of the National Historic Preservation Act
h
b Individual
Permit(s) used or intended to
be used to authorize an
art of th

activity is authorized under any NWP

which is likely to jeopardize the
ave
een satisfied and that the activity
i
is authorized. Information on the y p
e
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

proposed for such designation
as
resources can be obtained from the State
Historic Preservation Office and the necessary to show that the activity

complies with the terms of the MVP
,
identified under the Federal Endan
ered National
Register of Historic Places (see (Sketches usually clarify the project and
g
Sp
Species Act (ESA), or which will 33 CFR 330.4(8)), For activities that
may
when provided result in a quicker
decision
)

destroy or adversely modify the critical
affect historic properties listed in, or .
;
habitat of such species. Non-federal eligible for listing in, the National (4) For NWPs 7, 12, 14, 1E1, 21, 34, 38,

permittees shall notify the District Register of Historic Places, the 39, `}1, 42, and 43, the PCN must also

Engineer if any listed species or notification must state which historic include a delineation of affected special

designated critical habitat might be be affected b the
p p erty y by aquatic sites, including wetlands,

affected or is in the vicinity of the
proposed work or include a vicinity vegetated shallows (e.g., submerged
o

project, or is located in the designated
iti
l h
bi map indicating the location of the

historic pro
ert aquatic vegetation, seagrass beds), and
riffle and ool com lexes see aragra h
P p ( p
cr
ca
a
tat and shall not begin work
on the activity until notified by the p
y.
13. Notification. o p
13(f));
District Engineer that the requirements
D (a) Timing; where required by the (5) For NWP 7 (Outfall Structures and
the ESA have been satisfied and that terms of the NWP, the prospective Maintenance), the PCN must include
the activity is authorized. For activities permittee must notify the District information regarding the original

that may affect Federally-listed Engineer with a preconstruction design capacities and configurations of

endangered or threatened species or 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 endangered or threatened species the notification is complete within 30
days of the date of receipt and can proposed;
(6) For NWP 14 (Linear

that may be affected by the proposed request additional information Transportation Crossings), the PCN

work or that utilize the designated
critical habitat that may be affected b necessary to make the PCN complete
only once. However, if the prospective must include a compensatory mitigation
proposal to offset permanent losses of
y
the proposed work, As a result of formal permittee does not provide all of the waters of the US and a statement

or informal consultation with the FWS requested information, then the District describing how temporary losses of

or NMF'S the District Engineer may add Engineer will notify the prospective
r waters of the US will be minimized to

species specific regional endangered pe
mittee that the notification is still the maximum extent practicable;

species conditions to the NWPs incomplete and the PCN review process (7) For NWP 21 (Surface Coal Mining
.
(b) Authorization of an activity by a will not commence until all of the Activities), the PCN must include an

MVP 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: To be authorized by this NWP, the
District Engineer must determine that
of separate authorization (e.g., an ESA
Section 10 Permit, a Biological Opinion (1) Until notified in writing by the
D the activity complies with the terms and

with "incidental take" provisions, etc.)
' istrict Engineer that the activity may
proceed under the NWP with any conditions of the MVP and that the
adverse; environmental effects are
from the USF
WS or the NMFS, both
lethal and norr-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
threatened and endangered s
ecies and or Division Engineer that an Individual
p writin c;
p
their critical habitat can be obtained ermit is required; or
(3) Unless 45 days have passed from (8) For NWP 27 (Strearn and Wetland
Restoration)
the PCN must i
l
d

directly from the offices of the USFWS
and NNiFS or their world wid
b
the District Engineer's receipt of the ,
nc
u
e
documentation of the prior condition of
e rve
pages at http://rvww.frvs.govlr9eridsppl complete notification and the
prospective permittee has not received the site that will be reverted by the
permittee;
Federal Register/Vol. 67, No. 10 / Tuesday, January 15, 2002/Notices 2091
(9) For NWI' 29 (Single-Family
Housing), the PCN must also include: waters of the US or justification
explaining wh
com
ensat affected by the proposed work or utilize

(i) Any past use of this MVP by the
Individual I ermittee and/o
th y
p
ory
mitigation should riot be required. For the designated critical habitat that may
be affected by the proposed work; and
r
e
permittee's spouse;
(ii) A statement that the sin
le-famil discharges that cause the loss of greater
than 300 linear feet of in intermittent (18) For activities that may affect
historic properties listed in, or eligible
g
y
housing activity is for a personal
residence of the permittee; stream bed, to he authorized, the District for listing in, the National Register of
Engineer must determine that the Historic Places, the PCN must state

(iii) A description of the entire parcel
including its size
and a delineation
f activity complies with the other terms
, and conditions of the NWP, determine which historic property may be affected
by the proposed work or include a
,
o
wetlands. For the purpose of this NWP,
l
f l
d adverse environmental effects are
minimal both individually and vicinity map indicating the location of
the historic
ro
ert

parce
s o
an
measuring V4-acre or less cumrlatively, and waive the limitation
will not require a formal on-site p
p
y.
(c) Form cf Notification: The standard

delineation. However, the applicant on stream impacts in writing before the
i Individual Permit application form

shall provide an indication of where the
wetlands are and the amount
f Perm
ttee may proceed;
(14) For NWP 40 (Agricultural (Form ENG 4345) may be used as the
notification but must clearly indicate
o
wetlands that exists on the property. Fo
l Activities), the PCN must include a
r compensatory mitigation proposal to that it is a PCN and must include all of
the information required in (b) (1)-(18)
parce
s greater than'/4-acre in size,
formal wetland delineation must be offset losses of waters of the US. This
NWP does riot authorize the
l
ti of General Condition 13. A letter
i

prepared in accordance with the current re
oca
on
of greater than 300 linear-feet of existing conta
ning the requisite information
may also be used

method required by the Corps. (See
paragraph 13(f));
serviceable drainage ditches constructed
i .
(d) District' Engineer's Decision: In

(ivJ A written description of all land n non-tidal streams unless, for drainage
ditches constructed in intermittent rton- reviewing the PCN for the proposed
activity
the District En
inee
ill
(including, if available, legal
descriptions) owned by the pros
ective tidal streams, the District Engineer
w
i
thi ,
g
r w
determine whether the activity
p
permittee and/or the prospective
' a
ves
s criterion in writing, and the
District Engineer has determined that authorized by the NWP will result in
more than minimal individual or
permittee
s spouse, within a one mile
radius of the parcel, in any form of the project complies with all terms and
conditions of this NWP, and that any cumulative adverse environmental
effects or may be contrary to the public
ownership (including any land owned
as a partner, corporation, joint tenant,
t adverse impacts of the project on the
aquatic environment are minimal, both interest. The prospective permittee may
submit a proposed mitigation plan with
co-
enant, or as a tenant-by-the-entirety)
and any land on which a purchase and individually and cumulatively;
(15) For NWP 43 (Stor
t the PCN to expedite the process. The
Di

sale agreement or other contract for sale mwa
er
Management Facilities), the PCN most strict Engineer will consider any
proposed compensatory mitigation the
or urchase has been executed;
110) For MVP 31 (Maintenance of include, for the construction of new
stormwater management facilities, a applicant has included in the proposal
in determining whether the net adver

Existing Flood Control Projects), the
i
maintenance plan (in accordance with se
environmental effects to the aquatic
prospect
ve permittee must either notify
the District Engineer with a PCN prior state and local requirements, if
applicable) and a compensatory environment of the proposed work are
minimal. If the District En
ineer
to each maintenance activity or submit
a five year (or less) maintenance plan. mitigation proposal to offset losses of
waters of the US. For discharges that g
determines that the activity complies
with the terms and conditions of the
In addition, the PCN must include all of
the f
ll
i cause the loss of greater than 300 linear NWP and that the adverse effects on the
o
ow
ng:
(i) Sufficient baseline information feet of an intermittent stream bed, to be
authorized, the District Engineer must aquatic environment are minima), after
considering mitigation
the District
identifying the approved channel
depths and configurations and existing determine that the activity complies
with the other terms and conditions of ,
Engineer will notify the permittee and
include any conditions the District
facilities. Minor deviations are
authorized, provided the approved flood the NWP, determine adverse
environmental effects are minimal both Engineer deems necessary. The District
Engineer must a
rove an

control protection or drainage is not
increased
individually and cumulatively, and pp
y
compensatory mitigation proposal
;
(ii) A delineation of any affected waive the limitation on stream impacts
in writing before the
itt before the permittee commences work.
If
h

special aquatic sites, including perm
ee may
proceed; t
e prospective permittee is required
to submit a compensatory miti
ation
wetlands; and,
(iii) Location of the dredged material (16) For NWP 44 (Mining Activities),
the PCN must iuclude a descri
tion
f g
proposal with the PCN, the proposal
b

disposal site;
(11) F
NkV p
o
all waters of the US adversely affected may
e either conceptual or detailed. If
the prospective permittee elects to
or
P 33 (Temporary
Construction, Access, and Dowatering) by the project, a description of measures
taken to minimize adver
ff
t submit a compensatory mitigation plan
,
the PCN most also iuclude a restoration
plan of reasonable measures t
id se e
ec
s to
waters of the US, a description of with the PCN, the District Engineer will
expeditiously review the proposed
o avo
and minimize adverse effects to aquatic
resource measures taken to comply with the
criteria of the NWP, and a reclaniation compensatory mitigation plan. The
District Engineer most review the plan
s;
(12) For NWI's 39, 43 and 44, the PCN plan (for all aggregate mining activities
in isolated waters and non-tidal within 45 clays of receiving a complete
I'CN and determine wh
th
th

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

of waters of the US were achieved on
the project site
(17) For activities that may adversely minimal adverse effects on the aquatic
environment. If the net adverse effects
;
(13) For NWP 39 and NWP 42, the affect Federally-listed endangered or
threatened s
ecies
the PCN
t of the project on the aquatic

I'M must include a compensatory p
,
mus
include the navie(s) of those endan
r
d environment (after consideration of the

mitigation proposal to offset losses of ge
e
or threatened species that may be compensatory mitigation proposal) are
determined by the District Engineer to
2092 Federal Register/Vol. 67, No, 10 / "I'uesclay, January 15, 2002/Notices
be minimal, the District Engineer will
provide a timely written response to the
applicant. The response will state that
the project can proceed under the terms
and conditions of the NWP.
If the District Engineer determines
that the adverse effects of the proposed
work are more than minimal, then the
District Engineer will notify the
applicant either: (1) That the project
does not qualify for authorization under
the NWP and instruct the applicant on
the procedures to seek authorization
under an Individual Permit; (2) that the
project is authorized under the NWP
subject to the applicant's submission of
a mitigation proposal that would reduce
the adverse effects on the aquatic
environment to the minimal level; or (3)
that the project is authorized under the
MVP 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/?-acre of waters of
the US, the District Engineer will
provide immediately (e.g., via facsimile
transmission, overnight mail, or other
expeditions 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 NMF'S). With the
exception of NWP 37, these agencies
will then have 10 calendar days front
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 vvjth
each notification that the resource
agencies' concerns were considered, As
required by section 305(b)(4)(B) of the
Magnuson-Stevens Fishery
Conservation and Management Act, the
District Engineer will provide a
response to NNIFS within 30 days of
receipt of any Essential Fish Ilabitat
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
(v -acre in size). The perrnittee 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
perrnittee 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 perrnittee
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 whore the activity is for
repair of the public water supply intake
structures or adjacent bank stabilization.
17. Shellfish Beds. No activity,
including structures and work in
navigable waters of the US or discharges
of dredged or fill material, may occur in
areas of concentrated shellfish
populations, unless the activity is
directly related to a shellfish harvesting
activity authorized by NWP 4.
18. Suitable Material. No activity,
including structures and work in
navigable waters of the US or discharges
of dredged or fill material, may consist
of unsuitable material (e.g., trash,
debris, car bodies, asphalt, etc.) and
material used for construction or
discharged must be free from toxic:
pollutants in toxic amounts (see section
307 of the CWA).
19. Mitigation. The District Engineer
will consider the factors discussed
below when determining the
acceptability of appropriate and
practicable mitigation necessary to
offset adverse effects on the aquatic
environment that are more than
minimal.
(a) The project must be designed and
constructed to avoid and minimize
adverse effects to waters of the US to the
maximum extent practicable at the
project site (i.e., on site).
(b) Mitigation in all its forms
(avoiding, minimizing, rectifying,
reducing or compensating) will be
required to the extent necessary to
ensure that the adverse effects to the
aquatic environment are minimal.
(c) Compensatory mitigation at a
minimum one-for-one ratio will be
required for all wetland impacts
requiring a PCN, unless the District
Engineer determines in writing that
some other form of mitigation would be
more environmentally appropriate and
provides a project-specific waiver of this
requirement. Consistent with National
policy, the District Engineer will
establish a preference for restoration of
wetlands as compensatory mitigation,
with preservation used only in
exceptional circumstances.
(d) Compensatory mitigation (i.e.,
replacement or substitution of aquatic
resources for those impacted) will not
be used to increase the acreage losses
allowed by the acreage limits of some of
the NWPs. For example, 1/4-acre of
wetlands cannot be created to change a
'/4-acre loss of wetlands to it 1/1-acre loss
associated with NWP 39 verification.
I lowever, 1/e-acre of created wetlands
can be used to reduce the impacts of a
1/2.-ac.ro loss of wetlands to the rninimum
impact level in order to meet the
Federal Register/Vol. 67, No. 10 /Tuesday, January 15, 2002 /Notices 2093
minimal impact requirement associated
with NWP accomplishing and/or complying with discharges of dredged or fill material,
s.
(e) To be practicable, the mitigation the mitigation plan.
20. Spawning Areas. Activities, into breeding areas for migratory
waterfowl must be avoided to the
must be available and capable of being
clone considering costs, existing including structures and work in maximum extent practicable.
navigable waters of the US or discharges 24. Removal of Temporary Fills
Anv
technology, and logistics in light of the
overall project purposes
Exam
les of of dredged or fill material, in spawning
areas durin
s
awnin
s
b .
temporary fills must be removed in their
.
p
mitigation that may be appropriate and g
p
g
easons must
e
avoided to the nraximunr extent entirety and the affected areas returned
to their preexisting elevation

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

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

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

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

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

values, preferably in the same
preconstruction downstream flow ,
and outstanding national resource
watershed. conditions (e.g., location, capacity, and waters or other waters officially
(f) Compensatory mitigation plans for flow rates). Furthermore, the activity designated by a state as having
projects in or near streams or other open must riot permanently restrict or impede
the
assa
f
l particular environmental or ecological
waters will normally include a p
ge o
norma
or expected high significance and identified by the
requirement for the establishment, flows (unless the primary purpose of the District Engineer after notice and
maintenance, and legal protection (e.g., fill is to impound waters) and the opportunity for public comment. The
easements, deed restrictions) of structure or discharge of dredged or fill District Engineer may also designate
vegetated buffers to open waters. In material must withstand expected high additional critical resource waters after
many cases, vegetated buffers will be flows. The activity must, to the notice and opportunity for comment.
the only compensatory mitigation maximum extent practicable, provide (a) Except as noted below, discharges
required. Vegetated buffers should for retaining excess flows from the site, of dredged or fill material into waters of
consist of native species. The width of provide for maintaining surface flow the US are not authorized by NWPs 7,
the vegetated buffers required will rates from the site similar to 1'l, 14, 16, 17, 21, 29, 31, 35, 39, 40, 42,
address documented water quality or preconstruction conditions, and provide 43, and 44 for any activity within, or
aquatic habitat loss concerns. Normally, for not increasing water flows from the directly affecting, critical resource
the vegetated buffer will be 25 to 50 feet Project site, relocating water, or waters, including wetlands adjacent to
wide on each side of the stream, but the redirecting water flow beyond such waters. Discharges of dredged or
Enai
neers
equi Didercve etated buffe?srto addresightly

phanonelizingtwill conditions. Stream be reduced to the

be l uthorizedtby the above NWPs in
documented water quality or habitat minimal amount necessary, and the National Wild and Scenic Rivers if the
loss concerns. Where both wetlands and activity must, to the maximum extent activity complies with General
open waters exist on the project site, the
Corps will determine the appropriate practicable, reduce adverse effects such
as flooding or erosion downstream and Condition 7. Further, such discharges
may be authorized in designated critical
compensatory mitigation (e.g., stream upstream of the project site, unless the habitat for Federally listed threatened or
buffers or wetlands compensation) activity is part of a larger system endangered species if the activity
based on what is best for the aquatic
at designed to manage water flows. In most complies with General Condition 11 and
environment
a watershed basis. In
cases where vegetated buffers are cases, it will not be a requirement to
conduct detailed studies and monitoring the USFWS or the NMFS has concurred
in a determination of compliance with

determined to be the most appropriate
form of compensatory mitigation
the of water flow.
This condition is only applicable to this condition.

(h) For N1VI s 3, 8, 10, 13, 15, 18, 1J,
,
District Engineer may waive or reduce
the requirement to provide wetland projects that have the potential to affect
waterflows. While appropriate measures 22, 23, 25, 27, 28, 30, 33, 34, 36, 37, and
38, notification is required in

compensatory mitigation for wetland
im
act must be taken, it is not necessary to
conduct detailed studies to identify accordance with General Condition 13,
for any activity pro
osed in the
p
s.
(g) Compensatory mitigation such measures or require monitoring to
ensure their effectiveness. Normally
the p
designated critical resource waters
including wetlands adja
t t
th

proposals submitted with the
notification'' may be either conceptual ,
Corps will defer to state and local
h cen
o
ose
waters. The District Engineer may

or detailed. If conceptual plans are aut
orities regarding management of
water }low authorize activities tinder these NWPs

approved under the verification, then
the Corps will condition the verificatio ,
22. Adverse Fflects From only after it is determined that the
impacts to the critical resource waters
n
to require detailed plans be submitted
and approved by the Corps prior to Inihoundrnents. If the activity creates an
impoundment of water, adverse effects
h will be no more than minimal,
2G. Fills tVithirr 100-Year FToodplains.

construction of the authorized activity
i to t
e aquatic system due to the
acceleration of the passage of water, For purposes of this General Condition,
100-year floodplains will be identified
n waters of the US.
(h) Permittees may propose the use of and/or the rest ic.ting its flow shall be
minimized to the maximum extent throw h the existing Federal Emergency
Management Agency's (FEh1A) Flood
mitigation banks, in-lieu fee
arranements or separate activity-
C' practicable. This includes structures

and work in navigable waters of the US, Insurance Rate Maps or FEMr1-approved

local floodplain reaps

specific compensatory mitigation. In all
cases that require compensatory
or discharges of dredged or fill material.
23
Woterf -1 Breedin
Ar .
(a) Uischorges in floodplain; Belorv
H
d

mitigation, the mitigation provisions .
g
eas.
Activities, including structures and ea
waters. Discharges of dredged or
fill material into waters of the US within
will specify the party responsible for work in navigable waters of the US or the mapped 100-year floodplain, below
2094 federal Register/Vol. 67, No. 10 / I'uesday, January 15, 2002/Notices
headwaters (i.e, five cfs), resulting in
permanent above-grade fills, are not
authorized by NWPs 39, 40, 42, 43, and
4'l.
(b) Discharges in Floodwav; Above
Heodwaters. Discharges of dredged or
fill material into waters of the US within
the F'EMA or locally mapped floodway,
resulting in permanent above-grade fills
are riot authorized by NWPs 39, 40, 42,
and 44.
(c) The permittee must comply with
any applicable FEMA-approved state or
local floodplain management
requirements.
27. Construction Period. For activities
that have not been verified by the Corps
and the project was commenced or
under contract to commence by the
expiration date of the NWP (or
modification or revocation date), the
work must be completed within 12-
months after such date (including any
modification that affects the project).
For activities that have been verified
and the project was commenced or
under contract to commence within the
verification period, the work must be
completed by the date determined by
the Corps.
For projects that have been verified by
the Corps, an extension of a Corps
approved completion date maybe
requested. This request must be
submitted at least one month before the
previously approved completion date.
D. Further Information
1. District Engineers have authority to
determine if an activity complies with
the terms and conditions of an NWP.
2. NWPs do not obviate the need to
obtain other Federal, state, or local
permits, approvals, or authorizations
required by law.
3. NWPs do not grant any property
rights or exclusive privileges.
4. NWPs do not authorize any injury
to the property or rights of others.
5. MVPs do not authorize interference
with any existing or proposed Federal
project.
F. Definitions
Best Management Practices (BMPs):
BMPs are policies, practices,
procedures, or structures implemented
to mitigate the adverse environmental
effects on surface water quality resulting
from development. BMPs are
categorized as structural or non-
structural. A BMP policy may affect the
limits on a development.
Compensatory 1111itigation: For
purposes of Section 10/40=1,
compensatory mitigation is the
restoration, creation, enhancement, or in
exceptional circumstances, preservation
of wetlands and/or other aquatic
resources for the purpose of
compensating for unavoidable adverse
impacts which remain after all
appropriate and practicable avoidance
and minimization has been achieved.
Creation: The establishment of a
1 wetland or other aquatic resource where
one did not formerly exist.
Enhancement: Activities conducted in
existing wetlands or other aquatic
resources that increase one or more
aquatic' functions.
Ephemeral Stream: An ephemeral
stream has flowing water only during
and for a short duration after,
precipitation events in a typical year.
Ephemeral stream beds are located
above the water table year-round.
Groundwater is not a source of water for
the stream. Runoff from rainfall is the
primary source of water for stream flow.
Farm Tract: A unit of contiguous land
under one ownership that is operated as
a farm or part of a.farm.
Flood Fringe: That portion of the 100-
year floodplain outside of the floodway
(often referred to as "floodway fringe").
Floodway: The area regulated by
Federal, state, or local requirements to
provide for the discharge of the base
flood so the cumulative increase in
water surface elevation is no more than
a designated amount (not to exceed one
foot as set by the National Flood
Insurance Program) within the 100-,year
flood lain.
Independent Utility: A test to
determine what constitutes a single and
complete project in the Corps regulatory
program. A project is considered to have
independent utility if it would be
constructed absent the construction of
other projects in the project area.
Portions of a multi-phase project that
depend upon other phases of the project
do not have independent utility. Phases
of a project that would be constructed
even if the other phases were not built
can be considered as separate single and
complete projects with independent
utility,
Intermittent Stream: An intermittent
strearn has flowing water during certain
times of the year, when groundwater
provides water for stream flow. During
dry periods, intermittent streams rnav,
not have flowing water. Runoff from
rainfall is a supplemental source of
water for stream flow.
Loss of Waters of the US: Waters of
the US that include the filled area and
other waters that are permanently
adversely affected by flooding,
excavation, or drainage because of the
regulated activity. Permanent adverse
effects include permanent above-grade,
at-grade, or below-grade fills that change
an aquatic area to dry land, increase the
bottom elevation of a waterbody, or
change the use of a waterbody, The
acreage of loss of waters of the US is the
threshold measurement of the impact to
existing waters for determining whether
a project may qualify for an N%VP; it is
not a net threshold that is calculated
after considering compensatory
mitigation that may be used to offset
losses of aquatic functions and values.
The loss of stream bed includes the
linear feet of strearn bed that is filled or
excavated. Waters of the US temporarily
filled, flooded, excavated, or drained,
but restored to preconstruction contours
and elevations after construction, are
not included in the measurement of loss
of waters of the US. Impacts to
ephemeral waters are only not included
in the acreage or linear foot
measurements of loss of waters of the
US or loss of stream bed, for the purpose
of determining compliance with the
threshold limits of the NWPs.
Non-tidal Wetland: A non-tidal
wetland is a wetland (i.e., a water of the
US) that is not subject to the ebb and
flow of tidal waters. The definition of a
wetland can be found at 33 CFR
328.3(b). Non-tidal wetlands contiguous
to tidal waters are located landward of
the high tide line (i.e., spring high tide
line).
Open Water: An area that, during a
year with normal patterns of
precipitation, has standing or flowing
water for sufficient duration to establish
an ordinary high water mark. Aquatic
vegetation within the area of standing or
flowing water is either non-emergent,
sparse, or absent. Vegetated shallows are
considered to be open waters. The term
"open water" includes rivers, streams,
lakes, and ponds. For the purposes of
the NWPs, this term does not include
ephemeral waters.
Perennial Stream: A perennial stream
has flowing water year-round during a
typical year. The water table is located
above the stream bed for most of the
year. Groundwater is the primary source
of water for stream flow. Runoff from
rainfall is a supplemental source of
water for stream flow.
Permanent Above-grade Fill: A
discharge of dredged or fill material into
waters of the US, including wetlands,
that results in a substanti it increase in
ground elevation and permanently
converts part or all of the waterhocly to
dry land. Structural fills authorized by
NWPs 3, 25, 36, etc. are not included.
Preservation: The protection of
ecologically important wetlands or other
aquatic resources in perpetuity through
the implementation of appropriate legal
and physical mechanisms. Preservation
may include protection of upland areas
adjacent to wetlands as necessary to
Federal Register / Vol. 67, No. 10/Tuesday, January 15, 2002/Notices 2095
ensure protection and/or enhancement
of the overall aquatic ecosystem,
Restoration: Re-establishment of
wetland and/or other aquatic resource
characteristics and function(s) at a site
where they have ceased to exist, or exist
in a substantially degraded state.
flrffle and Pool Complex: Riffle and
pool complexes are special aquatic sites
under the 404(6)(1) Guidelines. Riffle
and pool complexes sometimes
characterize steep gradient sections of
streams. Such stream sections are
recognizable by their hydraulic
characteristics. The rapid movement of
water over a course substrate in riffles
results in a rough flow, a turbulent
surface, and high dissolved oxygen
levels in the water. Pools are deeper
areas associated with riffles. A slower
stream velocity, a streaming flow, a
smooth surface, and a finer substrate
characterize pools.
Single and Complete Project: The
term "single and complete project'?
is
defined at 33 CFR?330.2(i) as the total
project proposed or accomplished by
one owner/developer or partnership or
other association of owners/developers
(see definition of independent utility).
For linear projects, the "single and
complete project" (i.e., a single and
complete crossing) will apply to each
crossing of a separate water of the US
(i.e., a single waterbody) at that location.
An exception is for linear projects
crossing a single waterbody several
times at separate and distant locations:
each crossing is considered a single and
complete project. However, individual
channels in a braided stream or river, or
individual arms of a large, irregularly
shaped wetland or lake, etc., are not
separate waterbodies.
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 rise on the
aquatic environment.
Storrnwoter Management Facilities:
Storruwater management facilities are
those facilities, including but not
limited to, stormwater retention and
detention ponds and BMPs, which
retain water for a period of time to,
control runoff and/or improve the
quality (i.e., by reducing the
concentration of nutrients, sediments,
hazardous substances and other
polhrtants) of stormwater runoff.
Stream Bed: The substrate of the
strearn channel between the ordinary
high water marks. The substrate may be
bedrock or inorganic particles that rane
in size from clay to boulders. Wetlands'
contiguous to the stream bed, but
outside of the ordinary high water
marks, are not considered part of the
stream bed.
Stream Channelization: The
manipulation of a stream channel to
increase the rate of water flow through
the stream channel. Manipulation may
include deepening, widening,
straightening, armoring, or other
activities that change the stream cross-
section or other aspects of stream
channel geometry to increase the rate of
water flow through the stream channel.
A channelized stream remains a water
of the US, despite the modifications to
increase the rate of water flow.
Tidal Wetland: A tidal wetland is a
wetland (i,e., water of the US) that is
inundated by tidal waters. The
definitions of a wetland and tidal waters
can be found at 33 CFR 328.3(6) and 33
CFR 328.3(f), respectively. Tidal waters
rise and fall in a predictable and
measurable rhythm or cycle due to the
gravitational pulls of the moon and sun.
Tidal waters end where the rise and fall
of the water surface can no longer he
practically measured in a predictable
rhythm clue to masking by other waters,
wind, or other effects. Tidal wetlands
are located channelward of the high tide
line (i.e., spring high tide line) and are
inundated by tidal waters two times per
lunar month, during spring high tides.
Vegetated Buffer: A vegetated upland
or I'vetland area next to rivers, streams,
lakes, or other open waters which
separates the open water from
developed areas, including agricultural
land. Vegetated buffers provide a variety
of aquatic habitat functions and values
(e.g., aquatic habitat for fish and other
aquatic organisms, moderation of water
temperature changes, and detritus for
aquatic food webs) and help improve or
maintain local water quality. A
vegetated buffer can be established by
maintaining an existing vegetated area
or planting native trees, shrubs, and
herbaceous plants on land next to open-
waters. Mowed lawns are not
considered vegetated buffers because
they provide little or no aquatic habitat
functions and values. The establishment
and maintenance of vegetated buffers is
a method of compensatory mitigation
that cart be used in conjunction with the
restoration, creation, enhancement, or
preservation of aquatic habitats to
ensure that activities authorized by
NWPs result in minimal adverse effects
to the aquatic environment. (See
General Condition 19.)
Vegetated Shallows: Vegetated
shallows are special aquatic sites under
the 404(b)(1) Guidelines. They are areas
that are permanently inundated and
under normal circumstances have
rooted aquatic vegetation, such as
seagrasses in marine and estuarine
systems and a variety of vascular rooted
plants in freshwater systems.
Waterbody: A waterbody is any area
that in a normal year has water flowing
or standing above ground to the extent
that evidence of an ordinary high water
mark is established. Wetlands
contiguous to the waterbody are
considered part of the waterbody.
(FR Doc. 02-539 Filed 1-14-02; 8:45 am]
BILLING CODE 3710.92-P
6692 Federal Register/ Vol. 67, No. 30 / Wednesday, February 13, 2002 /Notices
ADDRESSES). The holding of such
hearing is at the discretion of the
Assistant Administrator for Fisheries,
NOAA. All statements and opinions
contained in the permit action
summaries are those of the applicant
and do not necessarily reflect the views
of NMFS.
Species Covered in This Notice
The following species are covered in
this notice:
Sea turtles
Threatened and endangered green
turtle (Chelonia mydas)
Endangered hawksbill turtle
(Eretmochelys imbricata)
Endangered Kemp's ridley turtle
(Lepidochelys kempii)
Endangered leatherback turtle
(Dermochelys coriacea)
Threatened loggerhead turtle (Caretto
caretta)
Application 1361
The applicant-is applying for a 5-year
permit to trawl for turtles, as needed, at
dredge and other construction/
destruction sites to remove the turtles to
a safe location. The turtles will be
captured, tagged, measured and released
offshore away from the dredging
activities. The applicant expects to
capture and relocate 95 green, 11
hawksbill, 160 loggerhead, 14 Kemp's
ridley and 4 leatherback turtles on the
Atlantic coast and 105 green, 17
hawksbill, 160 loggerhead, 50 Kemp's
ridley and 11 leatherback turtles oil the
Gulf coast.
Dated: February 7, 2002.
Jill Lewandowski,
Acting Chief, Permits, Conservation, and
Education Division, Office of Protected
Resources, National Marine Fisheries Service.
[FR Doc. 02-3522 Filed 2-12-02; 8:45 auil
BILLING CODE 5510.22-S
DEPARTMENT OF DEFENSE
Department of the Army, Corps of
Engineers
Issuance of Nationwide Permits;
Notice; Correction
AGENCY: Army Corps of Engineers, DoD,
ACTION: Final notice; correction.
SUMMARY: This document contains
corrections to the final notice of
issuance of Nationwide Permits (NWPs)
which was published in the Federal
Register on 'T'uesday, January 15, 2002
(67 FR 2020--2095).
ADDRESSES: IIQUSACE, A`I"1'N: CECW--
OR, 441 "G" Street, NW., Washington,
DC 20314-1000.
FOR FURTHER INFORMATION CONTACT: Mr.
David Olson, at [phone], Mr.
Kirk Stark, at [phone] or Ms.
Leesa Beal at [phone] or access
the U.S. Army Corps of Engineers
Regulatory Home Page at: http://
w,?vw.usace.army.mil/inet/functions/
cw/cecwo/reg/.
SUPPLEMENTARY INFORMATION: III the
SUMMARY section on page 2020, the third
and fourth sentences are corrected to
read: "All NWPs except NWPs 3, 7, 12,
14, 27, 39, 40, 41, 42, 43, and 44 expire
on February 11, 2002. Existing NWPs 3,
7, 12, 14, 27, 39, 40, 41, 42, 43, and 44
expire on March 18, 2002." In the last
sentence of the SUMMARY section, the
expiration date is corrected as "March
18, 2007", instead of "March 10, 2007
On page 2020, in second sentence of
the DATES section, the expiration date is
corrected as "March 18, 2007", instead
of "March 19, 2007". Therefore, the
NWPs published in the January 15,
2002; Federal Register will expire on
March 18, 2007, five years from their
effective date of March 18, 2002.
On page 2020, in the fifth paragraph
of the Background section, the third and
fourth sentences are corrected to read:
"All NWPs except NWI3s 3, 7, 12, 14,
27, 39, 40, 41, 42, 43, and 44 expire on
February 11, 2002. Existing NWPs 3, 7,
12, 14, 27, 39, 40, 41, 42, 43, and 44
expire on March 18, 2002." The
expiration date in the last sentence of
this paragraph is corrected as "March
18, 2007", instead of "March 19, 2007'
On page 2020, the paragraph in the
section entitled "GrandfutherProvision
for Expiring iWVPs at 33 CFR 330.6" is
corrected to read: "Activities authorized
by the current NWPs issued on
December 13, 1996, (except NWPs 3, 7,
12, 14, 27, 39, 40, 41, 42, 43, and 44),
that have commenced or are under
contract to commence by February 11,
2002, will have until February 11, 2003,
to complete the activity. Activities
authorized by NWPs 3, 7, 12, 14, 27, 39,
40, 41, 42, 43, and 44, that were issued
on March 9, 2000, that are commenced
or under contract to conuuence by
March 18, 2002, will have until March
18, 2003, to complete the activity."
On page 2020, in the "Cleat Water
Act Section 401 Water (Duality
Certification (WQC) and Coastal7,one
Management Act ((,'ZrVIA) Consistency
A,;;reement" section, the date ill the fifth
sentence is corrected as "February 11,
2002", instead of "February 11, 2001".
On page 2023, third column, last
sentence, the number 29 is replaced
with the number 19, because this
sentence refers to General Condition 19.
On page 2024, first column, in the
fourth sentence of the last paragraph the
phrase "less than" is replaced by
"greater than" because the 30 day
completeness review period for NWP
pre-construction notifications is greater
than the 15 clay completeness review
period for standard permit applications,
On page 2031, second column, second
full paragraph, the number 31 is
replaced with the number 3 because this
paragraph refers to NWP 3.
On page 2044, second column, fourth
complete paragraph, the title is
corrected to read "Stream and Wetland
Restoration Activities" because that is
the title of NWP 27.
On page 2054, second column, the
year cited in the third sentence of the
second paragraph is the year 2000, not
1996.
On page 2058, third column, in the
second sentence of the second complete
paragraph the word "intermittent" is
inserted before the phrase "stream bed"
because the waiver for filling or
excavating greater than 300 linear feet of
stream beds can apply only to
intermittent stream beds.
On page 2072, third column, last
sentence, the number 19 is inserted after
the term "General Condition" since this
sentence refers to General Condition 19.
On page 2076, second column, the
street address for tlue Walla Walla
District Engineer is corrected to read
"201 N. Third Avenue".
On page 2080, second column, third
paragraph from the top of the column
(in the "Notification" section of NWP
12), the word "or" at the end of
paragraph (e) is deleted and the period
at the end of the fourth paragraph
(paragraph (f)) is replaced with "; or".
On page 2080, second column,
paragraph (a) ofNWP 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).
Un page 2080, third column, the word
"or" is inserted at the end of paragraph
(a)(1) of NWP 14, Linear Transportation
Projects. Paragraph (a) of NWP 14 is
corrected to read: "a. This NWP is
subjcO to the following acreage limits:
(1) For linear transportation projects in
uou-ticlal waters, provided the discharge
does not cause t11e loss of greater than
lk-ac:re 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 Vi-acre of
waters of the US."
On page 2085, second column, the
last sentence of NWl' 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
navigahle waters of the United States.
* * *" The change was not intended
and we are correcting this paragraph by
reinstating the original text as it
appeared in the version of NWP 36
published in the December 13, 1996,
Federal Register (61 FR 65919).
On page 2086, in the second full
paragraph of the second column,
"paragraph (e)" in the second sentence
is replaced with "paragraph (f)" and
"paragraph (i)" in the third sentence is
replaced with "paragraph (j)" to
accurately cite the previous paragraphs
of NWP 39. The last two sentences of
the paragraph before the subdivision
paragraph were incorrectly divided into
two sentences from the original single
sentence and identified as being related
to General Condition 15. This change
was not intended and we are correcting
this paragraph by reinstating the
original last sentence as it exists in the
March 9, 2000, text of NWP 39 (65 FR
12890).
On page 2086, middle column, the
parenthetical statement at the end of the
Note at the end of NWP 39 is corrected
to read "* * * (except for ephemeral
waters, which do not require PCNs
under paragraph (c)(2), above; however,
activities that result in the loss of greater
than V,o acre of ephemeral waters
would require PCNs under paragraph
(c)(1), above)." The addition to the Note
was intended to clarify that under
paragraph (c)(2) only the loss of
ephemeral open waters were not
included in the requirement for a pre-
construction notification (PCN).
However, under paragraph (c)(1) all
ephemeral waters of the United States
are included in the measurement for the
I/,o acre PCN requirement. The
correction is ndeded because the
statement in the parentheses could be
incorrectly interpreted to apply to
paragraph (c)(1) and possibly to all
PCNs, not just those affected by
paragraph (c)(2).
For clarity, we are providing the text
of NWP 39 in its entirety, with the
corrections described above:
39. Residential, Commercial, and
Institutional Developments. Discharges
of dredged or fill material into non-tidal
waters of the U.S., excluding non-tidal
wetlands adjacent to tidal waters, for the
construction or expansion of residential,
commercial, and institutional building
foundations and building pads and
attendant features that are necessary for
the use and maintenance of the
structures. Attendant features may
include, but are not limited to, roads,
parking lots, garages, yards, utility lines,
stormwater management facilities, and
recreation facilities such as
playgrounds, playing fields, and golf
courses (provided the golf course is an
integral part of the residential
development). The construction of new
ski areas or oil and gas wells is not
authorized b this NWP.
Residential developments include
multiple and single unit developments.
Examples of commercial developments
include retail stores, industrial facilities,
restaurants, business parks, and
shopping centers. Examples of
institutional developments include
schools, fire stations, government office
buildings, judicial buildings, public
works buildings, libraries, hospitals,
and places of worship. The activities
listed above are authorized, provided
the activities meet all of the following
criteria:
a. The discharge does not cause the
loss of greater than'/,z-acre of non-tidal
waters of the U.S., excluding non-tidal
wetlands adjacent to tidal waters;
b. The discharge does not cause the
loss of greater than 300 linear-feet of a
stream bed, unless for intermittent
stream beds this criterion is waived in
writing pursuant to a determination by
the District Engineer, as specified
below, that the project complies with all
terms and conditions of this NWP and
that any adverse impacts of the project
on the aquatic environment are
minimal, both individually and
cumulatively;
c. The permittee must notify the
District Engineer in accordance with
General Condition 13, if any of the
following criteria are met:
(1) The discharge causes the loss of
greater than '/io-acre of non-tidal waters
of the US, excluding non-tidal wetlands
adjacent to tidal waters; or
(2) The discharge causes the loss of
any open waters, including perennial or
intermittent streams, below the ordinary
high water mark (see Note, below); or
N The discharge causes the loss of
greater than 300 linear feet of
intermittent stream bed. In such case, to
be authorized the District Engineer must
determine that the activity complies
with the other terms and conditions of
the NWP, determine adverse
environmental effects are minimal both
individually and cumulatively, and
waive the limitation on stream impacts
in writing before the permittee may
proceed;
d. For discharges in special aquatic
sites, including wetlands, the
notification must include a delineation
of affected special aquatic sites;
e. The discharge is part of a single and
complete project;
F. The permittee must avoid and
minimize discharges into waters of the
US at the project site to the maximum
extent practicable. The notification,
when required, must include a written
statement explaining how avoidance
and minimization of losses of waters of
the US were achieved on the project
site. Compensatory mitigation will
normally he required to offset the losses
of waters of the US, (See General
Condition 19.) The notification must
also include a compensatory mitigation
proposal for offsetting unavoidable
losses of waters of the US. If an
applicant asserts that the adverse effects
of the project are minimal without
mitigation, then the applicant may
submit justification explaining why
compensatory mitigation should not be
required for,the District Engineer's
consideration;
g. When this NWP is used in
conjunction with any other NWP, any
combined total permanent loss of waters
of the US exceeding VIo-acre requires
that the permittee notify the District
Engineer in accordance with General
Condition 13;
h. Any work authorized by this MVP
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
V,o -acre or less of waters of the US, the
permittee must submit a report, within
30 days of completion of the work, to
the District Engineer that contains the
following information: (1) The name,
address, and telephone number of the
permittee; (2) The location of the work;
(3) A description of the work; (4) The
type and acreage of the loss of waters of
the US (e.g., Vz-acre of emergent
wetlands); and (5) The type and acreage
of any compensatory mitigation used to
offset the loss of waters of the US (e.g.,
1/2-acre of emergent wetlands created
on-site);
j. If there are any open waters or
streams within the project area, the
permittee will establish and maintain, to
the maximum extent practicable,
wetland or upland vegetated buffers
next to those open waters or streams
consistent with General Condition 19.
Deed restrictions, conservation
easements, protective covenants, or
other means of land conservation and
preservation are required to protect and
maintain the vegetated buffers
established on the project site.
Only residential, commercial, and
institutional activities with structures
on the foundation(s) or building pad(s),
as well as the attendant features, are
authorized by this NWP. The
6694 Federal Register/ Vol. 67, No. 30 / Wednesday, February 13, 2002 /Notices
compensatory mitigation proposal that
is required in paragraph (f) of this NWP
may be either conceptual or detailed.
The wetland or upland vegetated buffer
required in paragraph (j) of this NWP
will be determined on a 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
oil the project site in excess of the
acreage limit for NWP 39 (i.e., the
combined acreage loss authorized under
NWPs 39 and 40 cannot exceed 1/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 are
waters of the US based on this criterion
would require a PCN although water is
infrequently present in the stream channel
(except for ephemeral waters, which do not
require PCNs under paragraph (c)(2), above;
however, activities that result in the loss of
greater than 'ho acre of ephemeral waters
would require PCNs under paragraph (c)(1),
above).
On page 2088, in the sixth sentence of
the first paragraph in the first column,
the phrase "an adequate water quality
management plan" is replaced with the
phrase "adequate water quality
management measures" to reflect the
modified language in General Condition
9. This sentence is corrected to read
"The facility must have adequate water
quality management measures in
accordance with General Condition 9,
such as a stormwater management
facility, to ensure that the recreational
facility results in no substantial adverse
effects to water quality."
On page 2089, first column, the
second sentence of paragraph (c) of
NWP 44 is corrected to read "Normally,
the water quality management measures
required by General Condition 9 should
address these impacts;". In addition, the
second sentence of paragraph (i) of NWP
44 is corrected to read "Further the
District Engineer may require water
quality management measures to ensure
the authorized work results in minimal
adverse effects to water quality;" 'T'hese
corrections are necessary to reflect the
modified language in General Condition
9.
On page 2089, third column, the text
of General Condition 6 is corrected to
read: "The activity must comply with
any regional conditions that may have
been added by the Division Engineer
(see 33 CFR 330.4(e)) and with any case
specific conditions added by the Corps
or by the state or tribe in its Section 401
Water Quality Certification and Coastal
Zone Management Act consistency
determination." The change to General
Condition 6 that was published in the
January 15, 2002, Federal Register was
not intended and we are correcting this
sentence by reinstating the original text
as it existed in the March 9, 2000,
NWPs.
On page 2090, first column, the word
"Section" in the parenthetical at the end
of General Condition 10 is replaced with
"33 CFR" so that the parenthetical reads
"(see 33 CFR 330.4(4))".
On page 2090, at the top of the second
column, the second Internet URL is
replaced with "* * * http://
wwvv.nmJs.noaa.gov/prot _res/overview/
es.html * * *" because the Internet
address for the National Marine
Fisheries Service home page for
endangered species has been changed.
On page 2090, third column, in
paragraph (b)(4) of General Condition
13, NWP 40 should be added to the list
of NWPs that require submission of
delineations of special aquatic sites with
pre-construction notifications.
Therefore, paragraph (b)(4) of General
Condition 13 is corrected to read "For
NWPs 7, 12, 14, 18, 21, 34, 38, 39, 40,
41, 42, and 43, the PCN must also
include a delineation of affected special
aquatic sites, including wetlands,
vegetated shallows (e.g., submerged
aquatic vegetation, seagrass beds), and
riffle and pool complexes (see paragraph
13(0);"
On page 2090, third column, in
paragraph (b)(6) of General Condition
13, the word "Projects" replaces the
word "Crossings", because the title of
NWP 14 is "Linear Transportation
Projects".
On page 2090, third column, in
paragraph (b)(8) of General Condition
13, the word "Activities" is inserted
after the word "P.estoration" because the
title of NWP 27 is "Stream and Wetland
Restoration Activities".
On page 2091, first column, in
paragraph (b)(10) of General Condition
13, the word "Projects" is replaced with
the word "Facilities" because the title of
NWP 31 is "Maintenance of Existing
Flood Control Facilities".
On page 2094, third column, we are
correcting the definition of "Loss of
Waters of the US" by deleting the last
sentence and inserting the following
sentence after the fourth sentence of this
definition: "Impacts to ephemeral
streams are not included in the linear
foot measurement of loss of stream bed
for the purpose of determining
compliance with the linear foot limits of
NWPs 39, 40, 42, and 43."
Due to the number of corrections
made to the definition of "Loss of
Waters of the US", we are providing the
text of this definition in its entirety,
with the corrections described above:
Loss of Waters of the US: Waters of
the US that include the filled area and
other waters that are permanently
adversely affected by flooding,
excavation, or drainage because of the
regulated activity. Permanent adverse
effects include permanent above-grade,
at-grade, or below-grade fills that change
an aquatic area to dry land, increase the
bottom elevation of a waterbody, or
change the use of a waterbody. The
acreage of loss of waters of the US is the
threshold measurement of the impact to
existing waters for determining whether
a project may qualify for an NWP; it is
not a net threshold that is calculated
after considering compensatory
mitigation that may be used to offset
losses of aquatic functions and values.
The loss of stream bed includes the
linear feet of stream bed that is filled or
excavated. Impacts to ephemeral
streams are not included in the linear
foot measurement of loss of stream bed
for the purpose of determining
compliance with the linear foot limits of
NWPs 39, 40, 42, and 43. Waters of the
US temporarily filled, flooded,
excavated, or drained, but restored to
preconstruction contours and elevations
after construction, are not included in
the measurement of loss of waters of the
us.
In the January 15, 2002, Federal
Register, it was stated that the definition
was being revised (to clarify that
ephemeral waters and streams are not
included in the acreage or linear
thresholds for NWPs) to comport with
language in the preamble of the March
9, 2000 Federal Register notice.
However, the language in the preamble
of the March 9, 2000 Federal Register
notice (65 FR 12881, third column) does
not support this revision. Rather, the
referenced preamble states, "During our
review of the comments received in
response to the July 21, 1999, Federal
Register notice, we found an error in the
proposed definition of the term, "loss of
waters of the United States." In the
fourth sentence of the draft definition,
we stated that the loss of stream bed
Federal Register/Vol. 67, No. 30 /Wednesday, February 13, 2002/Notices 6695
includes the linear feet of perennial or
intermittent stream bed that is filled or
excavated. This statement is inaccurate
because ephemeral stream bed that is
filled or excavated can also be
considered a loss of waters of the United
States. However, the 300 linear foot
limit for stream beds filled or excavated
does not apply to ephemeral streams.
We have modified this sentence to
define the loss of stream bed as the
linear feet of stream bed that is filled or
excavated." Thus, the modification of
this definition was intended to clarify
that activities that involve filling or
excavating ephemeral streams are not
included in the linear foot limits for
filling or excavating stream beds in
NWPs 39, 40, 42, and 43. However, it
was not intended to exempt ephemeral
waters or streams from calculations of
impacted acreages to determine PCN or
maximum acreage requirements in
accordance with NWPs 39, 40, 42, and
43.
In the August •9, 2001, Federal
Register notice (66 FR 42099) we
proposed to modify the definition of
"Loss of Waters of the US" by adding
the sentence "* * * The loss of stream
bed includes the linear feet of perennial
stream or intermittent stream that is
filled or excavated * * *". The
proposed change was in response to a
commitment to clearly state in the text
of the NWPs (which includes the
definitions) that the 300 linear foot limit
in NWPs 39, 40, 42, and 43 for filling
and excavating stream beds would only
apply to intermittent and perennial
streams, not to ephemeral streams,
In the January 15, 2002, Federal
Register notice (67 FR 2074-2075) we
erroneously stated that both the acreage
and linear limits of the NWPs do not
apply to ephemeral waters. This was
never intended to be adopted as policy
for the NWPs or the Corps regulatory
program. A previously stated, in the first
column of page 2075 of the January 15,
2002, Federal Register notice, we refer
to page 12881 of the March 9, 2000,
Federal Register notice, which only
discusses the 300 linear foot limit, not
the acreage limits of the NWPs. Our
intent is to continue to apply acreage
limits of NWPs to activities that result
in the permanent loss of ephemeral
waters, but the linear foot limits of the
NWI's (i.e., NWPs 39, 40, 42, and 43) for
filling or exr_avatirrg 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 NWI' package.
Therefore, we are correcting this
definition as described above.
We believe that correcting the text of
NWP 39 and the definition of "Loss of
Waters of the US" through the
publication of this correction notice is
appropriate. Nevertheless, in order to
give all interested parties further
opportunity to comment on this matter,
we intend to publish a Federal Register
notice to solicit public comments on
those two corrections. If we determine
that any other matter relating to the final
NWPs requires correction or
clarification, but that matter was riot
adequately dealt with in this correction
notice, we will address that additional
matter in the forthcoming Federal
Register notice, as well. We expect to
publish that Federal Register notice
within a few weeks.
Dated: February 7, 2002.
Lawrence A. Lang,
Assistant Chief, Operations Division,
Directorate of Civil Works.
(FR Doc. 02-3555 Filed 2-12-02; 8:45 ainl
BILLING CODE 1770.92-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), 4301 Jones
Bridge Road, Bethesda, MD 20814-4799.
STATUS: Open-under "Government in
the Sunshine Act" (5 U.S.C. 552b(e)(3)).
MATTERS TO BE CONSIDERED:
8:30 a,ni, Meeting-Board of Regents
(1) Approval of Minutes-November 14
2001
(2) Faculty Matters
(3) Department Reports
(4) Financial Report
(5) Report--President, USUHS
(6) Report--Dean, School of Medicine
(7) Report--Dean, Graduate School of
Nursing
(8) Comm(,.nts--Chairman, Board of
Regents
(9) New Business
CONTACT PERSON FOR MORE INFORMATION
Mr. Bobby I). Anderson, Executive
Secretary, Board of Regents, (301) 295-
3116.
Dated: February 8, 2002.
Linda rlynum,
OSD Federal Register Liaison Officer,
Department of Defense.
[FR Doc. 02-3083 Filed 2-11-02; 3::32 pm]
BILLING CODE 5004-08-M
DEPARTMENT OF EDUCATION
Submission for OMB Review;
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SUMMARY: The Leader, Regulatory
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