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HomeMy WebLinkAbout20020893 Ver 1_Complete File_20020610?i STATE OF NORTH CAROLINA DEPARTMENT OF TRANSPORTATION MICHAEL F. EASLEY GOVERNOR P.O. BOX 25201, RALEIGH, N.C. 27611-5201 September 5, 2003 Reference: DWQ Project No. 020893 NCDOT/SR1134 Montgomery County Dear Sir or Madam: LYNDO TIPPETT SECRETARY U"W SEP I J 2003 TEROWNSEMM Attached is certification of completion for the work performed under the above referenced permit. The certification is signed by our field agent. If additional information is required please advise. Sincerely, W. F. Rosser, P.E. Division Engineer North Carolina Division of Water Quality 401 [Wetlands Unit 1621Mail Service Center Raleigh, NC 27699-1621 cc: K. R. Hedrick H. D. Matthews Art King File DIVISION 8, P. O. BOX 1067, ABERDEEN, NC 28315 Telephone: (910) 944-2344 Fax: (910) 944-5623 F N1ATF Michael F. Easley, Governor ? 9QG William G. Ross Jr., Secretary r .. North Carolina Department of Environment and Natural Resources co Un -7 Alan W. Klimek, P.E. Director > Division of Water Quality U ? DWQ Project No.: 020893 County: Montgomery Applicant: N. C. Dept. of Transportation Project Name: SR 1134 Tower Rd. Date of Issuance of 401 Water Quality Certification: 08-08-2002 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, 1650 Mail Service Center, Raleigh, NC, 27699-1650. 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, Harold D. Matthews , 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 Rtes, the approved plansand, 'ons, and other supporting materials. Signature: w? -- Date: X-40 -Or If this project was designed by a Certified Professional I, , as a duly registered Professional (i.e., Engineer, Landscape Architect, Surveyor, etc.) in the State of North Carolina, having been authorized to observe (periodically, weekly, full time) the construction of the project, for the Permitee hereby state that, to the best of my abilities, due care and diligence was used in the observation of the construction such that the construction was observed to be built-within substantial compliance and intent of the 401 Water Quality Certification and Buffer Rules, the approved plans and specifications, and other supporting materials. Signature Registration No. Date NM _NV North Carolina Division of Water Quality, 401 Wetlands Certification Unit, 1650 Mail Service Center, Raleigh, NC 27699-1650 (Mailing Address) 2321 Crabtree Blvd., Raleigh, NC 27604-2260 (Location) 919-733-1786 (phone), 919-733-6893 (fax), http://h2o.enr.state.nc.us/ncwetlands/ F W A TF O 9 Michael F. Easley, Governor OH QC. William G. Ross Jr., Secretary North Carolina Department of Environment and Natural Resources ` 7 Alan W. Klimek, P.E. Director > Division of Water Quality o ? August 8, 2002 Montgomery County DWQ Project No. 020893 SR 1134 Pipe Replacements and Extensions APPROVAL of 401 Water Quality Certification with Additional Conditions Mr. W.F. Rosser, P.E., Division Engineer NCDOT Division 8 P.O. Box 1067 Aberdeen, NC 28315 Dear Mr. Rosser: You have our approval, in accordance with the attached conditions and those listed below, to incur 317 linear feet of impacts to unnamed tributaries of Barnes Creek in order to replace pipes on SR 1134 in Montgomery County. The project should be constructed in accordance with your application dated June 6, 2002 (received June 10, 2002). After reviewing your application, we have decided that this fill is covered by General Water Quality Certification Nos. 3366 and 3375 corresponding to the U.S. Army Corps of Engineers Nationwide Permit Numbers 33 and 14. 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 only valid for the purpose and design that you described in your application except as modified below. If you change your project, you must notify us in writing, and you may be required to send us 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 conditions. If total wetland fills for this project (now or in the future) exceed one acre, or if stream impacts exceed 150 linear feet, compensatory mitigation may be required as described in 15A NCAC 2H.0506 (h) (6) and (7). For this approval to be valid, you must follow the conditions listed in the attached certification and any additional conditions listed below. 2. 3. 4. Barnes Creek and its tributaries are classified as Outstanding Resource Waters. NCDOT shall use Best Management Practices for the Protection of Surface Waters (NCDOT March 1997) and Sedimentation and Erosion Control Guidelines for Sensitive Watersheds [15A NCAC 4B .0124 (a)- (d). These measures must be implemented prior to any ground-disturbing activities to minimize impacts to downstream aquatic resources. Temporary or permanent herbaceous vegetation shall be planted on all bare soil within S days of ground-disturbing activities to provide long term erosion control. NCDOT shall comply with the requirements for Outstanding Resource Waters [15A NCAC 2B .0225). Storm water shall be directed to buffer areas or retention basins and not routed directly to streams unless demonstrated that this is impracticable or infeasible. If any of the existing pipes are perched and do not allow for passage of aquatic life, they shall be removed and reinstalled correctly during this project. North Carolina Division of Water Quality, 401 Wetlands Certification Unit, 1650 Mail Service Center, Raleigh, NC 2769,9-1650 (Mailing Address) 2321 Crabtree Blvd., Raleigh, NC 27604-2260 (Location) 919-733-1786 (phone), 919-733-6893 (fax), http://h2o.enr.state.nc.us/ncwetlands/ 5. Riparian vegetation must be reestablished within the construction limits of the project by the end of the growing season following completion of construction. 6. NCDOT is encouraged to use existing on-site vegetation and materials for stream bank stabilization and to minimize the use of rip rap. Rip rap shall not be placed in the stream bottom. 7. The dimension, pattern, and profile of the stream and floodplain above and below the structure shall not be modified by widening the stream channel or reducing the depth of the stream. 8. Previously disturbed floodplains and stream channels should be restored to their natural geomorphic conditions whenever practicable. 9. All work shall be performed during low flow conditions. 10. Heavy equipment must be operated from the banks rather than in the stream channel in order to minimize sedimentation and reduce the likelihood of introducing other pollutants into the stream. 11.. All mechanized equipment operated near surface waters must be regularly inspected and maintained to prevent contamination of stream waters from fuels, lubricants, hydraulic fluids, or other toxic materials. 12. Upon completion of the project, the NCDOT or its authorized agent shall complete and return the enclosed "Certificate of Completion" form to notify NCDWQ when all work included in the §401 Certification has been completed. This will satisfy the requirements of Condition 13 in WQC #3366 and Condition 16 in WQC #3375. 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, 6714 Mail Service Center, Raleigh, N.C. 27699-6714. This certification and its conditions are final and binding unless you ask for a hearing. 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 telephone Ms. Cynthia Van Der Wiele at 919.733.5715 or Mr. Ken Averitte of the Fayetteville Regional Office at 910.486.1541. Sincerely, Alan W. Klimek, P.E. Attachment Pc: Wilmington District Corps of Engineers Richard Spencer, USACE Wilmington Field Office NCDWQ Fayetteville Regional Office Central Files File Copy ? STnTFo y A°? 020893 STATE OF NORTH CAROLINA DEPARTMENT OF TRANSPORTATION MICHAEL F. EASLEY DIVISION OF HIGHWAYS LYNDO TIPPETT GOVERNOR SECRETARY June 6, 2002 Mr. Rob Ridings U !5 :U I Division Of Water Quality FILE 401 Wetlands Unit Copy r p4 1650 Mail Service Center Raleigh, NC 217699-1650 v Dear Mr. Ridings: Subject: Montgomery County - SR 1134 In an effort to obtain the permits needed for pipe replacement on SR 1134 in Montgomery County, we are providing the pre construction notification application and the supporting materials. This application covers sites #5, #6 & #7, which are on the portion of the road where right of way has been granted. A survey for the presence of Schweinitz's Sunflower (Helianthus Schweinitz) was conducted by myself as part of the required minimum criteria check. No Schwienitz Sunflowers were found within the road's right of way. Any detours required for this project will be done off site. To our wled e there are No High Quality Waters or Outstanding Water Resources occurrin in the project area. We anticipate that these activities will be authorize under Nationwide Permit Number #14 & #33. 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 (910) 944-2344. Thank you for your cooperation in this matter. Sincerely al(? , e. /r-, ? 0/ A rt C. King Division Environmental Officer cc: W. F. Rosser, PE K. Hedrick, PE H. Matthews Agent File PAYMENT RECEIVED P.O. BOX 1067, ABERDEEN, NORTH CAROLINA 28315 PHONE (910) 944-2344 FAX (910) 944-5623 e.w srng u STATE OF NORTH CAROLINA DEPARTMENT OF TRANSPORTATION MICHAEL F. EASLEY DIVISION OF HIGHWAYS GOVERNOR June 6, 2002 Mr. Rob Riding Division of Water Quality 401 Wetlands Unit 1650 Mail Service Center Raleigh, North Carolina 27699-1650 Dear Mr. Ridings: FILE COPY Enclosed is the permit application for the following project: Description: SR 1134 - Site 5 - Montgomery Work Order #: 6.552045T TIP Number: N/A Fee Category: $200.00 Please submit for automated payment. Art C. King Division Environmental Officer Sincerely, a'? (! LYNDo TIPPETT SECRETARY ? ww ?STATE OF NORTH CAROLINA DEPARTMENT OF TRANSPORTATION MICHAEL F. EASLEY DIVISION OF HIGHWAYS GOVERNOR June 6, 2002 Mr. Rob Riding Division of Water Quality 401 Wetlands Unit 1650 Mail Service Center Raleigh, North Carolina 27699-1650 Dear Mr. Ridings: Enclosed is the permit application for the following project: Description: SR 1134 - Site 6 - Montgomery Work Order 6.552045T TIP Number: N/A Fee Category: $200.00 Please submit for automated payment. Sincerely, Art C. King Division Environmental Officer LYNDo TIPPETT SECRETARY Sy ?a? 0? aw vom` STATE OF NORTH CAROLINA DEPARTMENT OF TRANSPORTATION MICHAEL F. EASLEY DIVISION OF HIGHWAYS GOVERNOR June 6, 2002 Mr. Rob Riding Division of Water Quality 401 Wetlands Unit 1650 Mail Service Center Raleigh, North Carolina 27699-1650 Dear Mr. Ridings: Enclosed is the permit application for the following project: Description: SR 1134 - Site 7 - Montgomery Work Order #: 6.552045T TIP Number: N/A Fee Category: $200.00 Please submit for automated payment. Sincerely, LYNDO TIPPETT SECRETARY' Art C. King Division Environmental Officer ` ' `5 s , / ? r, /? `? rt / r/ / ? , _ 'a ?? / r/ ?/ 1( ?l ??? ??x i S? I . '1 -. } t• T t F -- _ '} 1?r ? . f ? ? ..4• A? _h ?j `\\\ ?.?. _ r , ?; ? _r. .. ?,.. ` r f ( ..4 ? I I f ? l ? .?-y _ I t? _ f ' r r - 1/' ?.?. dr ?l Jt ?,!??'' ?,?? ?,r ti.?. ?, i•t+ f ?{ .. _,5 - ; % '.k ?._ 1 J ? , ? ?,• e? ? ,/?•k ? ` ? '\,.. .Wr +'? I r,./' ? l ` `;'"-. ?'?.._.. 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Section 10 Permit ® 401 Water Quality Certification COPY JUN 1 0 2002 t y WETLANDS GROUP WATER QUALITY SECTION 2. Nationwide, Regional or General Permit Number(s) Requested: Nationwide #14 & #33 3. If this notification is solely a courtesy copy because written approval for the 401 Certification is not required, check here: ? 4. If payment into the North Carolina Wetlands Restoration Program (NCWRP) is proposed for mitigation of impacts (see section VIII - Mitigation), check here: [l Applicant Information 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: brosserndot.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: Kevin R. Hedrick, P.E. District Engineer Company Affiliation: NC Department of Transportation Mailing Address: 219 Clemmer Road Rockingham, NC 28379 Telephone Number: (910) 582-7075 Fax Number: 910-582-7065 E-mail Address: krhedrick@dot.state.nc.us 'A• PAYMENT RECEIVED -s- !i F 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 1134 Pipe Replacements and Extensions, Sites #5. #6, & #7 2. T.I.P. Project Number or State Project Number (NCDOT Only): 6.552045T 3. Property Identification Number (Tax PIN): N/A 4. Location County: Montgomery Nearest Town: Troy Subdivision name (include phase/lot number): N/A Directions to site (include road numbers, landmarks, etc.): Take NC 109 north from Troy _ approximately 3 miles. Turn right onto SR 1134 and travel to end of pavement. Thence along unpaved portion of SR 1134 for approximately 4 miles to SR 1303. 5. Site coordinates, if available (UTM or Lat/Long): See attached (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: Rural 7. Property size (acres): 8. Nearest body of water (stream/river/sound/ocean/lake): Barnes Creek 9. River Basin: Pee Dee (Note - this must be one of North Carolina's seventeen designated major river basins. The River Basin map is available at http://h2o.enr.state.nc.us/admin/maps/.) -6- 10. Describe the purpose of the proposed work: Replace and extend pine crossings for improvement of SR 1134. 11. List the type of equipment to be used to construct the project: Trackhoe. backhoe. gasoline tamp 12. Describe the land use in the vicinity of this project: Rural 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 -7- mitigation, list and describe the impact in Section VIII below. If additional space is needed for listing or description, please attach a separate sheet. 1. Wetland Impacts Wetland Impact Site Number (indicate on map) Type of Impact* Area of Impact (acres) Located within 100-year Floodplain** (yes/no) Distance to Nearest Stream (linear feet) Type of Wetland*** Site #5 None Site #6 None Site #7 None * List each impact separately and identify temporary impacts. Impacts include, but are not limited to: mechanized clearing, grading, fill, excavation, flooding, ditching/drainage, etc. For dams, separately list impacts due to both structure and flooding. ** 100-Year floodplains are identified through the Federal Emergency Management Agency's (FEMA) Flood Insurance Rate Maps (FIRM), or FEMA-approved local floodplain maps. Maps are available through the FEMA Map Service Center at 1-800-358-9616, or online at httn://ww-%v.fema.Qov. *** 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 ( P) Type of Impact* I i Length of Impact linear feet ( ) Stream Name** Average Width of Stream Before Impact Perennial or Intermittent? (Please specify) Site #5 P 60 UT of Barnes Creek 3'-5' P Site ,#5 T 40 UT of Barnes Creek 3'-5' P Site #6 P 149 UT of Barnes Creek 3'-5' P Site #6 Note: Replacing 36'x 60" CINT w/ 84'x 60" CUP Site #7 P 50 UT of Barnes Creek 2'-4' P Site #7 T 18 UT of Barnes Creek 2'-4' P * List each impact separately and identify temporary impacts. Impacts include, but are not limited to: culverts and associated rip-rap, dams (separately list impacts due to both structure and flooding), relocation (include linear feet before and after, and net loss/gain), stabilization activities (cement wall, rip-rap, crib wall, gabions, etc.), excavation, ditching/straightening, etc. If stream relocation is proposed, plans and profiles showing the linear footprint for both the original and relocated streams must be included. ** Stream names can be found on USGS topographic maps. If a stream has no name, list as UT (unnamed tributary) to the nearest downstream named stream into which it flows. USGS maps are available through the USGS at 1-800-358-9616, or online at www.usQs.eov. Several intemet sites also allow direct download and printing of USGS maps (e.g., www.topozone.com, www.mal2quest.com, etc.). Site 5: 100' Site 6: 149' Cumulative impacts (linear distance in feet) to all streams on site: Site 7: '68' 317 -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 map) Type of Impact* Area of Impact (acres) Name Wate) (if applicable) Type of Waterbody (lake and estuary, bay, oceantc ) osound, None * List each impact separately and identify temporary impacts. Impacts include, but are not limited to: fill, excavation, dredging, flooding, drainage, bulkheads, etc. 4. Pond Creation If construction of a pond is proposed, associated wetland and stream impacts should be included above in the wetland and stream impact sections. Also, the proposed pond should be described here and illustrated on any maps included with this application. Pond to be created in (check all that apply): F-1 uplands F-1 stream F? 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 -9- freshwater wetlands or greater than or equal to 150 linear feet of total impacts to perennial streams. 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/strrngide.html. 1. Provide a brief description of the proposed mitigation plan. The description should provide as much information as possible, including, but not limited to: site location (attach directions and/or map, if offsite), affected stream and river basin, type and amount (acreage/linear feet) of mitigation proposed (restoration, enhancement, creation, or preservation), a plan view, preservation mechanism (e.g., deed restrictions, conservation easement, etc.), and a description of the current site conditions and proposed method of construction. Please attach a separate sheet if more space is needed. N/A 2. Mitigation may also be made by payment into the North Carolina Wetlands Restoration Program (NCWRP) with the NCWRP's written agreement. Check the box indicating that you would like to pay into the NCWRP. Please note that payment into the NCWRP must be reviewed and approved before it can be used to satisfy mitigation requirements. Applicants will be notified early in the review process by the 401/Wetlands Unit if payment into the NCWRP is available as an option. For additional information regarding the application process for the NCWRP, check the NCWRP website at hnp://h2o.enr.state.nc.us/m=/index.hun. 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): N/A Amount of buffer mitigation requested (square feet): -10- Amount of Riparian wetland mitigation requested (acres): Amount of Non-riparian wetland mitigation requested (acres): Amount of Coastal wetland mitigation requested (acres): IX. Environmental Documentation (DWQ Only) Does the project involve an expenditure of public funds or the use of public (federal/state/local) land? Yes ® No Fj If yes, does the project require preparation of an environmental document pursuant to the requirements of the National or North Carolina Environmental Policy Act (NEPA/SEPA)? Note: If you are not sure whether a NEPA/SEPA document is required, call the SEPA coordinator at (919) 733-5083 to review current thresholds for environmental documentation. Yes F_J No N If yes, has the document review been finalized by the State Clearinghouse? If so, please attach a copy of the NEPA or SEPA final approval letter. Yes F-1 No N X. Proposed Impacts on Riparian and Watershed Buffers (DWQ Only) It is the applicant's (or agent's) responsibility to determine, delineate and map all impacts to required state and local buffers associated with the project. The applicant must also provide justification for these impacts in Section VII above. All proposed impacts must be listed herein, and must be clearly identifiable on the accompanying site plan. All buffers must be shown on a map, whether or not impacts are proposed to the buffers. Correspondence from the DWQ Regional Office may be included as appropriate. Photographs may also be included at the applicant's discretion. Will the project impact protected riparian buffers identified within 15A NCAC 2B .0233 (Meuse), 15A NCAC 2B .0259 (Tar-Pamlico), 15A NCAC 2B .0250 (Randleman Rules and Water Supply Buffer Requirements), or other (please identify )? Yes F-I No N If you answered "yes", provide the following information: Identify the square feet and acreage of impact to each zone of the riparian buffers. If buffer mitigation is required calculate the required amount of mitigation by applying the buffer multipliers. Zone* Impact (square feet) Multiplier Required Mitigation 1 3 2 1.5 Total - Gone l exienGs out 3U teet perpenGicular rrom near oanK or cnannet; Gone L extends an additional 20 feet from the edge of Zone 1. - 11 - 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. N/A 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. N/A XIII. Violations (DWQ Only) Is this site in violation of DWQ Wetland Rules (15A NCAC 2H.0500) or any Buffer Rules? Yes ? No Is this an after-the-fact permit application? Yes F-1 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). -12- Ca' Zoo Z._ Applicant/Agent's Signature Date (Agent's signature is valid only if an authorization letter from the applicant is provided.) Page 13 of 13 9 A N D O L P H C O U N T Y / 8 1312 RI ^I .----• ------- -- - 777- - • - - 1309 - - 1337 I \ m .1 t 3d? 1361 303 - . - . - • 1308 /'- 131 1 1 ` 1. 5 . - ' 3S1 9 C? 34 338 ?l { •> _) / v 1307 •. _ \ ' - C.O. /JJ l IL 11 y 307 NTSNER \ / Y 1301\ \ ?, i 1 MOUNTAIN 3,o / Imo. \ 1303 l _ 1349 135, ' •7 { 1131 _.. J G . 1306 20 ,y n3531 . ] " 9 h 1309 / - t .C? 1306 F S DARK / MOUNTAIN `q 1134 ?` 17:,, ?' 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M [•? t.jt ' _ ? F l f f C<1 C r''! _ ?_) \/ ' r C `_ f- +? :'T .'?'?V :1{ +Y5 ?L'f.??1.., f} i J? ?:`! ??y l ' + r?ll i ? J? • I ? 1 - r i 3-D TopoQuads Copyright 0 1999 DeLaw Yarmwth, ME 040% Source Data: ASGS f -- 500 ft Scale: 1:12M Detail: 14-0 Datum: WGS84 l PIPE COORDINATES FOR SR 1134 - MONTGOMERY COUNTY Piue No. 1 2 3 4 5 6 7 Station 13+25 19+34 85+60 146+25 184+40 209+67 221+50 Latitude . N 35° 25.778' N 35° 25.865' N 35° 26.885' N 35° 27.825' N 35° 28.221' N 35° 28.506' N 35° 28.642' Longitude W 79° 57.088' W 79° 57.148' W 79° 57.431' W 79° 57.671' W 79° 58.160' W 79° 58.490' W 79° 58.649' Q : i ' I PROPOSED PLAN Q ?I I? 1 Ll--?EXIST. 40' - 84' CMP W/ (2) HEADWALLS, PROPOSED R/W GRAPHIC SCALES 20 0 20 40 PLANS ii EXISTING PLAN PROPOSED R/W PrWed B A D1MaV OF HIGHWAYS ROCRl MM DISTRICT OFFICE GENEM DRAWING PUNS DarE 112"X 75" CMPA PIPE REPLACEMENT 12414 RIGHT of WAY PUNS AM U HM HM PIPE NO 5 D R w . DESIGN BY. MONTGOMERY COUNTY - SR 1134 COMMON PiANS DAIS DR NBY ?a D BY. RAW DRARAGE DESIGN POTStm l84+40 AC COCHRW a PROJECT REFERENCE NO. SHEET NO. 2 OF 3 BERM DETAIL FILTER FABRIC PIN ABC-STONE .:.FLOW BERM- STONE BERM WITH FABRIC COVER r i I DIVERSION DETAIL Q) 77 PIN FILTER FABRIC LINER 010=212 cfs 4 V=1 7 f S=0.037 ft/ft ps 2 DITCH DEPTH=3E FL O# DEPTH=34 N (LINER)=0D3 CIO NOTES: 1. INSTALL TEMP. BERMS, DIVERT STREAM FLOW LINE TFIRU DIVERSION PIPE AND FABRIC C A D 2. PUMP H NNEL CONTAINED AREA TO SILT BAG. 3. INSTALL PIPE AND BACKFILL. 4. REMOVE TEMPORARY DIVERSION DEVICES. I 'X IS' SILT ILT BAG P / I ? TEMPORARY DIVERSION FABRIC LINED CHANNEL STONE BERM WITH FABRIC COVER ..PLAN NOT TO SCALE Prepared B 1l DM aY OF MOWAYS ROCRI Gffl DISH f OFFICE DIVERSION / EROSION CONTROL immnw " " 112 X 75 CMPA PIPE REPLACEMENT ,? M. 12414 NIGHT OF WAY PLANS DALE DI K PIPE NO 5 L BY. MONTGOMERY COUNIY - SR llM la Nw CO:IS2 LOON PLANS DAZE ra L DRAiYAGE AMU POTSta 184+40 DIURY BY: AC. COMM PROJECT REFERENCE NO. SHEET NO. 3 OF 3 RIP O 112" X 75" p CMPA p CROSS SECTION RIP R NOT TO SCALE PUZ DAZE 12-11-01 LIM dP?.ONY, DUN BY: AC C0C}16AN D Y (CONCRETE I COLLAR I ? I I ? I rrax DIYlSION OF MWWAYS ROCRWGHAM DISMY OFFICB SITE PLY yamnw 112"X 75" CMPA PIPE REPLACEMENT RIGHT OF WAY PLO DAZE ! PIPE NO.5 DI MONTGOMERY COUNTY - SR IM CONSIRIUMON PLO AM Dim a DESIGN ?a POTSm.184+40 STREAM BED ELEVATION cr- 6 If SIR 1134 ? O Q O O cz: fill STREAM IMPACTS TEMPORARY DIVERSION= 105' PIPE LENGTH=60' LENGTH OF EXISTING PIPE=40' RIP RAP LENGTH=24' NET IMPACT 189'-40'= 149' PROJECT REFERENCE NO. SHEET NO. tOF3 REVISED 5-30-2002 ACC 139' (NET) OF EXIST. STREAM TO BE FILLED IN ' Pli/?SfO.210+27-96 (ITS' STREAM - 36 PIPE) . ,210 PERMANENT STREAM RELOCATION (SEE DETAIL) SR 1134 PROPOSED R/W - ------------ - -? --- ---------- PROPOSED R/W - PT Sta. 208+31.84 ----- -------- TEMPORARY DIVERSION CHANNEL WITH 95' OF TRAPEZOIDAL CHANNEL PROPOSED ENOWALL TEMPORARY 32' OF 24' PROPOSED PLAN CMP FOR DIVERSION PCStG. 210+27.96 210 SR 1134 PROPOSED R/W ---------------- N / -- - --' ?? ------ ? __ ----------- PROPOSED R/W PT Sta. 208+31.84 • - - - - - - - - CMP 60 GRAPHIC SCALES \ 20 0 20 40 • PLANS EXISTING PLAN Pfwe fr DM ON OF MOWAYS NC UM DI8IRICT O fICE GENERAL DRAWING " PU 1d DAIS 60 CORRUGATED METAL PIPE REPLACEMENT . V84002 RIGB7 OF WAY PLANS RVE ?? ! H PIPE NO.6 SanTED BY. MONTGOMERY COUNTY - SR IB4 ROCgNG U DM OflRa CONSI MON PUNS DAM ?a DRIRY BY.• DRAAIAGE DESIGN POTSta 209+61 AC. COCHRRftN BERM DETAIL FILTER FABRIC PIN ABC STONE ~-FLOW ... BERM R PROPOSED R/W 2 OF AM - --------- PROPOSED R/W TONE BERM WIT ABRIC COVER EXISTING STREAM DETAIL FILTER FABRIC ANCHORED WITH RIP RAP TO PREVENT SCOURING OF STREAM BED NOTES: L CHANNEL CHANGE DUE TO ALIGNMENT CHANGE. 2. COSTRUCT TEMPORARY DIVERSION CHAMIEL 3. INSTALL TEMPORARY STONE BERMS FOR EROSION. 4. INSTALL DIVERSION PIPE. 5. REMOVE EXISTING 60" CMP. 6. 12VSTALL 60" CMP AND EN DWALL, PLACE SILT FENCE AS REQUIRED. 7. CONSTRUCT PROPOSED STREAM CHANNEL & VEGETATE & REMOVE STONE BERMS, THEN SEED & MULCH. 9. FILL TEMPORARY DIVERSION CHANNEL & REMOVE DIVERSION PIPE NOT TO SCALE PUI('S DAZE 248-2001 ROCI?IGR m BY: t OBE DRAIP,If BY: A.C. COCNRrW Prepared B Itc DIMON OF MOWAYS ROC1MW DISTRICT OFFICE 2/0 PERMANENT STREAM RELOCATION (SEE DETAIL) ------------ 0=114.4 ds V=963 fps S=002639 ft/ft j 5 FLON DEPTH=25 N=O03 PROPOSED STREAM DETAIL + PERMANENT SEED 0=1822 ds I V=IOJ fps S=0.025 ft/ft 3_5' FLOW DEPTH=25' N=003 UZ OF WAY PLANS DAIS CONSIRCCTION PLW DAIS DIVERSION & EROSION CONTROL 60" CORRUGATED METAL PIPE REPLACEMENT LtHED0 PIPE NO.6 MONTGOMERY COUNTY - SR 1134 DM MGE DESIGN rE POTSta 209+67 a STREAM IMPACTS LENGTH RELOCATED=50' PIPE LENGTH=84' RIP RAP LENGTH= 15' NET IMPACT 149' 15' PROPOSED WIN PROPOSED R/W 111 Q\Q `i ?G r GRASSEREAM RIP RAP REV J- BARS -1 r4' ?o ' ? 60" CMP ?? z?BOUs (WE SE 0 CULI ER ) JCONSTRUCTION JOINT •4 BARS STREAM BED NOT TO SCALE ELEVATION CROSS SECTION CROSS SECTION RIP RAP Prqwld 4 tte DMSION OF NOWAY5 ROOM M DISTRICT OFFICE SITE PLAN PU'U DATE VEDWAM 60" CORRUGATED METAL PIPE REPLACEMENT 248-2002 LW OF WAY PLW DAIS t t NEDdIX p.E PIPE NO 6 SuRnm BY.• MONTGOMERY COUNTY - SR 1134 ROMM DISTRICT OfRa COILS ucrION PUNS ME ?a DRAWN BY DRA[9AGE DESIGN POTStm 109+61 A,C COON 4' r 9n 20 0 20 40 PLANS Prepared BI th DIM OF EIGEWAYS RUNGN DISTRICT OFFICE PLO DATE 248442 SURMID BY. ROGDNGWIM DISTRICT OFFKE DRAWN BY. AC COG N RIGET OF WAY PUNS DATE CONOLVION PUNS DAZE GENERAL DRAWING 36" CORRUGATED METAL PIPE REPLACEMENT U HM mac PIPE NO.7 DI T ' . MONTGOMERY COUNTY - SR ll34 DRAAAGE DESIGN' ?a POTStm 221+50 PROPOSED PLAN GRAPHIC SCALES EXISTING PLAN PERMANENT STREAM RELOCATION U ?o M I O I STONE BERM WITH 1 FABRIC COVER FILTER FABRIC ANCHORED WITH RIP RAP TO PREVENT SCOURING OF STREAM BED o°o 000 0 I } PERMANENT STREAM RELOCATION J NOT TO SCALE PreWed B tl D&MITY OF RUWAYS ROCRl ON DISTRICT OFFICE PUNS DAZE 2-18-2002 ROMOM DDISiBICi OFRCE DRAIN BY. AC. Coow BERM DETAIL FILTER FABRIC PIN ABC STONE .:. "--FLOW BERM. - EXISTING STREAM DETAIL 6' 0=103B2 cfs V=519 fps S=0.00567 ft/ft 4' FLOW DEPTH=4' N=O.03 PROPOSED STREAM DETAIL PERMANENT SEED- S? cr OG): 0 0=18012 cfs V=751 fps 5=0.0100 ft/ft 4' FLOW DEPTH=4' N=OA3 NOTES: L INSTALL TEMPORARY STONE BERM AT INLET END. Z. INSTALL 36" CMP AND SILT FENCE AS REQUIRED. 3. CONSTRUCT PROPOSED STREAM Cp4M1EL AND VEGETATE. 4. REMOVE BERM, THEN SEED & MULCH. RIGT OF WAY PLO DATE; K R HEDRICI( DI Et CONME00N PLO DATE ra DRALYAGE DESIG.Y DIVERSION & EROSION CONTROL 36" CORRUGATED METAL PIPE REPLACEMENT PIPE NO.7 MONTGOMERY COUNTY - SR 134 POTSta. 221+50 3 PROJECT REFERENCE NO. SHEET NO. OF 3 ' SR 1134 36" CMP RIP 410.5 STREAM BED CROSS SECTION ELE VATION 1 1 RIP RAP STREAM IMPACTS LENGTH RELOCATED=50' PIPE LENGTH=50' RIP RAP LENGTH= 16' O Ln NET IMPACT 116, I I J MOT TO SCALE Prwed h DIVISION OF NOWAYS ROCRIYGRV DISTRICT OFFICE SITE PLAN PIARS DAIS 36" CORRUGATED METAL PIPE REPLACEMENT 2488-2002 NGHT OF WAY PUPS DATE: KI HERICK Q PIPE NO.7 sDRVEYm BY. DI MONTGOMERY COUNTY - SR 1134 ROgaNGfUhI DIS a OWE CUVSIRMON PIANS DATE. ra DRAW,11 BY. DRAIlII<!GE DESIGN POTSta 221+50 AC coo" MEMORANDUM TO: John Dorney Regional Contact: Non-Discharge Branch WQ Supervisor: Date: SUBJECT: WETLAND STAFF REPORT AND RECOMMENDATIONS Facility Name NCDOT - SR 1134 Project Number 02 0893 Recvd From DOT County MONTGOMERY County2 Region Fayetteville Received Date 6/10/02 Recvd By Region Project Type Certificates Stream Permit Wetland Wetland ' Wetland Stream Class Acres Feet Type Type Impact Score Index Prim. Supp. Basin Req. Req. 14 ? O Y O N F 13-2-18 F ORW 30,709. F- Mitigation Wetland MitigationType Type Acres Feet I T-1 I F_ Is Wetland Rating Sheet Attached? Q Y 0 N Did you request more info? Q Y * N Have Project Changes/Conditions Been Discussed With Applicant? Q Y 0 N Is Mitigation required? Q Y Q* N Recommendation: QQ Issue Q Issue/COnd Q Deny Provided by Region: Latitude (ddmmss) 35.28.30 Longitude (ddmmss) 79.58.31 Comments: Art King w/DOT visited site with me on 7/9/02. He indicated that ORW sediment control measures would be implemented and will amend application if necessary. In regard to crossing #6, it appears that the actual stream impact will be approx. 139 feet. The application indicates 149 feet, 10 ft. of which is apparently a ripran apron at the outlet. The need for the rimp is marginal since the existing stream bottom is solid rock. The selected alignment was dictated by a hill on one side and considerable downslope on the other. Limiting project to 149 feet was by design in order to avoid mitigati cc: Regional Office Page Central Office Number 1 Triage Check List Date: 6. 2J - f To: ?RRO Steve Mitchell Project Name 5KW ??w `-?? ?(? 1 20 Ken Averitte DWQ Project Number t02-0 A 9-3 /nWaRO Deborah Sawyer County L_JWiRO Joanne Steenhuis MWSRO Jennifer Frye E2ARO Mike Parker ?MRO Pete Colwell From: - - - --?J1.E 60PY Telephone (919) 733- 57x5 The file attached is being forwarded to you for your evaluation. Please call if you need assistance. tream length impacted ? Stream determination ? Wetland determination and distance to blue-line surface waters on USGW topo maps ? Minimization/avoidance issues ? Buffer Rules (Neuse, Tar-Pamilco, Catawba, Randleman) ? Pond fill ? Mitigation Ratios ? Ditching ? Are the stream and or wetland mitigation sites available and viable? ? Check drawings for accuracy ? Is the application consistent with pre-application meetings? ? Cumulative impact concerns Comments ??. _ i . o Deb's U.S. ARMY CORPS OF ENGINEERS WILMINGTON DISTRICT Action ID: 200200884 TIP No: State Project No: 6.552045T County: Montgomery GENERAL PERMIT (REGIONAL AND NATIONWIDE) VERIFICATION Applicant: North Carolina Department of Transportation Address: W.F. Rosser, P.E., Division Engineer North Carolina Department of Transportation Division 8 P.O. Box 1067 Aberdeen, North Carolina 28315 Telephone Number: (910) 944-2344 r L `. 1 Size and Location of project (waterway, road name/number, town, etc.): 50 linear feet of 36-incliMA'P" &lvert and the relocation of approximately 18 linear feet of stream channel at centerline station 221+50 on SR 1134 in an unnamed tributary to Barnes Creek in Montgomery County, North Carolina. Description of Activity: To replace 30 linear feet of existing 24-inch Terra Cotta culvert with 50 linear feet of 36- inch CMP culvert and install a temporary diversion structure consisting of a fabric-lined channel, 18 linear feet of temporary diversion pipe and fabric-covered stone berms placed on filter cloth on the upstream and down stream side of the culvert. 16 feet of class B rip-rap is to be placed on both banks above the plane of ordinary high water at each end of the culvert for bank protection. Traffic will be detoured onto existing roadways during construction. All temporary fill is to be removed from the waterway in its entirety upon completion of the construction. Applicable Law: X Section 404 (Clean Water Act, 33 U.S.C: 1344) Section 10 (River and Harbor Act of 1899) Authorization: 14/33 Nationwide Permit Number Regional General Permit Number Your work is authorized by this Regional General (RGP) or Nationwide (NWP) Permit provided it is accomplished in strict accordance with the attached conditions and your submitted plans. If your activity is subject to Section 404 (if Section 404 block above is checked), before beginning work you must also receive a Section 401 water quality certification from the N.C. Division of Environmental Management, telephone (919) 733-1786. For any activity within the twenty coastal counties, before beginning work you must contact the N.C. Division of Coastal Management, telephone (919) 733-2293. Please read and carefully comply with the attached conditions of the RGP or NWP. Any violation of the conditions of the RGP or NWP referenced above may subject the permittee to a stop work order, a restoration order, and/or appropriate legal action. This Department of the Army RGP or NWP verification does not relieve the permittee of the responsibility to obtain any other required Federal, State, or local approvals/permits. The permittee may need to contact appropriate State and local agencies before beginning work. If there are any questions regarding this authorization or any of the conditions of the RGP or NWP, please contact the Corps Regulatory Official specified below. Date 9 July 2002 Corps Regulatory Official Richard K. S encer Telephone No. (910) 251-4172 Expiration Date of Verification 9 July 2005 CF: NCDOT, Art King (Division 8) NCDWQ, Cynthia Van Der Wiel ` 'Action ID: 200200884 TIP No: State Project No: 6.552045T County: Montgomery GENERAL PERMIT (REGIONAL AND NATIONWIDE) VERIFICATION SPECIAL CONDITIONS The permittee shall construct the stream channel relocation in the dry. The permittee shall stabilize the relocated channel before stream flows are directed into the new channel. Stream flow shall not be released into the new channel until the Corps of Engineers has approved the release. Vegetation used to stabilize banks shall be limited to native woody species. 2. The permittee shall construct the stream relocation in accordance with the North Carolina Wildlife Resources Commission's (NCWRC) "Stream Relocation Guidelines", and with the attached permit drawings. NCDOT should consult with NCWRC on the stream relocation and implement all practicable recommendations in the design of specific site requirements for re-establishment of bank vegetation, and placement of meanders and habitat structures. Vegetation shall be used to the maximum extent practicable to stabilize banks, and riprap and other man-made structural measures shall be minimized. 3. The permittee shall visually monitor the vegetative plantings on the relocated stream banks to assess and insure complete stabilization of the relocated stream segment. This monitoring shall include adequate visual monitoring of planted vegetation quarterly for a minimum of two years after final planting, and appropriate remedial actions (e.g., replanting, streambank grading, etc.). If within any monitoring year, bank stabilization is not acceptable as determined by the Corps of Engineers, and remedial action required by the Corps of Engineers is performed, the two year monitoring of the affected portions of the stream will begin again. The permittee will coordinate stream construction activities with the Corps of Engineers, Wilmington NCDOT Regulatory Project Manager, and will report verbally on the status of the stream relocation within thirty days of the quarterly monitoring. The permittee will submit to the NCDOT Regulatory Project Manager a brief written report with representative photographs within 90 days after each monitoring year is completed. 4. The permittee shall provide the NCDOT Regulatory Project Manager with a stream mitigation construction sequencing schedule within 30 days following the project preconstruction meeting. The plan, shall at a minimum, indicate a date of start of construction, grading schedule, planting schedule, completion of construction, monitoring schedule, and a date of potential diversion into the new channel. I i A N D O L P H C O U N T Y / J _______ -------------- Y 170, 'I `\ I i ]+ ? J]: .. ` - a // ' }S 'K > > •'j 12.:1 ':9 ilX J 9' V :I „s< ?:? ?•\ 1 -Yi ?. - -- ' oll _ \ z t 1 Caw - - d \ \ ? \r ? I?? J \ Ih l 111r ? \ 1- J \ \ I I Cy\ t `' \ 1 1 9 \ I L r I `I L,12 / Illy ?\?. I l . - •' 1 3 - - - ' Pte' • E r • -'he7? I i i 5- .. V ' \ ?5zz' l j `I ' Q (10' 65 6 91 C Min a s - I - ?ss r r / I > QY . ( 1 , U H A? - R X11 / `E Jk, 71' g - \... e 9X 1 ? I pip na i 69 /??IPR II?;A7r??.(; I ., ? ?(?\ \`? i1 )i r!, `,?- ? •- IJ. ?f ft3?'. :-?J? % i` i', ' I I i ?, ra r I ' PP w `-_? `=`--ti ?' ?i ( ' •\' i /'ti / r - F ! 1 •? ?, - ? ;(?t\ ._ ?: / ,:: ('./,``'r. ?:.'•`\ti` i , iii jjt •`" it r.? i r ti?..?% 1;. / I Y ?; ? 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I r 'I t? 1 t `'\? ? ?/, L'/ ?? ??t .' ,,, ?? 1 r ?` li'\'??I. rl/`,il?j?" f , •? _ ./ ? "\?-.--_'/ ?? ) , '\ \ `h . ? - 3-D TOooO u2ch Camriaht c) 19N r)oT.,r,,,. Ve.,,.,.,.,•t, ar c n rnnc c,.,....,_ r?-. ,:one 1 , -- - _ / ' _-_..,.,.,., ( -??w 11 5k: i : I'_-,W [ktxil: t•W Datum: WGS84 220 PROPOSED R/W ----r ---f - ------------------a ----- _ 68' (NET) OF EXIST. STREAM TO BE FILLED IN (100' STREAM - 32' PIPE) -=---------4._1 ------ - PROPOSED R/W PERMANENT STREAM RELOCATION- PROPOSED PLAN 220 1 OF Fr,.Xred ? Ih DIYI5MS OF EGdn.4IS ROCOGH14 DISTRICT OMCE Rl ?W3 D.U. 2-18-2002 RIGHT OF W14Y PWS RVE DISTRICT mtd.?O SLITMID BE ROCgNGM DISTRICT OFPCE C0.1'STR1G1T01' PLI.t'S all: n DRI B''I BY. DR{L19G£ WIG.1' RC 0004144 GENERAL DRARR, G 36" CORR UGA TED METAL PIPE REPL4 CB ENT PIPE NO.7 MONTGOMERY COUNTY - SR 1131 POTSti 221 +50 I GRAPHIC SCALES EXISTING PLAN 20 0 20 40 I PLANS FILTER FABRIC ANCHORED WITH RIP RAP TO PREVENT SCOURING OF STREAM BED i0o PERMANENT STREAM RELOCATION i i EXISTING STREAM DETAIL V M 0 I ? j I I i I I i STONE BERM WITH FABRIC COVER I i I i I PERMANENT STREAM RELOCATION NOT TO SCALE D57SIOS OF NOT A13 ff-0'CAN DISTRICT OFFICE Kt{ 3 Alit 242CC2 SLIME) BY.• ROCKlwm DmclOFACE DR0 BY kc.COG'w BERM DETAIL FILTER FABRIC PIN ABC--STONE.-.:. -FLOW .. BERM: I ors/ 0??• Q=10382 cfs V=5J9 fps S=OD0567 ft/ft 4' I FLOW DEPTH= e N=OD3 PROPOSED STREAM DETAIL 8' PERMANENT SEED v ' 0=18OJ2 cfs S=0f1O0 ft/ft 4' FLFW DEPT,"- N=pD3 NOTES: 1. rNSTALL TEMPORARY STONE BERM AT INLET END. 2. INSTALL 36" CMP AND SILT FF_VCE AS REQUIRED. 3. CONSTRUCT PROPOSED STREAM C L4NWEL AND VEGETATE. 4. RE.'YfOVE BERM, THEN SEED & MULCH. RIGS OF IYIY Kb3 ME I K R Fala DISTRICT EC CO.Vo[''00'Y PLI.yS RITE. I ra DR{LL'lCE -DESIGN DIVERSION & EROSION CONTROL 36" CORRUGATED METAL PIPE REPLACE ENT PIPE NO, 7 MONTGOMERY COUNTY - SR 113; POTSta 221 +SO a CROSS SECTION RIP RAP STREAM IMPACTS LENGTH RELOCATED=50' PIPE LENGTH=50' RIP RAP LENGTH= 16' NET IMPACT 116, I 11 I?. IV V (] I I I NOT TO SCALE _._....___.__._. j L DMSION OF EGHI S ROMGM DISM OFFICE PLUS DM 2-13-2002 S6RMB BY: ROCGNGtUrN DMCf OFHCE 090 BY: AC MW R[Gff OF W,,4Y PLJYS 441E K t HEM 01STRICT EY CO.ISTRL'MON PUYS A{TE rDR{L1:lGE DEM I O SITE PLI:M 36" CORRUGATED METAL PIPE REPL4CB07 PIPE A. i MONTGOMERY COURY - SR 1134 POTSca. M+50 l?'L.1 VA'lIIVLV 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 1890, Wilmington, NC 28402-1890 North Dakota Omaha District Engineer, ATTN: CENWO- OP-R, 106 South 15th Street, Omaha, NE 68102-1618 Ohio Huntington District Engineer, ATTN: 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: CENWP- PE-G, P.O. Box 2946, Portland, OR 97208- 2946 Pennsylvania Baltimore District Engineer, ATTN: CENAB- OP-R, P.O. Box 1715, Baltimore, MD 21203-1715 Rhode Island New England District Engineer, ATTN: CENAE-R, 696 Virginia Road, Concord, MA 01742-2751 South Carolina Charleston District Engineer, ATTN: CESAC- CO-P, P.O. Box 919, Charleston, SC 29402-0919 South Dakota Omaha District Engineer, ATTN: CENWO- OP-R, 106 South 15th Street, Omaha, NE 68102-1618 Tennessee Nashville District Engineer, ATTN: CELRN- OP-F, P.O. Box 1070, Nashville, TN 37202-1070 Texas Ft. Worth District Engineer, ATTN: CESWF- PER-R, P.O. Box 17300, Ft. Worth, TX 76102-0300 Utah Sacramento District Engineer, ATTN: CESPK--CO -R, 1325 J Street, CA 95814- 2922 Vermont New England District Engineer, ATTN: CENAE-R, 696 Virginia Road, Concord, MA 01742-2751 Virginia Norfolk District Engineer, ATTN: CENAO- OP-R, 803 Front Street, Norfolk, VA 23510-1096 Washington Seattle District Engineer, ATTN: CENWS- OP-RG, P.O. Box 3755, Seattle, WA 98124- 2255 West Virginia Huntington District Engineer, ATTN: CELRH-OR-F, 502 8th Street, Huntington, WV 25701-2070 Wisconsin St. Paul District Engineer, ATTN: CEMVP- CO-R; 190 Fifth Street East, St. Paul, MN 55161-1638 Wyoming Omaha District Engineer, ATTN: CENWO- 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, Guam, 6 Commonwealth of, the Northern Mariana Islands) Honolulu District Engineer, ATTN: CEPOH- EC-R, Building 230, Fort Shafter, Honolulu, HI 96858-5440 Puerto Rico 6 Virgin Islands Jacksonville District Engineer, ATTN: CESAJ-CO-R, P.O. Box 4970, Jacksonville, FL 32202-4412 Dated: January 4, 2002. Approved: Robert H. Griffin, Brigadier General, U.S. Army, Directorof Civil Works. Nationwide Permits, Conditions, Further Information, and Definitions A. Index of Nationwide Permits, Conditions, 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. Outfall Structures and Maintenance 8. Oil and Gas Structures 9. Structures in Fleeting and Anchorage Areas 10. Mooring Buoys 11. Temporary Recreational Structures 12. Utility Line Activities 13. Bank Stabilization 14. Linear Transportation Projects 15. U.S. Coast Guard Approved Bridges 16. Return Water From Upland Contained Disposal Areas 17. Hydropower Projects 18. Minor Discharges 19. Minor Dredging 20. Oil Spill Cleanup 21. Surface Coal Mining Activities 22. Removal of Vessels 23. Approved Categorical Exclusions 24. State Administered Section 404 Programs 25. Structural Discharges 26. [Reserved] 27. Stream and Wetland Restoration Activities 28. Modifications of Existing Marinas 29. Single-family Housing 30. Moist Soil Management for Wildlife 31. Maintenance of Existing Flood Control Facilities 32. Completed Enforcement Actions 33. Temporary Construction, Access and Dewatering 34. Cranberry Production Activities 35. Maintenance Dredging of Existing Basins 36. Boat Ramps 37. Emergency Watershed Protection and Rehabilitation 38. Cleanup of Hazardous and Toxic Waste 39. Residential, Commercial, and Institutional Developments 40. Agricultural Activities 41. Reshaping Existing Drainage Ditches 42. Recreational Facilities 43. Stormwater Management Facilities 44. Mining Activities Nationwide Permit General Conditions 1. Navigation 2. Proper Maintenance 3. Soil Erosion and Sediment Controls 4. Aquatic Life Movements 5. Equipment 6. Regional and Case-by-Case Conditions 7. Wild and Scenic Rivers 8. Tribal Rights 9. Water Quality 10. Coastal Zone Management 11. Endangered Species 12. Historic Properties 13. Notification 14. Compliance Certification 15. Use of Multiple Nationwide Permits. 16. Water Supply Intakes 17. Shellfish Beds 18. Suitable Material 19. Mitigation 20. Spawning Areas 21. Management of Water Flows 22. Adverse Effects from Impoundments 23. Waterfowl Breeding Areas 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 (BMPs) Compensatory Mitigation Creation Enhancement Ephemeral Stream Farm Tract Flood Fringe Floodway Independent Utility Intermittent Stream Loss of Waters of the US Non-tidal Wetland Open Water Perennial Stream Permanent Above-grade Fill Preservation Restoration Riffle and Pool Complex 2078 Federal Register/Vol. 67, No. 10 /Tuesday, January 15, 2002 /Notices Single and Complete Project Stormwater Management bridges, culverted road crossings, water done primarily to obtain fill for any intake structures etc ) and th Stormwater Management Facilities Stream Bed , . e placement of new or additional riprap t restoration activities. The discharge of o dredged or fill material and all related Stream Channelization Tidal Wetland V protect the structure, provided the permittee notifies the District Engineer work needed to restore the upland must be part of a single and complete project egetated Buffer Vegetated Shallows in accordance with General Condition 13. The removal of sediment is li it d . This permit cannot be used in laterbody m e conjunction with NWP 18 or NWP 19 to to the minimum necessary to restore the restore damaged upland areas. This B. Nationwide Permits waterway in the immediate vicinity of the structure to the ap roximate permit cannot be used to reclaim h 1. Aids to Navigation. The placement of aids to navigation and Regulatory p dimensions that existed when the istoric lands lost, over an extended period, to normal erosion processes markers which are approved by and i ll structure was built, but cannot extend further than 200 feet in an directi . This permit does not authorize nsta ed in accordance with the requirements of the U.S. Coast Guard y on from the structure. The placement of rip maintenance dredging for the primary purpose of navigation and beach (USCG) (See 33 CFR, chapter I, subchapter C part R, (Section 10) r rap must be the minimum necessary to protect the structure or to ensure the restoration. This permit does not authorize new stream channelization o 2. Structures Artificial Canals. Structures constructed in artificial safety of the structure. All excavated materials must be deposited and r stream relocation projects. Any work authorized by this permit must not canals within principally residential developments where the connection of retained in an upland area unless otherwise specifically approved by the cause more than minimal degradation of water quality , more than minimal the canal to navigable water of the US has been previously authorized (see 33 District Engineer under separate authorization. Any bank stabilization , changes to the flow characteristics of the strea i fl CFR 322.5(g)). (Section 10) •3. Maintenance Activities relat d t measures not directly associated with the structure will require a separate m, or ncrease ooding (See General Conditions 9 and 21). (Sections . e o: (i) The repair, rehabilitation, or replacement of any previously authorization from the District Engineer. (iii) Dischar es of dred d fill 10 and 404) Note: This NWP authorizes the repair, h authorized, currently serviceable, g ge or material, including excavation, into all re abilitation, or replacement of any previously authorized structure or fill that structure, or fill, or of any currently waters of the US for activities associated does not qualify for the Section 404(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 d f discrete event, including the , Enhancement, and Attraction Devices i fering from those uses specified or contemplated for it in the original construction, placement, or installation of upland protection structures and and Activities. Fish and wildlife harvesting devices and activities such as permit or the most recently authorized modification. Minor deviations in the ' minor dredging to remove obstructions in a water of the US. (Uplands lost as pound nets, crab traps, crab dredging, eel pots, lobster traps, duck blinds clam structure s configuration or filled area including those due to changes in a result of a storm, flood, or other discrete event can be re laced with t , and oyster digging; and small fish attracti d i materials, construction techniques, or p ou a Section 404 permit provided the on ev ces such as open water fish concentrators (sea kites, etc.). This current construction codes or safety standards which are necessary to make uplands are restored to their original pre-event location. This NWP is for the NWP authorizes shellfish seeding provided this activity does not occur in repair, rehabilitation, or replacement are permitted, provided the adverse activities in waters of the US associated with the replacement of the uplands.) wetlands or sites that support submerged aquatic vegetation (includin environmental effects resulting from such repair, rehabilitation, or The permittee must notify the District Engineer, in accordance with General g sites where submerged aquatic vegetation is documented to exist but replacement are minimal. Currently serviceable means useable as is or with Condition 13, within 12-months of the date of the damage and the work must , may not be present in a given year.). This NWP does not authorize artificial some maintenance, but not so degraded as to essentially require reconstruction. commence, or be under contract to commence, within two years of the date reefs or impoundments and semi- impoundments of waters of the US for This NWP authorizes the repair, rehabilitation, or replacement of those of the damage. The permittee should provide evidence, such as a recent the culture or holding of motile species such as lobster or the use of covered structures or fills destroyed or damaged by storms, floods, fire or other discrete topographic survey or photographs, to justify the extent of the proposed oyster trays or clam racks. (Sections 10 and 404) events, provided the repair, rehabilitation, or replacement is restoration. The restoration of the damaged areas cannot exce d th • 5. Scientific Measurement Devices. commenced, or is under contract to e e contours, or ordinary high water mark, Devices, whose purpose is to measure and record scientific data such as staff commence, within two years of the date of their destruction or damage. In cases that existed before the damage. The District Engineer retains the right to gages, tide gages, water recording devices, wate'r' ater quality testing and of catastrophic events, such as hurricanes or tornadoes, this two-year determine the extent of the pre-existing conditions and the extent of an improvement devices and similar limit may be waived by the District Engineer provided the ermittee can y restoration work authorized by this er it Mi d d structures. Small weirs and flumes constructed primarily to record water , p demonstrate funding, contract, or other p m . nor re ging to remove obstructions from the adjacent quantity and velocity are also authorized provided the dischar e is similar delays. (ii) Discharges of dredged or fill l waterbody is limited to 50 cubic yards below the plane of the ordinary high g limited to 25 cubic yards and further for discharges of 10 to 25 cubic ards materia , including excavation, into all waters of the US to remove accumulat d water mark, and is limited to the y provided the permittee notifies the e sediments and debris in the vicinity of, amount necessary to restore the pre- existing bottom contours of the District Engineer in accordance with the "Notification" General Conditi and within, existing structures (e.g., waterbody. The dredging may not be on. (Sections 10 and 404) Federal Register / Vol. 67, No. 10/Tuesday, January 15, 2002/Notices 2079 6. Survey Activities. Survey activities including core sampling, seismic exploratory operations, plugging of seismic shot holes and other exploratory-type bore holes, soil survey, sampling, and historic resources surveys. Discharges and structures associated with the recovery of historic resources are not authorized by this NWP. Drilling and the discharge of excavated material from test wells for oil and gas exploration is not authorized by this NWP; the plugging of such wells is authorized. Fill placed for roads, pads and other similar activities is not authorized by this NWP. The NWP does not authorize any permanent structures. The discharge of drilling mud and cuttings may require a permit under section 402 of the CWA. (Sections 10 and 404) -7. Outfall Structures and Maintenance. Activities related to: (i) Construction of outfall structures and associated. intake structures where the effluent from the outfall is authorized, conditionally authorized, or specifically exempted, or are otherwise in compliance with regulations issued under the National Pollutant Discharge Elimination System Program (Section 402 of the CWA), and (ii) Maintenance excavation, including dredging, to remove accumulated sediments blocking or restricting outfall and intake structures, accumulated sediments from small impoundments associated with outfall and intake structures, and accumulated sediments from canals associated with outfall and intake structures, provided that the activity meets all of the following criteria: a. The permittee notifies the District Engineer in accordance with General Condition 13; b. The amount of excavated or dredged material must be the minimum necessary to restore the outfalls, intakes, small impoundments, and canals to original design capacities and design configurations (i.e., depth and width); C. The excavated or dredged material is deposited and retained at an upland site, unless otherwise approved by the District Engineer under separate authorization; and. d. Proper soil erosion and sediment control measures are used to minimize reentry of sediments into waters of the us. The construction of intake structures is not authorized by this NWP, unless they are directly associated with an authorized outfall structure. For maintenance excavation and dredging to -remove accumulated sediments, the notification must include information regarding the original design capacities and configurations of the facility and the presence of special aquatic sites e.g., vegetated shallows) in the vicinity of the proposed work. (Sections 10 and 404) 8. Oil and Gas Structures. Structures for the exploration, production, and transportation of oil, gas, and minerals on the outer continental shelf within areas leased for such purposes by the DOI, Minerals Management Service (MMS).'Such structures shall not.be placed within the limits of any designated shipping safety fairway or traffic separation scheme, except temporary anchors that comply with the fairway regulations in 33 CFR 322.5(1). (Where such limits have not been designated, or where changes are anticipated, District Engineers will consider asserting discretionary authority in accordance with 33 CFR 330.4(e) and will also review such proposals to ensure they comply with the provisions of the fairway regulations in 33 CFR 322.5(1). Any Corps review under this permit will be limited to the effects on navigation and national security in accordance with 33 CFR .322.5(f)). Such structures will not be placed in established danger zones or restricted areas as designated in 33 CFR part 334: nor will such structures be permitted in EPA or Corps designated dredged material disposal areas. (Section 10) 9. Structures in Fleeting and Anchorage Areas. Structures, buoys, floats and other devices placed within anchorage or fleeting areas to facilitate moorage of vessels where the USCG has established such areas for that purpose. (Section 10) ,10. Mooring 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) 42. Utility Line Activities. Activities required for the construction, maintenance and repair of utility lines and associated facilities in waters of the US as follows: (i) Utility lines: The construction, maintenance, or repair of utility lines, including outfall and intake structures and the associated excavation, backfill, or bedding for the utility lines, in all waters of the US, provided there is no change in preconstruction contours. A "utility line" is defined as any pipe or pipeline for the transportation of 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 davs, where appropriate. In wetlands, the top 6" to 12' of the trench should normally be backfiIled'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 discharges do 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, 2002 / 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 met: (a) Mechanized land clearing in a forested wetland for the utility line i right-of-way; (b) A Section 10 permit is required; t (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 US) 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) Permanent access roads constructed 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: Overhead utility lines 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 MVP verification will 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 no't' ot 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 nto or out of any wetland area; f. No material is placed in a manner hat will be eroded by normal or expected high flows (properly 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 e Engineer determines the activity complies with the other terms and conditions of the NWP and 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. L.inearTransportation 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 1Ao-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 stream 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 channelization, 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. 10/Tuesday, January 15, 2002/Notices 2(1R1 than minimal degradation of water quality of any stream (see General Conditions 9 and 21); g. This permit cannot be used to authorize non-linear features commonly associated with transportation projects, such as vehicle maintenance or storage buildings, parking lots, train stations, or aircraft hangars; and h. The crossing is a single and complete project for crossing waters of the US. Where a road segment (i.e., the shortest segment of a road with independent utility that is part of a larger project) has multiple crossings of streams (several single and complete projects) the Corps will consider whether it should use its discretionary authority to require an Individual Permit. (Sections 10 and 404) Note: Some discharges for the construction of farm roads, forest roads, or temporary roads for moving mining equipment may be eligible for an exemption from the need for a Section 404 permit (see 33 CFR 323.4). • 15. U.S. Coast Guard Approved Bridges. Discharges of dredged or fill material incidental to the construction of bridges across navigable waters of the US, including cofferdams, abutments, foundation seals, piers, and temporary construction and access fills provided such discharges have been authorized by the USCG as part of the bridge permit. Causeways and approach fills are not included in this NWP and will require an individual or regional Section 404 permit. (Section 404) .16. Return Water From Upland Contained Disposal Areas. Return water from upland, contained dredged material disposal area. The dredging itself may require a Section 404 permit (33 CFR 323.2(d)), but will require a Section 10 permit if located in navigable waters of the US. The return water from a contained disposal area is administratively.defined as a discharge of dredged material by 33 CFR 323.2(d), even though the disposal itself occurs on the upland and does not require a Section 404 permit. This NWP satisfies the technical requirement for a Section 404 permit for the return water where the quality of the return water is controlled by the state through the Section 401 certification procedures. (Section 404) - 17. Hydropower Projects. Discharges of dredged or fill material associated with (a) small hydropower projects at existing reservoirs where the project, which includes the fill, are licensed by the Federal Energy Regulatory Commission (FERC) under the Federal Power Act of 1920, as amended; and has a total generating capacity of not more than 5000 kW; and the 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-;.Minor Discharges. Minor discharges of dredged or fill material into all waters of the US if the activity meets all of the following criteria: a. The quantity of discharged material and the volume of area excavated do not exceed 25 cubic yards below the plane of the ordinary high water mark or the high tide line; b. The discharge, including any excavated area, will not cause the loss of more than 1/io-acre of a special aquatic site, including wetlands. For the purposes of this NWT, 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 mark from navigable waters of the US (i.e., Section 10 waters) as part of a single and complete project. This NWP does not authorize the dredging or degradation through siltation of coral reefs, sites that support submerged aquatic vegetation (including sites where submerged aquatic vegetation is documented to exist, but may not be present in a given year), anadromous 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 mitigation, the District Engineer will ensure no more than minimal adverse effects to the aquatic environment occur. As such, District Engineers will determine on a case-by-case basis the requirement for adequate mitigation to ensure the effects to aquatic systems are minimal. In cases where OSM or the state has required mitigation for the loss of aquatic habitat, the Corps may consider this in determining appropriate mitigation under Section 404. (Sections 10 and 404) 22. Removal of Vessels. Temporary structures or minor discharges of dredged or fill material required for the removal of wrecked, abandoned, or disabled vessels, or the removal of man- 2082 Federal Register/Vol. 67, No. 10/Tuesday, January 15, 2002/Notices made obstructions to navigation. This NWP does not authorize the removal of vessels listed or determined eligible for listing on the National Register of Historic Places unless the District Engineer is notified and indicates that there is compliance with the "Historic Properties" General Condition. This NWP does not authorize maintenance dredging, shoal removal, or riverbank snagging. Vessel disposal in waters of the US may need a permit from EPA (see 40 CFR 229.3). (Sections 10 and 404) 23. Approved Categorical Exclusions. Activities undertaken, assisted, authorized, regulated, funded, or financed, in whole or in part, by anothe Federal agency or department where that agency or department has determined, pursuant to the Council on Environmental Quality Regulation for Implementing the Procedural Provisions of the National Environmental Policy Act (NEPA) (40 CFR part 1500 et seq.), that the activity, work, or discharge is categorically excluded from environmental documentation, because it is included within a category of actions which neither individually nor cumulatively have a significant effect on the human environment, and the Office of the Chief of Engineers (ATTN: CECW- OR) has been furnished notice of the agency's or department's application for the categorical exclusion and concurs with that determination. Before approval for purposes of this NWP of any agency's categorical exclusions, the Chief of Engineers will solicit public comment. In addressing these comments, the Chief of Engineers may require certain conditions for authorization of an agency's categorical exclusions under this NWP. (Sections 10 and 404) 24. State Administered Section 404 Program. Any activity permitted by a state administering its own Section 404 permit program pursuant to 33 U.S.C. 1344(g)-(1) is permitted pursuant to section 10 of the Rivers and Harbors Act of 1899. Those activities that do not involve a Section 404 state permit are not included in this NWP, but certain structures will be exempted by section 154 of Pub. L. 94-587, 90 Stat. 2917 (33 U.S.C. 591) (see 33 CFR 322.3(a)(2)). (Section 10) 25. Structural Discharges. Discharges of material such as concrete, sand, rock, etc., into tightly sealed forms or cells where the material will be used as a structural member for standard pile supported structures, such as bridges, transmission line footings, and walkways or for general navigation, such as mooring cells, including the excavation of bottom material from within the form prior to the discharge f concrete, sand, rock, etc. This NWP does not authorize filled structural members that would support buildings building pads, homes, house pads, parking areas, storage areas and other such structures, The structure itself ma require a Section 10 permit if located i in navigable waters of the US. (Section 404) 26. [Reserved] 27. Stream and Wetland Restoration Activities. Activities in waters of the US associated with the restoration of forme waters, the enhancement of degraded tidal and non-tidal wetlands and riparian areas, the creation of tidal and r non-tidal wetlands and riparian areas, and the restoration and enhancement of non-tidal streams and non-tidal open water areas as follows: (a) The activity is conducted on: (1) Non-Federal public lands and', private lands, in accordance with the terms and conditions of a binding wetland enhancement, restoration, or creation agreement between the landowner and the U.S. Fish and Wildlife Service (FWS) or the Natural Resources Conservation Service (NRCS), the National Marine Fisheries Service, the National Ocean Service, or voluntary wetland restoration, enhancement, and creation actions documented by the NRCS pursuant to MRCS reqgulations; or (2) Reclaimed surface coal mine lands, in accordance with a Surface Mining Control and Reclamation Act permit issued by the OSM or the applicable state agency (the future reversion does not apply to streams or wetlands created, restored, or enhanced as mitigation for the mining impacts, nor naturally due to hydrologic or topographic features, nor fora mitigation bank); or (3YAny other public, private or tribal lands; (b) Notification: For activities on any public or private land that are not described by paragraphs (a)(1) or (a)(2) above, the permittee must notify the District Engineer in accordance with General Condition 13; and (c) Planting of only native species should occur on the site. . Activities authorized by this NWP include, to the extent that a Corps permit is required, but are not limited to: the removal of accumulated sediments; the installation, removal, and maintenance of small water control structures, dikes, and berms; the installation of current deflectors; the enhancement, restoration, or creation of riffle and pool stream structure; the placement of in-stream habitat structures; modifications of the stream of bed and/or banks to restore or create stream meanders; the backfilling of artificial channels and drainage ditches; the removal of existing drainage structures; the construction of small nesting islands; the construction of open y water areas; the construction of oyster habitat over unvegetated bottom in tidal waters; activities needed to reestablish vegetation, including plowing or discing for seed bed preparation and the planting of appropriate wetland species; S mechanized land clearing to remove r non-native invasive, exotic or nusiance vegetation; and other related activities. This NWP does not authorize the conversion of a stream to another aquatic use, such as the creation of an impoundment for waterfowl habitat. This NWP does not authorize stream channelization. This NWP does not authorize the conversion of natural wetlands to another aquatic use, such as creation of waterfowl impoundments where a forested wetland previously existed. However, this NWP authorizes the relocation of non-tidal waters, including non-tidal wetlands, on the project site provided there are net gains in aquatic resource functions and values. For example, this NWP may authorize the creation of an open water impoundment in a non-tidal emergent wetland, provided the non-tidal emergent wetland is replaced by creating that wetland type on the project site. This NWP does not authorize the relocation of tidal waters or the conversion of tidal waters, including tidal wetlands, to other aquatic uses, such as the conversion of tidal wetlands into open water impoundments. Reversion. For enhancement, restoration, and creation projects conducted under paragraphs (a)(3), this NWP does not authorize any future discharge of dredged or fill material associated with the reversion of the area to its prior condition. In such cases a separate permit would be required for any reversion. For restoration, enhancement, and creation projects conducted under paragraphs (a)(1) and (a)(2), this NWP also authorizes any future discharge of dredged or fill material associated with the reversion of the area to its documented prior condition and use (i.e., prior to the restoration, enhancement, or creation activities). The reversion must occur within five years after expiration of a limited term wetland restoration or creation agreement or permit, even if the discharge occurs after this NWP expires. This NWP also authorizes the reversion of wetlands that were restored, enhanced, or created on prior-converted cropland that has not been abandoned, in accordance with a binding agreement Federal Register/Vol. 67, No. 10 /Tuesday, January 15, 2002 /Notices ?flstR between the landowner and NRCS or FWS (even though the restoration, enhancement, or creation activity did not require a Section 404 permit). The five-year reversion limit does not apply to agreements without time limits reached under paragraph (a)(1). The prior condition will be documented in the original agreement or permit, and the determination of return to prior conditions will be made by the Federal agency or appropriate state agency executing the agreement or permit. Before any reversion activity the permittee or the appropriate Federal or state agency must notify the District Engineer and include the documentation of the prior condition. Once an area has reverted to its prior physical condition, it will be subject to whatever the Corps Regulatory requirements will be at that future date. (Sections 10 and 404) Note: Compensatory mitigation is not required for activities authorized by this NWP, provided the authorized work results in a net increase in aquatic resource functions and values in the project area. This NWP can be used to authorize compensatory mitigation projects, including mitigation banks, provided the permittee notifies the District Engineer in accordance with General Condition 13, and the project includes compensatory mitigation for impacts to waters of the US caused by the authorized work. However, this NWP does not authorize the reversion of an area used for a compensatory mitigation project to its prior condition. NWP 27 can be used to authorize impacts at a mitigation bank, but only in circumstances where it has been approved under the Interagency Federal Mitigation Bank Guidelines. 28. Modifications of Existing Marinas. Reconfiguration of existing docking facilities within an authorized marina area. No dredging, additional slips, dock spaces, or expansion of any kind within waters of the US•is authorized by this NWP. (Section 10) 29. Single-family Housing. Discharges of dredged or fill material into non-tidal waters of the US, including non-tidal wetlands for the construction or expansion of a single-family home and attendant features (such as a garage, driveway, storage shed, and/or septic field) for an Individual Permittee provided that the activity meets all of the following criteria: a. The discharge does not cause the .loss of more than 1/4-acre of non-tidal waters of the US, including non-tidal wetlands; b. The permittee notifies the District Engineer in accordance with the "Notification" General Condition; c. The permittee has taken all practicable actions to minimize the on- site and off-site impacts of the discharge. For example, the location of the home may need to be adjusted on- site to avoid flooding of adjacent property owners; d. The discharge is part of a single and complete project; furthermore, that for any subdivision created on or after November 22, 1991, the discharges. authorized under this NWP may not exceed an aggregate total loss of waters of the US of 1/4-acre for the entire subdivision; e. An individual may use this NWP only for a single-family home for a personal residence; f. This NWP may be used only once per parcel; g. This NWP may not be used in conjunction with NWP 14 or NWP 18, for any parcel; and, h. Sufficient vegetated buffers must be maintained adjacent to all open water bodies, streams, etc., to preclude water quality degradation due to erosion and sedimentation. For the purposes of this 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 N4VP, 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 management activities where soil manipulation is used to manage habitat and feeding areas for wildlife. Such activities include, but are not limited to: The repair, maintenance or replacement of existing water control structures; the repair or maintenance of dikes; and plowing or discing to impede succession, prepare seed beds, or establish fire breaks. Sufficient vegetated buffers must be maintained adjacent to all open water bodies, streams, etc., to preclude water quality degradation due to erosion and sedimentation. This NWP does not authorize the construction of new dikes, roads, water control structures, etc. associated with the management areas. This NWP does not authorize converting wetlands to uplands, impoundments or other open water bodies. (Section 404) 31. Maintenance of Existing Flood Control Facilities. Discharge of dredge or fill material resulting from activities associated with the maintenance of existing flood control facilities, including debris basins, retention/ detention basins, and channels that (i) were previously authorized by the Corps by Individual Permit, General Permit, by 33 CFR 330.3, or did not require a permit at the time it was constructed, or (ii) were constructed by the Corps and transferred to a non-Federal sponsor for operation and maintenance. Activities authorized by this NWP are limited to those resulting from maintenance activities that are conducted within the "maintenance baseline," as described -in the definition below. Activities'' including the discharges of dredged or fill materials, associated with maintenance activities in flood control facilities in any watercourse that has previously been determined to be within the maintenance baseline, are authorized under this MVP. The NWP does not authorize the removal of sediment and associated vegetation from the natural water courses except to the extent that these have been included in the maintenance baseline. All dredged material must be placed in an upland site or an authorized disposal site in waters of the US, and proper siltation controls must be used. (Activities of any kind that result in only incidental fallback, or only the cutting and removing of vegetation above the ground, e.g., mowing, rotary cutting, and chainsawing, where the activity neither substantially disturbs the root system nor involves mechanized pushing, dragging, or other similar activities that redeposit excavated soil material, do not require a Section 404 permit in accordance with 33 CFR 323.2(d)(2)). Notification: After the maintenance baseline is established, and before any maintenance work is conducted, the permittee must notify the District Engineer in accordance with the "Notification" General Condition. The notification may be for activity-specific 2084 Federal Register/Vol. 67, No. 10 /Tuesday, January 15, 2002 /Notices maintenance or for maintenance of the entire flood control facility by However, if one-time mitigation is required for impacts associated ith activity subject to the terms and submitting a five year (or less) maintenance plan. w maintenance activities, the District Engineer will not d l d conditions of this NWP and the settlement agreement, including a e ay nee ed Maintenance Baseline: The maintenance, provided the District maintenance baseline is a description of Engineer and the i specified completion date; or (ii) The terms of a final Federal court the physical characteristics (e.g., depth, width, length, location, configuration, o perm ttee establish a schedule for identification, approval, r development constructi d decision, consent decree, or settlement agreement resulting from an design flood capacity, etc.) of a flood control project within which , on an completion of any such required enforcement action brought by the U.S. under section 404 of the CWA and/or maintenance activities are normally mitigation. Once the one-time mitigation described above has been section 10 of the Rivers and Harbors Act of 1899 or authorized by NWP 31, subject to any case-specific conditions required by the Di completed, or a determination made that mitigation is not required, no ; (iii) The terms of a final court decision consent decree s ttl strict Engineer. The District Engineer will approve the maintenance baseline further mitigation will be required for , , e ement agreement, or non-judicial settlement based on the approved or constructed capacity of the flood control facilit maintenance activities within the maintenance baseline. In determining agreement resulting from a natural resource damage claim brought by a y, whichever is smaller, including any areas where there are no constructed appropriate mitigation, the District Engineer will give special consideration trustee or trustees for natural resources (as defined by the National Contingency channels, but which are part of the facility. If no evidence of the to natural water courses that have been included in the maintenance baseline Plan at 40 CFR subpart G) under section 311 of the Clean Water Act (CWA), constructed capacity exist, the approved c t d and require compensatory mitigation and/or BMPs as appropriate. section 107 o`f the Comprehensive Environmental Response Com ensation ons ructe capacity will be used. The prospective permittee will provide Emergency Situations: In emergency situations, this NWP may be used to , p and Liability Act (CERCLA or Superfund) section 312 of th N ti l documentation of.the physical characteristics of the flood control authorize maintenance activities in flood control facilities for whi h , e a ona Marine Sanctuaries Act (NMSA), section facility (which will normally consist of as-built or approved drawin s) and c no maintenance baseline has been 1002 of the Oil Pollution Act of 1990 (OPA), or the Park System Resource g documentation of the design capacities f h approved. Emergency situations are those which would result in an Protection Act at 16 U.S.C. '19jj, to the extent that a Corps ermit is re ui d i o t e flood control facility. The documentation will also in l d BMP unacceptable hazard to life, a significant p q re . For either (i), (i i) or (iii) above, c u e s to ensure that the impacts to the aquatic loss of property, or an immediate, unforeseen, and significant economic compliance is a condition of the NWP itself. Any authorization under this environment are minimal, especially in maintenance areas where there are no hardship if action is not taken before a maintenance baseline can be approved. NWP is automatically revoked if the permittee does not comply with the constructed channels. (The Corps may request maintenance records in areas In such situations, the determination of i i terms of this NWP or the terms of the where there has not been recent m t gation requirements, if any, may be deferred until the emergency has been court decision, consent decree, or judicial/non-judicial settlement maintenance.) Revocation or modification of the final determination resolved. Once the emergency has ended, a maintenance baseline must be agreement or fails to complete the work by the specified completion date This of the maintenance baseline can only be done in accordance with 33 CFR 330 5 established expeditiously, and . NWP does not apply to any activities . . Except in emergencies as described below, this NWP can not be used until mitigation, including mitigation for maintenance conducted during the occurring after the date of the decision, decree, or agreement that are not for the the District Engineer approves the emergency, must be required as . appropriate. (Sections 10 and 404) purpose of mitigation, restoration, or environmental benefit Before reachin maintenance baseline and determines the need for mitigation and any regional 32. Completed Enforcement Actions. Any structure, work or discharge of . g any settlement agreement, the Corps will ensure compliance with the or activity-specific conditions. Once determined, the maintenance baseline dredged or fill material, remaining in place, or undertaken for mitigation provisions of 33 CFR part 326 and 33 CFR 330.6 (d)(2) and (e) (Sections 10 will remain valid for any subsequent reissuance of this NWP. This permit , restoration, or environmental benefit in compliance with either: . and 404) 33. Temporary Construction Access does not authorize maintenance of a flood control facility that has been W The terms of a final written Corps , and Dewatering. Temporary structures, abandoned. A flood control facility will non-judicial settlement agreement resolving a violation of section 404 of work and discharges, including cofferdams, necessary for construction be considered abandoned if it has operated at a significantly reduced the CWA and/or section 10 of the Rivers and Harbors Act of 1899; or the terms activities or access fills or dewatering of construction sites; provided that the capacity without needed maintenance being accomplished in a timely manner of an EPA 309(a) order on consent l associated primary activity is authorized . Mitigation: The District Engineer will reso ving a violation of section 404 of the CWA, provided that: by the Corps of Engineers or the USCG, or for other construction activitie t determine any required mitigation one time only for impacts associated with a. The unauthorized activity affected s no subject to the Corps or USCG maintenance work at the same time that the maintenance baseline is a roved no more than 5 acres of non-tidal wetlands or 1 acre of tidal wetlands; b regulations. Appropriate measures must be taken to maintain near normal pp . Such one-time mitigation will be . The settlement agreement provides for environmental benefits, to an equal downstream flows and to minimize flooding. Fill must be of materials a d required when necessary to ensure that adverse environmental impacts are no or greater degree, than the i , n placed in a manner, that will not be more than minimal, both individually d env ronmental detriments caused by the unauthorized activity that is authorized eroded by expected high flows. The use of dredged material ma be allowed if an cumulatively. Such mitigation will only be required once for any specific by this NWP; and c. The District Engineer issues a y it is determined by the District Engineer that it will not cause more th i i l reach of a flood control project. verification letter authorizing the an m n ma adverse effects on aquatic resources. Federal Register / Vol. 67, No. 10/Tuesday, January 15, 2002/Notices 2085 Temporary fill must be entirely removed to upland areas, or dredged material returned to its original location, following completion of the construction activity, and the affected areas must be restored to the pre-project conditions. Cofferdams cannot be used to dewater wetlands or other aquatic areas to change their use. Structures left in place after cofferdams are removed require a Section 10 permit if located in navigable waters of the U.S. (See 33 CFR part 322). The permittee must notify the District Engineer in accordance with the "Notification" General Condition. The notification must also include a restoration plan of reasonable measures to avoid and minimize adverse effects to aquatic resources. The District Engineer will add Special Conditions, where necessary, to ensure environmental adverse effects is minimal. Such conditions may include: limiting the temporary work to the minimum necessary; requiring seasonal restrictions; modifying the restoration plan; and requiring alternative construction methods (e.g. construction mats in wetlands where practicable.). (Sections 10 and 404) 34. Cranberry Production Activities. Discharges of dredged or fill material for dikes, berms, pumps, water control structures or leveling of cranberry beds associated with expansion, enhancement, or modification activities at existing cranberry production operations provided that the activity meets all of the following criteria*-: a. The cumulative total acreage of disturbance per cranberry production operation, including but not limited to, filling, flooding, ditching, or clearing, does not exceed 10 acres of waters of the U.S., including wetlands; b. The permittee notifies the District Engineer in accordance with the "Notification" General Condition. The notification must include a delineation of affected special aquatic sites, including wetlands; and, c. The activity does not result in a net loss of wetland acreage. This NWP does not authorize any discharge of dredged or fill material related to other cranberry production activities such as warehouses, processing facilities, or parking areas. For the purposes of this NWP, the cumulative total of 10 acres will be measured over the period that this NWP is valid. (Section 404) 35. Maintenance Dredging of Existing Basins. Excavation and removal of accumulated sediment for maintenance of existing marina basins, access channels to marinas or boat slips, and boat slips to previously authorized depths or controlling depths for ingress/ egress, whichever is less, provided the dredged material is disposed of at an upland site and proper siltation controls are used. (Section 10) 36. Boat Ramps. Activities required for the construction of boat ramps provided: a. The discharge into waters of the U.S. does not exceed 50 cubic yards of concrete, rock, crushed stone or gravel into forms, or placement of pre-cast concrete planks or slabs. (Unsuitable material that causes unacceptable chemical pollution or is structurally unstable is not authorized); b. The boat ramp does not exceed 20 feet in width; c. The base material is crushed stone, gravel or other suitable material; d. The excavation is limited to the area necessary for site preparation and all excavated material is removed to the upland; and, e. No material is placed in special aquatic sites, including wetlands. Another NWP, Regional General Permit, or Individual Permit may authorize dredging to provide access to the boat ramp after obtaining a Section 10 if located in navigable waters of the U.S. (Sections 10 and 404) 37. Emergency Watershed Protection and Rehabilitation. Work done by or funded by: a. The NRCS which is a situation requiring immediate action under its emergency Watershed Protection Program (7 CFR part 624); or b. The USFS under its Burned-Area Emergency Rehabilitation Handbook (FSH 509.13); or c. The DOI for wildland fire management burned area emergency stabilization and rehabilitation (DOI Manual part 620, Ch. 3). For all of the above provisions, the District Engineer must be notified in accordance with the General Condition 13. (Also, see 33 CFR 330.1(e)). (Sections 10 and 404) 38. Cleanup of Hazardous and Toxic Waste. Specific activities required to effect the containment, stabilization, or removal of hazardous or toxic waste materials that are performed, ordered, or sponsored by a government agency with established legal or regulatory authority provided the permittee notifies the District Engineer in accordance with the "Notification" General Condition. For discharges in special aquatic sites, including wetlands, the notification must also include a delineation of affected special aquatic sites, including wetlands. Court ordered remedial action plans or related settlements are also authorized by this NWP. This NWP does not authorize the establishment of new disposal sites or the expansion of existing sites used for the disposal of hazardous or toxic waste. Activities undertaken entirely on a Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) site by authority of CERCLA as approved or required by EPA, are not required to obtain permits under section 404 of the CWA or section 10 of the Rivers and Harbors Act. (Sections 10 and 404) 39. Residential, Commercial, and Institutional Developments. Discharges of dredged or fill material into non-tidal waters of the U.S., excluding non-tidal wetlands adjacent to tidal waters, for the construction or expansion of residential, commercial, and institutional building foundations and building pads and attendant features that are necessary for the use and maintenance of the structure's; Attendant features may include, but are not limited to, roads, parking lots, garages, yards, utility lines, stormwater management facilities, and recreation facilities such as playgrounds, playing fields, and golf courses (provided the golf course is an integral part of the residential development). The construction of new ski areas or oil and gas wells is not authorized by this NWP. Residential developments include multiple and single unit developments. Examples of commercial developments include retail stores, industrial facilities, restaurants, business parks, and shopping centers. Examples of institutional developments include schools, fire stations, government office buildings, judicial buildings, public works buildings, libraries, hospitals, and places of worship. The activities listed above are authorized, provided the activities meet all of the following criteria: a. The discharge does not cause the loss of greater than 1/2-acre of non-tidal waters of the U.S., excluding non-tidal wetlands adjacent to tidal waters; b. The discharge does not cause the loss of greater than 300 linear-feet of a stream bed, unless for intermittent stream beds this criterion is waived in writing pursuant to a determination by the District Engineer, as specified below, that the project complies with all terms and conditions of this NWP and that any adverse impacts of the project on the aquatic environment are minimal, both individually and cumulatively; c. The permittee must notify the District Engineer in accordance with General Condition 13, if any of the following criteria are met: (1) The discharge causes the loss of greater than 1/io-acre of non-tidal waters of the US, excluding non-tidal wetlands adjacent to tidal waters; or 2086 Federal Register / Vol. 67, No. 10/Tuesday, January 15, 2002 /Notices (2) The discharge causes the loss of any open waters, including perennial or intermittent streams, below the ordinary high water mark (see Note, below); or 6) The discharge causes the loss of greater than 300 linear feet of intermittent stream bed. In such case, to be authorized the District Engineer must determine that the activity complies with the other terms and conditions of the NWP, determine adverse environmental effects are minimal both individually and cumulatively, and waive the limitation on stream impacts in writing before the permittee may proceed; d. For discharges in special aquatic sites, including wetlands, the notification must include a delineation of affected special aquatic sites; e. The discharge is part of a single and complete project; f. The permittee must avoid and minimize discharges into waters of the US at the project site to the maximum extent practicable. The notification, when required, must include a written statement explaining how avoidance and minimization of losses of waters of the US were achieved on the project site. Compensatory mitigation will normally be required to offset the losses of waters of the US. (See General Condition 19.) The notification must also include a compensatory mitigation proposal for offsetting unavoidable losses of waters of the US. If an applicant asserts that the adverse effects of the project are minimal without mitigation, then the applicant may submit justification explaining why compensatory mitigation should not be required for the District Engineer's consideration, g. When this NWP is used in conjunction with any other NWP, any combined total permanent loss of waters of the US exceeding 1/io-acre requires that the permittee notify the District Engineer in accordance with General Condition 13; h. Any work authorized by this NWP must not cause more than minimal degradation of water quality or more than minimal changes to the flow characteristics of any stream (see General Conditions 9 and 21); L For discharges causing the loss of Vio-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 i the US (e.g., 1/12-acre of emergent t wetlands); and (5) The type and acreage f of any compensatory mitigation used to offset the loss of waters of the US (e.g., 1/12-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, t the maximum extent practicable, -. wetland or upland vegetated buffers next to those open waters or streams consistent with General Condition 19. Deed restrictions, conservation easements, protective covenants, or other means of land conservation and preservation are required to protect and maintain the vegetated buffers established on the project site. Only residential, commercial, and institutional activities with structures on the foundation(s) or building pad(s), as well as the attendant features, are authorized by this NWP. The compensatory mitigation proposal that is required in paragraph (e) of this NW may be either conceptual or detailed. The wetland or upland vegetated buffer required in paragraph (i) of this NWP will be determined on a case-by-case basis by the District Engineer for addressing water quality concerns. The required wetland or upland vegetated buffer is part of the overall compensatory mitigation requirement for this NWP. If the project site was previously used for agricultural purposes and the farm owner/operator used NWP 40 to authorize activities in waters of the US to increase production or construct farm buildings, NWP 39 cannot be used by the developer to authorize additional activities. This is more than the acreage limit for NWP 39 impacts to waters of the US (i.e., the combined acreage loss authorized under NWPs 39 and 40 cannot exceed 1/2-acre, see General Condition 15). Subdivisions: For residential subdivisions, the aggregate total loss of waters of US authorized by NWP 39 can not exceed 1/2-acre. This includes any loss of waters associated with development of individual subdivision lots. (Sections 10 and 404) Note: Areas where wetland vegetation is not present should be determined by the presence or absence of an ordinary high water mark or bed and bank. Areas that are waters of the US based on this criterion would require a PCN although water is infrequently present in the stream channel except for ephemeral waters, which do not require PCNs). 40. Agricultural Activities. Discharges of dredged or fill material into non-tidal waters of the US, excluding non tidal wetlands adjacent to tidal waters, for mproving agricultural production and he construction of building pads for arm buildings. Authorized activities o include the installation, placement, or construction of drainage tiles, ditches, or levees; mechanized land clearing; land leveling; the relocation of existing serviceable drainage ditches constructed in waters of the US; and similar o activities, provided the permittee complies with the following terms and conditions: a. For discharges into non-tidal wetlands to improve agricultural production, the following criteria must be met if the permittee is an United States Department of Agriculture (USDA) Program participant: (1) The permittee must obtain a categorical minimal effects exemption, minimal effect exemption, or mitigation exemption from NRCS in accordance with the provisions of the Food Security Act of 1985, as amended (16 U.S.C. 3801 et seq.); (2) The discharge into non-tidal wetlands does not result in the loss of greater than 1/2-acre of non-tidal wetlands on a farm tract; (3) The permittee must have NRCS- certified wetland delineation; (4) The permittee must implement an NRCS-approved compensatory mitigation plan that fully offsets wetland losses, if required; and (5) The permittee must submit a report, within 30 days of completion of the authorized work, to the District Engineer that contains the following information: (a) The name, address, and telephone number of the permittee; (b) The location of the work; (c) A description of the work; (d) The type and acreage (or square feet) of the loss of wetlands (e.g., 1/3-acre of emergent wetlands); and (e) The type, acreage (or square feet), and location of compensatory mitigation (e.g. 1/3-acre of emergent wetland on a farm tract; credits purchased from a mitigation bank); or b. For discharges into non-tidal wetlands to improve agricultural production, the following criteria must be met if the permittee is not a USDA Program participant (or a USDA Program participant for which the proposed work does not qualify for authorization under paragraph (a) of this NWP): (1) The discharge into non-tidal wetlands does not result in the loss of greater than 1/2-acre of non-tidal wetlands on a farm tract; (2) The permittee must notify the District Engineer in accordance with General Condition 13, if the discharge results in the loss of greater than '/,0 acre of non-tidal wetlands; (3) The notification must include a delineation of affected wetlands; and Federal Register / Vol. 67, No. 10 / Tuesday, January 15, 2002/Notices 9.nR7 (4) The notification must include a compensatory mitigation proposal to offset losses of waters of the US; or c. For the construction of building pads for farm buildings, the discharge does not cause the loss of greater than 1/2-acre of non-tidal wetlands that were in agricultural production prior to December 23, 1985, (i.e., farmed wetlands) and the permittee must notify the District Engineer in accordance with General Condition 13; and d. Any activity in other waters of the US is limited to the relocation of existing serviceable drainage ditches constructed in non-tidal streams. This NWP does not authorize the relocation of greater than 300 linear-feet of existing serviceable drainage ditches constructed in non-tidal streams unless, for drainage ditches constructed in intermittent non- tidal streams, the District Engineer waives this criterion in writing, and the District Engineer has determined that the project complies with all terms and conditions of this NWP, and that any adverse impacts of the project on the aquatic environment are minimal, both individually and cumulatively. For impacts exceeding 300-linear feet of impacts to existing serviceable ditches constructed in intermittent non-tidal streams, the permittee must notify the District Engineer in accordance with the "Notification" General Condition 13; and e. The term "farm tract" refers to a parcel of land identified by the Farm Service Agency. The Corps will identify other waters of the US on the farm tract. NRCS will determine if a proposed agricultural activity meets the terms and conditions of paragraph a. of this NWP, except as provided below. For those activities that require notification, the District Engineer will determine if a proposed agricultural activity is authorized by paragraphs b., c., and/or d. of this NWP. USDA Program participants. requesting authorization for discharges of dredged or fill material into waters of the US authorized by paragraphs (c) or (d) of this NWP, in addition to paragraph (a), must notify the District Engineer in accordance with General Condition 13 and the District Engineer will determine if the entire single and complete project is authorized by this NWP. Discharges of dredged or fill material into waters of the US associated with completing required compensatory mitigation are authorized by this NWP. However, total impacts, including other authorized impacts under this NWP, may not exceed the 1/2-acre limit of this NWP. This NWP does not affect, or otherwise regulate, discharges associated with agricultural activities when the discharge qualifies for an exemption under section 404(f) of the CWA, even though a categorical minimal effects exemption, minimal effect exemption, or mitigation exemption from NRCS pursuant to the Food Security Act of 1985, as amended, may be required. Activities authorized by paragraphs a. through d. may not exceed a total of 112, acre on a single farm tract. If the site was used for agricultural purposes and the farm owner/operator used either paragraphs a., b., or c. of this NWP to authorize activities in waters of the US to increase agricultural production or construct farm buildings, and the current landowner wants to use NWP 39 to authorize residential, commercial, or industrial development activities in waters of the US on the site, the combined acreage loss authorized by NWPs 39 and 40 cannot exceed 1/2-acre (see General Condition 15). (Section' 404) 41. Reshaping Existing Drainage Ditches. Discharges of dredged or fill material into non-tidal waters of the US, excluding non-tidal wetlands adjacent to tidal waters, to modify the cross- sectional configuration of currently serviceable drainage ditches constructed in waters of the US. The reshaping of the ditch cannot increase drainage capacity beyond the original design capacity. Nor can it expand the area drained by the ditch as originally designed (i.e., the capacity of the ditch must be the same as originally designed and it cannot drain additional wetlands or other waters of the US). Compensatory mitigation is not required because the work is designed to improve water quality (e.g., by regrading the drainage ditch with gentler slopes, which can reduce erosion, increase growth of vegetation, increase uptake of nutrients and other substances by vegetation, etc.). Notification: The permittee must notify the District Engineer in accordance with General Condition 13 if greater than 500 linear feet of drainage ditch will be reshaped. Material resulting from excavation may not be permanently sidecast into waters but may be temporarily sidecast (up to three months) into waters of the US, provided the material is not placed in such a manner that it is dispersed by currents or other forces. The District Engineer may extend the period of temporary sidecasting not to exceed a total of 180 days, where appropriate. In general, this NWP does not apply to reshaping drainage ditches constructed in uplands, since these areas are generally not waters of the US, and thus no permit from the Corps is required, or to the maintenance of existing drainage ditches to their original dimensions and configuration, which does not require a Section 404 permit (see 33 CFR 323.4(a)(3)). This NWP does not authorize the relocation of drainage ditches constructed in waters of the US; the location of the centerline of the reshaped drainage ditch must be approximately the same as the location of the centerline of the original drainage ditch. This NWP does not authorize stream channelization or stream relocation projects. (Section 404) 42. Recreational Facilities. Discharges of dredged or fill material into non-tidal waters of the US, excluding non-tidal wetlands adjacent to tidal waters, for the construction or expansion of recreational facilities, provided the activity meets all of the following criteria: a. The discharge does not cause the loss of greater than 1/2-acre of non-tidal waters of the US, excluding non-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 notifies the District Engineer in accordance with the "Notification" General Condition 13 for discharges exceeding 300 linear feet of impact of intermittent stream beds. In such cases, to be authorized the District Engineer must determine that the activity complies with the other terms and conditions of the NWP, determine the adverse environmental effects are minimal both individually and cumulatively, and waive this limitation in writing before the permittee may proceed; d. For discharges causing the loss of greater than V1o-acre of non-tidal waters of the US, the permittee notifies the District Engineer in accordance with General Condition 13; e. For discharges in special aquatic sites, including wetlands, the notification must include a delineation of affected special aquatic sites; f. The discharge is part of a single and complete project; and g. Compensatory mitigation will normally be required to offset the losses of waters of the US. The notification must also include a compensatory mitigation proposal to offset authorized losses of waters of the US. .? 2088 Federal Register / Vol. 67, No. 10/Tuesday, January 15, 2002/Notices For the purposes of this NWP, the term "recreational facility" is defined a a recreational activity that is integrated into the natural landscape and does not substantially change preconstruction grades or deviate from natural landscap contours. For the purpose of this permit the primary function of recreational facilities does not include the use of motor vehicles, buildings, or imperviou 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, arenas, and the construction of new ski areas are not authorized by this NWP. (Section 404) 43. Storm water Management 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'/2-acre of non-tidal waters s of the US, excluding non-tidal wetland adjacent to tidal waters; ?. The discharge does not cause the loss of greater than 300 linear-feet of a e stream bed, unless for intermittent stream beds this criterion is waived in writing pursuant to a determination by the District Engineer, as specified s below, that the project complies with al 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 Iho-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 loss of waters of the US. Maintenance in constructed areas will not require mitigation provided such maintenance is accomplished in designated maintenance areas and not within compensatory mitigation areas (i.e., District Engineers may designate non- maintenance areas, normally at the downstream end of the stormwater management facility, in existing stormwater management facilities). (No mitigation will be required for activities that are exempt from Section 404 permit s requirements); f. The 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 1 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. Minin a 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 and non-tidal wetlands adjacent to headwater streams, for hard rock/mineral 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 1/2-acre; b. The permittee must avoid and minimize discharges into waters of the Federal Register/Vol. 67, No. 10/Tuesday, January 15, 2002/Notices 9nR4 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 approved by the Corps; h. Beneficiation and mineral processing for hard rock/mineral mining activities may not occur within 200 feet of the ordinary high water mark of any open waterbody. Although the Corps does not regulate discharges from these activities, a CWA section 402 permit may be required; i. 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 1 cubic foot per second (aggregate mining can occur in areas immediately adjacent to the ordinary high water mark of a stream where the average annual flow is 1 cubic foot per second or less); k. Single and complete project: The discharge must be for a single and complete project, including support activities. Discharges o£ dredged or fill material into waters of the US for multiple mining activities on several designated parcels of a single and complete mining operation can be authorized by this NWP provided the 1/2-acre limit is not exceeded; and 1. Notification: The permittee must notify the District Engineer in accordance with General Condition 13. The notification must include: (1) A description of waters of the US adversely affected by the project; (2) A written statement to the District Engineer detailing compliance with paragraph (b), above (i.e., why the discharge must occur in waters of the US and why additional minimization cannot 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?rorize 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. Permittees are encouraged to perform work within waters of the United States during periods of low-flow or no-flow. 4. Aquatic Life ]]Movements. No activity may substantially disrupt the necessary life-cycle movements of those species of aquatic life indigenous to the waterbody, including those species that normally migrate through the area, unless the activity's primary purpose is to impound water. Culverts placed in streams must be installed to maintain low flow conditions. 5. Equipment. Heavy equipment working in wetlands must be placed on mats, or other measures must be taken to minimize soil disturbance. 6. Regional and Case-By-Case Conditions. The activity must comply with any regional conditions that may have been added by the Division 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 determiriation. 7. Wild and Scenic Rivers. No activity may occur in a component of the National Wild and Scenic River System; or in a river officially designated by Congress as a "study river" for possible inclusion in the system, while the river is in an official study status; unless the appropriate Federal agency, with direct management responsibility for such river, has determined in writing that the proposed activity will not adversely affect the Wild and Scenic River designation, or study status. Information on Wild and Scenic Rivers may be obtained from the appropriate Federal land management agency in the area (e.g., National Park Service, U.S. Forest Service, Bureau of Land Management, U.S. Fish and Wildlife Service). 8. Tribal Rights. No activity or its operation may impair reserved tribal rights, including, but not limited to, reserved water rights and treaty fishing and hunting rights. 9. Water Quality. (a) In certain states and tribal lands an individual 401 Water Quality Certification must be obtained or waived (See 33 CFR 330.4(c)). (b) For NWPs 12, 14, 17, 18, 32, 39, 40, 42, 43, and 44, where the state or tribal 401 certification (either generically or individually) does not require or approve water quality management measures, the permittee must provide water quality management measures that will ensure that the authorized work does not result in more than minimal degradation of water quality (or the Corps determines that compliance with state or local standards, where applicable, will ensure no more than minimal adverse effect on water quality). An important component of water quality management includes stormwater management that minimizes degradation of the downstream aquatic system, including water quality (refer to General Condition 21 for stormwater f: 2090 Federal Register/Vol. 67, No. 10/Tuesday, January 15, 2002/Notices management requirements). Another important component of water quality management is the establishment and maintenance of vegetated buffers next to open waters, including streams (refer to General Condition 19 for vegetated buffer requirements for the NWPs). This condition is only applicable to projects that have the potential to affect water quality. While appropriate measures must be taken, in most cases it is not necessary to conduct detailed studies to identify such measures or to require monitoring. 10. Coastal Zone Management. In certain states, an individual state coastal zone management consistency concurrence must be obtained or waived (see Section 330.4(d)). 11. Endangered Species. (a) No activity is authorized under any NWP which is likely to jeopardize the continued existence of a threatened or endangered species or a species proposed for such designation, as identified under the Federal Endangered Species Act (ESA), or which will destroy or adversely modify the critical habitat of such species. Non-federal permittees shall notify the District Engineer if any listed species or designated critical habitat might be affected or is in the vicinity of the project, or is located in the designated critical habitat and shall not begin work on the activity until notified by the District Engineer that the requirements of the ESA have been satisfied and that the activity is authorized. For activities that may affect Federally-listed endangered or threatened species or designated critical habitat, the notification must include the name(s) of the endangered or threatened species that may be affected by the proposed work or that utilize the designated critical habitat that may be affected by the proposed work. As a result of formal or informal consultation with the FWS or NMFS the District Engineer may add species-specific regional endangered species conditions to the NWPs. (b) Authorization of an activity by a NWP does not authorize the "take" of a threatened or endangered species as defined under the ESA. In the absence of separate authorization (e.g., an ESA Section 10 Permit, a Biological Opinion with "incidental take" provisions, etc.) from the USFWS or the NMFS, both lethal and non-lethal "takes" of protected species are in violation of the ESA. Information on the location of threatened and endangered species and their critical habitat can be obtained directly from the offices of the USFWS and NMFS or their world wide web pages at http://;nnv.fvvs.gov/r9endspp/ endspp.html and http://mnv.nfms.gov/ prot_res/esahome.html respectively. 12. Historic Properties. No activity o which may affect historic properties listed, or eligible for listing, in the National Register of Historic Places is authorized, until the District Engineer has complied with the provisions of 33 CFR part 325, Appendix C. The prospective permittee must notify the District Engineer if the authorized activity may affect any historic properties listed, determined to be eligible, or which the prospective permittee has reason to believe may be eligible for listing on the National Register of Historic Places, and shall not begin the activity until notified by the District Engineer that the requirements of the National Historic Preservation Act have been satisfied and that the activity is authorized. Information on the location and existence of historic resources can be obtained from the State Historic Preservation Office and the National Register of Historic Places (see 33 CFR 330.4(8)). For activities that may affect historic properties listed in, or eligible for listing in, the National Register of Historic Places, the notification must state which historic property may be affected by the proposed.work or include a vicinity map indicating the location of the historic property. 13. Notification. (a) Timing; where required by the terms of the NWP, the prospective permittee must notify the District Engineer with a preconstruction notification (PCN) as early as possible. The District Engineer must determine if the notification is complete within 30 days of the date of receipt and can request additional information necessary to make the PCN complete only once. However, if the prospective permittee does not provide all of the requested information, then the District Engineer will notify the prospective permittee that the notification is still incomplete and the PCN review process will not commence until all of the requested information has been received by the District Engineer. The prospective permittee shall not begin the activity: (1) Until notified in writing by the District Engineer that the activity may proceed under the NWP with any special conditions imposed by the District or Division Engineer; or (2) If notified in writing by the District or Division Engineer that an Individual Permit is required; or (3) Unless 45 days have passed from the District Engineer's receipt of the complete notification and the prospective permittee has not received written notice from the District or Division Engineer. Subsequently, the permittee's right to proceed under the NWP may be modified, suspended, or revoked only in accordance with the procedure set forth in 33 CFR 330.5(d)(2). (b) Contents of Notification: The notification must be in writing and include the following information: (1) Name, address and telephone numbers of the prospective permittee; (2) Location of the proposed project; (3) Brief description of the proposed project; the project's purpose; direct and indirect adverse environmental effects the project would cause; any other NWP(s), Regional General Permit(s), or Individual Permit(s) used or intended to be used to authorize any part of the proposed project or any related activity. Sketches should be provided when necessary to show that the activity complies with the terms of the NWP (Sketches usually clarify the project and when provided result in a quicker decision.); (4) For NWPs 7, 12, 14, 18, 21, 34, 38, 39, 41, 42, and 43, the PCN must also include a delineation of affected special aquatic sites, including wetlands, vegetated shallows (e.g., submerged aquatic vegetation, seagrass beds), and riffle and pool complexes (see paragraph 13 (f)); (5) For NWP 7 (Outfall Structures and Maintenance), the PCN must include information regarding the original design capacities and configurations of those areas of the facility where maintenance dredging or excavation is proposed; (6) For NWP 14 (Linear Transportation Crossings), the PCN must include a compensatory mitigation proposal to offset permanent losses of waters of the US and a statement describing how temporary losses of waters of the US will be minimized to the maximum extent practicable; (7) For NWP 21 (Surface Coal Mining Activities), the PCN must include an Office of Surface Mining (OSM) or state- approved mitigation plan, if applicable. To be authorized by this NWP, the District Engineer must determine that the activity complies with the terms 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; (8) For NWP 27 (Stream and Wetland Restoration), the PCN must include documentation of the prior condition of the site that will be reverted by the permittee; Federal Register / Vol. 67, No. 10/Tuesday, January 15, 2002/Notices 2091 (9) For NWP 29 (Single-Family Housing), the PCN must also include: waters of the US or justification explaining why compensator affected by the proposed work or utilize h (i) Any past use of this NWP by the Individual Permittee and/or th y mitigation should not be required. For t e designated critical habitat that may be affected by the proposed work; and e permittee's spouse; (ii) A statement that the sin le-f il discharges that cause the loss of greater than 300 linear feet of an intermittent (18) For activities that may affect historic properties listed in or eligible g am y housing activity is for a personal residence of the permittee; stream bed, to be authorized, the Distric Engineer must determine that the , t for listing in, the National Register of Historic Places, the PCN must state (iii) A description of the entire parcel including its size and a delineatio 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 , n o wetlands. For the purpose of this NWP, parcels of land measurin 1/ -a l adverse environmental effects are minimal both individually and vicinity map indicating the location of the historic property. g 4 cre or ess cumulatively, and waive the limitation will not require a formal on-site (c) Form of Notification: The standard delineation. However, the applicant on stream impacts in writing before the i 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 Activities), the PCN must include a wetlands that exists on the property. For compensatory mitigation proposal to parcels greater than 1/ -ac i i that it is a PCN and must include all of the information required in (b) (1)-(18) 4 re n s ze, formal wetland delineation must be offset losses of waters of the US. This NWP does not authorize the relocation of General Condition 13. A letter containing the re uisit i f prepared in accordance with the current method required by the Corps. (See of greater than 300 linear-feet of existing serviceable drainage ditches constructed q e n ormation may also be used. (d) District Engineer's Decision I paragraph 13(f)); (iv) A written description of all land i in non-tidal streams unless, for drainage ditches constructed in intermittent non- : n reviewing the PCN for the proposed activity the District En ine ill ( ncluding, if available, legal descriptions) owned by the prospective tidal streams, the District Engineer waives this criterion in writing, and the , g er w determine whether the activity authorized by the NWP will result i permittee and/or the prospective permittee's spouse, within a one mile District Engineer has determined that the project complies with all terms and n more than minimal individual or cumulative adverse enviro t l radius of the parcel, in any form of ownership (including any land owned conditions of this NWP, and that any adverse impacts of the roject on th nmen a effects or may be contrary to the public inte t Th as a partner, corporation, joint tenant, co-tenant, or as a tenant-by-the-entirety) p e aquatic environment are minimal, both individually and cumulatively; res . e prospective permittee may submit a proposed mitigation plan with the PCN to expedite the roc Th and any land on which a purchase and sale agreement or other contract for sale (15) For NWP 43 (Stormwater Management Facilities), the PCN must p ess. e District Engineer will consider any proposed compensatory miti ation the or purchase has been executed; (10) For NWP 31 (Maintenance of include, for the construction of new stormwater management facilities, a g applicant has included in the proposal in determining whether the net d Existing Flood Control Projects), the prospective permittee must either notify maintenance plan (in accordance with state and local requirements if a verse environmental effects to the aquatic i the District Engineer with a PCN prior to each maintenance activit or sub it , applicable) and a compensatory miti ati l env ronment of the proposed work are minimal. If the District Engineer y m a five year (or less) maintenance plan. g on proposa to offset losses of waters of the US. For discharges that determines that the activity complies with the terms and conditions of th In addition, the PCN must include all of the following: cause the loss of greater than 300 linear feet of an intermittent stream b d t b e NWP and that the adverse effects on the i (i) Sufficient baseline information identif in th d e , o e authorized, the District Engineer must aquat c environment are minimal, after considering mitigation, the District y g e approve 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 Di i t t facilities. Minor deviations are authorized, provided the approved flood the NWP, determine adverse environmental effects are minimal both s r c Engineer deems necessary. The District Engineer must a rove control protection or drainage is not increased; individually and cumulatively, and waive the limitation on stream impacts pp any compensatory mitigation proposal before the permittee commen k (ii) A delineation of any affected special aquatic sites, including in writing before the permittee may proceed; ces wor . If the prospective permittee is required wetlands; and, (iii) Location of the dredged material (16) For NWP 44 (Mining Activities), the PCN must include a descri tion of to submit a compensatory mitigation proposal with the PCN, the proposal b disposal site; (11) For NWP 33 (Temporary p all waters of the US adversely affected by the project a descri tion of m may e either conceptual or detailed. If the prospective permittee elects to b Construction, Access, and Dewatering), the PCN must also include a re t ti , p easures taken to minimize adverse effects to su mit a compensatory mitigation plan with the PCN, the District Engineer will s ora on plan of reasonable measures to avoid and minimize adverse effects to a uatic waters of the US, a description of measures taken to comply with the crit i f h expeditiously review the proposed compensatory mitigation plan. The q resources; (12) For NWPs 39 43 and 44 th PCN er a o t e NWP, and a reclamation plan (for all aggregate mining activities District Engineer must review the plan within 45 days of receiving a complete , , e must also include a written statement to the Di t i E in isolated waters and non-tidal wetlands adjacent to headwaters and PCN and determine whether the conceptual or specific pro osed s r ct ngineer explaining how avoidance and minimization for losses any hard rock/mineral mining activities); p 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 N4VP 42, the affect Federally-listed endangered or threatened species the PCN must of the project on the aquatic PCN must include a compensatory , include the name(s) of those endan ered environment (after consideration of the mitigation proposal to offset losses of g or threatened species that may be compensatory mitigation proposal) are determined by the District Engineer to 2092 Federal Register/Vol. 67. No. 10/TuP.&riAv Tnmin- ,r )Ono err ?: be minimal, the District Engineer will provide a timely written response to the applicant. The response will state that the project can proceed under the terms and conditions of the NWP. If the District Engineer determines that the adverse effects of the proposed work are more than minimal, then the District Engineer will notify the applicant either: (1) That the project does not qualify for authorization under the NWP and instruct the applicant on the procedures to seek authorization under an Individual Permit; (2) that the project is authorized under the NWP subject to the applicant's submission of a mitigation proposal that would reduce the adverse effects on the aquatic environment to the minimal level; or (3) that the project is authorized under the NWP with specific modifications or conditions. Where the District Engineer determines that mitigation is required to ensure no more than minimal adverse effects occur to the aquatic environment, the activity will be authorized within the 45-day PCN period. The authorization will include the necessary conceptual or specific mitigation or a requirement that the applicant submit a mitigation proposal that would reduce the adverse effects on the aquatic environment to the minimal level. When conceptual mitigation is included, or a mitigation plan is required under item (2) above, no work in waters of the US will occur until the District Engineer has approved a specific mitigation Ian. (e) AgencyCoordPnation: The District Engineer will consider any comments from Federal and state agencies concerning the proposed activity's compliance with the terms and conditions of the NWPs and the need for mitigation to reduce the project's adverse environmental effects to a minimal level. For activities requiring notification to the District Engineer that result in the loss of greater than 1/2-acre of waters of the US, the District Engineer will provide immediately (e.g., via facsimile transmission, overnight mail, or other expeditious manner) a copy to the appropriate Federal or state offices (USFWS, state natural resource or water quality agency, EPA, State Historic Preservation Officer (SHPO), and, if appropriate, the NMFS). With the exception of NWP 37, these agencies will then have 10 calendar days from the date the material is transmitted to telephone or fax the District Engineer notice that they intend to provide substantive, site-specific comments. If so contacted by an agency, the District Engineer will wait an additional 15 calendar days before making a decision on the notification. The District Engineer will fully consider agency comments received within the specified time frame, but will provide no response to the resource agency, except as provided below. The District Engineer will indicate in the administrative record associated with each notification that the resource agencies' concerns were considered. As required by section 305(b)(4)(B) of the Magnuson-Stevens Fishery Conservation and Management Act, the District Engineer will provide a response to NMFS within 30 days of receipt of any Essential Fish Habitat conservation recommendations. Applicants are encouraged to provide the Corps multiple copies of notifications to expedite agency notification. (f) Wetland Delineations: Wetland delineations must be prepared in ' accordance with the current method required by the Corps (For NWP 29 see paragraph (b)(9)(iii) for parcels less than (1/4-acre in size). The permittee may ask the Corps to delineate the special aquatic site. There may be some delay if the Corps does the delineation. Furthermore, the 45-day period will not start until the wetland delineation has been completed and submitted to the Corps, where appropriate. 14. Compliance Certification. Every permittee who has received NWP verification from the Corps will submit a signed certification regarding the completed work and any required mitigation. The certification will be forwarded by the Corps with the authorization letter and will include: (a) A statement that the authorized work was done in accordance with the Corps authorization, including any general or specific conditions; (b) A statement that any required mitigation was completed in accordance with the permit conditions; and (c) The signature of the permittee certifying the completion of the work and mitigation. 15. Use of Multiple Nationwide Permits. The use of more than one NWP for a single and complete project is prohibited, except when the acreage loss of waters of the US authorized by the NWPs does not exceed the acreage limit of the NWP with the highest specified acreage limit (e.g. if a road crossing over tidal waters is constructed under NWP 14, with associated bank stabilization authorized by NWP 13, the maximum acreage loss of waters of the US for the total project cannot exceed 1/3-acre). 16. Water Supply Intakes. No activity, including structures and work in navigable waters of the US or discharges of dredged or fill material, may occur in the proximity of a public water supply intake except where the activity is for repair of the public water supply intake structures or adjacent bank stabilization. 17. Shellfish Beds. No activity, including structures and work in navig able waters of the US or discharges 0 C! 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 3/4-acre loss of wetlands to a 1/i-acre loss associated with NWP 39 verification. However, 1/2-acre of created wetlands can be used to reduce the impacts of a 1/2-acre loss of wetlands to the minimum impact level in order to meet the Federal Register/Vol. 67, No. 10 /Tuesday, January 15, 2002 /Notices 2093 minimal impact requirement associated with N4VPs. accomplishing and/or complying with the mitigation plan discharges of dredged or fill material, (e) To be practicable, the mitigation . 20. Spawning Areas. Activities, into breeding areas for migratory waterfowl must be avoided to th must be available and capable of being done considering costs, existing e including structures and work in maximum extent practicable. navigable waters of the US or discharges 24. Removal of Temporary Fills An technology, and logistics in light of the overall project purposes Exam les of of dredged or fill material, in spawning areas during s awnin s b . y temporary fills must be removed in their . p mitigation that may be appropriate and p g easons must e avoided to the maximum extent • entirety and the affected areas returned to their preexisting elevation practicable include, but are not limited practicable. Activities that result in the . 25. Designated Critical Resource to: reducing the size of the project; physical destruction (e.g., excavate, fill, Waters. Critical resource waters include establishing and maintaining wetland or or smother downstream by substantial , NOAH-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. (f) Compensatory mitigation plans for conditions (e.g., location, capacity, and flow rates). Furthermore, the activity waters or other waters officially designated by a state as having projects in or near streams or other open waters will normally include a must not permanently restrict or impede the passage of normal or expected high particular environmental or ecological significance and identified by the requirement for the establishment, maintenance, and legal protection (e.g., flows (unless the primary purpose of the fill is to impound waters) and the '. District Engineer after notice and 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 man d material must withstand expected high flows. The activit must to th additional critical resource waters after y cases, vegetate buffers will be y , e 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 , 12, 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 id Project site, relocating water, or redirecting water flow b d waters, including wetlands adjacent to h w e on each side of the stream, but the eyon suc waters. Discharges of dredged or District Engineers may require slightly wider vegetated buffers to address Phan el z ing will be reduced to the g be authorized by the above NWPs in may by documented water quality or habitat minimal amount necessary, and the National Wild and Scenic Rivers if the loss concerns. Where both wetlands and activity must, to the maximum extent activity complies with General open waters exist on the project site, the practicable, reduce adverse effects such as floodin or erosi d Condition 7. Further, such discharges Corps will determine the appropriate g on ownstream and may be authorized in designated critical compensatory mitigation (e.g., stream upstream of the project site, unless the habitat for Federally listed threatened or buffers or wetlands compensation) at based o what is best for the aquatic activity is part of a larger system designed to manage water flows. In most endangered species if the activity complies with General Condition 11 and environment a watershed basis. In cases, it will not be a requirement to conduct detailed studies and m it i the USFWS or the NMFS has concurred i cases where vegetated buffers are on or ng of water flow n a determination of compliance with determined to be the most appropriate form of compensatory mitigation the . This condition is only applicable to this condition. (b) For NWPs 3, 8, 10, 13, 15, 18, 19 , District Engineer"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 acts must be taken, it is not necessary to conduct detailed studies to identify accordance with General Condition 13, for any activity ro osed in the p . (g) Compensatory mitigation such measures or require monitoring to p p designated critical resource waters proposals submitted with the ensure their effectiveness. Normally, the Corps will defer to state and l l including wetlands adjacent to those notification" may be either conceptual or detailed. If conceptual plans are oca authorities regarding management of waters. The District Engineer may authorize activities under these NWPs approved under the verification, then the Corps will condition the verificatio water flow. 22. Adverse Effects 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 Impoundments. If the activity creates an impoundment of water, adverse effects h will be no more than minimal. 26. Fills Within 100-Year Floodplains. construction of the authorized activity in waters of the US 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 . (h) Permittees may propose the use of and/or the restricting its flow shall be minimized to the maximum e t t through the existing Federal Emergency ' mitigation banks, in-lieu fee arran em t x en practicable. This includes structures Management Agency s (FEMA) Flood Insurance Rate Maps or FEMA-approved g en s or separate activity- specific compensatory mitigation. In all and work in navigable waters of the US, or discharges of dredged or fill material. local floodplain maps. (a) Discharges in Floodplain; Below cases that require compensatory mitigation, the mitigation provisions 23. Waterfowl Breeding Areas. Activities, including structures and Headwaters. Discharges of dredged or fill material into waters of the US ithi will specify the party responsible for work in navigable waters of the US or w n the mapped 100-year floodplain, below 2094 Federal Register/Vol. 67, No. 10/Tuesday, lanuarv 15. 2002 / Nntirac headwaters (i.e. five cfs), resulting in permanent above-grade fills, are not authorized by NWPs 39, 40, 42, 43, and 44. (b) Discharges in Floodway; Above Headwaters. Discharges of dredged or fill material into waters of the US within the FEMA or locally mapped floodway, resulting in permanent above-grade fills, are not authorized by NWPs 39, 40, 42, and 44. (c) The permittee must comply with any applicable FEMA-approved state or local floodplain management requirements. 27. Construction Period. For activities that have not been verified by the Corps and the project was commenced or under contract to commence by the expiration date of the NWP (or modification or revocation date), the work must be completed within 12- months after such date (including any modification that affects the project). For activities that have been verified and the project was commenced or under contract to commence within the verification period, the work must be completed by the date determined by the Corps. For projects that have been verified by the Corps, an extension of a Corps approved completion date maybe requested. This request must be submitted at least one month before the previously approved completion date. D. Further Information 1. District Engineers have authority to determine if an activity complies with the terms and conditions of an NWP. 2. NWPs do not obviate the need to obtain other Federal, state, or local permits, approvals, or authorizations required by law. 3. NWPs do not grant any property rights or exclusive privileges. 4. NWPs do not authorize any injury to the property or rights of others. 5. NWPs do not authorize interference with any existing or proposed Federal project. E. Definitions Best Management Practices (BMPs): BMPs are policies, practices, procedures, or structures implemented to mitigate the adverse environmental effects on surface water quality resulting from development. BMPs are categorized as structural or non- structural. A BMP policy may affect the limits on a development. Compensatory Mitigation: For purposes of Section 10/404, compensatory mitigation is the restoration, creation, enhancement, or in exceptional circumstances, preservation of wetlands and/or other aquatic resources for the purpose of compensating for unavoidable adverse impacts which remain after all appropriate and practicable avoidance and minimization has been achieved. Creation: The establishment of a n 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 plain. Independent Utility: A test to determine what constitutes a single and complete project in the Corps regulatory program. A project is considered to have independent utility if it would be constructed absent the construction of other projects in the project area. Portions of a multi-phase project that depend upon other phases of the project do not have independent utility. Phases of a project that would be constructed even if the other phases were not built can be considered as separate single and complete projects with independent utility. Intermittent Stream: An intermittent stream has flowing water during certain times of the year, when groundwater provides water for stream flow. During dry periods, intermittent streams may not have flowing water. Runoff from rainfall is a supplemental source of water for stream flow. Loss of Waters of the US: Waters of the US that include the filled area and other waters that are permanently adversely affected by flooding, excavation, or drainage because of the regulated activity. Permanent adverse effects include permanent above-grade, at-grade, or below-grade fills that change an aquatic area to dry land, increase the bottom elevation of a waterbody, or change the use of a 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 MVP; it is not a net threshold that is calculated after considering compensatory mitigation that may be used to offset losses of aquatic functions and values. The loss of stream bed includes the linear feet of stream bed that is filled or excavated. Waters of the US temporarily filled, flooded, excavated, or drained, but restored to preconstruction contours and elevations after construction, are not included in the measurement of loss of waters of the US. Impacts to ephemeral waters are only not included in the acreage or linear foot measurements of loss of waters of the US or loss. of stream bed, for the purpose of determining compliance with the threshold limits of the NWPs. Non-tidal Wetland: A non-tidal wetland is a wetland (i.e., a water of the US) that is not subject to the ebb and flow of tidal waters. The definition of a wetland can be found at 33 CFR 328.3(b). Non-tidal wetlands contiguous to tidal waters are located landward of the high tide line (i.e., spring high tide line). Open Water: An area that, during a year with normal patterns of precipitation, has standing or flowing water for sufficient duration to establish an ordinary high water mark. Aquatic vegetation within the area of standing or flowing water is either non-emergent, sparse, or absent. Vegetated shallows are considered to be open waters. The term "open water" includes rivers, streams, lakes, and ponds. For the purposes of the NWPs, this term does not include ephemeral waters. Perennial Stream: A perennial stream has flowing water year-round during a typical year. The water table is located above the stream bed for most of the year. Groundwater is the primary source of water for stream flow. Runoff from rainfall is a supplemental source of water for stream flow. Permanent Above-grade Fill: A discharge of dredged or fill material into waters of the US, including wetlands, that results in a substantial increase in ground elevation and permanently converts part or all of the waterbody to dry land. Structural fills authorized by NWPs 3, 25, 36, etc. are not included. Preservation: The protection of ecologically important wetlands or other aquatic resources in perpetuity through the implementation of appropriate legal and physical mechanisms. Preservation may include protection of upland areas adjacent to wetlands as necessary to Federal Register/Vol. 67, No. 10/Tuesdav. fanuarv 15 qnm wnt;r- Onnc ensure protection and/or enhancement of the overall aquatic ecosystem. Restoration: Re-establishment of wetland and/or other aquatic resource characteristics and function(s) at a site where they have ceased to exist, or exist in a substantially degraded state. Riffle and Pool Complex: Riffle and pool complexes are special aquatic sites under the 404(b)(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. StormwaterMonagement: Stormwater management is the mechanism for controlling stormwater runoff for the purposes of reducing downstream erosion, water quality degradation, and flooding and mitigating the adverse effects of changes in land use on the aquatic environment. Storm wa ter Management Facilities: Stormwater management facilities are those facilities, including but not limited to, stormwater retention and detention ponds and BMPs, which retain water for a period of time to, control runoff and/or improve the quality (i.e., by reducing the concentration of nutrients, sediments, hazardous substances and other pollutants) of stormwater runoff. Stream Bed: The substrate of the stream channel between the ordinary high water marks. The substrate may be bedrock or inorganic particles that 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(b) and 33 CFR 328.3(0, respectively. Tidal waters rise and fall in a predictable and measurable rhythm or cycle due to the gravitational pulls of the moon and sun. Tidal waters end where the rise and fall of the water surface can no longer be practically measured in a predictable rhythm due to masking by other waters, wind, or other effects. Tidal wetlands are located channelward of the high tide line (i.e., spring high tide line) and are inundated by tidal waters two times per lunar month, during spring high tides. Vegetated Buffer: A vegetated upland or wetland area next to rivers, streams, lakes, or other open waters which separates the open water from developed areas, including agricultural land. Vegetated buffers provide a variety of aquatic habitat functions and values (e.g., aquatic habitat for fish and other aquatic organisms, moderation of water temperature changes, and detritus for aquatic food webs) and help improve or maintain local water quality. A vegetated buffer can be established by maintaining an existing vegetated area or planting native trees, shrubs, and herbaceous plants on land next to open- waters. Mowed lawns are not considered vegetated buffers because they provide little or no aquatic habitat functions and values. The establishment and maintenance of vegetated buffers is a method of compensatory mitigation that can be used in conjunction with the restoration, creation, enhancement, or preservation of aquatic habitats to ensure that activities authorized by NWPs result in minimal adverse effects to the aquatic environment. (See General Condition 19.) Vegetated Shallows: Vegetated shallows are special aquatic sites under the 404(b)(1) Guidelines. They are areas that are permanently inundated and under normal circumstances have rooted aquatic vegetation, such as seagrasses in marine and estuarine systems and a variety of vascular rooted plants in freshwater systems. 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 kemppii) Endangered leatherback turtle (Dermochelys coriacea) Threatened loggerhead turtle (Coretta caretta) Application 1361 The applicant'is applying for a 5-year permit to trawl for turtles, as needed, at dredge and other construction/ destruction sites to remove the turtles to a safe location. The turtles will be captured, tagged, measured and released offshore away from the dredging activities. The applicant expects to capture and relocate 95 green, 11 hawksbill, 160 loggerhead, 14 Kemp's ridley and 4 leatherback turtles on the Atlantic coast and 105 green, 17 hawksbill, 160 loggerhead, 50 Kemp's ridley and 11 leatherback turtles on the Gulf coast. Dated: February 7, 2002. Jill Lewandowski, Acting Chief, Permits, Conservation, and Education Division, Office of Protected Resources, National Marine Fisheries Service. [FR Doc. 02-3522 Filed 2-12-02; 8:45 am] BILLING CODE 3510.22-S DEPARTMENT OF DEFENSE Department of the Army, Corps of Engineers Issuance of Nationwide Permits; Notice; Correction AGENCY: Army Corps of Engineers, DOD ACTION: Final notice; correction. SUMMARY: This document contains corrections to the final notice of issuance of Nationwide Permits (NWPs) which was published in the Federal Register on Tuesday, January 15, 2002 (67 FR 2020-2095). ADDRESSES: HQUSACE, ATTN: CECW- OR, 441 "G" Street, NW., Washington, DC 20314-1000. FOR FURTHER INFORMATION CONTACT: Mr. David Olson, at (703) 428-7570, Mr. Kirk Stark, at (202) 761-4664 or Ms. Leesa Beal at (202) 761-4599 or access the U.S. Army Corps of Engineers Regulatory Home Page at: http:// www.usace.army.mil/inet/functions/ cw/cecwo/reg/. SUPPLEMENTARY INFORMATION: In the SUMMARY section on page 2020, the third and fourth sentences are corrected to read: "All NWPs except NWPs 3, 7, 12, 14, 27, 39, 40, 41, 42, 43, and 44 expire on February 11, 2002. Existing NWPs 3, 7, 12, 14, 27, 39, 40, 41, 42, 43, and 44 expire on March 18, 2002." In the last sentence of the SUMMARY section, the expiration date is corrected as "March 18, 2007", instead of "March 19, 2007". On page 2020, in second sentence of the DATES section, the expiration date is corrected as "March 18, 2007", instead of "March 19, 2007". Therefore, the NWPs published in the January 15, 2002; Federal Register will expire on March 18, 2007, five years from their effective date of March 18, 2002. On page 2020, in the fifth paragraph of the Background section, the third and fourth sentences are corrected to read: "All NWPs except NWPs 3, 7, 12, 14, 27, 39, 40, 41, 42, 43, and 44 expire on February 11, 2002. Existing NWPs 3, 7, 12, 14, 27, 39, 40, 41, 42, 43, and 44 expire on March 18, 2002." The expiration date in the last sentence of this paragraph is corrected as "March 18, 2007", instead of "March 19, 2007". On page 2020, the paragraph in the section entitled "Grandfather Provision for Expiring NWPs at 33 CFR 330.6" is corrected to read: "Activities authorized by the current NWPs issued on December 13, 1996, (except NWPs 3, 7, 12, 14, 27, 39, 40, 41, 42, 43, and 44), that have commenced or are under contract to commence by February 11, 2002, will have until February 11, 2003, to complete the activity. Activities authorized by NWPs 3, 7, 12, 14, 27, 39, 40, 41, 42, 43, and 44, that were issued on March 9, 2000, that are commenced or under contract to commence by March 18, 2002, will have until March 18, 2003, to complete the activity." On page 2020, in the "Clean Water Act Section 401 Water Quality Certification (WQC) and Coastal Zone Management Act (CZMA) Consistency Agreement" section, the date in the fifth sentence is corrected as "February 11, 2002", instead of "February 11, 2001". On page 2023, third column, last sentence, the number 29 is replaced with the number 19, because this sentence refers to General Condition 19. On page 2024, first column, in the fourth sentence of the last paragraph the phrase "less than" is replaced by "greater than" because the 30 day completeness review period for NWP pre-construction notifications is greater than the 15 day completeness review period for standard permit applications. 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 the Walla Walla District Engineer is corrected to read "201 N. Third Avenue". On page 2080, second column, third paragraph from the top of the column (in the "Notification" section of NWP 12), the word "or" at the end of paragraph (e) is deleted and the period at the end of the fourth paragraph (paragraph (f)) is replaced with "; or". On page 2080, second column, paragraph (a) of NWP 13 is corrected to read: "No material is placed in excess of the minimum needed for erosion protection;" The change was not intended and we are correcting this paragraph by reinstating the original text as it appeared in the version of NWP 13 published in the December 13, 1996, Federal Register (61 FR 65915). On page 2080, third column, the word "or" is inserted at the end of paragraph (a)(1) of NWP 14, Linear Transportation Projects. Paragraph (a) of NWP 14 is corrected to read: "a. This NWP is subject to the following acreage limits: (1) For linear transportation projects in non-tidal waters, provided the discharge does not cause the loss of greater than '/z-acre of waters of the US; or (2) For linear transportation projects in tidal waters, provided the discharge does not cause the loss of greater than 3/3-acre of waters of the US." On page 2085, second column, the last sentence of NWP 36 is corrected to read as follows: "Dredging to provide Federal Register/Vol. 67, No. 30 /Wednesday, February 13, 2002/Notices 6693 access to the boat ramp may be authorized by another NWP, regional general permit, or individual permit pursuant to section 10 if located in navigable waters of the United States. * * "The change was not intended and we are correcting this paragraph by reinstating the original text as it appeared in the version of NWP 36 published in the December 13, 1996, Federal Register (61 FR 65919). On page 2086, in the second full paragraph of the second column, "paragraph (e)" in the second sentence is replaced with "paragraph (f)" and "paragraph (i)" in the third sentence is replaced with "paragraph (j)" to accurately cite the previous paragraphs of NWP 39. The last two sentences of the paragraph before the subdivision paragraph were incorrectly divided into two sentences from the original single sentence and identified as being related to General Condition 15. This change was not intended and we are correcting this paragraph by, reinstating the original last sentence as it exists in the March 9, 2000, text of NWP 39 (65 FR 12890). On page 2086, middle column, the parenthetical statement at the end of the Note at the end of NWP 39 is corrected to read" * * (except for ephemeral waters, which do not require PCNs under paragraph (c)(2), above; however, activities that result in the loss of greater than '/io 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 V1o acre PCN requirement. The correction is needed because the statement in the parentheses could be incorrectly interpreted to apply to paragraph (c)(1) and possibly to all PCNs, not just those affected by paragraph (c)(2). For clarity, we are providing the text of NWP 39 in its entirety, with the corrections described above: 39. Residential: Commercial, and Institutional Developments. Discharges of dredged or fill material into non-tidal waters of the U.S., excluding non-tidal wetlands adjacent to tidal waters, for the construction or expansion of residential, commercial, and institutional building foundations and building pads and attendant features that are necessary for the use and maintenance of the structures. Attendant features may include, but are not limited to, roads, parking lots, garages, yards, utility lines, stormwater management facilities, and recreation facilities such as playgrounds, playing fields, and golf courses (provided the golf course is an integral part of the residential development). The construction of new ski areas or oil and gas wells is not authorized by this NWP. Residential developments include multiple and single unit developments. Examples of commercial developments include retail stores, industrial facilities, restaurants, business parks, and shopping centers. Examples of institutional developments include schools, fire stations, government office buildings, judicial buildings, public works buildings, libraries, hospitals, and places of worship. The activities listed above are authorized, provided the activities meet all of the following criteria: a. The discharge does not cause the loss of greater than 1/i2-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 1/1o-acre of non-tidal waters of the US, excluding non-tidal wetlands adjacent to tidal waters; or (2) The discharge causes the loss of any open waters, including perennial or intermittent streams, below the ordinary hi h water mark (see Note, below); or ?3) The discharge causes the loss of greater than 300 linear feet of intermittent stream bed. In such case, to be authorized the District Engineer must determine that the activity complies with the other terms and conditions of the NWP, determine adverse environmental effects are minimal both individually and cumulatively, and waive the limitation on stream impacts in writing before the permittee may proceed; d. For discharges in special aquatic sites, including wetlands, the notification must include a delineation of affected special aquatic sites; e. The discharge is part of a single and complete project; f. The permittee must avoid and minimize discharges into waters of the US at the project site to the maximum extent practicable. The notification, when required, must include a written statement explaining how avoidance and minimization of losses of waters of the US were achieved on the project site. Compensatory mitigation will normally be required to offset the losses of waters of the US. (See General Condition 19.) The notification must also include a compensatory mitigation proposal for offsetting unavoidable losses of waters of the US. If an applicant asserts that the adverse effects of the project are minimal without mitigation, then the applicant may submit justification explaining why compensatory mitigation should not be required for,the District Engineer's consideration; g. When this NWP is used in conjunction with any other NWP, any combined total permanent loss of waters of the US exceeding 1/1o-acre requires that the permittee notify the District Engineer in accordance with General Condition 13; h. Any work authorized by this NWP must not cause more than minimal degradation of water quality or more than minimal changes to the flow characteristics of any stream (see General Conditions 9 and 21); i. For discharges causing the loss of V1o-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., 1/2-acre of emergent wetlands); and (5) The type and acreage of any compensatory mitigation used to `offset the loss of waters of the US (e.g., 1/2-acre of emergent wetlands created on-site); j. If there are any open waters or streams within the project area, the permittee will establish and maintain, to the maximum extent practicable, wetland or upland vegetated buffers next to those open waters or streams consistent with General Condition 19. Deed restrictions, conservation easements, protective covenants, or other means of land conservation and preservation are required to protect and maintain the vegetated buffers established on the project site. Only residential, commercial, and institutional activities with structures on the foundation(s) or building pad(s), as well as the attendant features, are authorized by this NWP. The 6694 Federal Register/Vol. 67, No. 30 /Wednesday, February 13, 2002/Notices compensatory mitigation proposal that is required in paragraph (f) of this NWP may be either conceptual or detailed. The wetland or upland vegetated buffer required in paragraph (j) of this NWP will be determined on a case-by-case basis by the District Engineer for addressing water quality concerns. The required wetland or upland vegetated buffer is part of the overall compensatory mitigation requirement for this NWP. If the project site was previously used for agricultural purposes and the farm owner/operator used NWP 40 to authorize activities in waters of the United States to increase production or construct farm buildings, NWP 39 cannot be used by the developer to authorize additional activities in waters of the United States on the project site in excess of the acreage limit for NWP 39 (i.e., the combined acreage loss authorized under NWPs 39 and 40 cannot exceed 1/2 acre). Subdivisions: For residential subdivisions, the aggregate total loss of waters of US authorized by NWP 39 can not exceed 1h-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 Vlo acre of ephemeral waters would require PCNs under paragraph (c)(1), above). On page 2088, in the sixth sentence of the first paragraph in the first column, the phrase "an adequate water quality management plan" is replaced with the phrase "adequate water quality management measures" to reflect the modified language in General Condition 9. This sentence is corrected to read "The facility must have adequate water quality management measures in accordance with General Condition 9, such as a stormwater management facility, to ensure that the recreational facility results in no substantial adverse effects to water quality." On page 2089, first column, the second sentence of paragraph (c) of NWP 44 is corrected to read "Normally, the water quality management measures required by General Condition 9 should address these impacts;". In addition, the second sentence of paragraph (i) of NWP 44 is corrected to read "Further the District Engineer may require water quality management measures to ensure the authorized work results in minimal adverse effects to water quality;" These corrections are necessary to reflect the modified language in General Condition On page 2089, third column, the text of General Condition 6 is corrected to read: "The activity must comply with any regional conditions that may have been added by the Division Engineer (see 33 CFR 330.4(e)) and with any case specific conditions added by the Corps or by the state or tribe in its Section 401 Water Quality Certification and Coastal Zone Management Act consistency determination." The change to General Condition 6 that was published in the January 15, 2002, Federal Register was not intended and we are correcting this sentence by reinstating the original text as it existed in the March 9, 2000, NWPs. On page 2090, first column, the word "Section" in the parenthetical at the end of General Condition 10 is replaced with "33 CFR" so that the parenthetical reads "(see 33 CFR 330.4(d))". On page 2090, at the top of the second column, the second Internet URL is replaced with "* * * http:// www.nmfs.noaa.gov/prot res/overview/ es.html * * *"because the Internet address for the National Marine Fisheries Service home page for endangered species has been changed. On page 2090, third column, in paragraph (b)(4) of General Condition 13, NWP 40 should be added to the list of NWPs that require submission of delineations of special aquatic sites with pre-construction notifications. Therefore, paragraph (b)(4) of General Condition 13 is corrected to read "For NWPs 7, 12, 14, 18, 21, 34, 38, 39, 40, 41, 42, and 43, the PCN must also include a delineation of affected special aquatic sites, including wetlands, vegetated shallows (e.g., submerged aquatic vegetation, seagrass beds), and riffle and pool complexes (see paragraph 13(f));" On page 2090, third column, in paragraph (b)(6) of General Condition 13, the word "Projects" replaces the word "Crossings", because the title of NWP 14 is "Linear Transportation Projects". On page 2090, third column, in paragraph (b)(8) of General Condition 13, the word "Activities" is inserted after the word "Restoration" because the title of NWP 27 is "Stream and Wetland Restoration Activities". On page 2091, first column, in paragraph (b)(10) of General Condition 13, the word "Projects" is replaced with the word "Facilities" because the title of NWP 31 is "Maintenance of Existing Flood Control Facilities". 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 maybe 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 NWPs (i. e., NWPs 39, 40, 42, and 43) for filling or excavating stream beds would not apply to activities that involve filling or excavating ephemeral streams. The last sentence of the definition of "Loss of Waters of the US" as published in the January 15, 2002, Federal Register notice does not comport with remainder of this NWP package. Therefore, we are correcting this definition as described above. We believe that correcting the text of NWP 39 and the definition of "Loss of Waters of the US" through the publication of this correction notice is appropriate. Nevertheless, in order to give all interested parties further opportunity to comment on this matter, we intend to publish a Federal Register notice to solicit public comments on those two corrections. If we determine that any other matter relating to the final NWPs requires correction or clarification, but that matter was not adequately dealt with in this correction notice, we will address that additional matter in the forthcoming Federal Register notice, as well. We expect to publish that Federal Register notice within a few weeks. Dated: February 7, 2002. Lawrence A. Lang, Assistant Chief, Operations Division, Directorate of Civil Works. [FR Doc. 02-3555 Filed 2-12-02; 8:45 am] BILLING CODE 3710-92-P DEPARTMENT OF DEFENSE Uniformed Services University of the Health Sciences Sunshine Act Meeting AGENCY HOLDING THE MEETING: Uniformed Services University of the Health Sciences. TIME AND DATE: 8:00 a.m. to 4:00 p.m., February 5, 2002. PLACE: Uniformed Services University of the Health Sciences, Board of Regents Conference Room (D3001), 4301 Jones Bridge Road, Bethesda, MD 20814-4799. STATUS: Open-under "Government in the Sunshine Act" (5 U.S.C. 552b(e)(3)). MATTERS TO BE CONSIDERED: 8:30 a.m. Meeting Board of Regents (1) Approval of Minutes-November 14, 2001 (2) Faculty Matters (3) Department Reports (4) Financial Report (5) Report-President, USUHS (6) Report-Dean, School of Medicine (7) Report-Dean, Graduate School of Nursing (8) Comments-Chairman, Board of Regents (9) New Business CONTACT PERSON FOR MORE INFORMATION: Mr. Bobby D. Anderson, Executive Secretary, Board of Regents, (301) 295- 3116. Dated: February 8, 2002. Linda Bynum, OSD Federal Register Liaison Officer, Department of Defense. [FR Doc. 02-3683 Filed 2-11-02; 3:32 pm] BILLING CODE 5001-08-M DEPARTMENT OF EDUCATION Submission for OMB Review; Comment Request AGENCY: Department of Education. SUMMARY: The Leader, Regulatory Information Management Group, Office of the Chief Information Officer invites comments on the submission for OMB review as required by the Paperwork Reduction Act of 1995. DATES: Interested persons are invited to submit comments on or before March 15, 2002. ADDRESSES: Written comments should be addressed to the Office of Information and Regulatory Affairs, Attention: Lauren Wittenberg, Desk Officer, Department of Education, Office of Management and Budget, 725 17th Street, NW., Room 10202, New Executive Office Building, Washington, DC 20503 or should be electronically mailed to the internet address La uren_WittenbergQomb.eop.gov. SUPPLEMENTARY INFORMATION: Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that the Office of Management and Budget (OMB) provide interested Federal agencies and the public an early opportunity to comment on information collection requests. OMB may amend or waive the requirement for public consultation to the extent that public participation in the approval process would defeat the purpose of the information collection, violate State or Federal law, or substantially interfere with any agency's ability to perform its statutory obligations. The Leader, Regulatory Information Management Group, Office of the Chief Information Officer, publishes that notice containing proposed information collection requests prior to submission of these requests to OMB. Each proposed information collection, grouped by office, contains the following: (1) Type of review requested, e.g. new, revision, extension, existing or reinstatement; (2) Title; (3) Summary of the collection; (4) Description of the need for, and proposed use of, the information; (5) Respondents and frequency of collection; and (6) Reporting and/or Recordkeeping burden. OMB invites public comment. U.S. ARMY CORPS OF ENGINEERS 0973 WILMINGTON DISTRICT Action ID: 200200883 TIP No: State Project No: 6.552045T County: Montgomery GENERAL PERMIT (REGIONAL AND NATIONWID Applicant: North Carolina Department of Transportation Ujr!il?E?u f ??- Address: W.F. Rosser, P.E., Division Engineer North Carolina Department of Transportation, Division 8 P.O. Box 1067 A& 6R Aberdeen, North Carolina 28315 1 L TY Telephone Number: (910) 944-2344 Size and Location of project (waterway, road name/number, town, etc.): 84 linear feet of 60-inch CMP culvert and the relocation of approximately 90 linear feet of stream channel at centerline station 209+67 on SR 1134 in an unnamed tributary to Barnes Creek in Montgomery County, North Carolina. Description of Activity: To replace 36 linear feet of existing 60-inch CMP culvert with 84 linear feet of 60-inch CMP culvert with headwall on upstream end and install a temporary diversion structure consisting of 95 linear feet of fabric- lined channel, 32 linear feet of temporary 24-inch CMP diversion pipe and fabric-covered stone berms placed on filter cloth on the upstream and down stream side of the diversion structure. The project also involves the relocation of approximately 90 linear feet of stream channel. 30 linear feet of class B rip-rap is to be placed on both banks at each end of the culvert for bank protection. Traffic will be detoured onto existing roadways during construction. All temporary fill is to be removed from the waterway in its entirety upon completion of the construction. Applicable Law: X Section 404 (Clean Water Act, 33 U.S.C. 1344) Section 10 (River and Harbor Act of 1899) Authorization: 14/33 Nationwide Permit Number Regional General Permit Number Your work is authorized by this Regional General (RGP) or Nationwide (NWP) Permit provided it is accomplished in strict accordance with the attached conditions and your submitted plans. If your activity is subject to Section 404 (if Section 404 block above is checked), before beginning work you must also receive a Section 401 water quality certification from the N.C. Division of Environmental Management, telephone (919) 733-1786. For any activity within the twenty coastal counties, before beginning work you must contact the N.C. Division of Coastal Management, telephone (919) 733-2293. Please read and carefully comply with the attached conditions of the RGP or NWP. Any violation of the conditions of the RGP or NWP referenced above may subject the permittee to a stop work order, a restoration order, and/or appropriate legal action. This Department of the Army RGP or NWP verification does not relieve the permittee of the responsibility to obtain any other required Federal, State, or local approvals/permits. The permittee may need to contact appropriate State and local agencies before beginning work. If there are any questions regarding this authorization or any of the conditions of the RGP or NWP, please contact the Corps Regulatory Official specified below. Date 9 July 2002 Corps Regulatory Official Richard K. S encer Telephone No. (910) 251-4172 Expiration Date of Verification 9 July 2005 CF: NCDOT, Art King (Division 8) NCDWQ, Cynthia Van Der Wiele? Action ID: 200200883 TIP No: State Project No: 6.552045T County: Montgomery GENERAL PERMIT (REGIONAL AND NATIONWIDE) VERIFICATION SPECIAL CONDITIONS The permittee shall construct the stream channel relocation in the dry. The permittee shall stabilize the relocated channel before stream flows are directed into the new channel. Stream flow shall not be released into the new channel until the Corps of Engineers has approved the release. Vegetation used to stabilize banks shall be limited to native woody species. 2. The permittee shall construct the stream relocation in accordance with the North Carolina Wildlife Resources Commission's (NCWRC) "Stream Relocation Guidelines", and with the attached permit drawings. NCDOT should consult with NCWRC on the stream relocation and implement all practicable recommendations in the design of specific site requirements for re-establishment of bank vegetation, and placement of meanders and habitat structures. Vegetation shall be used to the maximum extent practicable to stabilize banks, and riprap and other man-made structural measures shall be minimized. 3. The permittee shall visually monitor the vegetative plantings on the relocated stream banks to assess and insure complete stabilization of the relocated stream segment. This monitoring shall include adequate visual monitoring of planted vegetation quarterly for a minimum of two years after final planting, and appropriate remedial actions (e.g., replanting, streambank grading, etc.). If within any monitoring year, bank stabilization is not acceptable as determined by the Corps of Engineers, and remedial action required by the Corps of Engineers is performed, the two year monitoring of the affected portions of the stream will begin again. The permittee will coordinate stream construction activities with the Corps of Engineers, Wilmington NCDOT Regulatory Project Manager, and will report verbally on the status of the stream relocation within thirty days of the quarterly monitoring. The permittee will submit to the NCDOT Regulatory Project Manager a brief written report with representative photographs within 90 days after each monitoring year is completed. 4. The permittee shall provide the NCDOT Regulatory Project Manager with a stream mitigation construction sequencing schedule within 30 days following the project preconstruction meeting. The plan, shall at a minimum, indicate a date of start of construction, grading schedule, planting schedule, completion of construction, monitoring schedule, and a date of potential diversion into the new channel. A N D O L P H C O U N T Y 3I al - - - 1379 ly`9 :35] l/J'I /, 1 •34 , JGt'. 7C5 171 , L s ! =}t ?/ _ = I ' .fSnr ?' 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I ,?I '?r I. i 1`??`,r / .`_. l, t i -- ''.I - (.?y .• :/ --- f t `?TF , t 'Irj' `.3&25 , i ` • ` . / '`, ri? r"\.?1? f fr r' • r . jj,/? vv. L t _. ` 1 - •'!( , - `ll .? _? i .i?r,i -/ f '? 4•--r I' ` ?' i .\?•+?ITij , /`1 i,f ? I + V• •f, ?` ' I I ' . r l / r, `?i f ' f \ 1? 5 \? r' " ^_l`.?. -? f 1 , , 1 \ , -?' ? . / ' ? -• ?' ( } ] \ ' ` ? ? / '?- I ? ' i? ? ? ? { I • ` t 7 ? ? ,, . ,' f,i^;???;' r- ` J : /l . t } \ .;; `, `? , -? / mar ;111 [?? 7 ? V 1 ?, ? ,. J i • \ \ `? ,'I ?t ? ffr ?` ???? ? ?' ' • + ,' 1. J '!r' / j ? l ',i / ? i t?L? ? ?. ? r ??`-- ? r- -?- \ ? ? ( ? ? i ?t ?f ?\\ ``II ( /,! t ? ? f r? ?,?•,? ? : `, L.--l ? e ??_: ?. •\ ' ' r•1 ? i ? , , f i. ! ? ? t 'i -? .!?/ ? ? ?' ir t ` l ? ` ?? +l ? l ' /rI t\? fill ? ,''4, f, 4(r ???I. f 1,``' // f ? \ ?-L t LV^?-aw t.op; rngm s, iyyy ue:.orme i armouTn, iLr, wino Jource Lary: U 3U,3 f---1jpp ft Scale: I • 12,,400 Detail: 13-0. Datum: NN'GS84 PROJECT REFERENCE N0. SK 1 REVISED S-30-2002 ACC 139' (NET) OF EXIST. STREAM 1TO BE FILLED IN Ply Sta. 2/0 *27.96 (175' STREAM - 32/0 PERMA NENT STREAM RELOCATION / (SEE DETAIL) f --?'" PROPOSED R/W ------------------ -? --- ---------- PROPOSED R/W _ --- --------- PT Sta. 208 +3/.84 TEMPORARY DIVERSION CHANNEL WITH 95' OF TRAPEZOIDAL CHANNEL / PROPOSED ENOWALL FOR PROPOSED Pl'?ll\( TEM PLAN (TEMPORARY GRAPHIC SCALES 20 0 20 40 so.. I =NJ PLANS EXISTING PLAN Pr?r? ?' Ite DBISION OF HIGHWAYS ROCK61 &W DISTRICT OFFICE GEAIERAL DRAWNG PW MUM MW DAIS 60" CORRUGATED METAL PIPE REPL4CEMEN7 2484042 RIGET OF WAY PUNS DAIS K R HEDO ? PIPE NO.6 NMI udm SLRIM BY. MONTGOMERY COUN, 7Y - SR 1134 kocM JW DM Offia CO>rSTRUCTIOE PLUS DAIS D DR4L14GE DES(&Y rr POTSta 209+61 AC. COCHRAN BERM DETAIL . FILTER FABRIC PIN ABC .STONE FLOW BERM-' R 1134 PROPOSED R/W ----------------- 210 2 OF 3 REVISED 5-30-2002 ACC PERMANENT STREAM RELOCATION (SEE DETAIL) Y - `C PROPOSED " FILTER FABRIC ANCHORED WITH RIP RAP TO PREVENT SCOURING OF STREAM BED --'---------- TONE BERM WITH ABRIC COVER EXISTING STREAM DETAIL NOTES. 1. CHANNEL CHANGE DUE TO ALIGNMENT CHANGE. 2. COSTRUCT TEMPORARY DIVERSION CHANNEL 3. INSTALL TEMPORARY STONE BERMS FOR EROSION. 4. INSTALL DIVERSION PIPE. 5. REMOVE EXISTING 60" CMP. 6. INSTALL 60" CMP AND ENDWALL, PLACE SILT FENCE AS REQUIRED. 7. CONSTRUCT PROPOSED STREAM CHANNEL & VEGETATE. 8. REMOVE STONE BERMS, THEN SEED & MULCH. 9. FILL TEMPORARY DIVERSION CHANNEL & REMOVE DIVERSION PIPE. NOT TO SCALE PLt.1 DAIS 1-18-1002 S PBED BY. WCMGfM MW Of a DRlWY BY. Prwad ? It DATSI01Y OF EGHWAY? ROCRIY09 DISTRICT OFFICE R12T OF WAY PIdYS DATE C0,5SIRCCT Y PUNS DATE DIVERSION & EROSION CONTROL 60" CORRUGATED METAL PIPE REPL9CEME T k t Ham: = PIPE NO.6 MONTGOMERY COB 77 - SR 1134 DUNCE DOGN ?? POTSra. 209+61 Q=i14.4 cf5 I /=9b' S=OD2639 f;/f; I I ; LON DE°7r=25' N-0.03 PROPOSED STREAM DETAIL 1/1 PERMANENT SEED v ' 0=!822 cfs I /=101 fps S=0.025 ft/ft 35 FLOW DEP7 H=25' N?D3 STREAM IMPACTS LENGTH RELOCATED=50' PIPE LENGTH=84' RIP RAP LENGTH= 15' NET IMPACT 149' PROPOSED R/W e\e?l PROPOSED R/W \\ /x 15' 3 OF ACC ?G NEW 1?0 F GRASSED STREAM RIP RAP j- SR 1134 ExP?sE?Qp?CWUgtv?E QT OARREL S OP EDGE OF CUACERT y i c xxrs? a W a W C NOT TO SCALE 12, BARS l? STREAM HE'D ELEVATION 4'--1 r- •4 BARS - ?-¢ 60" C" I -Y4• •c• eons i e 3' CTS. y I <c PrWed 4Ile DIl•15IO:N OF 6IGMYS ROCRLN(EN DISTRICT OFFICE 'MUM PPUN3 WE 2-188-20001 02 RIGEI OF WAY PUPS DAIS K R HEDKa 1- SGRVi;YED BY. ROCI MGM DI5111Ci ORE COMM .PL4NS a4m ra D)UN BY., DUNCE May AC COM M CROSS SECTION CROSS SECTION RIP ^;;P SITE PLM 60" CORRUGATED METAL PIPE REPL9CEM7 PIPE NO.6 MONTGOMERY COUNTY - SR 1134 POTSia. 209+67 ?Ak 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: CESWW-RG, P.O. Box 1890, Wilmington, NC 28402-1890 North Dakota Omaha District Engineer, ATTN: CEN4110- 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: CENWP- PE-G, P.O. Box 2946, Portland, OR 97208- 2946 Pennsylvania Baltimore District Engineer, ATTN: CENAB- OP-R, P.O. Box 1715, Baltimore, MD 21203-1715 Rhode Island New England District Engineer, ATTN: CENAE-R, 696 Virginia Road, Concord, MA 01742-2751 South Carolina Charleston District Engineer, ATTN: CESAC- CO-P, P.O. Box 919, Charleston, SC 29402-0919 South Dakota Omaha District Engineer, ATTN: CENWO- OP-R, 106 South 15th Street, Omaha, NE 68102-1618 Tennessee Nashville District Engineer, ATTN: CELIUN- OP-F, P.O. Box 1070, Nashville, TN 37202-1070 Texas Ft. Worth District Engineer, ATTN: CESWF- PER-R, P.O. Box 17300, Ft. Worth, TX 76102-0300 Utah Sacramento District Engineer, ATTN: CESPK-CO-R, 1325 J Street, CA 95814- 2922 Vermont New England District Engineer, ATTN: CENAE-R, 696 Virginia Road, Concord, MA 01742-2751 Virginia Norfolk District Engineer, ATTN: CENAO- OP-R, 803 Front Street, Norfolk, VA 23510-1096 Washington Seattle District Engineer, ATTN: CENWS- OP-RG, P.O. Box 3755, Seattle, WA 98124- 2255 West Virginia Huntington District Engineer, ATTN: CELRH-OR-F, 502 8th Street, Huntington, WV 25701-2070 Wisconsin St. Paul District Engineer, ATTN: CEMVP- CO-R; 190 Fifth Street East, St. Paul, MN 551&1-1638 Wyoming Omaha District Engineer, ATTN: CENWO- 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, Guam, & Commonwealth of, the Northern Mariana Islands) Honolulu District Engineer, ATTN: CEPOH- EC-R, Building 230, Fort Shafter, Honolulu, HI 96858-5440 Puerto Rico 6 Virgin Islands Jacksonville District Engineer, ATTN: CESAJ--CO-R, P.O. Box 4970, Jacksonville, FL 32202-4412 Dated: January 4, 2002. Approved: Robert H. Griffin, Brigadier General, U.S. Army, Director of Civil Works. Nationwide Permits, Conditions, Further Information, and Definitions A. Index of Nationwide Permits, Conditions, Further Information, and Definitions Nationwide Permits 1. Aids to Navigation 2. Structures in Artificial Canals 3. Maintenance 4. Fish and Wildlife Harvesting, Enhancement, and Attraction Devices and Activities 5. Scientific Measurement Devices 6. Survey Activities 7. Outfall Structures and Maintenance 8. Oil and Gas Structures 9. Structures in Fleeting and Anchorage Areas 10. Mooring Buoys 11. Temporary Recreational Structures 12. Utility Line Activities 13. Bank Stabilization 14. Linear Transportation Projects 15. U.S. Coast Guard Approved Bridges 16. Return Water From Upland Contained Disposal Areas 17. Hydropower Projects 18. Minor Discharges 19. Minor Dredging 20. Oil Spill Cleanup 21. Surface Coal Mining Activities 22. Removal of Vessels 23. Approved Categorical Exclusions 24. State Administered Section 404 Programs 25. Structural Discharges 26. [Reserved] 27. Stream and Wetland Restoration Activities 28. Modifications of Existing Marinas 29. Single-family Housing 30. Moist Soil Management for Wildlife 31. Maintenance of Existing Flood Control Facilities 32. Completed Enforcement Actions 33. Temporary Construction, Access and Dewatering 34. Cranberry Production Activities 35. Maintenance Dredging of Existing Basins 36. Boat Ramps 37. Emergency Watershed Protection and Rehabilitation 38. Cleanup of Hazardous and Toxic Waste 39. Residential, Commercial, and Institutional Developments 40. Agricultural Activities 41. Reshaping Existing Drainage Ditches 42. Recreational Facilities 43. Stormwater Management Facilities 44. Mining Activities Nationwide Permit General Conditions 1. Navigation 2. Proper Maintenance 3. Soil Erosion and Sediment Controls 4. Aquatic Life Movements 5. Equipment 6. Regional and Case-by-Case Conditions 7. Wild and Scenic Rivers 8. Tribal Rights 9. Water Quality 10. Coastal Zone Management 11. Endangered Species 12. Historic Properties 13. Notification 14. Compliance Certification 15. Use of Multiple Nationwide Permits. 16. Water Supply Intakes 17. Shellfish Beds 18. Suitable Material 19. Mitigation 20. Spawning Areas 21. Management of Water Flows 22. Adverse Effects from Impoundments 23. Waterfowl Breeding Areas 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 (BMPs) Compensatory Mitigation Creation Enhancement Ephemeral Stream Farm Tract Flood Fringe Floodway Independent Utility Intermittent Stream Loss of Waters of the US Non-tidal Wetland Open Water Perennial Stream Permanent Above-grade Fill Preservation Restoration Riffle and Pool Complex 2078 Federal Register /Vol. 67, No. 10 /Tuesday, January 15, 2002 /Notices }# Single and Complete Project Stormwater Management bridges, culverted road crossings, water done primarily to obtain fill for any Stormwater Management Facilities Stream Bed intake structures, etc.) and the placement of new or additional riprap t restoration activities. The discharge of o dredged or fill material and all related Stream Channelization Tidal Wetland V protect the structure, provided the permittee notifies the District Engineer work needed to restore the upland must be part of a single and complete project egetated 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 conjunction with NWP 18 or NWP 19 to to the minimum necessary to restore the restore damaged upland areas. This B. Nationwide Permits waterway in the immediate vicinity of the structure to the ap roximate permit cannot be used to reclaim h 1. Aids to Navigation. The placement of aids to navigation and Regulatory p dimensions that existed when the r istoric lands lost, over an extended period, to normal erosion processes. markers which area roved b and pp roved installed in accordance with the structu e was built, but cannot extend further than 200 feet in any direction This permit does not authorize maintenance dredging for the primar requirements of the U.S. Coast Guard (USCG) (See 33 CFR, chapter I, from the structure. The lacement of ri p p rap must be the minimum necessary to y purpose of navigation and beach restoration. This permit does not subchapter C part 66). (Section 10) ` 2. Structures r Artificial Canals. protect the structure or to ensure the safety of the structure. All excavated authorize new stream channelization or stream relocation projects. Any work Structures constructed in artificial canals within principally residential materials must be deposited and retained in an upland area unless authorized by this permit must not cause more than minimal de radation of developments where the connection of the canal to navigable water of the US S otherwise specifically approved by the District Engineer under separate . g water quality,, more than minimal chan es to the fl h has been previously authorized (see ho 33 authorization. Any bank stabilization g ow c aracteristics of the stream, or increase flooding (See CFR 322.5(8)). (Section •3. Maintenance. Activities related to: measures not directly associated with the structure will require a separate General Conditions 9 and 21). (Sections 10 and 404) (i) The repair, rehabilitation, or replacement of any previously authorization from the District Engineer. (iii) Discharges of dredged or fill Note: This NWP authorizes the repair, 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 contemplated for it in the original construction, placement, or installation of upland protection structures and , and Activities. Fish and wildlife harvesting devices and activities such as permit or the most recently authorized modification. Minor deviations in the ' minor dredging to remove obstructions in a water of the US. (Uplands lost as pound nets, crab traps, crab dredging, eel pots, lobster traps, duck blinds clam structure s configuration or filled area including those due to changes in a result of a storm, flood, or other discrete event can be replaced without , and oyster digging; and small fish 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 standards which are necessary to make uplands are restored to their original pre-event location. This NWP is for the NWP authorizes shellfish seeding provided Phis 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 (includin environmental effects resulting from such repair, rehabilitation, or The permittee must notify the District Engineer, in accordance with General g sites where submerged aquatic vegetation is documented to exist but replacement are minimal. Currently serviceable means useable as is or with Condition 13, within 12-months of the date of the damage and the work must , may not be present in a given year.). This NWP does not authorize artificial some maintenance, but not so degraded as to essentially require reconstruction. commence, or be under contract to commence, within two years of the date reefs or impoundments and semi- impoundments of waters of the US for This NWP authorizes the repair, rehabilitation, or replacement of those of the damage. The permittee should provide evidence, such as a recent the culture or holding of motile species such as lobster or the use of covered structures or fills destroyed or damaged by storms, floods, fire or other discrete topographic survey or photographs, to justify the extent of the proposed oyster trays or clam racks. (Sections 10 and 404) events, provided the repair, rehabilitation, or replacement is restoration. The restoration of the damaged areas cannot exceed the , 5. Scientific Measurement Devices. Devices, whose purpose is to measure commenced, or is under contract to commence, within two years of the date contours, or ordinary high water mark, that existed before the dama Th and record scientific data such as staff of their destruction or damage. In cases ge. e District Engineer retains the right to gages, tide gages, water recording devices, water quality testing and of catastrophic events, such as hurricanes or tornadoes, this two-year determine the extent of the pre-existing conditions and the extent of any improvement devices and similar stru t S l limit may be waived by the District Engineer provided the ermittee c restoration work authorized by this e it Mi d d c ures. ma l weirs and flumes constructed primarily to record water , p an demonstrate funding, contract, or other p rm . nor re ging to remove obstructions from the adjacent quantity and velocity are also authorized provided the dischar e is similar delays. (ii) Discharges of dredged or fill waterbody is limited to 50 cubic yards below the plane of the ordinary high g limited to 25 cubic yards and further for discharges of 10 to 25 cubic yards material, including excavation, into all waters of the US to remove accumulat d water mark, and is limited to the provided the permittee notifies the e sediments and debris in the vicinity of, amount necessary to restore the pre- existing bottom contours of the District Engineer in accordance with the "Notification" General Conditi and within, existing structures (e.g., waterbody. The dredging may not be on. (Sections 10 and 404) % Federal Register/Vol. 67, No. 10/Tuesday, January 15, 2002/Notices 2079 6. Survey Activities. Survey activities including core sampling, seismic exploratory operations, plugging of seismic shot holes and other exploratory-type bore holes, soil survey, sampling, and historic resources surveys. Discharges and structures associated with the recovery of historic resources are not authorized by this NWP. Drilling and the discharge of excavated material from test wells for oil and gas exploration is not authorized by this NWP; the plugging of such wells is authorized. Fill placed for roads, pads and other similar activities is not authorized by this NWP. The NWP does not authorize any permanent structures. The discharge of drilling mud and cuttings may require a permit under section 402 of the CWA. (Sections 10 and 404) ,-7. Outfall Structures and Maintenance. Activities related to: (i) Construction of outfall structures and associated, intake structures where the effluent from the outfall is authorized, conditionally authorized, or specifically exempted, or are otherwise in compliance with regulations issued under the National Pollutant Discharge Elimination System Program (Section 402 of the CWA), and (ii) Maintenance excavation, including dredging, to remove accumulated sediments blocking or restricting outfall and intake structures, accumulated sediments from small impoundments associated with outfall and intake structures, and accumulated sediments from carrals associated with outfall and intake structures, provided that the activity meets all of the following criteria: a. The permittee notifies the District Engineer in accordance with General Condition 13; b. The amount of excavated or dredged material must be the minimum necessary to restore the outfalls, intakes, small impoundments, and canals to original design capacities and design configurations (i.e., depth and width); c. The excavated or dredged material is deposited and retained at an upland site, unless otherwise approved by the District Engineer under separate authorization; and. d. Proper soil erosion and sediment control measures are used to minimize reentry of sediments into waters of the us. The construction of intake structures is not authorized by this NWP, unless they are directly associated with an authorized outfall structure. For maintenance excavation and dredging to -remove accumulated sediments, the notification must include information regarding the original design capacities and configurations of the facility and the presence of special aquatic sites e.g., vegetated shallows) in the vicinity of the proposed work. (Sections 10 and 404) 8. Oil and Gas Structures. Structures for the exploration, production, and transportation of oil, gas, and minerals on the outer continental shelf within areas leased for such purposes by the DOI, Minerals Management Service (MMS).'Such structures shall not-be placed. within the limits of any designated shipping safety fairway or traffic separation scheme, except temporary anchors that comply with the fairway regulations in 33 CFR 322.5(1). (Where such limits have not been designated, or where changes are anticipated, District Engineers will consider asserting discretionary authority in accordance with 33 CFR 330.4(e) and will also review such proposals to ensure they comply with the provisions of the fairway regulations in 33 CFR 322.5(1). Any Corps review under this permit will be limited to the effects on navigation and national security in accordance with 33 CFR .322.5(f)). Such structures will not be placed in established danger zones or restricted areas as designated in 33 CFR part 334: nor will such structures be permitted in EPA or Corps designated dredged material disposal areas. (Section 10) 9. Structures in Fleeting and Anchorage Areas. Structures, buoys, floats and other devices placed within anchorage or fleeting areas to facilitate moorage of vessels where the USCG has established such areas for that purpose. (Section 10) , 10. Mooring 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 repair of utility lines, including outfall and intake structures and the associated excavation, backfill, or bedding for the utility lines, in all waters of the US, provided there is no change in preconstruction contours. A "utility line" is defined as any pipe or pipeline for the transportation of any gaseous, liquid, liquescent, or slurry substance, for any purpose, and any 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 backfiIled'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 discharges do 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, 2002/Notices elevations (e.g., at grade corduroy roads or geotextile/gravel roads). Access road 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 o the US, such as drainage tile, or french drains; however, it does apply to pipes conveying drainage from another area. For the purposes of this NWP, the loss of waters of the US includes the filled area plus waters of the US that are adversely affected by flooding, excavation, or drainage as a result of the project. Activities authorized by paragraph (i) through (iv) may not exceed a total of 1h-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 met: (a) Mechanized land clearing in a forested wetland for the utility line right-of-way; (b) A Section 10 permit is required; (c) The utility line in waters of the s US, excluding overhead lines, exceeds 500 feet; (d) The utility line is placed within a jurisdictional area (i.e., water of the US) and it runs parallel to a stream bed that is within that jurisdictional area; f (e) Discharges associated with the construction of utility line substations that result in the loss of greater than /,o acre of waters of the US; or (f) Permanent access roads constructed 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: Overhead utility lines 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 NVVP verification will 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 (properly 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 and conditions of the N4VP and 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) Q4. Line or 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 1h-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 1/io-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 stream 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 channelization, 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. 10 I 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 from the need for a Section 404 permit (see 33 CFR 323.4). • 15. U.S. Coast Guard Approved Bridges. Discharges of dredged or fill material incidental to the construction of bridges across navigable waters of the US, including cofferdams, abutments, foundation seals, piers, and temporary construction and access fills provided such discharges have been authorized by the USCG as part of the bridge. permit. Causeways and approach fills are not included in this NWP and will require an individual or regional Section 404 permit. (Section 404) .16. Return Water From Upland Contained Disposal Areas. Return water from upland, contained dredged material disposal area. The dredging itself may require a Section 404 permit (33 CFR 323.2(d)), but will require a Section 10 permit if located in navigable waters of the US. The return water from a contained disposal area is administratively.defined as a discharge of dredged material by 33 CFR 323.2(d), even though the disposal itself occurs on the upland and does not require a Section 404 permit. This MVP satisfies the technical requirement for a Section 404 permit for the return water where the quality of the return water is controlled by the state through the Section 401 certification procedures. (Section 404) 17. Hydropower Projects. Discharges of dredged or fill material associated with (a) small hydropower projects at existing reservoirs where the project, which includes the fill, are licensed by the Federal Energy Regulatory Commission (FERC) under the Federal Power Act of 1920, as amended; and has a total generating capacity of not more than 5000 klV; 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.:_Minor Discharges. Minor discharges of dredged or fill material into all waters of the US if the activity meets all of the following criteria: a. The quantity of discharged material and the volume of area excavated do not exceed 25 cubic yards below the plane of the ordinary high water mark or the high tide line; b. The discharge, including any excavated area, will not cause the loss of more than'/io-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 mark from navigable waters of the US (i.e., Section 10 waters) as part of a single and complete project. This NWP does not authorize the dredging or degradation through siltation of coral reefs, sites that support submerged aquatic vegetation (including sites where submerged aquatic vegetation is documented to exist, but may not be present in a given year), anadromous 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(g)). (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 mitigation, the District Engineer will ensure no more than minimal adverse effects to the aquatic environment occur. As such, District Engineers will determine on a case-by-case basis the requirement for adequate mitigation to ensure the effects to aquatic systems are minimal. In cases where OSM or the state has required mitigation for the loss of aquatic habitat, the Corps may consider this in determining appropriate mitigation under Section 404. (Sections 10 and 404) 22. Removal of Vessels. Temporary structures or minor discharges of dredged or fill material required for the removal of wrecked, abandoned, or disabled vessels, or the removal of man- :: 2082 Federal Register/Vol. 67, No. 10/Tuesday, January 15, 2002/Notices made obstructions to navigation. This NWP does not authorize the removal o of vessels listed or determined eligible fo for listing on the National Register of Historic Places unless the District Engineer is notified and indicates that there is compliance with the "Historic Properties" General Condition. This NWP does not authorize maintenance dredging, shoal removal, or riverbank snagging. Vessel disposal in waters of the US may need a permit from EPA (see 40 CFR 229.3). (Sections 10 and 404) 23. Approved Categorical Exclusions. Activities undertaken, assisted, authorized, regulated, funded, or financed, in whole or in part, by anothe Federal agency or department where that agency or department has determined, pursuant to the Council on Environmental Quality Regulation for Implementing the Procedural Provisions of the National Environmental Policy Act (NEPA) (40 CFR part 1500 et seq.), that the activity, work, or discharge is categorically excluded from environmental documentation, because it is included within a category of actions which neither individually nor cumulatively have a significant effect on the human environment, and the Office of the Chief of Engineers (ATTN: CECW- OR) has been furnished notice of the agency's or department's application for the categorical exclusion and concurs with that determination. Before approval for purposes of this NWP of any agency's categorical exclusions, the Chief of Engineers will solicit public comment. In addressing these comments, the Chief of Engineers may require certain conditions for- authorization of an agency's categorical exclusions under this NWP. (Sections 10 and 404) 24. State Administered Section 404 Program. Any activity permitted by a state administering its own Section 404 permit program pursuant to 33 U.S.C. 1344(8)-(1) is permitted pursuant to section 10 of the Rivers and Harbors Act of 1899. Those activities that do not involve a Section 404 state permit are not included in this NWP, but certain structures will be exempted by section 154 of Pub. L. 94-587, 90 Stat. 2917 (33 U.S.C. 591) (see 33 CFR 322.3(a)(2)). (Section 10) 25. Structural Discharges. Discharges of material such as concrete, sand, rock, etc., into tightly sealed forms or cells where the material will be used as a structural member for standard pile supported structures, such as bridges, transmission line footings, and walkways or for general navigation, such as mooring cells, including the excavation of bottom material from within the form prior to the discharge concrete, sand, rock, etc. This NWP does not authorize filled structural members that would support buildings building pads, homes, house pads, parking areas, storage areas and other such structures. The structure itself ma require a Section 10 permit if located i in navigable waters of the US. (Section 404) 26. (Reserved] 27. Stream and Wetland Restoration Activities. Activities in waters of the U associated with the restoration of forme waters, the enhancement of degraded tidal and non-tidal wetlands and riparian areas, the creation of tidal and r non-tidal wetlands and riparian areas, and the restoration and enhancement of non-tidal streams and non-tidal open water areas as follows: (a) The activity is conducted on: (1) Non-Federal public lands and-. private lands, in accordance with the terms and conditions of a binding wetland enhancement, restoration, or creation agreement between the landowner and the U.S. Fish and Wildlife Service (FWS) or the Natural Resources Conservation Service (NRCS), the National Marine Fisheries Service, the National Ocean Service, or voluntary wetland restoration, enhancement, and creation actions documented by the NRCS pursuant to NRCS regulations; or (2) Reclaimed surface coal mine lands, in accordance with a Surface Mining Control and Reclamation Act permit issued by the OSM or the applicable state agency (the future reversion does not apply to streams or wetlands created, restored, or enhanced as mitigation for the mining impacts, nor naturally due to hydrologic or topographic features, nor for a mitigation bank); or (3TAny other public, private or tribal lands; (b) Notification: For activities on any public or private land that are not described by paragraphs (a)(1) or (a)(2) above, the permittee must notify the District Engineer in accordance with General Condition 13; and (c) Planting of only native species should occur on the site. Activities authorized by this NWP include, to the extent that a Corps permit is required, but are not limited to: the removal of accumulated sediments; the installation, removal, and maintenance of small water control structures, dikes, and berms; the installation of current deflectors; the enhancement, restoration, or creation of riffle and pool stream structure; the placement of in-stream habitat structures; modifications of the stream of bed and/or banks to restore or create stream meanders; the backfilling of artificial channels and drainage ditches; the removal of existing drainage structures; the construction of small nesting islands; the construction of open y water areas; the construction of oyster habitat over unvegetated bottom in tidal waters; activities needed to reestablish vegetation, including plowing or discing for seed bed preparation and the planting of appropriate wetland species; S mechanized land clearing to remove r non-native invasive, exotic or nusiance vegetation; and other related activities. This NWP does not authorize the conversion of a stream to another aquatic use, such as the creation of an impoundment for waterfowl habitat. This NWP does not authorize stream channelization. This NWP does not authorize the conversion of natural wetlands to another aquatic use, such as creation of waterfowl impoundments where a forested wetland previously existed. However, this NWP authorizes the relocation of non-tidal waters, including non-tidal wetlands, on the project site provided there are net gains in aquatic resource functions and values. For example, this NWP may authorize the creation of an open water impoundment in a non-tidal emergent wetland, provided the non-tidal emergent wetland is replaced by creating that wetland type on the project site. This NWP does not authorize the relocation of tidal waters or the conversion of tidal waters, including tidal wetlands, to other aquatic uses, such as the conversion of tidal wetlands into open water impoundments. Reversion. For enhancement, restoration, and creation projects conducted under paragraphs (a)(3), this NWP does not authorize any future discharge of dredged or fill material associated with the reversion of the area to its prior condition. In such cases a separate permit would be required for any reversion. For restoration, enhancement, and creation projects conducted under paragraphs (a)(1) and (a)(2), this NWP also authorizes any future discharge of dredged or fill material associated with the reversion of the area to its documented prior condition and use (i.e., prior to the restoration, enhancement, or creation activities). The reversion must occur within five years after expiration of a - limited term wetland restoration or creation agreement or permit, even if the discharge occurs after this NWP expires. This NWP also authorizes the reversion of wetlands that were restored, enhanced, or created on prior-converted cropland that has not been abandoned, in accordance with a binding agreement 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. This N11VP can be used to authorize compensatory mitigation projects, including mitigation banks, provided the permittee notifies the District Engineer in accordance with General Condition 13, and the project includes compensatory mitigation for impacts to waters of the US caused by the authorized work. However, this NWP does not authorize the reversion of an area used for a compensatory mitigation project to its prior condition. NWP 27 can be used to authorize impacts at a mitigation bank, but only in circumstances where it has been approved under the Interagency Federal Mitigation Bank Guidelines. 28. Modifications of Existing Marinas. Reconfiguration of existing docking facilities within an authorized marina area. No dredging, additional slips, dock spaces, or expansion of any kind within waters of the US, is authorized by this NWP. (Section 10) 29. Single-family Housing. Discharges of dredged or fill material into non-tidal waters of the US, including non-tidal wetlands for the construction or expansion of a single-family home and attendant features (such as a garage, driveway, storage shed, and/or septic field) for an Individual Permittee provided that the activity meets all of the following criteria: a. The discharge does not cause the loss of more than 1/4-acre of non-tidal waters of the US, including non-tidal wetlands; b. The permittee notifies the District Engineer in accordance with the "Notification" General Condition; c. The permittee has taken all practicable actions to minimize the on- site and off-site impacts of the discharge. For example, the location of the home may need to be adjusted on- site to avoid flooding of adjacent property owners; d. The discharge is part of a single and complete project; furthermore, that for any subdivision created on or after November 22, 1991, the discharges, authorized under this NWP may not exceed an aggregate total loss of waters of the US of 1/4-acre for the entire subdivision; e. An individual may use this NWP only for a single-family home for a personal residence; f. This NWP may be used only once per parcel; g. This NWP may not be used in conjunction with NWP 14 or NWP 18, for any parcel; and, h. Sufficient vegetated buffers must be maintained adjacent to all open water bodies, streams, etc., to preclude water quality degradation due to erosion and sedimentation. For the purposes of this NWP, the acreage of loss of waters of the US includes the filled area previously permitted, the proposed filled area, and any other waters of the US that are adversely affected by flooding, excavation, or drainage as a result of the project. This NWP authorizes activities only by individuals; for this purpose, the term "individual" refers to a natural person and/or a married couple, but does not include a corporation, partnership, or similar entity. For the purposes of this NWP, a parcel of land is defined as "the entire contiguous quantity of land in possession of, recorded as property of, or owned (in any form of ownership, including land owned as a partner, corporation, joint tenant, etc.) by the same individual (and/or that individual's spouse), and comprises not only the area of wetlands sought to be filled, but also all land contiguous to those wetlands, owned by the individual (and/or that individual's spouse) in any form of ownership." (Sections 10 and 404) 30. Moist Soil 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 management activities where soil manipulation is used to manage habitat and feeding areas for wildlife. Such activities include, but are not limited to: The repair, maintenance or replacement of existing water control structures; the repair or maintenance of dikes; and plowing or discing to impede succession, prepare seed beds, or establish fire breaks. Sufficient vegetated buffers must be maintained adjacent to all open water bodies, streams, etc., to preclude water quality degradation due to erosion and sedimentation. This NWP does not authorize the construction of new dikes, roads, water control structures, etc. associated with the management areas. This NWP does not authorize converting wetlands to uplands, impoundments or other open water bodies. (Section 404) 31. Maintenance of Existing Flood Control Facilities. Discharge of dredge or fill material resulting from activities associated with the maintenance of existing flood control facilities, including debris basins, retention/ detention basins, and channels that (i) were'previously authorized by the Corps by Individual Permit, General Permit, by 33 CFR 330.3, or did not require a permit at the time it was constructed, or (ii) were constructed by the Corps and transferred to a non-Federal sponsor for operation and maintenance. Activities authorized by this NWP are limited to those resulting from maintenance activities that are conducted within the "maintenance baseline," as described in- - the definition below. Activities' including the discharges of dredged or fill materials, associated with maintenance activities in flood control facilities in any watercourse that has previously been determined to be within the maintenance baseline, are authorized under this MVP. The NVVP does not authorize the removal of sediment and associated vegetation from the natural water courses except to the extent that these have been included in the maintenance baseline. All dredged material must be placed in an upland site or an authorized disposal site in waters of the US, and proper siltation controls must be used. (Activities of any kind that result in only incidental fallback, or only the cutting and removing of vegetation above the ground, e.g., mowing, rotary cutting, and chainsawing, where the activity neither substantially disturbs the root system nor involves mechanized pushing, dragging, or other similar activities that redeposit excavated soil material, do not require a Section 404 permit in accordance with 33 CFR 323.2(d)(2)). Notification: After the maintenance baseline is established, and before any maintenance work is conducted, the permittee must notify the District Engineer in accordance with the "Notification" General Condition. The notification may be for activity-specific :: 2084 Federal Register / Vol. 67, No. 10 / Tuesda o y, January 15, 2002 /Notices maintenance or for maintenance of the entire flood control facility by However, if one-time mitigation is required for impacts associated with activity subject to the terms and submitting a five year (or less) maintenance plan. maintenance activities, the District Engineer will not d l d conditions of this NWP and the settlement agreement, including a e ay nee ed Maintenance Baseline: The maintenance, provided the District maintenance baseline is a description of Engineer and the e itt bl specified completion date; or (ii) The terms of a final Federal court the physical characteristics (e.g., depth, width, length, location, configuration, o p rm ee esta ish a schedule for identification, approval, r development constructio d decision, consent decree, or settlement agreement resulting from an design flood capacity, etc.) of a flood control project within which , n an completion of any such required enforcement action brought by the U.S. under section 404 of the CWA and/or maintenance activities are normally mitigation. Once the one-time mitigation described above has been section 10 of the Rivers and Harbors Act of 1899 or authorized by NWP 31, subject to any case-specific conditions required by the completed, or a determination made that mitigation is not required no ; (iii) The terms of a final court decision consent decr ttl District Engineer. The District Engineer will approve the maintenance baseline , further mitigation will be required for , ee, se ement agreement, or non-judicial settlement based on the approved or constructed maintenance activities within the maintenance baseline. In determining agreement resulting from a natural resource damage claim brou ht b capacity of the flood control facility, whichever is smaller, including any appropriate mitigation, the District En i ill i g y a trustee or trustees for natural resources areas where there are no constructed channels, but which are part of the g neer w g ve special consideration to natural water courses that have been i l (as defined by the National Contingency Plan at 40 CFR subpart G) under section facility. If no evidence of the nc uded in the maintenance baseline and require compensatory mitigation 311 of the Clean Water Act (CWA), section 107 df the Comprehensive constructed capacity exist, the approved constructed capacity will be used. The and/or BMPs as appropriate. Emergency Situations: In emergency Environmental Response, Compensation and Liability Act (CERCLA or prospective permittee will provide documentation of.the physical situations, this NWP may be used to authorize maintenance ti iti i Superfund), section 312 of the National M characteristics of the flood control facility (which will normall consist of ac v es n flood control facilities for which no i t b arine Sanctuaries Act (NMSA), section 1002 of the Oil Pollution Act of 1990 y as-built or approved drawings) and documentation of the desi n ca acities ma n enance aseline has been approved. Emergency situations are th h (OPA), or the Park System Resource Protection Act at 16 U.S.C. '19jj, to the g p of the flood control facility. The ose w ich would result in an unacceptable hazard to life, a significant extent that a Cor s permit is required. For either (i) (iii) or (iii) above documentation will also include BMPs to ensure that the impacts to the aquatic loss of property, or an immediate, unforeseen, and significant economic , , compliance is a condition of the NWP itself. Any authorization under this environment are minimal, especially in maintenance areas where there are no hardship if action is not taken before a maintenance baseline can be approved. NWP is automatically revoked if the permittee does not comply with the constructed channels. (The Corps may In such situations, the determination of terms of this NWP or the terms of the request maintenance records in areas where there has not been recent mitigation requirements, if any, may be deferred until the emergency has been court decision, consent decree, or judicial/non-judicial settlement maintenance.) Revocation or modification of the final determination resolved. Once the emergency has ended, a maintenance baseline must be agreement or fails to complete the work by the specified completion date This of the maintenance baseline can only be done in accordance with 33 CFR 330 5 established expeditiously, and . NWP does not apply to any activities . . Except in emergencies as described mitigation, including mitigation for maintenance conducted during the occurring after the date of the decision, decree, or agreement that are not for the below, this NWP can not be used until the District Engineer approves the emergency, must be required as purpose of mitigation, restoration, or maintenance baseline and determines appropriate. (Sections 10 and 404) 32. Completed Enforcement Actions environmental benefit. Before reaching any settlement agreement the Cor s the need for mitigation and any regional or activity-specific conditions. Once . Any structure, work or discharge of dredged or fill material, remaining in , p will ensure compliance with the provisions of 33 CFR part 326 and 33 determined, the maintenance baseline will remain valid for any subse uent place, or undertaken for mitigation, CFR 330.6 (d)(2) and (e). (Sections 10 q reissuance of this NWP, This permit does not authorize mainte f restoration, or environmental benefit in compliance with either: and 404) 33. Temporary Construction, Access nance o a flood control facility that has been (i) The terms of a final written Corps non-judicial settlement agreement and Dewatering. Temporary structures, work and discharges including abandoned. A flood control facility will be considered abandoned if it h resolving a violation of section 404 of , cofferdams, necessary for construction as operated at a significantly reduced the CWA and/or section 10 of the Rivers and Harbors Act of 1899; or the terms activities or access fills or dewatering of construction sites; provided that the capacity without needed maintenance being accomplished in a timel manner of an EPA 309(a) order on consent l associated primary activity is authorized y . Mitigation: The District Engineer will determine any required miti ation one- reso ving a violation of section 404 of the CWA, provided that: by the Corps of Engineers or the USCG, or for other construction activities not g time only for impacts associated with maintenance work at the same time th t a. The unauthorized activity affected no more than 5 acres of non-tidal subject to the Corps or USCG regulations. Appropriate measures must a the maintenance baseline is approved. wetlands or 1 acre of tidal wetlands; b. The settlement agreement provides betaken to maintain near normal downstream flows and to minimize Such one-time mitigation will be required when necessary to ensure that for environmental benefits, to an equal flooding. Fill must be of materials, and adverse environmental impacts are no or greater degree, than the environmental detriments caused by the placed in a manner, that will not be eroded by expected hi h flows The u more than minimal, both individually and cumulatively. Such mitigation will unauthorized activity that is authorized by this N4VP and g . se of dredged material may be allowed if i only be required once for any specific reach of a flood control roject ; c. The District Engineer issues a if t is determined by the District Engineer that it will not cause more than minimal p . ver ication letter authorizing the adverse effects on aquatic resources. Federal Register/Vol. 67, No. 10 /Tuesday, January 15, 2002 /Notices 2085 Temporary fill must be entirely removed dredged material is disposed of at an to upland areas, or dredged material upland site and pro er siltation c t l hazardous or toxic waste. Activities d k returned to its original location, following com letion of the p on ro s are used. (Section 10) 36 B un erta en entirely on a Comprehensive Environmental p construction activity, and the affected . oat Ramps. 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 d provided: a. The discharge into waters of the CERCLA as approved or required by EPA, are not required to obtain ermits to ewater wetlands or other aquatic areas to change their use. Structures left U.S. does not exceed 50 cubic yards of concrete, rock, crushed stone or ravel p under section 404 of the CWA or section f h in place after cofferdams are removed g into forms, or placement of pre-cast 10 o t e Rivers and Harbors Act. (Sections 10 and 404) require a Section 10 permit if located in navigable waters of the U.S. (See 33 CFR concrete planks or slabs. (Unsuitable material that causes unacceptable 39. Residential, Commercial, and Institutional Developments Dischar es part 322). The permittee must notify the District Engineer in accordance with the chemrcal pollution or is structurally unstable is not authorized) . g of dredged or fill material into non-tidal f h "Notification" General Condition. The ; b. The boat ramp does not exceed 20 waters o t e U.S., excluding non-tidal wetlands adjacent to tidal waters for th notification must also include a restoration plan of reasonable measures feet in width; c. The base material is crushed stone, , e construction or expansion of residential, commercial, and institutional buildin to avoid and minimize adverse effects to aquatic resources. The District Engineer gravel or other suitable material; d. The excavation is limited t th g foundations and building pads and will add Special Conditions, where o e area necessary for site preparation and attendant features that are necessary for 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 , stormwater management facilities, and restrictions; modifying the restoration , Permit, or Individual Permit may recreation facilities such as playgrounds, playing fields and olf plan; and requiring alternative construction methods (e.g. construction authorize dredging to provide access to the boat ramp after obtaining a Section , g courses (provided the golf course is an integral part of the residential mats in wetlands where practicable.). (Sections 10 and 404) 10 if located in navigable waters of the U.S. (Sections 10 and 404) development). The construction of new 34. Cranberry Production Activities. Di h 37. Emergency Watershed Protection ski areas or oil and gas wells is not authorized by this NWP. sc arges of dredged or fill material for dikes, berms, pumps water control and Rehabilitation. Work done by or funded by: Residential developments include , structures or leveling of cranberry beds . a. The NRCS which is a situation multiple and single unit developments, Examples of commercial developments associated with expansion, enhancement, or modification activities requiring immediate action under its emergency Watershed Protection include retail stores, industrial facilities, at existing cranberry production Program (7 CFR part 624); or restaurants, business parks, and shopping centers. Examples of operations provided that the activity meets all of the following criteria: b. The USFS under its Burned-Area Emergency Rehabilitation Handbook institutional developments include schools fire stations overnm t ffi a. The cumulative total acreage of disturbance per cranberry production (FSH 509.13); or c. The DOI for wildland fire , , g en o ce buildings, judicial buildings, public operation, including but not limited to, filling, flooding, ditching, or clearing management burned area emergency stabilization and rehabilitation (DOI works buildings, libraries, hospitals, and places of worship. The activities , 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 followi g U.S., including wetlands; b. The permittee notifies the District For all of the above provisions, the District Engineer must be notified in n criteria: a. The dischar e does not cause the Engineer in accordance with the "Notification" General Condition. The accordance with the General Condition 13. (Also, see 33 CFR 330 1(e)) g loss of greater than 1/2-acre of non-tidal notification must include a delineation . . (Sections 10 and 404) waters of the U.S., excluding non-tidal wetlands adjacent to tidal waters of affected special aquatic sites, including wetlands; and, 38. Cleanup of Hazardous and Toxic Waste. Specific activities required to ; b. The discharge does not cause the c. The activity does not result in a net effect the containment, stabilization, or loss of greater than 300 linear-feet of a stream bed unless for intermittent loss of wetland acreage. This NWP does not authorize any discharge of dredged removal of hazardous or toxic waste materials that are performed ordered or , stream beds this criterion is waived in or fill material related to other cranberry , , sponsored by a government agency with writing pursuant to a determination by the District Engineer as specified production activities such as warehouses, processing facilities, or established legal or regulatory authority provided the permittee notifies the , below, that the project complies with all parking areas. For the purposes of this NW District Engineer in accordance with the " terms and conditions of this NWP and that any adverse impacts of the project P, the cumulative total of 10 acres will be measured over the period that Notification" General Condition. For discharges in special aquatic sites on the aquatic environment are this NWP is valid. (Section 404) , including wetlands, the notification minimal, both individually and cumulatively; 35. Maintenance Dredging of Existing Basins. Excavation and removal of must also include a delineation of affected special aquatic sites includin c. The permittee must notify the D accumulated sediment for maintenance of existin marina basins ac , g wetlands. Court ordered remedial action l istrict Engineer in accordance with General Condition 13, if any of the g , cess channels to marinas or boat slips, and p ans or related settlements are also authorized by this NWP. This NWP does following criteria are met: (1) The dischar e causes the loss of boat slips to previously authorized depths or controlling depths for ingress/ not authorize the establishment of new disposal sites or the expansion of g greater than Vio-acre of non-tidal waters 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 intermittent streams, below the ordinary high water mark (see Note, below); or 6) 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 projects ' ite to the maximum extent practicable. The notification, when required, must include a written statement explaining how avoidance and minimization of losses of waters of the US were achieved on the project site. Compensatory mitigation will normally be required to offset the losses of waters of the US. (See General Condition 19.) The notification must also include a compensatory mitigation proposal for offsetting unavoidable losses of waters of the US. If an applicant asserts that the adverse effects of the project are minimal without mitigation, then the applicant may submit justification explaining why compensatory mitigation should not be required for the District Engineer's consideration, g. When this NWP is used in conjunction with any other NWP, any combined total permanent loss of waters of the US exceeding 1/lo-acre requires that the permittee notify the District Engineer in accordance with General Condition 13; h. Any work authorized by this NWP must not cause more than minimal degradation of water quality or more than minimal changes to the flow characteristics of any stream (see General Conditions 9 and 21); L For discharges causing the loss of Vlo-acre or less of waters of the US, the permittee must submit a report, within i 30 days of completion of the work, to the District Engineer that contains the r following information: (1) The name, address, and telephone number of the permittee; (2) The location of the work; v (3) A description of the work; (4) The type and acreage of the loss of waters of i the US (e.g., 1/12-acre of emergent t wetlands); and (5) The type and acreage f of any compensatory mitigation used to offset the loss of waters of the US (e.g., V12-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 t o , 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 compensatory mitigation proposal that is required in paragraph (e) of this NWP may be either conceptual or detailed. The wetland or upland vegetated buffer required in paragraph (i) of this NWP will be determined on a case-by-case basis by the District Engineer for addressing water quality concerns. The required wetland or upland vegetated buffer is part of the overall compensatory mitigation requirement for this NWP. If the project site was previously used for agricultural purposes and the farm owner/operator used NWP 40 to authorize activities in waters of the US to increase production or construct farm buildings, NWP 39 cannot be used by the developer to authorize additional activities. This is more than the acreage limit for NWP 39 impacts to waters of the US (i.e., the combined acreage loss authorized under NWPs 39 and 40 cannot exceed 1/2-acre, see General Condition 15). Subdivisions: For residential subdivisions, the aggregate total loss of waters of US authorized by. NWP 39 can not exceed 1/2-acre. This includes any loss of waters associated with development of individual subdivision ots. (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 nfrequently present in the stream channel except for ephemeral waters, which do not equire PCNs). 40. Agricultural Activities. Discharges f dredged or fill material into non-tidal eaters of;the US, excluding non-tidal etlands adjacent to tidal waters, for r mproving agricultural production and a he construction of building pads for arm buildings. Authorized activities l o w d include the installation, placement, or construction of drainage tiles, ditches, or levees; mechanized land clearing; land leveling; the relocation of existing serviceable drainage ditches constructed in waters of the US; and similar activities, provided the permittee complies with the following terms and conditions: a. For discharges into non-tidal wetlands to improve agricultural production, the following criteria must be met if the permittee is an United States Department of Agriculture (USDA) Program participant: (1) The permittee must obtain a categorical minimal effects exemption, minimal effect exemption, or mitigation exemption from NRCS in accordance with the provisions of the Food Security Act of 1985, as amended (16 U.S.C. 3801 et seq.); (2) The discharge into non-tidal wetlands does not result in the loss of greater than 1/2-acre of non-tidal wetlands on a farm tract; (3) The permittee must have NRCS- certified wetland delineation; (4) The permittee must implement an NRCS-approved compensatory mitigation plan that fully offsets wetland losses, if required; and (5) The permittee must submit a report, within 30 days of completion of the authorized work, to the District Engineer that contains the following information: (a) The name, address, and telephone number of the permittee; (b) The location of the work; (c) A description of the work; (d) The type and acreage (or square feet) of the loss of wetlands (e.g., 1/3-acre of emergent wetlands); and (e) The type, acreage (or square feet), and location of compensatory mitigation (e.g. 1/3-acre of emergent wetland on a farm tract; credits purchased from a mitigation bank); or b. For discharges into non-tidal wetlands to improve agricultural production, the following criteria must be met if the permittee is not a USDA Program participant (or a USDA Program participant for which the proposed work does not qualify for authorization under paragraph (a) of this NWP): (1) The discharge into non-tidal vetlands does not result in the loss of greater than 1/2-acre of non-tidal wetlands on a farm tract; (2) The permittee must notify the District Engineer in accordance with General Condition 13, if the discharge esults in the loss of greater than lho- cre of non-tidal wetlands; (3) The notification must include a elineation of affected wetlands; and Federal Register/Vol. 67, No. 10/Tuesday, January 15, 2002/Notices 2n87 (4) The notification must include a compensatory mitigation proposal to offset losses of waters of the US; or c. For the construction of building pads for farm buildings, the discharge does not cause the loss of greater than '/2-acre of non-tidal wetlands.that were in agricultural production prior to December 23, 1985, (i.e., farmed wetlands) and the permittee must notify the District Engineer in accordance with General Condition 13; and d. Any activity in other waters of the US is limited to the relocation of existing serviceable drainage ditches constructed in non-tidal streams. This NWP does not authorize the relocation of greater than 300 linear-feet of existing serviceable drainage ditches constructed in non-tidal streams unless, for drainage ditches constructed in intermittent non- tidal streams, the District Engineer waives this criterion in writing, and the District Engineer has determined that the project complies with all terms and conditions of this NWP, and that any adverse impacts of the project on the aquatic environment are minimal, both individually and cumulatively. For impacts exceeding 300-linear feet of impacts to existing serviceable ditches constructed in intermittent non-tidal streams, the permittee must notify the District Engineer in accordance with the "Notification" General Condition 13; and e. The term "farm tract" refers to a parcel of land identified by the Farm Service Agency. The Corps will identify other waters of the US on the farm tract. NRCS will determine if a proposed agricultural activity meets the terms and conditions of paragraph a. of this NWP, except as provided below. For those activities that require notification, the District Engineer will determine if a proposed agricultural activity is authorized by paragraphs b., c., and/or d. of this NWP. USDA Program participants, requesting authorization for discharges of dredged or fill material into waters of the US authorized by paragraphs (c) or (d) of this NWP, in addition to paragraph (a), must notify the District Engineer in accordance with General Condition 13 and the District Engineer will determine if the entire single and complete project is authorized by this NWP. Discharges of dredged or fill material into waters of the US associated with completing required compensatory mitigation are authorized by this NWP. However, total impacts, including other authorized impacts under this NWP, may not exceed the 1/2-acre limit of this NWP. This NWP does not affect, or otherwise regulate, discharges associated with agricultural activities when the discharge qualifies for an exemption under section 404(f) of the CWA, even though a categorical minimal effects exemption, minimal effect exemption, or mitigation exemption from NRCS pursuant to the Food Security Act of 1985, as amended, may be required. Activities authorized by paragraphs a. through d. may not exceed a total of 1/2- acre on a single farm tract. If the site was used for agricultural purposes and the farm owner/operator used either paragraphs a., b., or c. of this NWP to authorize activities in waters of the US to increase agricultural production or construct farm buildings, and the current landowner wants to use NWP 39 to authorize residential, commercial, or industrial development activities in waters of the US on the site, the combined acreage loss authorized by NWPs 39 and 40 cannot exceed 1/2-acre (see General Condition 15). (Section' 404) 41. Reshaping Existing Drainage Ditches. Discharges of dredged or fill material into non-tidal waters of the US, excluding non-tidal wetlands adjacent to tidal waters, to modify the cross- sectional configuration of currently serviceable drainage ditches constructed in waters of the US. The reshaping of the ditch cannot increase drainage capacity beyond the original design capacity. Nor can it expand the area drained by the ditch as originally designed (i.e., the capacity of the ditch must be the same as originally designed and it cannot drain additional wetlands or other waters of the US). Compensatory mitigation is not required because the work is designed to improve water quality (e.g., by regrading the drainage ditch with gentler slopes, which can reduce erosion, increase growth of vegetation, increase uptake of nutrients and other substances by vegetation, etc.). Notification: The permittee must notify the District Engineer in accordance with General Condition 13 if greater than 500 linear feet of drainage ditch will be reshaped. Material resulting from excavation may not be permanently sidecast into waters but may be temporarily sidecast (up to three months) into waters of the US, provided the material is not placed in such a manner that it is dispersed by currents or other forces. The District Engineer may extend the period of temporary sidecasting not to exceed a total of 180 days, where appropriate. In general, this NWP does not apply to reshaping drainage ditches constructed in uplands, since these areas are generally not waters of the US, and thus no permit from the Corps is required, or to the maintenance of existing drainage ditches to their original dimensions and configuration, which does not require a Section 404 permit (see 33 CFR 323.4(a)(3)). This NWP does not authorize the relocation of drainage ditches constructed in waters of the US; the location of the centerline of the reshaped drainage ditch must be approximately the same as the location of the centerline of the original drainage ditch. This NWP does not authorize stream channelization or stream relocation projects. (Section 404) 42. Recreational Facilities. Discharges of dredged or fill material into non-tidal waters of the US, excluding non-tidal wetlands adjacent to tidal waters, for the construction or expansion of recreational facilities, provided the activity meets all of the following criteria: a. The discharge does not cause the loss of greater than 1/2-acre of non-tidal waters of the US, excluding non-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 notifies the District Engineer in accordance with the "Notification" General Condition 13 for discharges exceeding 300 linear feet of impact of intermittent stream beds. In such cases, to be authorized the District Engineer must determine that the activity complies with the other terms and conditions of the NWP, determine the adverse environmental effects are minimal both individually and cumulatively, and waive this limitation in writing before the permittee may proceed; d. For discharges causing the loss of greater than IAo-acre of non-tidal waters of the US, the permittee notifies the District Engineer in accordance with General Condition 13; e. For discharges in special aquatic sites, including wetlands, the notification must include a delineation of affected special aquatic sites; f. The discharge is part of a single and complete project; and g. Compensatory mitigation will normally be required to offset the losses of waters of the US. The notification must also include a compensatory mitigation proposal to offset authorized losses of waters of the US. 1l 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 landscap 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, arenas, and the construction of new ski areas are not authorized by this N4VP. (Section 404) 43. Storm water Management 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 stormtivater 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 1/2-acre of non-tidal waters s of the US, excluding non-tidal wetlands ad' cent to tidal waters; b. The discharge does not cause the loss of greater than 300 linear-feet of a e stream bed, unless for intermittent stream beds this criterion is waived in writing pursuant to a determination by the District Engineer, as specified s 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 V1o-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 loss of waters of the US. Maintenance in constructed areas will not require mitigation provided such maintenance is accomplished in designated maintenance areas and not within compensatory mitigation areas (i.e., District Engineers may designate non- maintenance areas, normally at the downstream end of the stormwater management facility, in existing stormwater management facilities). (No mitigation will be required for activities that are exempt from Section 404 permit requirements); f. The 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 and non-tidal wetlands adjacent to headwater streams, for hard rock/mineral 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 1/2-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 appproved by the Corps; h. Beneficiation and mineral processing for hard rock/mineral mining activities may not occur within 200 feet of the ordinary high water mark of any open waterbody. Although the Corps does not regulate discharges from these activities, a CWA section 402 permit may be required; L 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 1 cubic foot per second (aggregate mining can occur in areas immediately adjacent to the ordinary high water mark of a stream where the average annual flow is 1 cubic foot per second or less); k. Single and complete project: The discharge must be for a single and complete project, including support activities. Discharges of dredged or fill material into waters of the US for multiple mining activities on several designated parcels of a single and complete mining operation can be authorized by this NWP provided the 1h-acre limit is not exceeded; and 1. Notification: The permittee must notify the District Engineer in accordance with General Condition 13. The notification must include: (1) A description of waters of the US adversely affected by the project; (2) A written statement to the District Engineer detailing compliance with paragraph (b), above (i.e., why the discharge must occur in waters of the US and why additional minimization cannot 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 aulorize 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. Permittees are encouraged to perform work within waters of the United States during periods of low-flow or no-flow. 4. Aquatic Life Movements. No activity may substantially disrupt the necessary life-cycle movements of those species of aquatic life indigenous to the waterbody, including those species that normally migrate through the area, unless the activity's primary purpose is to impound water. Culverts placed in streams must be installed to maintain low flow conditions. 5. Equipment. Heavy equipment working in wetlands must be placed on mats, or other measures must be taken to minimize soil disturbance. 6. Regional and Case-By-Case Conditions. The activity must comply with any regional conditions that may have been added by the Division 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 in a component of the National Wild and Scenic River System; or in a river officially designated by Congress as a "study river" for possible inclusion in the system, while the river is in an official study status; unless the appropriate Federal agency, with direct management responsibility for such river, has determined in writing that the proposed activity will not adversely affect the Wild and Scenic River designation, or study status. Information on Wild and Scenic Rivers may be obtained from the appropriate Federal land management agency in the area (e.g., National Park Service, U.S. Forest Service, Bureau of Land Management, U.S. Fish and Wildlife Service). 8. Tribal Rights. No activity or its operation may impair reserved tribal rights, including, but not limited to, reserved water rights and treaty fishing and hunting rights. 9. Water Quality. (a) In certain states and tribal lands an individual 401 Water Quality Certification must be obtained or waived (See 33 CFR 330.4(c)). (b) For NWPs 12, 14, 17, 18, 32, 39, 40, 42, 43, and 44, where the state or tribal 401 certification (either generically or individually) does not require or approve water quality management measures, the permittee must provide water quality management measures that will ensure that the authorized work does not result in more than minimal degradation of water quality (or the Corps determines that compliance with state or local standards, where applicable, will ensure no more than minimal adverse effect on water quality). An important component of water quality management includes stormw•ater management that minimizes degradation of the downstream aquatic system, including water quality (refer to General Condition 21 for stormwater 2090 Federal Register/Vol. 67, No. 10/Tuesday, January 15, 2002/Notices management requirements). Another important component of water quality endspp.htmi and http://wwiv.nfms.gov/ prot res/esohome htmi res e ti l written notice from the District or management is the establishment and maintenance of vegetated buffers next to _ . p c ve y. 12. Historic Properties. No activity which may affect historic ti Division Engineer. Subsequently, the permittee's right to proceed under the open waters, including streams (refer to General Condition 19 for vegetated proper es listed, or eligible for listing, in the National Re ister f Hi t i l NWP may be modified, suspended, or revoked only in accordance with the buffer requirements for the NWPs). g o s or c P aces is authorized, until the District Engineer procedure set forth in 33 CFR 330 5(d)(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) Contents of Notification: The water quality. While appropriate measures must be taken, in most cases . prospective permittee must notify the District Engineer if the authorized notification must be in writing and include the following information: it is not necessary to conduct detailed studies to identify such measures or to activity may affect any historic properties listed, determined to be (1) Name, address and telephone numbers the prospective permittee; require monitoring. 10. Coastal Zone Management. In eligible, or which the prospective permittee has reason to believe may be (2) Location of the proposed project; (3) Brief description of the proposed certain states, an individual state coastal eligible for listing on the National R project; the project's purpose; direct and indirect adverse environment l ff zone management consistency concurrence must be obtained or waived egister 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(d)). 11. Endangered Species. (a) No District Engineer that the requirements of the National Historic Preservation Act NWP(s), Regional General Permit(s), or Individual Permit(s) used or intended to activity is authorized under any NWP which is likely to jeopardize the have been satisfied and that the activity is authorized. Information on the be used to authorize any part of the proposed project or any related activity. continued existence of a threatened or location and existence of historic Sketches should be provided when endangered species or a species 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 oje , identified under the Federal Endangered National Register of Historic Places (see 33 CF (Sketches usually clarify the project ct and when rovided result i i k Species Act (ESA), or which will destroy or adversely modify the critical R 330.4(g)). For activities that may affect historic properties listed in, or p n a qu c er decision.); habitat of such species. Non-federal eligible for listing in, the National (4) For NWPs 7, 12, 14, 18, 21, 34, 38, permittees shall notify the District Engineer if any listed species or Register of Historic Places, the notification must state which historic 39, 41, 42, and 43, the PCN must also include a delineation of affected s ecial p designated critical habitat might be affected or is in the vicinity of the property may be affected by the proposed.work or include a vicinity aquatic sites, including wetlands, vegetated shallows (e.g., submerged project, or is located in the designated critical habitat and shall not begin work map indicating the location of the historic property. aquatic vegetation riffle , lexes s bedsr and and pool complexes (see paragraph on the activity until notified by the District Engineer that the requirements D 13. Notification. (a) Timing; where required by the 13(f)); (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. Th those areas of the facility where designated critical habitat the e District Engineer must determine if maintenance dredging or excavation is , notification must include the name(s) of the endangered or threatened s i the notification is complete within 30 days of the date of receipt and can proposed; (6) For NWP 14 (Linear pec es that may be affected by the proposed request additional information Transportation Crossings), the PCN work or that utilize the designated necessary to make the PCN complete must include a compensatory mitigation critical habitat that may be affected by only once. However, if the prospective proposal to offset permanent losses of the proposed work. 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 NMFS the District Engineer may add Engineer will notify the prospective r waters of the US will be minimized to species-specific regional endangered pemittee that the notification is still the maximum extent practicable; species conditions to the NWPs. (b) Authorization of an activity by a incomplete and the PCN review process will not commence until all of the (7) For NWP 21 (Surface Coal Mining Activities), the PCN must include an NWP does not authorize the "take" of a requested information has been received b h Office of Surface Mining (OSM) or state- threatened or endangered species as y t e 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 NvVP, 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 NWP and that the adverse environmental effects are from the USFWS or the NMFS, both lethal and non-lethal "takes" of special conditions imposed by the minimal both individually and - protected species are in violation of the ESA. Information on the location of District or Division Engineer; or (2) If notified in writing by the District cumulatively and must notify the project sponsor of this determination in threatened and endangered species and their critical habitat can b bt i d or Division Engineer that an Individual Permit is required; or writing; (8) For NWP 27 (Stream and Wetland e o a ne directly from the offices of the USFWS d (3) Unless 45 days have passed from the District Engineer's receipt of the Restoration), the PCN must include documentation of the prior condition of an NMFS or their world wide web pages at http://;v?nv.fvvs.govlr9endsppl complete notification and the prospective ermittee has t i d the site that will be reverted by the p no rece ve permittee; Federal Register/Vol. 67, No. 10/Tuesday, January 15, 2002/Notices 2091 (9) For NWP 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 NWP by the Individual Permittee and/ th y p ory mitigation should not be required. For the designated critical habitat that may be affected by the proposed work; and or e permittee's spouse; 00 A statement that the single-famil discharges that cause the loss of greater than 300 linear feet of an intermittent (18) For activities that may affect historic properties listed in, or eligible y housing activity is for a personal residence of the permittee; stream bed, to be authorized, the Distric Engineer must determine that the t for listing in, the National Register of Historic Places, the PCN must state (iii) A description of the entire parcel, includin its size a d d li i 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 g , n a e neat on of wetlands. For the purpose of this NWP, l f adverse environmental effects are minimal both individually and vicinity map indicating the location of the historic pro ert parce s o land measuring 1/4-acre or less will not require a formal on-site cumulatively, and waive the limitation r p y. (c) Form of Notification: The standard delineation. However, the applicant on st eam impacts in writing before the it Individual Permit application form shall provide an indication of where the l perm tee may proceed; (14) For NWP 40 (Agricultural (Form ENG 4345) may be used as the notification but must clearl indicate wet ands are and the amount of wetlands that exists on the property For Activities), the PCN must include a com en t i i y that it is a PCN and must include all of . parcels greater than 1/4-acre in size, p sa ory m t gation proposal to offset losses of waters of the US. This the information required in (b) (1)-(18) of General Condition 13 A l tt formal wetland delineation must be prepared in accordance with the current NWP does not authorize the relocation of greater than 300 linear-feet of existing . e er containing the requisite information may also be used method required by the Corps. (See paragraph 13(ft serviceable drainage ditches constructed i . (d) District Engineer's Decision: In (iv) A written description of all land n non-tidal streams unless, for drainage ditches constructed in intermittent rion- reviewing the PCN for the proposed activity the District En ineer will (including, if available, legal descriptions) owned by the prospective tidal streams, the District Engineer waives this criterion in writing, and the , g determine whether the activity authorized by the NWP will result in permittee and/or the prospective permittee's spouse, within a one mile District Engineer has determined that the project complies with all terms and more than minimal individual or cumulative adverse environmental radius of the parcel, in any form of ownership (including any land owned conditions of this NWP, and that any adverse impacts of the project on the effects or may be contrary to the public interest. The prospective permittee ma as a partner, corporation, joint tenant, co-tenant, or as a tenant-by-the-entirety) aquatic environment are minimal, both individually and cumulatively; y submit a proposed mitigation plan with the PCN to expedite the process The and any land on which a purchase and l (15) For NWP 43 (Stormwater . District Engineer will consider any sa e agreement or other contract for sale or?urchase has been executed; Management Facilities), the PCN must include, for the construction of new proposed compensatory mitigation the applicant has includ d i th (10) For NWP 31 (Maintenance of Existing Flood Control Projects), the stormwater management facilities, a maintenance plan (in accordance with e n e proposal in determining whether the net adverse environmental effects to the a uati prospective permittee must either notify the District Engineer with a PCN prior state and local requirements, if applicable) and a compensatory q c environment of the proposed work are minimal. If the District Engineer 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 determines that the activity complies with the terms and conditions of the In addition, the PCN must include all of th f ll i cause the loss of greater than 300 linear NWP and that the adverse effects on the e o ow ng: (i) Sufficient baseline information feet of an intermittent stream bed, to be authorized, the District Engineer must aquatic environment are minimal, after considerin miti ation the Di t i identifying the approved channel depths and configurations and existing determine that the activity complies with the other terms and conditions of g g , s r ct 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 a control protection or drainage is not increas d individually and cumulatively, and i pp ny compensatory mitigation proposal e ; (ii) A delineation of any affected wa ve the limitation on stream impacts in writing before the permittee may before the permittee commences work. If the prospective permittee is required special aquatic sites, including wetlands; and, proceed; (16) For NWP 44 (Mining Activities), to submit a compensatory mitigation proposal with the PCN the proposal (iii) Location of the dredged material dis osal site the PCN must include a description of ll , may be either conceptual or detailed. If p ; (11) For NWP 33 (Temporary C a waters of the US adversely affected by the project, a description of measures the prospective permittee elects to submit a compensatory mitigation lan onstruction, Access, and Dewatering), the PCN must also include a restoration taken to minimize adverse effects to waters of the US, a description of p with the PCN, the District Engineer will expeditiously review the proposed plan of reasonable measures to avoid and minimize adverse effects to aquatic r measures taken to comply with the criteria of the NWP, and a reclamation compensatory mitigation plan. The District Engineer must review the plan esources; (12) For NWPs 39, 43 and 44, the PCN plan (for all aggregate mining activities in isolated waters and non-tidal within 45 days of receiving a complete PCN and determine whether the must also include a written statement to the District Engineer explaining how wetlands adjacent to headwaters and any hard rock/mineral i i conceptual or specific proposed i i avoidance and minimization for losses of waters of the US were achieved on m n ng activities); (17) For activities that may adversel m t gation would ensure no more than minimal adverse effects on the aquatic envi t If h the project site; (13) For NWP 39 and NVVP 42, the y affect Federally-listed endangered or threatened species the PCN must ronmen . t e net adverse effects of the project on the aquatic i PCN must include a compensatory miti ti , include the name(s) of those endangered env ronment (after consideration of the compensatory mitigation proposal) are ga on proposal to offset losses of or threatened species that may be determined by the District Engineer to 2092 Federal Register / Vol. 67, No. 10/Tuesday, January 15, 2002/Notices be minimal, the District Engineer will provide a timely written response to the applicant. The response will state that the project can proceed under the terms and conditions of the NWP. If the District Engineer determines that the adverse effects of the proposed work are more than minimal, then the District Engineer will notify the applicant either: (1) That the project does not qualify for authorization under the NWP and instruct the applicant on the procedures to seek authorization under an Individual Permit; (2) that the project is authorized under the NVVP subject to the applicant's submission of a mitigation proposal that would reduce the adverse effects on the aquatic environment to the minimal level; or (3) that the project is authorized under the NWP with specific modifications or conditions. Where the District Engineer determines that mitigation is required to ensure no more than minimal adverse effects occur to the aquatic environment, the activity will be authorized within the 45-day PCN period. The authorization will include the necessary conceptual or specific mitigation or a requirement that the applicant submit a mitigation proposal that would reduce the adverse effects on the aquatic environment to the minimal level. When conceptual mitigation is included, or a mitigation plan is required under item (2) above, no work in waters of the US will occur until the District Engineer has approved a specific mitigation plan. (e) Agency Coordination: The District Engineer will consider any comments from Federal and state agencies concerning the proposed activity's compliance with the terms and conditions of the NWPs and the need for mitigation to reduce the project's adverse environmental effects to a minimal level. For activities requiring notification to the District Engineer that result in the loss of greater than 1/2-acre of waters of the US, the District Engineer will provide immediately (e.g., via facsimile transmission, overnight mail, or other expeditious manner) a copy to the appropriate Federal or state offices (USFWS, state natural resource or water quality agency, EPA, State Historic Preservation Officer (SHPO), and, if appropriate, the NMFS). With the exception of NWP 37, these agencies will then have 10 calendar days from the date the material is transmitted to telephone or fax the District Engineer notice that they intend to provide substantive, site-specific comments. If so contacted by an agency, the District Engineer will wait an additional 15 calendar days before making a decision on the notification. The District Engineer will fully consider agency comments received within the specified time frame, but will provide no response to the resource agency, except as provided below. The District Engineer will indicate in the administrative record associated with each notification that the resource agencies' concerns were considered. As required by section 305(b)(4)(B) of the Magnuson-Stevens Fishery Conservation and Management Act, the District Engineer will provide a response to NMFS within 30 days of receipt of any Essential Fish Habitat conservation recommendations. Applicants are encouraged to provide the Corps multiple copies of notifications to expedite agency notification. (f) Wetland Delineations: Wetland delineations must be prepared in accordance with the current method required by the Corps (For NWP 29 see paragraph (b)(9)(iii) for parcels less than (1/4-acre in size). The permittee may ask the Corps to delineate the special aquatic site. There may be some delay if the Corps does the delineation. Furthermore, the 45-day period will not start until the wetland delineation has been completed and submitted to the Corps, where appropriate. 14. Compliance Certification. Every permittee who has received NWP verification from the Corps will submit a signed certification regarding the completed work and any required mitigation. The certification will be forwarded by the Corps with the authorization letter and will include: (a) A statement that the authorized work was done in accordance with the Corps authorization, including any general or specific conditions; (b) A statement that any required mitigation was completed in accordance with the permit conditions; and (c) The signature of the permittee certifying the completion of the work and mitigation. 15. Use of Multiple Nationwide Permits. The use of more than one NWP for a single and complete project is prohibited, except when the acreage loss of waters of the US authorized by the NWPs does not exceed the acreage limit of the NWP with the highest specified acreage limit (e.g. if a road crossing over tidal waters is constructed under NWP 14, with associated bank stabilization authorized by NWP 13, the maximum acreage loss of waters of the US for the total project cannot exceed 1/3-acre). 16. LVater Supply Intakes. No activity, including structures and work in navigable waters of the US or discharges of dredged or fill material, may occur in the proximity of a public water supply intake except where the activity is for repair of the public water supply intake structures or adjacent bank stabilization. 17. Shellfish Beds. No activity, including structures and work in navigable waters of the US or discharges of dredged or fill material, may occur in areas of concentrated shellfish populations, unless the activity is directly related to a shellfish harvesting activity authorized by NWP 4. 18. Suitable Material. No activity, including structures and work in navigable waters of the US or discharges of dredged or fill material, may consist of unsuitable material (e.g., trash, debris, car bodies, asphalt, etc.) and material used for construction or discharged must be free from toxic pollutants in toxic amounts (see section 307 of the CWA). 19. Mitigation. The District Engineer will consider the factors discussed below when determining the acceptability of appropriate and practicable mitigation necessary to offset adverse effects on the aquatic environment that are more than minimal. (a) The project must be designed and constructed to avoid and minimize adverse effects to waters of the US to the maximum extent practicable at the project site (i.e., on site). (b) Mitigation in all its forms (avoiding, minimizing, rectifying, reducing or compensating) will be required to the extent necessary to ensure that the adverse effects to the aquatic environment are minimal. (c) Compensatory mitigation at a minimum one-for-one ratio will be required for all wetland impacts requiring a PCN, unless the District Engineer determines in writing that some other form of 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 3/4-acre loss of wetlands to a 1/2-acre loss associated with NWP 39 verification. However, 1/2-acre of created wetlands can be used to reduce the impacts of a 1/2-acre loss of wetlands to the minimum impact level in order to meet the Federal Register / Vol. 67, No. 10 / Tuesday, January 15, 2002 / Notices 2093 minimal impact requirement associated with NWPs. accomplishing and/or complying with the mitigation plan discharges of dredged or fill material, (e) To be practicable, the mitigation must be available and capable of being . 20. Spawning Areas. Activities, including structures and work in into breeding areas for migratory waterfowl must be avoided to the done considering costs, existing technology, and logistics in light of the maximum extent practicable. navigable waters of the US or discharges 24. Removal of Temporary Fills. Any of dredged or fill material i i overall project purposes. Examples of , n spawn ng areas during spawning seasons must be temporary fills must be removed in their entirety and the affected areas returned mitigation that may be appropriate and practicable include, but are not limited avoided to the maximum extent • practicable. Activities that result in the to their preexisting elevation. 25. Designated Critical Resourc to: reducing the size of the project; establishing and maintaining wetland or physical destruction (e.g., excavate, fill, or smother downstream by substantial e Waters. Critical resource waters include, 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 losses of aquatic resource functions and are not authorized. 21. Management of Water Flows. To , National Wild and Scenic Rivers, 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. (f) Compensatory mitigation plans for conditions (e.g., location, capacity, and flow rates). Furthermore, the activity waters or other waters officially designated by a state as having projects in or near streams or other open t ll must not permanently restrict or impede the assa e of l particular environmental or ecological wa ers wi normally include a requirement for the establishment, p g norma or expected high flows (unless the primary purpose of the significance and identified by 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 vegetated buffers to open waters. In structure or discharge of dredged or fill material must withstand expected high District Engineer may also designate 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 , 12, 14, 16, 17, 21, 29, 31, 35, 39, 40, 42 address documented water quality or ti h b preconstruction conditions, and provide for not increasin water fl w f h , 43, and 44 for any activity within, or di l aqua c a itat loss concerns. Normally, g o s rom t e rect y affecting, critical resource the vegetated buffer will be 25 to 50 feet wide on each side of the stream, but the Project site, relocating water, or redirecting water flow beyond waters, including wetlands adjacent to such waters. Discharges of dredged or District Engineers may require slightly id Phan el zinglwill berled red d t h may b w er vegetated buffers to address uce o t e e authorized by 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 practicable, reduce adverse effects such as flooding or erosion d t d Condition 7. Further, such discharges Corps will determine the appropriate owns ream an may be authorized in designated critical compensatory mitigation (e.g., stream buffers or wetlands compensation) upstream of the project site, unless the activity is part of a larger system habitat for Federall listed threatened or y endangered species if the activity based on what is best for the aquatic t designed to manage water flows. In most complies with General Condition 11 and environment a watershed basis. In cases, it will not be a requirement to conduct detailed studies and it i the USFWS or the NMFS has concurred cases where vegetated buffers are mon or ng of water flow in a determination of compliance with determined to be the most appropriate form of compensatory mitigation the . This condition is only applicable to this condition. (b) For NWPs 3, 8, 10, 13, 15 18 19 , District Engineer'may waive or reduce h projects that have the potential to affect waterflows. While appro riate measu , , , 22, 23, 25, 27, 28, 30, 33, 34, 36, 37, and 38 if t e requirement to provide wetland compensatory mitigation for wetland p res must Ibe taken, it is not necessary to , not ication is required in accordance with General Condition 13 impacts. conduct detailed studies to identify , for any activity proposed in the (g) Compensatory mitigation proposals submitted with the such measures or require monitoring to ensure their effectiveness. Normally, the designated critical resource waters including wetlands adjacent to those notification" may be either conceptual or detailed. If conceptual plans are Corps will defer to state and local authorities regarding management of waters. The District Engineer may authorize activities under these NWPs approved under the verification, then the Corps will condition the verificatio water flow. 22. Adverse Effects 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 Impoundments. If the activity creates an impoundment of water, adverse effects will be no more than minimal. 26. Fills Within 100-Year Floodplains. construction of the authorized activity to the aquatic system due to the acceleration of the passa e of wate For purposes of this General Condition, 1 in waters of the US. (h) Permittees may propose the use of g r, and/or the restricting its flow shall be i 00-year floodplains will be identified through the existing Federal Emergency mitigation banks, in lieu fee arran eme t m nimized to the maximum extent practicable. This includes structures Management Agency's (FEMA) Flood Insurance Rate Maps or FEMA-a roved g n s or separate activity- specific compensatory mitigation. In all and work in navigable waters of the US, or discharges of dredged or fill material pp local floodplain maps. (a) Dischar es in Flood lai B l cases that require compensatory mitigation, the mitigation provisions . 23. Waterfowl Breeding Areas. Activities, including structures and g p n; e ow Headwaters. Discharges of dredged or fill material into waters of the US ithi will specify the party responsible for work in navigable waters of the US or w n the mapped 100-year floodplain, below 2094 Federal Register/Vol. 67, No. 10/Tuesday, January 15, 2002/Notices headwaters (i.e. five cfs), resulting in permanent above-grade fills, are not authorized by NWPs 39, 40, 42, 43, and 44. (b) Discharges in Floodway; Above Headwaters. Discharges of dredged or fill material into waters of the US within the FEMA or locally mapped floodway, resulting in permanent above-grade fills, are not authorized by NWPs 39, 40, 42, and 44. (c) The permittee must comply with any applicable FEMA-approved state or local floodplain management requirements. 27. Construction Period. For activities that have not been verified by the Corps and the project was commenced or under contract to commence by the expiration date of the NWP (or modification or revocation date), the work must be completed within 12- months after such date (including anv modification that affects the project). For activities that have been verified and the project was commenced or under contract to commence within the verification period, the work must be completed by the date determined by the Corps. For projects that have been verified by the Corps, an extension of a Corps approved completion date maybe requested. This request must be submitted at least one month before the previously approved completion date. D. Further Information 1. District Engineers have authority to determine if an activity complies with the terms and conditions of an NWP. 2. NWPs do not obviate the need to obtain other Federal, state, or local permits, approvals, or authorizations required by law. 3. NDVPs do not grant any property rights or exclusive privileges. 4. NWPs do not authorize any injury to the property or rights of others. 5. NWPs do not authorize interference with any existing or proposed Federal project. E. Definitions Best Management Practices (BMPs): BMPs are policies, practices, procedures, or structures implemented to mitigate the adverse environmental effects on surface water quality resulting from development. BMPs are categorized as structural or non- structural. A BMP policy may affect the limits on a development. Compensatory Mitigation: For purposes of Section 10/404, compensatory mitigation is the restoration, creation, enhancement, or in exceptional circumstances, preservation of wetlands and/or other aquatic resources for the purpose of compensating for unavoidable adverse impacts which remain after all appropriate and practicable avoidance and minimization has been achieved. Creation: The establishment of a wetland or other aquatic resource where one did not formerly exist. 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 plain. Independent Utility: A test to determine what constitutes a single and complete project in the Corps regulatory program. A project is considered to have independent utility if it would be constructed absent the construction of other projects in the project area. Portions of a multi-phase project that depend upon other phases of the project do not have independent utility. Phases of a project that would be constructed even if the other phases were not built can be considered as separate single and complete projects with independent utility. Intermittent Stream: An intermittent stream has flowing water during certain times of the year, when groundwater provides water for stream flow. During dry periods, intermittent streams may not have flowing water. Runoff from rainfall is a supplemental source of water for stream flow. Loss of Waters of the US: Waters of the US that include the filled area and other waters that are permanently adversely affected by flooding, excavation, or drainage because of the regulated activity. Permanent adverse effects include permanent above-grade, at-grade, or below-grade fills that change an aquatic area to dry land, increase the bottom elevation of a waterbody, or change the use of a 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. 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. ofstream bed, for the purpose of determining compliance with the threshold limits of the Nti1tPs. Non-tidal Wetland: A non-tidal wetland is a wetland (i.e., a water of the US) that is not subject to the ebb and flow of tidal waters. The definition of a wetland can be found at 33 CFR 328.3(b). Non-tidal wetlands contiguous to tidal waters are located landward of the high tide line (i.e., spring high tide line). Open Water: An area that, during a year with normal patterns of precipitation, has standing or flowing water for sufficient duration to establish an ordinary high water mark. Aquatic vegetation within the area of standing or flowing water is either non-emergent, sparse, or absent. Vegetated shallows are considered to be open waters. The term "open water" includes rivers, streams, lakes, and ponds. For the purposes of the NWPs, this term does not include ephemeral waters. Perennial Stream: A perennial stream has flowing water year-round during a typical year. The water table is located above the stream bed for most of the year. Groundwater is the primary source of water for stream flow. Runoff from rainfall is a supplemental source of water for stream flow. Permanent Above-grade Fill: A discharge of dredged or fill material into waters of the US, including wetlands, that results in a substantial increase in ground elevation and permanently converts part or all of the waterbody to dry land. Structural fills authorized by NWPs 3, 25, 36, etc. are not included. Preservation: The protection of ecologically important wetlands or other aquatic resources in perpetuity through the implementation of appropriate legal and physical mechanisms. Preservation may include protection of upland areas adjacent to wetlands as necessary to Federal Register/Vol. 67, No. 10/Tuesday, January 15, 2002/Notices 2095 ensure protection and/or enhancement of the overall aquatic ecosystem. Restoration: Re-establishment of. wetland and/or other aquatic resource characteristics and function(s) at a site where they have ceased to exist, or exist in a substantially degraded state. Riffle and Pool Complex: Riffle and pool complexes are special aquatic sites under the 404(b)(1) Guidelines. Riffle and pool complexes sometimes characterize steep gradient sections of streams. Such stream sections are recognizable by their hydraulic characteristics. The rapid movement of water over a course substrate in riffles results in a rough flow, a turbulent surface, and high dissolved oxygen levels in the water. Pools are deeper areas associated with riffles. A slower stream velocity, a streaming flow, a smooth surface, and a finer substrate characterize pools. Single and Complete Project: The term "single and complete project" is defined at 33 CFR.330.2(i) as the total project proposed or accomplished by one owner/developer or partnership or other association of owners/developers (see definition of independent utility). For linear projects, the "single and complete project" (i.e., a single and complete crossing) will apply to each crossing of a separate water of the US (i.e., a single waterbody) at that location. An exception is for linear projects crossing a single waterbody several times at separate and distant locations: each crossing is considered a single and complete project. However, individual channels in a braided stream or river, or individual arms of a large, irregularly shaped wetland or lake, etc., are not separate waterbodies. StormwaterManagement: Stormwater management is the mechanism for controlling stormwater runoff for the purposes of reducing downstream erosion, water quality degradation, and flooding and mitigating the adverse effects of changes in land use on the aquatic environment. Stormwater Management Facilities: Stormwater management facilities are those facilities, including but not limited to, stormwater retention and detention ponds and BMPs, which retain water for a period of time to, control runoff and/or improve the quality (i.e., by reducing the concentration of nutrients, sediments, hazardous substances and other pollutants) of stormwater runoff. Stream Bed: The substrate of the stream channel between the ordinary high water marks. The substrate may be bedrock or inorganic particles that range in size from clay to boulders. Wetlands contiguous to the stream bed, but outside of the ordinary high water marks, are not considered part of the stream bed. Stream Channelization: The manipulation of a stream channel to increase the rate of water flow through the stream channel. Manipulation may include deepening, widening, straightening, armoring, or other activities that change the stream cross- section or other aspects of stream channel geometry to increase the rate of water flow through the stream channel. A channelized stream remains a water of the US, despite the modifications to increase the rate of water flow. Tidal Wetland: A tidal wetland is a wetland (i.e., water of the US) that is inundated by tidal waters. The definitions of a wetland and tidal waters can be found at 33 CFR 328.3(b) and 33 CFR 328.3(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 be practically measured in a predictable rhythm due to masking by other waters, wind, or other effects. Tidal wetlands are located channelward of the high tide line (i.e., spring high tide line) and are inundated by tidal waters two times per lunar month, during spring high tides. Vegetated Buffer: A vegetated upland or wetland area next to rivers, streams, lakes, or other open waters which separates the open water from developed areas, including agricultural land. Vegetated buffers provide a variety of aquatic habitat functions and values (e.g., aquatic habitat for fish and other aquatic organisms, moderation of water temperature changes, and detritus for aquatic food webs) and help improve or maintain local water quality. A vegetated buffer can be established by maintaining an existing vegetated area or planting native trees, shrubs, and herbaceous plants on land next to open- waters. Mowed lawns are not considered vegetated buffers because they provide little or no aquatic habitat functions and values. The establishment and maintenance of vegetated buffers is a method of compensatory mitigation that can be used in conjunction with the restoration, creation, enhancement, or preservation of aquatic habitats to ensure that activities authorized by NWPs result in minimal adverse effects to the aquatic environment. (See General Condition 19.) Vegetated Shallows: Vegetated shallows are special aquatic sites under the 404(b)(1) Guidelines. They are areas that are permanently inundated and under normal circumstances have rooted aquatic vegetation, such as seagrasses in marine and estuarine systems and a variety of vascular rooted plants in freshwater systems. 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 kemppii) Endangered leatherback turtle (Dermochelys coriacea) Threatened loggerhead turtle (Caretto caretta) Application 1361 The applicant'is applying for a 5-year permit to trawl for turtles, as needed, at dredge and other construction/ destruction sites to remove the turtles to a safe location. The turtles will be captured, tagged, measured and released offshore away from the dredging activities. The applicant expects to capture and relocate 95 green, 11 hawksbill, 160 loggerhead, 14 Kemp's ridley and 4 leatherback turtles on the Atlantic coast and 105 green, 17 hawksbill, 160 loggerhead, 50 Kemp's ridley and 11 leatherback turtles on the Gulf coast. Dated: February 7, 2002. Jill Lewandowski, Acting Chief, Permits, Conservation, and Education Division, Office of Protected Resources, National Marine Fisheries Service. [FR Doc. 02-3522 Filed 2-12-02; 8:45 am] BILLING CODE 351042-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 Tuesday, January 15, 2002 (67 FR 2020-2095). ADDRESSES: HQUSACE, ATTN: CECW- OR, 441 "G" Street, NW., Washington, DC 20314-1000. FOR FURTHER INFORMATION CONTACT: Mr. David Olson, at (703) 428-7570, Mr. Kirk Stark, at (202) 761-4664 or Ms. Leesa Beal at (202) 761-4599 or access the U.S. Army Corps of Engineers Regulatory Home Page at: http:// www.usace.army.mil/inet/functions/ cw/cecwo/reg/. SUPPLEMENTARY INFORMATION: In the SUMMARY section on page 2020, the third and fourth sentences are corrected to read: "All NWPs except NWPs 3, 7, 12, 14, 27, 39, 40, 41, 42, 43, and 44 expire on February 11, 2002. Existing NWPs 3, 7, 12, 14, 27, 39, 40, 41, 42, 43, and 44 expire on March 18, 2002." In the last sentence of the SUMMARY section, the expiration date is corrected as "March 18, 2007", instead of "March 19, 2007". On page 2020, in second sentence of the DATES section, the expiration date is corrected as "March 18, 2007", instead of "March 19, 2007". Therefore, the NWPs published in the January 15, 2002; Federal Register will expire on March 18, 2007, five years from their effective date of March 18, 2002. On page 2020, in the fifth paragraph of the Background section, the third and fourth sentences are corrected to read: "All NWPs except NWPs 3, 7, 12, 14, 27, 39, 40, 41, 42, 43, and 44 expire on February 11, 2002. Existing NWPs 3, 7, 12, 14, 27, 39, 40, 41, 42, 43, and 44 expire on March 18, 2002." The expiration date in the last sentence of this paragraph is corrected as "March 18, 2007", instead of "March 19, 2007". On page 2020, the paragraph in the section entitled "Grandfather Provision for Expiring NWPs at 33 CFR 330.6" is corrected to read: "Activities authorized by the current NWPs issued on December 13, 1996, (except NWPs 3, 7, 12, 14, 27, 39, 40, 41, 42, 43, and 44), that have commenced or are under contract to commence by February 11, 2002, will have until February 11, 2003, to complete the activity. Activities authorized by NWPs 3, 7, 12, 14, 27, 39, 40, 41, 42, 43, and 44, that were issued on March 9, 2000, that are commenced or under contract to commence by March 18, 2002, will have until March 18, 2003, to complete the activity." On page 2020, in the "Clean Water Act Section 401 Water Quality Certification (WQC) and Coastal Zone Management Act (CZMA) Consistency Agreement" section, the date in the fifth sentence is corrected as "February 11, 2002", instead of "February 11, 2001". On page 2023, third column, last sentence, the number 29 is replaced with the number 19, because this sentence refers to General Condition 19. On page 2024, first column, in the fourth sentence of the last paragraph the phrase "less than" is replaced by "greater than" because the 30 day completeness review period for NWP pre-construction notifications is greater than the 15 day completeness review period for standard permit applications. 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 the Walla Walla District Engineer is corrected to read 201 N. Third Avenue". On page 2080, second column, third paragraph from the top of the column (in the "Notification" section of NWP 12), the word "or" at the end of paragraph (e) is deleted and the period at the end of the fourth paragraph (paragraph (f)) is replaced with "; or". On page 2080, second column, paragraph (a) of NWP 13 is corrected to read: "No material is placed in excess of the minimum needed for erosion protection;" The change was not intended and we are correcting this paragraph by reinstating the original text as it appeared in the version of NWP 13 published in the December 13, 1996, Federal Register (61 FR 65915). On page 2080, third column, the word "or" is inserted at the end of paragraph (a)(1) of NWP 14, Linear Transportation Projects. Paragraph (a) of NWP 14 is corrected to read: "a. This NWP is subject to the following acreage limits: (1) For linear transportation projects in non-tidal waters, provided the discharge does not cause the loss of greater than 1/2-acre of waters of the US; or (2) For linear transportation projects in tidal waters, provided the discharge does not cause the loss of greater than 1/3-acre of waters of the US." On page 2085, second column, the last sentence of NWP 36 is corrected to read as follows: "Dredging to provide Federal Register/Vol. 67, No. 30/Wednesday, February 13, 2002/Notices 6693 access to the boat ramp may be authorized by another NWP, regional general permit, or individual permit pursuant to section 10 if located in navigable waters of the United States. * * *" The change was not intended and we are correcting this paragraph by reinstating the original text as it appeared in the version of NWP 36 published in the December 13, 1996, Federal Register (61 FR 65919). On page 2086, in the second full paragraph of the second column, "paragraph (e)" in the second sentence is replaced with "paragraph (f)" and "paragraph (i)" in the third sentence is replaced with "paragraph (j)" to accurately cite the previous paragraphs of NWP 39. The last two sentences of the paragraph before the subdivision paragraph were incorrectly divided into two sentences from the original single sentence and identified as being related to General Condition 15. This change was not intended and we are correcting this paragraph by, reinstating the original last sentence as it exists in the March 9, 2000, text of NWP 39 (65 FR 12890). On page 2086, middle column, the parenthetical statement at the end of the Note at the end of NWP 39 is corrected to read" * * (except for ephemeral waters, which do not require PCNs under paragraph (c)(2), above; however, activities that result in the loss of greater than 1ho 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 1ho 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 by this NWP. Residential developments include multiple and single unit developments. Examples of commercial developments include retail stores, industrial facilities, restaurants, business parks, and shopping centers. Examples of institutional developments include schools, fire stations, government office buildings, judicial buildings, public works buildings, libraries, hospitals, and places of worship. The activities listed above are authorized, provided the activities meet all of the following criteria: a. The discharge does not cause the loss of greater than 1/12-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 1ho-acre of non-tidal waters of the US, excluding non-tidal wetlands adjacent to tidal waters; or (2) The discharge causes the loss of any open waters, including perennial or intermittent streams, below the ordinary hi h water mark (see Note, below); or The discharge causes the loss of greater than 300 linear feet of intermittent stream bed. In such case, to be authorized the District Engineer must determine that the activity complies with the other terms and conditions of the NWP, determine adverse environmental effects are minimal both individually and cumulatively, and waive the limitation on stream impacts in writing before the permittee may proceed; d. For discharges in special aquatic sites, including wetlands, the notification must include a delineation of affected special aquatic sites; e. The discharge is part of a single and complete project; f. The permittee must avoid and minimize discharges into waters of the US at the project site to the maximum extent practicable. The notification, when required, must include a written statement explaining how avoidance and minimization of losses of waters of the US were achieved on the project site. Compensatory mitigation will normally be required to offset the losses of waters of the US. (See General Condition 19.) The notification must also include a compensatory mitigation proposal for offsetting unavoidable losses of waters of the US. If an applicant asserts that the adverse effects of the project are minimal without mitigation, then the applicant may submit justification explaining why compensatory mitigation should not be required for.the District Engineer's consideration; g. When this NWP is used in conjunction with any other NWP, any combined total permanent loss of waters of the US exceeding V1o-acre requires that the permittee notify the District Engineer in accordance with General Condition 13; h. Any work authorized by this NWP must not cause more than minimal degradation of water quality or more than minimal changes to the flow characteristics of any stream (see General Conditions 9 and 21); i. For discharges causing the loss of V1o-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., 1/2-acre of emergent wetlands); and (5) The type and acreage of any compensatory mitigation used to 'offset the loss of waters of the US (e.g., 1/2-acre of emergent wetlands created on-site); j. If there are any open waters or streams within the project area, the permittee will establish and maintain, to the maximum extent practicable, wetland or upland vegetated buffers next to those open waters or streams consistent with General Condition 19. Deed restrictions, conservation easements, protective covenants, or other means of land conservation and preservation are required to protect and maintain the vegetated buffers established on the project site. Only residential, commercial, and institutional activities with structures on the foundation(s) or building pad(s), as well as the attendant features, are authorized by this NWP. The 6694 Federal Register/Vol. 67, No. 30/Wednesday, February 13, 2002/Notices compensatory mitigation proposal that is required in paragraph (f) of this NWP may be either conceptual or detailed. The wetland or upland vegetated buffer required in paragraph (j) of this NWP will be determined on a case-by-case basis by the District Engineer for addressing water quality concerns. The required wetland or upland vegetated buffer is part of the overall compensatory mitigation requirement for this NWP. If the project site was previously used for agricultural purposes and the farm owner/operator used NWP 40 to authorize activities in waters of the United States to increase production or construct farm buildings, NWP 39 cannot be used by the developer to authorize additional activities in waters of the United States on the project site in excess of the acreage limit for NWP 39 (i.e., the combined acreage loss authorized under NWPs 39 and 40 cannot exceed 1/2 acre). Subdivisions: For residential subdivisions, the aggregate total loss of waters of US authorized by NWP 39 can not exceed 1/2-acre. This includes any loss of waters associated with development of individual subdivision lots. (Sections 10 and 404) Note: Areas where wetland vegetation is not present should be determined by the presence or absence of an ordinary high water mark or bed and bank. Areas that are waters of the US based on this criterion would require a PCN although water is infrequently present in the stream channel (except for ephemeral waters, which do not require PCNs under paragraph (c)(2), above; however, activities that result in the loss of greater than 1ho acre of ephemeral waters would require PCNs under paragraph (c)(1), above). On page 2088, in the sixth sentence of the first paragraph in the first column, the phrase "an adequate water quality management plan" is replaced with the phrase "adequate water quality management measures" to reflect the modified language in General Condition 9. This sentence is corrected to read "The facility must have adequate water quality management measures in accordance with General Condition 9, such as a stormwater management facility, to ensure that the recreational facility results in no substantial adverse effects to water quality." On page 2089, first column, the second sentence of paragraph (c) of NWP 44 is corrected to read "Normally, the water quality management measures required by General Condition 9 should address these impacts;". In addition, the second sentence of paragraph (i) of NWP 44 is corrected to read "Further the District Engineer may require water quality management measures to ensure the authorized work results in minimal adverse effects to water quality;" These corrections are necessary to reflect the modified language in General Condition On page 2089, third column, the text of General Condition 6 is corrected to read: "The activity must comply with any regional conditions that may have been added by the Division Engineer (see 33 CFR 330.4(e)) and with any case specific conditions added by the Corps or by the state or tribe in its Section 401 Water Quality Certification and Coastal Zone Management Act consistency determination." The change to General Condition 6 that was published in the January 15, 2002, Federal Register was not intended and we are correcting this sentence by reinstating the original text as it existed in the March 9, 2000, NWPs. On page 2090, first column, the word "Section" in the parenthetical at the end of General Condition 10 is replaced with "33 CFR" so that the parenthetical reads "(see 33 CFR 330.4(d))". On page 2090, at the top of the second column, the second Internet URL is replaced with" * * http:// www.nmfs.noaa.gov/proL res/overview/ es.html * * "because the Internet address for the National Marine Fisheries Service home page for endangered species has been changed. On page 2090, third column, in paragraph (b)(4) of General Condition 13, NWP 40 should be added to the list of NWPs that require submission of delineations of special aquatic sites with pre-construction notifications. Therefore, paragraph (b)(4) of General Condition 13 is corrected to read "For NWPs 7, 12, 14, 18, 21, 34, 38, 39, 40, 41, 42, and 43, the PCN must also include a delineation of affected special aquatic sites, including wetlands, vegetated shallows (e.g., submerged aquatic vegetation, seagrass beds), and riffle and pool complexes (see paragraph 13(f));" On page 2090, third column, in paragraph (b)(6) of General Condition 13, the word "Projects" replaces the word "Crossings", because the title of NWP 14 is "Linear Transportation Projects". On page 2090, third column, in paragraph (b)(8) of General Condition 13, the word "Activities" is inserted after the word "Restoration" because the title of NWP 27 is "Stream and Wetland Restoration Activities". On page 2091, first column, in paragraph (b)(10) of General Condition 13, the word "Projects" is replaced with the word "Facilities" because the title of NWP 31 is "Maintenance of Existing Flood Control Facilities". 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 NWPs (i. e., NWPs 39, 40, 42, and 43) for filling or excavating stream beds would not apply to activities that involve filling or excavating ephemeral streams. The last sentence of the definition of "Loss of Waters of the US" as published in the January 15, 2002, Federal Register notice does not comport with remainder of this NWP package. Therefore, we are correcting this definition as described above. We believe that correcting the text of NWP 39 and the definition of "Loss of Waters of the US" through the publication of this correction notice is appropriate. Nevertheless, in order to give all interested parties further opportunity to comment on this matter, we intend to publish a Federal Register notice to solicit public comments on those two corrections. If we determine that any other matter relating to the final NWPs requires correction or clarification, but that matter was not adequately dealt with in this correction notice, we will address that additional matter in the forthcoming Federal Register notice, as well. We expect to publish that Federal Register notice within a few weeks. Dated: February 7, 2002. Lawrence A. Lang, Assistant Chief, Operations Division, Directorate of Civil Works. [FR Doc. 02-3555 Filed 2-12-02; 8:45 am] BILLING CODE 3710-92-P DEPARTMENT OF DEFENSE Uniformed Services University of the Health Sciences Sunshine Act Meeting AGENCY HOLDING THE MEETING: Uniformed Services University of the Health Sciences. TIME AND DATE: 8:00 a.m. to 4:00 p.m., February 5, 2002. PLACE: Uniformed Services University of the Health Sciences, Board of Regents Conference Room (D3001), 4301 Jones Bridge Road, Bethesda, MD 20814-4799. STATUS: Open-under "Government in the Sunshine Act" (5 U.S.C. 552b(e)(3)). MATTERS TO BE CONSIDERED: 8:30 a.m. Meeting Board of Regents (1) Approval of Minutes-November 14, 2001 (2) Faculty Matters (3) Department Reports (4) Financial Report (5) Report-President, USUHS (6) Report-Dean, School of Medicine (7) Report-Dean, Graduate School of Nursing (8) Comments-Chairman, Board of Regents (9) New Business CONTACT PERSON FOR MORE INFORMATION: Mr. Bobby D. Anderson, Executive Secretary, Board of Regents, (301) 295- 3116. Dated: February 8, 2002. Linda Bynum, OSD Federal Register Liaison Officer, Department of Defense. [FR Doc. 02-3683 Filed 2-11-02; 3:32 pm] BILLING CODE 5001-08-M DEPARTMENT OF EDUCATION Submission for OMB Review; Comment Request AGENCY: Department of Education. SUMMARY: The Leader, Regulatory Information Management Group, Office of the Chief Information Officer invites comments on the submission for OMB review as required by the Paperwork Reduction Act of 1995. DATES: Interested persons are invited to submit comments on or before March 15, 2002. ADDRESSES: Written comments should be addressed to the Office of Information and Regulatory Affairs, Attention: Lauren Wittenberg, Desk Officer, Department of Education, Office of Management and Budget, 725 17th Street, NW., Room 10202, New Executive Office Building, Washington, DC 20503 or should be electronically mailed to the internet address Lauren-Wittenberg@omb.eop.gov. SUPPLEMENTARY INFORMATION: Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that the Office of Management and Budget (OMB) provide interested Federal agencies and the public an early opportunity to comment on information collection requests. OMB may amend or waive the requirement for public consultation to the extent that public participation in the approval process would defeat the purpose of the information collection, violate State or Federal law, or substantially interfere with any agency's ability to perform its statutory obligations. The Leader, Regulatory Information Management Group, Office of the Chief Information Officer, publishes that notice containing proposed information collection requests prior to submission of these requests to OMB. Each proposed information collection, grouped by office, contains the following: (1) Type of review requested, e.g, new, revision, extension, existing or reinstatement; (2) Title; (3) Summary of the collection; (4) Description of the need for, and proposed use of, the information; (5) Respondents and frequency of collection; and (6) Reporting and/or Recordkeeping burden. OMB invites public comment. 1 U.S. ARMY CORPS OF ENGINEERS WILMINGTON DISTRICT Action ID: 200200882 TIP No: State Project No: 6.552045T County: Montgomery GENERAL PERMIT (REGIONAL AND NATIONWIDE) VERIFICATION Applicant: North Carolina Department of Transportation Address: W.F. Rosser, P.E., Division Engineer North Carolina Department of Transportation Division 8 P.O. Box 1067 Aberdeen, North Carolina 28315 s Telephone Number: 910 944-2344 Size and Location of project (waterway, road name/number, town, etc.): 60 linear feet of 75-inch by 112-inch CMPA culvert at centerline station 184+40 on SR 1134 in an unnamed tributary to Barnes Creek in Montgomery County, North Carolina. Description 'of Activity: To replace 40 linear feet of existing 84-inch CMP culvert with 60 linear feet of 75-inch by 112-inch CMPA culvert with headwalls and install a temporary diversion structure consisting of a fabric-lined channel, 40 linear feet of temporary diversion pipe and fabric-covered stone berms placed on filter cloth on the upstream and down stream side of the culvert. 24 feet of class B rip-rap is to be placed on both banks above the plane of ordinary high water at each end of the culvert for bank protection. Traffic will be detoured onto existing roadways during construction. All temporary fill is to be removed from the waterway in its entirety upon completion of the construction. Applicable Law: X Section 404 (Clean Water Act, 33 U.S.C. 1344) Section 10 (River and Harbor Act of 1899) Authorization: 14/33 Nationwide Permit Number Regional General Permit Number Your work is authorized by this Regional General (RGP) or Nationwide (NWP) Permit provided it is accomplished in strict accordance with the attached conditions and your submitted plans. If your activity is subject to Section 404 (if Section 404 block above is checked), before beginning work you must also receive a Section 401 water quality certification from the N.C. Division of Environmental Management, telephone (919) 733-1786. For any activity within the twenty coastal counties, before beginning work you must contact the N.C. Division of Coastal Management, telephone (919) 733-2293. Please read and carefully comply with the attached conditions of the RGP or.NWP. Any violation of the conditions of the RGP or NWP referenced above may subject the permittee to a stop work order, a restoration order, and/or appropriate legal action. This Department of the Army RGP or NWP verification does not relieve the permittee of the responsibility to obtain any other required Federal, State, or local approvals/permits. The permittee may need to contact appropriate State and local agencies before beginning work. If there are any questions regarding this authorization or any of the conditions of the RGP or NWP, please contact the Corps Regulatory Official specified below. Date 9 July 2002 Corps Regulatory Official Richard K. Spencer Telephone No. (910) 251-4172 Expiration Date of Verification 9 July 2005 CF: NCDOT, Art King (Division 8) NCDWQ, Cynthia Van Der Wiele/ A N D O L P H C O U N T Y / 1 3I >I Irz .I 17 ? OSnt ,jl? ? I c( A R R '? 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'' r '? 1 ?L?' ; \ J I 11 l ti ?f%I ;' \ ' - 1 ; r , t . 1 ?S' ,i 1, t ?'?? . + ?% / \ _ `; t :• ? . ?i\ ? I? {f ?`, . . _ ) ?, , ,i r ?? ?1 `` ?' , ? ? %? ji Ii N VI 3-DT.,xn-i rnhrrl tooon.f v --_-•- ,,,...,- - It 'rulc: I : I'_.S)0 Detail: I4-0 Datum. NVGS84 -1 IEET L - BERM DETAIL STONE BERM WITH FABRIC COVER- TEMPORARY DIVERSION-, FABRIC LINED CHANNEL FILTER FABRIC PIN ABC'-STONE.-:. FLOW BERM DIVERSION DETAIL '??IN FILTER FABRIC LINER 010=212 cfs 4' V=127 fas S?D37 ft/ft DITCH GEPrH=3o FLG DEPTH=3Q N I DE T H NOTES: L INSTALL TEMP. BERMS, DIVERT STREAM FLOW TIMU DIVERSION PIPE AND FABRIC LINED CHANNEL. 2. PUMP CONTAINED AREA TO SILT BAG. 3. INSTALL PIPE AND BACKFILL 4. REMOVE TEMPORARY DIVERSION DEVICES. STONE BERM WITH FABRIC COVER NOT TO SCALE PLAN Eyed ? ff MTSM OF HIGEW115 ROCKL!'GEw DISTRICTOFFICE PL4.lT DAIS 1241.41 RIO OF W14Y PLtt'S D141E• DI, KEDIUCK DEva BY, ka NELSON CD.137RCCTTOY PLINS T),4TE rs DFICY BY. DR4Li1GE DESI&1' Ac coaw DIVERSION / EROSION C0MOL 112"X 75" CMPA PIPE REPLACEEVT PIPE x0.5 MO,Y 0,MY C05 7Y - SR 1184 POTSta.184 40 OF 3 RIP R 1-10112" X 75" ?. CLA ?. D .' . CROSS SECTION RIP RAP (CONCRETE COLLAR STREAM BED D ELEVATION D STREAM IMPACTS PLAN TEMPORARY DIVERSION= 105' PIPE LENGTH=60' LENGTH 0' P EXISTAG PiP===O RIP RAP LENGTH=%4' NET IMPACT 189'-40'= 149' NOT TO SCALE PW3 AE. 124W DMGV BY. aac rw. DRAY BY: AC COG-144 I I i L: C' O prwef ? TTY D07SI0' OF NGHWM RMGftW DISTRICT Off7CE RIGHT OF WAY PUNS D4M K R HERO D IRI E1G COl'STRGCTTO,Y PL4NS A{TE rE DRTLI:TGE DESIG.1' SITE HAY 112" X 75" UPA PIPE REPL4 00T PIPE x0.5 iWONTGO,WERY COUNTY - SR P34 POTSta 184+40 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 1890, Wilmington, NC 28402-1890 North Dakota Omaha District Engineer, ATTN: CENWO- OP-R, 106 South 15th Street, Omaha, NE 68102-1618 Ohio Huntington District Engineer, ATTN: 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: CENWP- PE-G, P.O. Box 2946, Portland, OR 97208- 2946 Pennsylvania Baltimore District Engineer, ATTN: CENAB- OP-R, P.O. Box 1715, Baltimore, MD 21203-1715 Rhode Island New England District Engineer, ATTN: CENAE-R, 696 Virginia Road, Concord, MA 01742-2751 South Carolina Charleston District Engineer, ATTN: CESAC- CO-P, P.O. Box 919, Charleston, SC 29402-0919 South Dakota Omaha District Engineer, ATTN: CENWO- OP-R, 106 South 15th Street, Omaha, NE 68102-1618 Tennessee Nashville District Engineer, ATTN: CELRN- OP-F, P.O. Box 1070, Nashville, TN 37202-1070 Texas Ft. Worth District Engineer, ATTN: CESWF- PER-R, P.O. Box 17300, Ft. Worth, TX 76102-0300 Utah Sacramento District Engineer, ATTN: CESPK-CO-R, 1325 J Street, CA 95814- 2922 Vermont New England District Engineer, ATTN: CENAE-R, 696 Virginia Road, Concord, MA 01742-2751 Virginia Norfolk District Engineer, ATTN: CENAO- OP-R, 803 Front Street, Norfolk, VA 23510-1096 Washington Seattle District Engineer, ATTN: CENWS- OP-RG, P.O. Box 3755, Seattle, WA 98124- 2255 West Virginia Huntington District Engineer, ATTN: CELRH-OR-F, 502 8th Street, Huntington, WV 25701-2070 Wisconsin St. Paul District Engineer, ATTN: CEMVP- CO-R; 190 Fifth Street East, St. Paul, MN 551b4-1638 Wyoming Omaha District Engineer, ATTN: CENWO- 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, Guam, 6 Commonwealth of the Northern Mariana Islands) Honolulu District Engineer, ATTN: CEPOH- EC-R, Building 230, Fort Shafter, Honolulu, HI 96858-5440 Puerto Rico & Virgin Islands Jacksonville District Engineer, ATTN: CESAJ-CO-R, P.O. Box 4970, Jacksonville, FL 32202-4412 Dated: January 4, 2002. Approved: Robert H. Griffin, Brigadier General, U.S. Army, Director of Civil Works. Nationwide Permits, Conditions, Further Information, and Definitions A. Index of Nationwide Permits, Conditions, Further Information, and Definitions Nationwide Permits 1. Aids to Navigation 2. Structures in Artificial Canals 3. Maintenance 4. Fish and Wildlife Harvesting, Enhancement, and Attraction Devices and Activities 5. Scientific Measurement Devices 6. Survey Activities 7. Outfall Structures and Maintenance 8. Oil and Gas Structures 9. Structures in Fleeting and Anchorage Areas 10. Mooring Buoys 11. Temporary Recreational Structures 12. Utility Line Activities 13. Bank Stabilization 14. Linear Transportation Projects 15. U.S. Coast Guard Approved Bridges 16. Return Water From Upland Contained Disposal Areas 17. Hydropower Projects 18. Minor Discharges 19. Minor Dredging 20. Oil Spill Cleanup 21. Surface Coal Mining Activities 22. Removal of Vessels 23. Approved Categorical Exclusions 24. State Administered Section 404 Programs 25. Structural Discharges 26. [Reserved] 27. Stream and Wetland Restoration Activities 28. Modifications of Existing Marinas 29. Single-family Housing 30. Moist Soil Management for Wildlife 31. Maintenance of Existing Flood Control Facilities 32. Completed Enforcement Actions 33. Temporary Construction, Access and Dewatering 34. Cranberry Production Activities 35. Maintenance Dredging of Existing Basins 36. Boat Ramps 37. Emergency Watershed Protection and Rehabilitation 38. Cleanup of Hazardous and Toxic Waste 39. Residential, Commercial, and Institutional Developments 40. Agricultural Activities 41. Reshaping Existing Drainage Ditches 42. Recreational Facilities 43. Stormwater Management Facilities 44. Mining Activities Nationwide Permit General Conditions 1. Navigation 2. Proper Maintenance 3. Soil Erosion and Sediment Controls 4. Aquatic Life Movements 5. Equipment 6. Regional and Case-by-Case Conditions 7. Wild and Scenic Rivers 8. Tribal Rights 9. Water Quality 10. Coastal Zone Management 11. Endangered Species 12. Historic Properties 13. Notification 14. Compliance Certification 15. Use of Multiple Nationwide Permits. 16. Water Supply Intakes 17. Shellfish Beds 18. Suitable Material 19. Mitigation 20. Spawning Areas 21. Management of Water Flows 22. Adverse Effects from Impoundments 23. Waterfowl Breeding Areas 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 (BMPs) Compensatory Mitigation Creation Enhancement Ephemeral Stream Farm Tract Flood Fringe Floodway Independent Utility Intermittent Stream Loss of Waters of the US Non-tidal Wetland Open Water Perennial Stream Permanent Above-grade Fill Preservation Restoration Riffle and Pool Complex 2078 Federal Register/Vol. 67, No. 10/Tuesday, January 15, 2002/Notices Single and Complete Project S tormwater Management bridges, culverted road crossings, water done primarily to obtain fill for any Stormwater Stream Bed Management Facilities intake structures, etc.) and the restoration activities. The discharge of placement of new or additional riprap to dredged or fill material and all related Stream Channelization Tidal Wetland V protect the structure, provided the permittee notifies the District Engineer work needed to restore the upland must be part of a single and complete project egetated 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 NWP 19 to restore damaged upland areas. This B. Nationcvide Permits waterway in the immediate vicinity of the structure to the ap roximate permit cannot be used to reclaim hi 1. Aids to Navigation. The placement of aids to navigation and Regulator p dimensions that existed when the storic lands lost, over an extended period, to normal erosion processes y markers which are approved by and installed in accordance with the structure was built, but cannot extend further than 200 feet in any direction . This permit does not authorize maintenance dredgin for the ri requirements of the U.S. Coast Guard (USCG) (See o CFR, chapter I, 33 R, from the structure. The placement of rip rap must be the minimum necessary to g p mary purpose of navigation and beach restoration. This permit does not subchapter C part (Section 10) - in 2. Structures r Artificial Canals. protect the structure or to ensure the safety of the structure. All excavated authorize new stream channelization or stream relocation projects. Any work Structures constructed in artificial canals within principally residential materials must be deposited and retained in an upland area unless authorized by this permit must not cause more than minimal de radation of developments where the connection of the canal to navigable water of th US S otherwise specifically approved by the District Engineer under separate g water quality,, more than minimal h h e has been previously authorized (see ho 33 been p authorization. Any bank stabilization c anges to t e flow characteristics of the stream, or increase flooding (See CFR 322 10) 8)). (Section •3. Maintenance. Activities related to: measures not directly associated with the structure will require a separate General Conditions 9 and 21). (Sections 10 and 404) (i) The repair, rehabilitation, or replacement of any previously authorization from the District Engineer. (iii) Dischar es of dred d fill Note: This NWP authorizes the repair, h authorized, currently serviceable, g ge or material, including excavation, into all re abilitation, or replacement of any previously authorized structure or fill that structure, or fill, or of any currently waters of the US for activities associated does not qualify for the Section 404(f) serviceable structure or fill authorized with the restoration of upland areas exemption for maintenance. by 33 CFR 330.3, provided that the structure or fill is not to be put to uses damaged by a storm, flood, or other discrete event, including the '4. Fish and Wildlife Harvesting, Enhancement and Attraction Devices differing from those uses specified or contemplated for it in the original construction, placement, or installation of upland protection structures a d , and Activities. Fish and wildlife }r ti d permit or the most recently authorized modification Minor deviatio i th n minor dredging to remove obstructions i arves ng evices and activities such as pound nets, crab traps, crab dredging, . ns n e structure's configuration or filled area n a water of the US. (Uplands lost as a result of a storm, flood, or other eel pots, lobster traps, duck blinds, clam and oyster digging; and small fish including those due to changes in materials, construction techniques, or discrete event can be replaced without a Section 404 permit provided the attraction devices such as open water fish concentrators (sea kites etc.). This current construction codes or safety standards which are necessary to make uplands are restored to their original pre-event location. This NWP is for the , NWP authorizes shellfish seeding provided (his activity does not occur in repair, rehabilitation, or replacement are permitted, provided the adverse activities in waters of the US associated with the replacement of the uplands.) wetlands or sites that support submerged aquatic ve etation (in l di environmental effects resulting from such repair, rehabilitation, or The permittee must notify the District Engineer in accordance with G l g c u ng sites where submerged aquatic replacement are minimal. Currently , enera Condition 13, within 12-months of the vegetation is documented to exist, but may not be present in a given year ) serviceable means useable as is or with date of the damage and the work must . . This NWP does not authorize artificial some maintenance, but not so degraded as to essentially require reconstruction. commence, or be under contract to commence, within two years of the date reefs or impoundments and semi- impoundments of waters of the US for This NWT authorizes the repair, rehabilitation, or replacement of those of the damage. The permittee should provide evidence, such as a recent the culture or holding of motile species such as lobster or the use of covered structures or fills destroyed or damaged by storms, floods, fire or other discrete topographic survey or photographs, to justify the extent of the proposed oyster trays or clam racks. (Sections 10 and 404) events, provided the repair, rehabilitation, or replacement is restoration. The restoration of the damaged areas cannot exceed the • 5. Scientific Measurement Devices. Devices, whose purpose is to measure commenced, or is under contract to commence, within two years of the date contours, or ordinary high water mark, that existed before the dama e Th and record scientific data such as staff of their destruction or damage. In cases of catastro hic events h g . e District Engineer retains the right to d gages, tide gages, water recording devices, water quality testing and p , suc as hurricanes or tornadoes, this two-year etermine the extent of the pre-existing conditions and the extent of any improvement devices and similar str t S ll limit may be waived by the District Engineer, provided the permittee can restoration work authorized by this permit. Minor dred in to remove uc ures. ma weirs and flumes constructed primarily to record water demonstrate funding, contract, or other g g obstructions from the adjacent quantity and velocity are also authorized provided the dischar e is similar delays. (ii) Discharges of dredged or fill i l waterbody is limited to 50 cubic yards below the plane of the ordinary high g limited to 25 cubic yards and further for discharges of 1-0 to 25 cubic ards mater a , including excavation, into all waters of the US to remove accumulated water mark, and is limited to the y provided the permittee notifies the sediments and debris in the vicinity of, amount necessary to restore the pre- existing bottom contours of the District Engineer in accordance with the "Notification" General Conditi and within, existing structures (e.g., waterbody. The dredging may not be on. (Sections 10 and 404) Federal Register/Vol. 67, No. 10/Tuesday, January 15, 2002/Notices 2079 ' 6. Survey Activities. Survey activities including core sampling, seismic exploratory operations, plugging of seismic shot holes and other exploratory-type bore holes, soil survey, sampling, and historic resources surveys. Discharges and structures associated with the recovery of historic resources are not authorized by this NWP. Drilling and the discharge of excavated material from test wells for oil and gas exploration is not authorized by this NWP; the plugging of such wells is authorized. Fill placed for roads, pads and other similar activities is not authorized by this NWP. The NWP does not authorize any permanent structures. The discharge of drilling mud and cuttings may require a permit under section 402 of the CWA. (Sections 10 and 404) -.7. Outfall Structures and Maintenance. Activities related to: (i) Construction of outfall structures and associated intake structures where the effluent from the outfall is authorized, conditionally authorized, or specifically exempted, or are otherwise in comoliance with regulations issued under the National Pollutant Discharge Elimination System Program (Section 402 of the CWA), and (ii) Maintenance excavation, incliding dredging, to remove accumulated sediments blocking or restricting outfall and intake structures, accumulated sediments from small impoundments associated with outfall and intake structures, and accumulated sediments from canals associated with outfall and intake structures, provided that the activity meets all of the following criteria: . a. The permittee notifies the District Engineer in accordance with General Condition 13; b. The amount of excavated or dredged material must be the.minimum necessary to restore the outfalls, intakes, small impoundments, and canals to original design capacities and design configurations (i.e., depth and width); C. The excavated or dredged material is deposited and retained at an upland site, unless otherwise approved by the District Engineer under separate authorization; and. d. Proper soil erosion and sediment control measures are used to minimize reentry of sediments into waters of the us. The construction of intake structures is not authorized by this NWP, unless they are directly associated with an authorized outfall structure. For maintenance excavation and dredging to -remove accumulated sediments, the notification must include information regarding the original design capacities and configurations of the facility and the presence of special aquatic sites e.g., vegetated shallows) in the vicinity of the proposed work. (Sections 10 and 404) % 8. Oil and Gas Structures. Structures for the exploration, production, and transportation of oil, gas, and minerals on the outer continental shelf within areas leased for such purposes by the DOI, Minerals Management Service (MMS).'Such structures shall not-be placed within the limits of any designated shipping safety fairway or traffic separation scheme, except temporary anchors that comply with the fairway regulations in 33 CFR 322.5(1). (Where such limits have not been designated, or where changes are anticipated, District Engineers will consider asserting discretionary authority in accordance with 33 CFR 330.4(e) and will also review such proposals to ensure they comply with the provisions of the fairway regulations in 33 CFR 322.5(1). Any Corps review under this permit will be limited to the effects on navigation and national security in accordance with 33 CFR .322.5(f)). Such structures will not be placed in established danger zones or restricted areas as designated in 33 CFR part 334: nor will such structures be permitted in EPA or Corps designated dredged material disposal areas. (Section 10) 9. Structures in Fleeting and Anchorage Areas. Structures, buoys, floats and other devices placed within anchorage or fleeting areas to facilitate moorage of vessels where the USCG has established such areas for that purpose. (Section 10) , 10, Mooring Buovs. Non-commercial, single-boat, mooring buoys. (Section 10) 11. Temporary Recreational Structures. Temporary buoys, markers, small floating docks, and similar structures placed for recreational use during specific events such as water skiing competitions and boat races or seasonal use provided that such structures are removed within 30 days after use has been discontinued. At Corps of Engineers reservoirs, the reservoir manager must approve each buoy or marker individually. (Section 10) .12. Utility Line Activities. Activities required for the construction, maintenance and repair of utility lines and associated facilities in waters of the US as follows: (i) Utility lines: The construction, maintenance, or repair of utility lines, including outfall and intake structures and the associated excavation, backfill, or bedding for the utility lines, in all waters of the US, provided there is no change in preconstruction contours. A "utility line" is defined as any pipe or pipeline for the transportation of any gaseous, liquid, liquescent, or 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., backf`illing 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 discharges do 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, 2002/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 met: (a) Mechanized land clearing in a forested wetland for the utility line right-of-way; (b) A Section 10 permit is required; (c) The utility line in waters of the US, excluding overhead lines, exceeds 500 feet; (d) The utility line is placed within a jurisdictional area (i.e., water of the US) and it runs parallel to a stream bed that is within that jurisdictional area; f (e) Discharges associated with the construction of utility line substations that result in the loss of greater than 1/,0 acre of waters of the US; or (f) Permanent access roads constructed 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: Overhead utility lines 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 NWP verification will be sent by the Corps to the National Oceanic and Atmospheric Administration (NOAH), 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 (properly anchored trees and treetops may be used in loco 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 and conditions of the NWP and 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) 114. 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 1/i o-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 stream 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 channelization, 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. 10/Tuesday, January 15, 2002/Notices 2081 than minimal degradation of water quality of any stream (see General accordance with the "Notification" General Condition; or (b) h dro ower navigable waters of the US (see 33 CFR 322 5( )) S Conditions 9 and 21); g. This permit cannot be used to y p projects for which the FERC has granted . g . ( ections 10 and 404) 20. Oil Spill Cleanup. Activities authorize non-linear features commonly an exemption from licensing pursuant to section 408 of the Energy Security required for the containment and cleanup of oil and hazardous substan associated with transportation projects, such as vehicle maintenance or st Act of 1980 (16 U.S.C. 2705 and 2708) ces which are subject to the National Oil orage buildings, parking lots, train stations, or i f and section 30 of the Federal Power Act, as amended; provided the permittee and Hazardous Substances Pollution Contingency Plan (40 CFR part 300) a rcra t hangars; and h. The crossing is a single and notifies the District Engineer in provided that the work is done in complete project for crossing waters of the US Where a road se t (i h accordance with the "Notification" General Condition. (Section 404) accordance with the Spill Control and Countermeasure Plan required by 40 . gmen .e., t e shortest segment of a road with 18.;.Minor Discharges. Minor CFR 112.3 and any existing state independent utility that is part of a discharges of dredged or fill material contingency plan and provided that the larger project) has multiple crossings of into all waters of the US if the activity Regional Response Team (if one exists streams (several single and complete meets all of the following criteria: in the area) concurs with the proposed projects) the Corps will consider a. The quantity of discharged material containment and cleanup action. whether it should use its discretionary and the volume of area excavated do not (Sections 10 and 404) authority to require an Individual Permit. (Sections 10 and 404) exceed 25 cubic yards below the plane of the ordinary high water mark or the 21. Surface Coal Mining Activities. Discharges of dredged or fill material Note: Some discharges for the construction of farm roads, forest roads, or temporary high tide line; b. The discharge, including any into waters of the US associated with surface coal mining and reclamation roads for moving mining equipment may be excavated area, will not cause the lo ss operations provided the coal minin g eligible for an exemption from the need for a Section 404 permit (see 33 CFR 323.4). 1 of more than /io-acre of a special aquatic site, including wetlands. For the activities are authorized b the DOI, y Office of Surface Mining (OSM), or by • 15. U.S. Coast Guard Approved purposes of this NWP, the acreage states with approved programs under Bridges. Discharges of dredged or fill limitation includes the filled area and Title V of the Surface Mining Control material incidental to the construction excavated area plus special aquatic sites and Reclamation Act of 1977 and of bridges across navigable waters of the that are adversely affected by flooding provided the permittee notifies the US, including cofferdams, abutments, and special aquatic sites that are District Engineer in accordance with the foundation seals, piers, and temporary drained so that they would no longer be aNotificatione General Condition. In construction and access fills provided a water of the US as a result of the addition, to authorized by this NWP, h such discharges have been authorized project; n e En n t e District gineer must determine by the USCG as part of the bridge c. If the discharge, including any that the activity complies with the terms permit. Causeways and approach fills excavated area,.exceeds 10 cubic yards adandverse conditions environmental NWP and that the ental ff t are not included in this NWP and will i below the plane of the ordinary high e ec s are minima) both individually and requ re an individual or regional Section 404 permit. (Section 404) water mark or the high tide line or if the discharge is in a special aquatic site cumulatively and must notify the .16. Return Water From Upland Contained Disposal Areas. Return water , including wetlands, the permittee notifies the District Engineer in project sponsor of this determination in writing. The Corps, at the discretion of from upland, contained dredged accordance with the "Notification" the District Engineer, may require a bond to ensure success of th material disposal area. The dredging itself may require a Section 404 permit General Condition. For discharges in special aquatic sites, including e mitigation, if no other Federal or state (33 CFR 323.2(d)), but will require a wetlands, the notification must also agency has required one. For discharges in special aquatic sites includin Section 10 permit if located in navigable waters of the US. The return water from include a delineation of affected special aquatic sites, including wetlands (also , g wetlands, and stream riffle and pool a contained disposal area is administratively.defined as a discharge see 33 CFR 330.1(e)); and d. The dischar e including all complexes, the notification must also include a delineation of affected special of dredged material by 33 CFR 323.2(d), , g attendant features, both temporary and aquatic sites, including wetlands. (also, see 33 CFR 330 1(e)) even thou-b the disposal itself occurs on the upland and does not require a permanent, is part of a single and complete project and is not placed for . Mitigation: In determining the need for as well as the level and type of Section 404 permit. This NWP satisfies the technical requirement for a Section the purpose of a stream diversion. (Sections 10 and 404) mitigation, the District Engineer will 404 permit for the return water where 19. Minor Dredging 0 C, . Dredging of no ensure no more than minimal adverse effects to the aquatic environment the quality of the return water is controlled by the state through the more than 25 cubic yards below the plane of the ordinary high water mark occur. As such, District Engineers will determine on a case-by-case basis the Section 401 certification procedures. (Section 404) or the mean high water mark from requirement for adequate mitigation to - 17. Hydropower Projects. Discharges navigable waters of the US (i.e., Section 10 waters) as part of a single and ensure the effects to aquatic systems are minimal In cases where OSM or th of dredged or fill material associated with (a) small hydropower projects at complete project. This NWP does not authorize the dred in or de d ti . e state has required mitigation for the loss existing reservoirs where the project, which includes the fill are lic d b g g gra a on through siltation of coral reefs, sites that of aquatic habitat, the Corps may consider this in determining appropriate , ense y the Federal Energy Regulatory support submerged aquatic vegetation (including sites where submerged mitigation under Section 404. (Sections 10 and 404) Commission (FERC) under the Federal Power Act of 1920, as amended; and has aquatic vegetation is documented to exist, bui may not be present in a iven 22. Removal of Vessels. Temporary t t a total generating capacity of not more than 5000 kW; and the ermittee g year), anadromous fish spawning areas, . l d s ruc ures or minor discharges of dredged or fill material required for the p notifies the District Engineer in or wet an s, or the connection of canals or other artificial waterways to removal of wrecked, abandoned, or disabled vessels, or the removal of man 2082 Federal Register/Vol. 67, No. 10/Tuesday, January 15, 2002/Notices made obstructions to navigation. This NWP does not authorize the removal o vessels listed or determined eligible fo for listing on the National Register of Historic Places unless the District Engineer is notified and indicates that there is compliance with the "Historic Properties" General Condition. This NWP does not authorize maintenance dredging, shoal removal, or riverbank snagging. Vessel disposal in waters of the US may need a permit from EPA (see 40 CFR 229.3). (Sections 10 and 404) 23. Approved Categorical Exclusions. Activities undertaken, assisted, authorized, regulated, funded, or financed, in whole or in part, by anothe Federal agency or department where that agency or department has determined, pursuant to the Council on Environmental Quality Regulation for Implementing the Procedural Provisions of the National Environmental Policy Act (NEPA) (40 CFR part 1500 et seq.), that the activity, work, or discharge is categorically excluded from environmental documentation, because it is included within a category of actions which neither individually nor cumulatively have a significant effect on the human environment, and the Office of the Chief of Engineers (ATTN: CECW- OR) has been furnished notice of the agency's or department's application for the categorical exclusion and concurs with that determination. Before approval for purposes of this NWP of any agency's categorical exclusions, the Chief of Engineers will solicit public comment. In addressing these comments, the Chief of Engineers may require certain conditions for authorization of an agency's categorical exclusions under this NWP. (Sections 10 and 404) 24. State Administered Section 404 Program. Any activity permitted by a state administering its own Section 404 permit program pursuant to 33 U.S.C. 1344(8)-(I) is permitted pursuant to section 10 of the Rivers and Harbors Act of 1899. Those activities that do not involve a Section 404 state permit are not included in this NWP, but certain structures will be exempted by section 154 of Pub. L. 94-587, 90 Stat. 2917 (33 U.S.C. 591) (see 33 CFR 322.3(a)(2)). (Section 10) 25. Structural Discharges. Discharges of material such as concrete, sand, rock, etc., into tightly sealed forms or cells where the material will be used as a structural member for standard pile supported structures, such as bridges, transmission line footings, and walkways or for general navigation, such as mooring cells, including the excavation of bottom material from within the form prior to the discharge f concrete, sand, rock, etc. This NWP does not authorize filled structural members that would support buildings building pads, homes, house pads, parking areas, storage areas and other such structures. The structure itself ma require a Section 10 permit if located in navigable waters of the US. (Section 404) 26. [Reserved] 27. Stream and Wetland Restoration Activities. Activities in waters of the US associated with the restoration of forme waters, the enhancement of degraded tidal and non-tidal wetlands and riparian areas, the creation of tidal and r non-tidal wetlands and riparian areas, and the restoration and enhancement of non-tidal streams and non-tidal open water areas as follows: (a) The activity is conducted on: s (1) Non-Federal public lands and-. private lands, in accordance with the terms and conditions of a binding wetland enhancement, restoration, or creation agreement between the landowner and the U.S. Fish and Wildlife Service (FWS) or the Natural Resources Conservation Service (NRCS), the National Marine Fisheries Service, the National Ocean Service, or voluntary wetland restoration, enhancement, and creation actions documented by the NRCS pursuant to NRCS regulations; or (2) Reclaimed surface coal mine lands, in accordance with a Surface Mining Control and Reclamation Act permit issued by the OSM or the applicable state agency (the future reversion does not apply to streams or wetlands created, restored, or enhanced as mitigation for the mining impacts, nor naturally due to hydrologic or topographic features, nor for a mitigation bank); or OT Any other public, private or tribal lands; (b) Notification: For activities on any public or private land that are not described by paragraphs (a)(1) or (a)(2) above, the permittee must notify the District Engineer in accordance with General Condition 13; and (c) Planting of only native species should occur on the site. Activities authorized by this NWP include, to the extent that a Corps permit is required, but are-not limited to: the removal of accumulated sediments; the installation, removal, and maintenance of small water control structures, dikes, and berms; the installation of current deflectors; the enhancement, restoration, or creation of riffle and pool stream structure; the placement of in-stream habitat structures; modifications of the stream of bed and/or banks to restore or create stream meanders; the backfilling of artificial channels and drainage ditches; the removal of existing drainage structures; the construction of small nesting islands; the construction of open y water areas; the construction of oyster n habitat over unvegetated bottom in tidal waters; activities needed to reestablish vegetation, including plowing or discing for seed bed preparation and the planting of appropriate wetland species; S mechanized land clearing to remove r non-native invasive, exotic or nusiance vegetation; and other related activities. This NWP does not authorize the conversion of a stream to another aquatic use, such as the creation of an impoundment for waterfowl habitat. This NWP does not authorize stream channelization. This NWP does not authorize the conversion of natural wetlands to another aquatic use, such as creation of waterfowl impoundments where a forested wetland previously existed. However, this NWP authorizes the relocation of non-tidal waters, including non-tidal wetlands, on the project site provided there are net gains in aquatic resource functions and values. For example, this NWP may authorize the creation of an open water impoundment in a non-tidal emergent wetland, provided the non-tidal emergent wetland is replaced by creating that wetland type on the project site. This NWP does not authorize the relocation of tidal waters or the conversion of tidal waters, including tidal wetlands, to other aquatic uses, such as the conversion of tidal wetlands into open water impoundments. Reversion. For enhancement, restoration, and creation projects conducted under paragraphs (a)(3), this NWP does not authorize any future discharge of dredged or fill material associated with the reversion of the area to its prior condition. In such cases a separate permit would be required for any reversion. For restoration, enhancement, and creation projects conducted under paragraphs (a)(1) and (a)(2), this NWP also authorizes any future discharge of dredged or fill material associated with the reversion of the area to its documented prior condition and use (i.e., prior to the restoration, enhancement, or creation activities). The reversion must occur within five years after expiration of a limited term wetland restoration or creation agreement or permit, even if the discharge occurs after this NWP expires. This NWP also authorizes the reversion of wetlands that were restored, enhanced, or created on prior-converted cropland that has not been abandoned, in accordance with a binding agreement Federal Register/Vol. 67, No. 10/Tuesday, January 15, 2002/Notices 2f1R.R 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 to and 404) Note: Compensatory mitigation is not required for activities authorized by this NWP, provided the authorized work results in a net increase in aquatic resource functions and values in the project area. This MVP can be used to authorize compensatory mitigation projects, including mitigation banks, provided the permittee notifies the District Engineer in accordance with General Condition 13, and the project includes compensatory mitigation for impacts to waters of the US caused by the authorized work. However, this NWP does not authorize the reversion of an area used for a compensatory mitigation project to its prior condition. NWP 27 can be used to authorize impacts at a mitigation bank, but only in circumstances where it has been approved under the Interagency Federal Mitigation Bank Guidelines. 28. Modifications of Existing Marinas. Reconfiguration of existing docking facilities within an authorized marina area. No dredging, additional slips, dock spaces, or expansion of any kind within waters of the US, is authorized by this NWP. (Section 10) 29. Single-family Housing. Discharges of dredged or fill material into non-tidal waters of the US, including non-tidal wetlands for the construction or expansion of a single-family home and attendant features (such as a garage, driveway, storage shed, and/or septic field) for an Individual Permittee provided that the activity meets all of the following criteria: a. The discharge does not cause the loss of more than 1/4-acre of non-tidal ` waters of the US, including non-tidal wetlands; b. The permittee notifies the District Engineer in accordance with the "Notification" General Condition; c. The permittee has taken all practicable actions to minimize the on- site and off-site impacts of the discharge. For example, the location of the home may need to be adjusted on- site to avoid flooding of adjacent property owners; d. The discharge is part of a single and complete project; furthermore, that for any subdivision created on or after November 22, 1991, the discharges. authorized under this NWP may not exceed an aggregate total loss of waters of the US of 1/4-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 NWP may not be used in conjunction with NWP 14 or NWP 18, for any parcel; and, h. Sufficient vegetated buffers must be maintained adjacent to all open water bodies, streams, etc., to preclude water quality degradation due to erosion and sedimentation. For the purposes of this NWP, the acreage of loss of waters of the US includes the filled area previously permitted, the proposed filled area, and any other waters of the US that are adversely affected by flooding, excavation, or drainage as a result of the project. This NWP authorizes activities only by individuals; for this purpose, the term "individual" refers to a natural person and/or a married couple, but does not include a corporation, partnership, or similar entity. For the purposes of this NWP, a parcel of land is defined as "the entire contiguous quantity of land in possession of, recorded as property of, or owned (in any form of ownership, including land owned as a partner, corporation, joint tenant, etc.) by the same individual (and/or that individual's spouse), and comprises not only the area of wetlands sought to be filled, but also all land contiguous to those wetlands, owned by the individual (and/or that individual's spouse) in any form of ownership." (Sections 10 and 404) 30. Moist Soil 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 management activities where soil manipulation is used to manage habitat and feeding areas for wildlife. Such activities include, but are not limited to: The repair, maintenance or replacement of existing water control structures; the repair or maintenance of dikes; and plowing or discing to impede succession, prepare seed beds, or establish fire breaks. Sufficient vegetated buffers must be maintained adjacent to all open water bodies, streams, etc., to preclude water quality degradation due to erosion and sedimentation. This NWP does not authorize the construction of new dikes, roads, water control structures, etc. associated with the management areas. This NWP does not authorize converting wetlands to uplands, impoundments or other open water bodies. (Section 404) 31. Maintenance of Existing Flood Control Facilities. Discharge of dredge or fill material resulting from activities associated with the maintenance of existing flood control facilities, including debris basins, retention/ detention basins, and channels that (i) were previously authorized by the Corps by Individual Permit, General Permit, by 33 CFR 330.3, or did not require a permit at the time it was constructed, or (ii) were constructed by the Corps and transferred to a non-Federal sponsor for operation and maintenance. Activities authorized by this NWP are limited to those resulting from maintenance activities that are conducted within the "maintenance baseline," as described,in the definition below. Activities „_.. including the discharges of dredged or fill materials, associated with maintenance activities in flood control facilities in any watercourse that has previously been determined to be within the maintenance baseline, are authorized under this MVP. The NWP does not authorize the removal of sediment and associated vegetation from the natural water courses except to the extent that these have been included in the maintenance baseline. All dredged material must be placed in an upland site or an authorized disposal site in waters of the US, and proper siltation controls must be used. (Activities of any kind that result in only incidental fallback, or only the cutting and removing of vegetation above the ground, e.g., mowing, rotary cutting, and chainsawing, where the activity neither substantially disturbs the root system nor involves mechanized pushing, dragging, or other similar activities that redeposit excavated soil material, do not require a Section 404 permit in accordance with 33 CFR 323.2(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 o. the physical characteristics (e.g., depth, width, length, location, configuration, o 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 cohere 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 cumulatively. 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, r development, construction and completion of any such required mitigation. Once the one-time mitigation described above has been completed, or a determination made that mitigation 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 may 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 an 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(a) order on consent resolving a violation. of section 404 of the CWA, provided that: a. The unauthorized activity affected 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 Engineer 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 CFR 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), Cii) 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 Dewatering. Temporary 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 manner, 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. lo/Tuesday, January 15, 2002/Notices 2085 Temporary fill must be entirely removed to upland areas, or dredged material returned to its original location, following completion of the construction activity, and the affected areas must be restored to the pre-project conditions. Cofferdams cannot be used to dewater wetlands or other aquatic areas to change their use. Structures left in place after cofferdams are removed require a Section 10 permit if located in navigable waters of the U.S. (See 33 CFR part 322). The permittee must notify the District Engineer in accordance with the "Notification" General Condition. The notification must also include a restoration plan of reasonable measures to avoid and minimize adverse effects to aquatic resources. The District Engineer will add Special Conditions, where necessary, to ensure environmental adverse effects is minimal. Such conditions may include: limiting the temporary work to the minimum necessary; requiring seasonal restrictions; modifying the restoration plan; and requiring alternative construction methods (e.g. construction mats in wetlands where practicable.). (Sections 10 and 404) 34. Cranberry Production Activities. Discharges of dredged or fill material for dikes, berms, pumps, water control structures or leveling of cranberry beds associated with expansion, enhancement, or modification activities at existing cranberry production operations provided that the activity meets all of the following criteria: a. The cumulative totay acreage of disturbance per cranberry production operation, including but not limited to, filling, flooding, ditching, or clearing, does not exceed 10 acres of waters of the U.S., including wetlands; b. The permittee notifies the District Engineer in accordance with the "Notification" General Condition. The notification must include a delineation of affected special aquatic sites, including wetlands; and, c. The activity does not result in a net loss of wetland acreage. This NWP does not authorize any discharge of dredged or fill material related to other cranberry production activities such as warehouses, processing facilities, or parking areas. For the purposes of this NWP, the cumulative total of 10 acres will be measured over the period that this NWP is valid. (Section 404) 35. Maintenance Dredging of Existing Basins. Excavation and removal of accumulated sediment for maintenance of existing marina basins, access channels to marinas or boat slips, and boat slips to previously authorized depths or controlling depths for ingress/ egress, whichever is less, provided the dredged material is disposed of at an upland site and proper siltation controls are used. (Section 10) 36. Boat Ramps. Activities required for the construction of boat ramps provided: a. The discharge into waters of the U.S. does not exceed 50 cubic yards of concrete, rock, crushed stone or gravel into forms, or placement of pre-cast concrete planks or slabs. (Unsuitable material that causes unacceptable chemical pollution or is structurally unstable is not authorized); b. The boat ramp does not exceed 20 feet in width; c. The base material is crushed stone, gravel or other suitable material; d. The excavation is limited to the area necessary for site preparation and all excavated material is removed to the upland; and, e. No material is placed in special. aquatic sites, including wetlands. Another NWP, Regional General Permit, or Individual Permit may authorize dredging to provide access to the boat ramp after obtaining a Section 10 if located in navigable waters of the U.S. (Sections 10 and 404) 37. Emergency Watershed Protection and Rehabilitation. Work done by or funded by: a. The NRCS which is a situation requiring immediate action under its emergency Watershed Protection Program (7 CFR part 624); or b. The USFS under its Burned-Area Emergency Rehabilitation Handbook (FSH 509.13); or c. The DOI for wildland fire management burned area emergency stabilization and rehabilitation (DOI Manual part 620, Ch. 3). For all of the above provisions, the District Engineer must be notified in accordance with the General Condition 13. (Also, see 33 CFR 330.1(e)). (Sections 10 and 404) 38. Cleanup of Hazardous and Toxic Waste. Specific activities required to effect the containment, stabilization, or removal of hazardous or toxic waste materials that are performed, ordered, or sponsored by a government agency with established legal or regulatory authority provided the permittee notifies the District Engineer in accordance with the "Notification" General Condition. For discharges in special aquatic sites, including wetlands, the notification must also include a delineation of affected special aquatic sites, including wetlands. Court ordered remedial action plans or related settlements are also authorized by this NWP. This NWP does not authorize the establishment of new disposal sites or the expansion of existing sites used for the disposal of hazardous or toxic waste. Activities undertaken entirely on a Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) site by authority of CERCLA as approved or required by EPA, are not required to obtain permits under section 404 of the CWA or section 10 of the Rivers and Harbors Act. (Sections 10 and 404) 39. Residential, Commercial, and Institutional Developments. Discharges of dredged or fill material into non-tidal waters of the U.S., excluding non-tidal wetlands adjacent to tidal waters, for the construction or expansion of residential, commercial, and institutional building foundations and building pads and attendant features that are necessary for the use and maintenance of the structure's; Attendant features may include, but are not limited to, roads, parking lots, garages, yards, utility lines, stormwater management facilities, and recreation facilities such as playgrounds, playing fields, and golf courses (provided the golf course is an integral part of the residential development). The construction of new ski areas or oil and gas wells is not authorized by this NWP. Residential developments include multiple and single unit developments. Examples of commercial developments include retail stores, industrial facilities, restaurants, business parks, and shopping centers. Examples of institutional developments include schools, fire stations, government office buildings, judicial buildings, public works buildings, libraries, hospitals, and places of worship. The activities listed above are authorized, provided the activities meet all of the following criteria: a. The discharge does not cause the loss of greater than 1/2-acre of non-tidal waters of the U.S., excluding non-tidal wetlands adjacent to tidal waters; b. The discharge does not cause the loss of greater than 300 linear-feet of a stream bed, unless for intermittent stream beds this criterion is waived in writing pursuant to a determination by the District Engineer, as specified below, that the project complies with all terms and conditions of this MVP 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 Vio-acre of non-tidal waters of the US, excluding non-tidal wetlands adjacent to tidal waters; or 2086 Federal Register/Vol. 67, No. 10/-Tuesday, January 15, 2002/Notices (2) The discharge causes the loss of any open waters, including perennial or intermittent streams, below the ordinary high water mark (see Note, below); or ?3) The discharge causes the loss of greater than 300 linear feet of intermittent stream bed. In such case, to be authorized the District Engineer must determine that the activity complies with the other terms and conditions of the NWP, determine adverse environmental effects are minimal both individually and cumulatively, and waive the limitation on stream impacts in writing before the permittee may proceed; d. For discharges in special aquatic sites, including wetlands, the notification must include a delineation of affected special aquatic sites; e. The discharge is part of a single and complete project; f. The permittee must avoid and minimize discharges into waters of the US at the project site to the maximum extent practicable. The notification, when required, must include a written statement explaining how avoidance and minimization of losses of waters of the US were achieved on the project site. Compensatory mitigation will normally be required to offset the losses of waters of the US. (See General Condition 19.) The notification must also include a compensatory mitigation proposal for offsetting unavoidable losses of waters of the US. If an applicant asserts that the adverse effects of the project are minimal without mitigation, then the applicant may submit justification explaining why compensatory mitigation should not be required for the District Engineer's consideration, g. When this NWP is used in conjunction with any other NWP, any combined total permanent loss of waters of the US exceeding Vio-acre requires that the permittee notify the District Engineer in accordance with General Condition 13; h. Any work authorized by this NWP must not cause more than minimal degradation of water quality or more than minimal changes to the flow characteristics of any stream (see General Conditions 9 and 21); i. For discharges causing the loss of 1/lo-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 i the US (e.g., 1/12-acre of emergent t wetlands); and (5) The type and acreage of any compensatory mitigation used t to offset the loss of waters of the US (e.g., V12-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, t the maximum extent practicable, wetland or upland vegetated buffers next to those open waters or streams consistent with General Condition 19. Deed restrictions, conservation easements, protective covenants, or other means of land conservation and preservation are required to protect and maintain the vegetated buffers established on the project site. Only residential, commercial, and institutional activities with structures on the foundation(s) or building pad(s), as well as the attendant features, are authorized by this NWP. The compensatory mitigation proposal that is required in paragraph (e) of this NWP may be either conceptual or detailed. The wetland or upland vegetated buffer required in paragraph (i) of this NWP will be determined on a case-by-case basis by the District Engineer for addressing water quality concerns. The required wetland or upland vegetated buffer is part of the overall compensatory mitigation requirement for this NWP. If the project site was previously used for agricultural purposes and the farm owner/operator used NWP 40 to authorize activities in waters of the US to increase production or construct farm buildings, NWP 39 cannot be used by the developer to authorize additional activities. This is more than the acreage limit for NWP 39 impacts to waters of the US (i.e., the combined acreage loss authorized under NWPs 39 and 40 cannot exceed 1/2-acre, see General Condition 15). Subdivisions: For residential subdivisions, the aggregate total loss of waters of US authorized by NWP 39 can not exceed 1/2-acre. This includes any loss of waters associated with development of individual subdivision lots. (Sections 10 and 404) Note: Areas where wetland vegetation is not present should be determined by the presence or absence of an ordinary high water mark or bed and bank. Areas that are waters of the US based on this criterion would require a PCN although water is infrequently present in the stream channel (except for ephemeral waters, which do not require PCNs). 40. Agricultural Activities. Discharges of dredged or fill material into non-tidal waters of the US, excluding non-tidal wetlands adjacent to tidal waters, for mproving agricultural production and he construction of building pads for farm buildings. Authorized activities include the installation, placement, or construction of drainage tiles, ditches, or levees; mechanized land clearing; land leveling; the relocation of existing serviceable drainage ditches constructed in waters of the US; and similar o activities, provided the permittee complies with the following terms and conditions: a. For discharges into non-tidal wetlands to improve agricultural production, the following criteria must be met if the permittee is an United States Department of Agriculture (USDA) Program participant: (1) The permittee must obtain a categorical minimal effects exemption, minimal effect exemption, or mitigation exemption from NRCS in accordance with the provisions of the Food Security Act of 1985, as amended (16 U.S.C. 3801 et seq.); (2) The discharge into non-tidal wetlands does not result in the loss of greater than 1/2-acre of non-tidal wetlands on a farm tract; (3) The permittee must have NRCS- certified wetland delineation; (4) The permittee must implement an NRCS-approved compensatory mitigation plan that fully offsets wetland losses, if required; and (5) The permittee must submit a report, within 30 days of completion of the authorized work, to the District Engineer that contains the following information: (a) The name, address, and telephone number of the permittee; (b) The location of the work; (c) A description of the work; (d) The type and acreage (or square feet) of the loss of wetlands (e.g., 1/3-acre of emergent wetlands); and (e) The type, acreage (or square feet), and location of compensatory mitigation (e.g. 1/3-acre of emergent wetland on a farm tract; credits purchased from a mitigation bank); or b. For discharges into non-tidal wetlands to improve agricultural production, the following criteria must be met if the permittee is not a USDA Program participant (or a USDA Program participant for which the proposed work does not qualify for authorization under paragraph (a) of this NWP): (1) The discharge into non-tidal wetlands does not result in the loss of greater than 1/2-acre of non-tidal wetlands on a farm tract; (2) The permittee must notify the District Engineer in accordance with General Condition 13, if the discharge results in the loss of greater than 1/io- acre of non-tidal wetlands; (3) The notification must include a delineation of affected wetlands; and Federal Register / Vol. 67, No. 10 / Tuesday, January 15, 2002/Notices 2087 (4) The notification must include a discharge qualifies for an exemption ditches to their original dimensions and compensatory mitigation proposal to offset losses of waters of the US; or under section 404(f) of the CWA, even though a categorical minimal ff t configuration, which does not require a c. For the construction of building pads for farm buildings, the discharge e ec s exemption, minimal effect exemption, or iti ti Section 404 permit (see 33 CFR 323.4(a)(3)). This NWP does not does not cause the loss of greater than '/ m ga on exemption from NRCS pursuant to the Food Security Act of authorize the relocation of drainage ditches constructed in w t f th US z-acre of non-tidal wetlands that were in agricultural production prior to 1985, as amended, may be required. Activities authorized by paragra hs a a ers o e ; the location of the centerline of the h December 23, 1985, (i.e., farmed wetlands) and the permittee must notif p . through d. may not exceed a total of 1/2- res aped drainage ditch must be approximately the same as the location y the District Engineer in accordance with G 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 d t h eneral Condition 13; and d. Any activity in other waters of the farm owner/operator used either paragraphs a. b or c of this NWP t . oes no aut orize stream channelization or stream US is limited to the relocation of , .., . o authorize activities in waters of the US relocation projects. (Section 404) existing serviceable drainage ditches constructed in non-tidal streams This to increase agricultural production or 42. Recreational Facilities. Discharges of dredged or fill material into non-tidal . NWP does not authorize the relocation construct farm buildings, and the current landowner wants to use NWP 39 waters of the US, excluding non-tidal linear-feet of greater than 3n to authorize residential commercial or wetlands adjacent to tidal waters, for the a constructed constructed icea se , , industrial development activities in construction or expansion of in - non tidal streams unless, for raina 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 NWPs 39 and 40 cannot exceed 1/2-acre criteria: waives this criterion in writing, and the (see General Condition 15) (Section a. The discharge does not cause the District Engineer has determined that . 404) loss of greater than 1/2-acre of non tidal the project complies with all terms and 41. Reshaping Existing Drainage waters of the US, excluding non-tidal conditions of this NWP, and that any Ditches. Discharges of dredged or fill wetlands adjacent to tidal waters; adverse impacts of the project on the material into non tidal waters of the US b. The discharge does not cause the aquatic environment are minimal, both , excluding non-tidal wetlands adjacent loss greater than of 300 of a individually and cumulatively. For to tidal waters, to modify the cross- m or intermittent stream bed, unless for impacts exceeding 300-linear feet of sectional configuration of currently stream beds this criterion is waived in impacts to existing serviceable ditches serviceable drainage ditches constructed writing pursuant to a determination by constructed in intermittent non-tidal in waters of the US. The reshaping of the District Engineer, as specified streams, the permittee must notify the the ditch cannot increase drainage below, that the project complies with all District Engineer in accordance with the " capacity beyond the original design terms and conditions of this NWP and Notification" General Condition 13; a d capacity. Nor can it expand the area that any adverse impacts of the project n 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 Service Agency. The Corps will identify must be the same as originally designed and it cannot drain additional wetlands cumulatively; c. The permittee notifies the District other waters of the US on the farm tract, or other waters of the US). Engineer in accordance with the NRCS will determine if a proposed agricultural activity meets the terms and Compensatory mitigation is not required because the work is designed to improve "Notification" General Condition 13 for discharges exceeding 300 linear feet of conditions of paragraph a. of this NWT, except as provided below For th water quality (e.g., by regrading the impact of intermittent stream beds. In . ose activities that require notification, the drainage ditch with gentler slopes, which can reduce erosion increase such cases, to be authorized the District Engineer must determine that the District Engineer will determine if a proposed agricultural activit is , growth of vegetation, increase uptake of activity complies with the other terms y 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 mate i l notify the District Engineer in cumulatively, and waive this limitation r a into waters of the US authorized by accordance with General Condition 13 if greater than 500 linear feet of draina e in writing before the permittee may proceed; paragraphs (c) or (d) of this NWP, in addition to paragraph (a) must notif g ditch will be reshaped. Material d. For discharges causing the loss of , y the District Engineer in accordance with resulting from excavation may not be permanently sidecast into waters but greater than Vio-acre of non-tidal waters of the US, the permittee notifies the General Condition 13 and the District Engineer will determine if the e ti may be temporarily sidecast (up to three District Engineer in accordance with n re single and complete project is months) into waters of the US, provided the material is not placed in such a General Condition 13; e. For discharges in special aquatic authorized by this NWP. Discharges of dredged or fill material into water f manner that it is dispersed by currents sites, including wetlands, the s o the US associated with completing or other forces. The District Engineer may extend the period of temporary notification must include a delineation of affected special aquatic sites; required compensatory mitigation are authorized by this NWP. However, total sidecasting not to exceed a total of 180 days, where appropriate. In general, this f. The discharge is part of a single and complete project; and impacts, including other authorized impacts under this NWP, may not NWP does not apply to reshaping draina e ditches con t t d i g. Compensatory mitigation will exceed the Vz-acre limit of this NWP, This NWP does not affect or oth i g s ruc e n uplands, since these areas are generally normally be required to offset the losses 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 iti ti agricultural activities when the , maintenance of existing drainage m ga on proposal to offset authorized losses of waters of the US. 2088 Federal Register/Vol. 67, No. 10/Tuesday, January 15, 2002 /Notices For the purposes of this NWP, the term "recreational facility" is defined as greater than 1/2-acre of non-tidal waters of the US, excluding non-tidal wetl d that are exempt from Section 404 permit a recreational activity that is integrated into the natural landscape and does not an s ad' cent to tidal waters; b. The discharge does not cau th requirements); f. The permittee must avoid and substantially change preconstruction grades or deviate from natural landscape se e loss of greater than 300 linear-feet of a stream bed unless for i t i minimize discharges into waters of the US at the project site to the maximum contours. For the purpose of this permit, the primary function of recreatio l , n erm ttent stream beds this criterion is waived in iti extent practicable, and the notification must include a written statement to the na facilities does not include the use of t hi l wr ng pursuant to a determination by the District Engineer, as specified District Engineer detailing compliance with this condition (i e wh the mo or ve c es, buildings, or impervious surfaces. Examples of recreational below, that the project complies with all terms and conditions of this NWP d . . y discharge must occur in waters of the facilities that may be authorized by this NWP an that any adverse impacts of the project US and why additional minimization cannot be achieved) include hiking trails, bike paths, horse paths, nature centers, and on the aquatic environment are minimal, both individuall and ; g. The stormwater management f l campgrounds (excluding trailer parks). This NWP may authorize the y cumulatively; c. For discharges causing the loss of aci ity must comply with General Condition 21 and be designed using B construction or expansion of golf courses and the expansion of ski areas greater than 300 linear feet of intermittent stream beds the itt MPs and watershed protection techniques. Examples may include , provided the golf course or ski area does , perm ee notifies the District Engineer in forebays (deeper areas at the upstream end of the stormwater man t not substantially deviate from natural landscape contours. Additionally, these accordance with the "Notification" General Condition 13 In such cases t agemen facility that would be maintained activities are designed to minimize . , o be authorized the District Engineer must through excavation), vegetated buffers, and sitin considerati t i i adverse effects to waters of the US and riparian areas through the use of such determine that the activity complies with the other terms and conditions of g ons o m n mize adverse effects to aquatic resources. practices as integrated pest ma t d the NWP, determine the adverse Another example of a BMP would be bioengineering methods incor orated nagemen , a equate stormwater management facilities, vegetated buffers, environmental effects are minimal both individually and cumulatively and p into the facility design to benefit water reduced fertilizer use, etc. The facility , waive this limitation in writing before quality and minimize adverse effects to must have an adequate water quality the permittee may proceed; aquatic resources from storm flows, management plan in accordance with General Condition 9, such as a d. The discharges of dredged or fill material for the construction of new especially downstream the facility, that provide, to the maximum extent stormwater management facility, to stormwater management facilities in practicable, for long term aquatic ensure that the recreational facility results in no substantial adverse effects perennial streams is not authorized; e. For discharges or excavation for the resource protection and enhancement; h. Maintenance excavation will be in to water quality. This NWP also construction of new stormwater accordance with an approved authorizes the construction or ex a i f ll management facilities or for the i maintenance plan and will not exceed the original contours of the facilit as p ns on o sma support facilities, such as maintenance and storage ma ntenance of existing stormwater management facilities causing the loss y approved and constructed; and buildings and stables that are directly l of greater than 1/lo-acre of non-tidal i. The discharge is art of a single and c ° complete project (Section re ated to the recreational activity. This NWP does not authorize other waters, excluding non-tidal wetlands adjacent to tidal waters provided the . 44 cha . Mining Activities. Discharges of buildings, such as hotels, restaurants, , permittee notifies the District Engineer dredged or fill material into: M Isolated waters; streams where the etc. The construction or expansion of playing fields (e.g., baseball, soccer or in accordance with the "Notification" General Condition 13 In additi th annual average flow is 1 cubic foot per , football fields), basketball and tennis . on, e notification must include: second or less, and non tidal wetlands adjacent to headwater streams for courts, racetracks, stadiums, arenas, and the construction of new ski areas are not (1) A maintenance plan. The maintenance plan should be in , aggregate mining (i.e., sand, gravel, and authorized by this NWP. (Section 404) accordance with state and local crushed and broken stone) and associated support activities; 43. Storm water Management Facilities. Discharges of dredged or fill requirements, if any such requirements exist; (ii) Lower perennial streams, material into non-tidal waters of the US, excludin non tidal tl d d (2) For discharges in special aquatic it i l d excluding wetlands adjacent to lower perennial streams, for aggregate mining g we an s a jacent to tidal waters, for the construction and s es, nc u ing wetlands and submerged aquatic ve etation the activities (support activities in lower maintenance of stormwater management facilities, including activities for the , g notification must include a delineation of affected areas; and perennial streams or adjacent wetlands are not authorized by this NWP); and/ excavation of stormwater ponds/ facilities, detention basins, and (3) A compensatory mitigation proposal that offsets the loss of wate or (iii) Isolated waters and non-tidal retention basins; the installation and rs of the US. Maintenance in constructed wetlands adjacent to headwater streams, for hard rock/mineral minin activiti maintenance of water control structures, outfall structures and emergency areas will not require mitigation provided such maintenance is g es (i.e., extraction of metalliferous ores spillways; and the maintenance dredgin of existin sto t accomplished in designated i from subsurface locations) and associated support activities, provided g g rmwa er management ponds/facilities and ma ntenance areas and not within compensatory mitigation areas (i.e., the discharge meets the following criteria: detention and retention basins, provided the activity meets all of the District Engineers may designate non maintenance areas, normally at the a. The mined area within waters of the US plus the acrea e loss of waters following criteria: a. The discharge for the construction downstream end of the stormwater management facility in existing , g of the US resulting from support ti i i of new stormwater management , stormwater management facilities). (No ac v t es, cannot exceed 1/2-acre; b. The permittee must avoid and facilities does not cause the loss of mitigation will be required for activities minimize discharges into waters of the Federal Register/Vol. 67, No. 10/Tuesday, January 15, 2002/Notices 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 aroved by the Cor ps; ; TBeneficiation 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 1 cubic foot per second (aggregate mining.can occur in areas immediately adjacent to the ordinary high water mark of a stream where the average annual flow is 1 cubic foot per second or less); k. Single and complete project: The discharge must be for a single and complete project, including support activities. Discharges of dredged or fill material into waters of the US for multiple mining activities on several designated parcels of a single and complete mining operation can be authorized by this NWP provided the '/z-acre limit is not exceeded; and 1. Notification: The permittee must notify the District Engineer in accordance with General Condition 13. The notification must include: (1) A description of waters of the US adversely affected by the project; (2) A written statement to the District Engineer detailing compliance with paragraph (b), above (i.e., why the discharge must occur in waters of the US and why additional minimization cannot be achieved); (3) A description of measures taken to ensure that the proposed work complies with paragraphs (c) through (0, 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 aulorize 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. Permittees are encouraged to perform work within waters of the United States during periods of low-flow or no-flow. 4. Aquatic Life Movements. No activity may substantially disrupt the necessary life-cycle movements of those species of aquatic life indigenous to the waterbody, including those species that normally migrate through the area, unless the activity's primary purpose is to impound water. Culverts placed in streams must be installed to maintain low flow conditions. 5. Equipment. Heavy equipment working in wetlands must be placed on mats, or other measures must be taken to minimize soil disturbance. 6. Regional and Case-By-Case Conditions. The activity must comply with any regional conditions that may have been added by the Division 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 in a component of the National Wild and Scenic River System; or in a river officially designated by Congress as a "study river" for possible inclusion in the system, while the river is in an official study status; unless the appropriate Federal agency, with direct management responsibility for such river, has determined in writing that the proposed activity will not adversely affect the Wild and Scenic River designation, or study status. Information on Wild and Scenic Rivers may be obtained from the appropriate Federal land management agency in the area (e.g., National Park Service, U.S. Forest Service, Bureau of Land Management, U.S. Fish and Wildlife Service). 8. Tribal Rights. No activity or its operation may impair reserved tribal rights, including, but not limited to, reserved water rights and treaty fishing and hunting rights. 9. Water Quality. (a) In certain states and tribal lands an individual 401 Water Quality Certification must be obtained or waived (See 33 CFR 330.4(c)). (b) For NWPs 12, 14, 17, 18, 32, 39, 40, 42, 43, and 44, where the state or tribal 401 certification (either generically or individually) does not require or approve water quality management measures, the permittee must provide water quality management measures that will ensure that the authorized work does not result in more than minimal degradation of water quality (or the Corps determines that compliance with state or local standards, where applicable, will ensure no more than minimal adverse effect on water quality). An important component of water quality management includes stormwater management that minimizes degradation of the downstream aquatic system, including water quality (refer to General Condition 21 for stormwater I:F 2090 Federal Register/Vol. 67, No. 10 /Tuesday, January 15, 2002 /Notices management requirements). Another important component of water quality endspp.html and http://wwiv.nfms.aovl Prot_res/esohome.html respectivel written notice from the District or Di i i E y. management is the establishment and 12. Historic Properties. No activity maintenance of vegetated buffers next to which may affect historic ti v s on ngineer. Subsequently, the permittee's right to proceed under the open waters, including streams (refer to General Condition 19 for vegetated proper es listed, or eligible for listing, in the National Re ister f Hi i NWP may be modified, suspended, or revoked only in accordance with the buffer requirements for the NWPs). g o stor c Places is authorized, until the District Engineer procedure set forth in 33 CFR 330 5(d)(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) Contents of Notification: The water quality. While appropriate measures must be taken, in most cases . prospective permittee must notify the District Engineer if the authorized notification must be in writing and include the following information: it is not necessary to conduct detailed studies to identify such measures or to activity may affect any historic properties listed, determined to be (1) Name, address and telephone numbers of the prospective permittee; require monitoring. 10. Coastal Zone Management. In eligible, or which the prospective permittee has reason to believe may be (2) Location of the proposed project; (3) Brief description of the proposed ' certain states, an individual state coastal zone management consistency eligible for listing on the National Register of Historic Places, and shall not project; the project s purpose; direct and indirect adverse environmental effects concurrence must be obtained or waived (see Section 330.4(d)). b begin the activity until notified by the District Engineer that the requirements the project would cause; any other NWP(s), Regional General Permit(s), or 11. Endangered Species. (a) No activity is authorized under any NWP of the National Historic Preservation Act have been satisfied and that the activity Individual Permit(s) used or intended to be used to authorize any part of the which is likely to jeopardize the continued existence of a threatened or is authorized. Information on the location and existence of historic proposed project or any related activity. 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 oje , identified under the Federal Endangered N ational Register of Historic Places (see (Sketches usually clarify the project ct and Species Act (ESA), or which will f CFR 33 330.4(8)). For activities that may f when provided result in a quicker decision ) destroy or adversely modify the critical habitat of such species. Non-federal a fect a fect historic properties listed in, or eligible for listing in, the National 0 . ; (4) For NWPs 7, 12, 14, 18, 21, 34, 38, permittees shall notify the District Engineer if any listed species or Register of Histori c Places, the notification must state which historic us th a ls 39, 43, include 42, the PCN must also include a and a delineation of affected special designated critical habitat might be affected or is in the vicinity of the property may by affected b the proposed.work or include a vicinity aquatic sites, including wetlands, vegetated shallows (e.g., submerged project, or is located in the designated critical habitat and shall not begin work map indicating the location of the historic property. aquatic vegetation, seagrass beds), and riffle and pool com lexes see aragra h P ( p o p on the activity until notified by the District Engineer that the requirements 13. Notification. (a) Timing, where required by the 13(flJ; (5) For NWP 7 (Outfall Structures and of the ESA have been satisfied and that terms of the NWP, the prospective Maintenance), the PCN must include the activity is authorized. For activities Permittee must notify the District information regarding the original that may affect Federally-listed Engineer with a preconstruction design capacities and configurations of endangered or threatened species or notification (PCN) as early as possible, Th those areas of the facility where designated critical habitat the e District Engineer must determine if maintenance dredging or excavation is , notification must include the name(s) of the endangered or threatened s e i the notification is complete within 30 days of the date of receipt and can proposed; (6) For NWP 14 (Linear, c es that may be affected by the proposed request additional information Transportation Crossings), the PCN work or that utilize the designated necessary to make the PCN complete must include a compensatory mitigation critical habitat that may be affected by only once. However, if the prospective proposal to offset permanent losses of the proposed work. Asa result of formal permittee does not provide all of the waters of the US and a statement or informal consultation with the FWS requested information, then the District describing how temporary losses of or NMFS the District Engineer may add Engineer will notify the prospective waters of the US will be minimized to species specific regional endangered dan Permittee that the notification is still the maximum extent practicable; species conditions the (b) Authorization of an activity by a incomplete and the PCN review process will not commence until all of the (7) For NWP 21 (Surface Coal Mining Activities), the PCN must include an NWP does not authorize the "take" of a threatened or endangered species as requested information has been received by the District Engineer. The Office of Surface Mining (OSM) or state- 0 approved mitigation plan, if applicable. defined under the ESA. In the absence of separate authorization (e ESA prospective permittee shall not begin the activity: To be authorized by this NWP, the District Engineer must determine that .g., an Section 10 Permit, a Biological Opinion 1 1 () Unti notified in writing by the D the activity complies with the terms and o with "incidental take" provisions, etc.) istrict Engineer that the activity may proceed under the NWP with an conditions of the NWP and that the adverse environmental effect from the USFWS or the NMFS, both lethal and non-lethal "takes" of y special conditions imposed by the s are minimal both individually and protected species are in violation of the ESA. Information on the location f District or Division Engineer; or (2) If notified in writing by the District cumulatively and must notify the project sponsor of this determination in o threatened and endangered species and or Division Engineer that an Individual Permit is required; or writing; (8) For NWP 27 (Stream and W tl d their critical habitat can be obtained directly from the offices of the USFWS (3) Unless 45 days have passed from h ' e an Restoration), the PCN must include and NMFS or their world wide web t e District Engineer s receipt of the complete notification and the documentation of the prior condition of the site that will be reverted by the pages at http://?vwiv.fws.aovlr9endsppl prospective permittee has not received permittee; Federal Register/Vol. 67, No. 10/Tuesday, January 15, 2002/Notices 2091 (9) For NWP 29 (Single-Family Housing), the PCN must also include: (i) Any past use of this NWP by the Individual Permittee and/or the permittee's spouse; (ii) A statement that the single-family housing activity is for a personal residence of the permittee; (iii) A description of the entire parcel, including its size, and a delineation of wetlands. For the purpose of this NWP, parcels of land measuring 1/4-acre or less will not require a formal on-site delineation. However, the applicant shall provide an indication of where the wetlands are and the amount of wetlands that exists on the property. For parcels greater than 1/4-acre in size, formal wetland delineation must be prepared in accordance with the current method required by the Corps. (See paragraph 13(f)); (iv) A written description of all land (including, if available, legal descriptions) owned by the prospective permittee and/or the prospective permittee's spouse, within a one mile radius of the parcel, in any form of ownership (including any land owned as a partner, corporation, joint tenant, co-tenant, or as a tenant-by-the-entirety) and any land on which a purchase and sale agreement or other contract for sale or urchase has been executed; ?10) For NWP 31 (Maintenance of Existing Flood Control Projects), the prospective permittee must either notify the District Engineer with a PCN prior to each maintenance activity or submit a five year (or less) maintenance plan. In addition, the PCN must include all of the following: W Sufficient baseline information identifying the approved channel depths and configurations and existing facilities. Minor deviations are authorized, provided the approved flood control protection or drainage is not increased; (ii) A delineation of any affected special aquatic sites, including wetlands; and, (iii) Location of the dredged material disposal site; (11) For NWP 33 (Temporary Construction, Access, and Dewatering), the PCN must also include a restoration plan of reasonable measures to avoid and minimize adverse effects to aquatic resources; (12) For NWPs 39, 43 and 44, the PCN must also include a written statement to the District Engineer explaining how avoidance and minimization for losses of waters of the US were achieved on the project site; (13) For NWP 39 and NWP 42, the PCN must include a compensatory mitigation proposal to offset losses of waters of the US or justification explaining why compensatory mitigation should not be required. For discharges that cause the loss of greater than 300 linear feet of an intermittent stream bed, to be authorized, the Distri Engineer must determine that the activity complies with the other terms and conditions of the NWP, determine adverse environmental effects are minimal both individually and s cumulatively, and waive the limitation on stream impacts in writing before the permittee may proceed; (14) For NWP 40 (Agricultural Activities), the PCN must include a r compensatory mitigation proposal to offset losses of waters of the US. This NWP does not authorize the relocation of greater than 300 linear-feet of existing serviceable drainage ditches constructed in non-tidal streams unless, for drainage ditches constructed in intermittent non- tidal streams, the District Engineer waives this criterion in writing, and the District Engineer has determined that the project complies with all terms and conditions of this NWP, and that any adverse impacts of the project on the aquatic environment are minimal, both individually and cumulatively; (15) For NWP 43 (Stormwater Management Facilities), the PCN must include, for the construction of new stormwater management facilities, a maintenance plan (in accordance with state and local requirements, if applicable) and a compensatory mitigation proposal to offset losses of waters of the US. For discharges that cause the loss of greater than 300 linear feet of an intermittent stream bed, to be authorized, the District Engineer must determine that the activity complies with the other terms and conditions of the NWP, determine adverse environmental effects are minimal both individually and cumulatively, and waive the limitation on stream impacts in writing before the permittee may proceed; (16) For NWP 44 (Mining Activities), the PCN must include a description of all waters of the US adversely affected by the project, a description of measures taken to minimize adverse effects to waters of the US, a description of measures taken to comply with the criteria of the NWP, and a reclamation plan (for all aggregate mining activities in isolated waters and non-tidal wetlands adjacent to headwaters and any hard rock/mineral mining activities); (17) For activities that may adversely affect Federally-listed endangered or threatened species, the PCN must include the name(s) of those endangered or threatened species that may be affected by the proposed work or utilize the designated critical habitat that may be affected by the proposed work; and (18) For activities that may affect historic properties listed in, or eligible ct for listing in, the National Register of Historic Places, the PCN must state which historic property may be affected by the proposed work or include a vicinity map indicating the location of the historic property. (c) Form of Notification: The standard Individual Permit application form (Form ENG 4345) may be used as the notification but must clearly indicate that it is a PCN and must include all of the information required in (b) (1)-(18) of General Condition 13. A letter containing the requisite information may also be used. (d) District Engineer's Decision: In reviewing the PCN for the proposed activity, the District Engineer will determine whether the activity authorized by the NWP will result in more than minimal individual or cumulative adverse environmental effects or may be contrary to the public interest. The prospective permittee may submit a proposed mitigation plan with the PCN to expedite the process. The District Engineer will consider any proposed compensatory mitigation the applicant has included in the proposal in determining whether the net adverse environmental effects to the aquatic environment of the proposed work are minimal. If the District Engineer determines that the activity complies with the terms and conditions of the NWP and that the adverse effects on the aquatic environment are minimal, after considering mitigation, the District Engineer will notify the permittee and include any conditions the District Engineer deems necessary. The District Engineer must approve any compensatory mitigation proposal before the permittee commences work. If the prospective permittee is required to submit a compensatory mitigation proposal with the PCN; the proposal may be either conceptual or detailed. If the prospective permittee elects to submit a compensatory mitigation plan with the PCN, the District Engineer will expeditiously review the proposed compensatory mitigation plan. The District Engineer must review the plan within 45 days of receiving a complete PCN and determine whether the conceptual or specific proposed mitigation would ensure no more than minimal adverse effects on the aquatic environment. If the net adverse effects of the project on the aquatic environment (after consideration of the compensatory mitigation proposal) are determined by the District Engineer to 2092 Federal Register/Vol. 67, No. 10/Tuesday, January 15, 2002/Notices be minimal, the District Engineer will provide a timely written response to the applicant. The response will state that the project can proceed under the terms and conditions of the NWP. If the District Engineer determines that the adverse effects of the proposed work are more than minimal, then the District Engineer will notify the applicant either: (1) That the project does not qualify for authorization under the NWP and instruct the applicant on the procedures to seek authorization under an Individual Permit; (2) that the project is authorized under the NWP subject to the applicant's submission of a mitigation proposal that would reduce the adverse effects on the aquatic environment to the minimal level; or (3) that the project is authorized under the NWP with specific modifications or conditions. Where the District Engineer determines that mitigation is required to ensure no more than minimal adverse effects occur to the aquatic environment, the activity will be authorized within the 45-day PCN period. The authorization will include the necessary conceptual or specific mitigation or a requirement that the. applicant submit a mitigation proposal that would reduce the adverse effects on the aquatic environment to the minimal level. When conceptual mitigation is included, or a mitigation plan is required under item (2) above, no work in waters of the US will occur until the District Engineer has approved a specific mitigation Ian. (e) Agency Coordination: The District Engineer will consider any comments from Federal and state agencies concerning the proposed activity's compliance with the terms and conditions of the NWPs and the need for mitigation to reduce the project's adverse environmental effects to a minimal level. , For activities requiring notification to the District Engineer that result in the loss of greater than 1/2-acre of waters of the US, the District Engineer will provide immediately (e.g., via facsimile transmission,. overnight mail, or other expeditious manner) a copy to the appropriate Federal or state offices (USFWS, state natural resource or water quality agency, EPA, State Historic Preservation Officer (SHPO), and, if appropriate, the NMFS). With the exception of NWP 37, these agencies will then have 10 calendar days from the date the material is transmitted to telephone or fax the District Engineer notice that they intend to provide substantive, site-specific comments. If so contacted by an agency, the District Engineer will wait an additional 15 calendar days before making a decision on the notification. The District Engineer will fully consider agency comments received within the specified time frame, but will provide no response to the resource agency, except as provided below. The District Engineer will indicate in the administrative record associated with each notification that the resource agencies' concerns were considered. As required by section 305(b)(4)(B) of the Magnugon-Stevens Fishery Conservation and Management Act, the District Engineer will provide a response to NMFS within 30 days of receipt of any Essential Fish Habitat conservation recommendations. Applicants are encouraged to provide the Corps multiple copies of notifications to expedite agency notification. (f) Wetland Delineations: Wetland delineations must be prepared in ' accordance with the current method required by the Corps (For NWP 29 see paragraph (b)(9)(iii) for parcels less than ('/4-acre in size). The permittee may ask the Corps to delineate the special aquatic site. There may be some delay if the Corps does the. delineation. Furthermore, the 45-day period will not start until the wetland delineation has been completed and submitted to the Corps, where appropriate. 14. Compliance Certification. Every permittee who has received NWP verification from the Corps will submit a signed certification regarding the completed work and any required mitigation. The certification will be forwarded by the Corps with the authorization letter and will include: (a) A statement that the authorized work was done in accordance with the Corps authorization, including any general or specific conditions; (b) A statement that any required mitigation was completed in accordance with the permit conditions; and (c) The signature of the permittee certifying the completion of the work and mitigation. 15. Use of Multiple Nationwide Permits. The use of more than one NWP for a single and complete project is prohibited, except when the acreage loss of waters of the US authorized by the NWPs does not exceed the acreage limit of the N4VP with the highest specified acreage limit (e.g. if a road crossing over tidal waters is constructed under NWP 14, with associated bank stabilization authorized by NWP 13, the maximum acreage loss of waters of the US for the total project cannot exceed 1/3-acre). 16. Water Supply Intakes. No activity, including structures and work in navigable waters of the US or discharges of dredged or fill material, may occur in the proximity of a public water supply intake except where the activity is for 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 3/4-acre loss of wetlands to a 1/2-acre loss associated with NWP 39 verification. However, 1/2-acre of created wetlands .can be used to reduce the impacts of a 1/2-acre loss of wetlands to the minimum impact level in order to meet the Federal Register/Vol. 67, No. 10 /Tuesday, January 15, 2002 /Notices 2093 minimal impact requirement associated with NWPs. (e) To be practicable, the mitigation must be available and capable of being done considering costs, existing technology, and logistics in light of the overall project purposes. Examples of mitigation that may be appropriate and practicable include, but are not limited to: reducing the size of the project; establishing and maintaining wetland 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, preferably in the same watershed. (f) Compensatory mitigation plans for projects in or near streams or other open waters will normally include a requirement for the establishment, maintenance, and legal protection (e.g., easements, deed restrictions) of vegetated buffers to open waters. In many cases, vegetated buffers will be the only compensatory mitigation required. Vegetated buffers should consist of native species. The width of the vegetated buffers required will address documented water quality or aquatic habitat loss concerns. Normally, the vegetated buffer will be 25 to 50 feet wide on each side of the stream, but the District Engineers may require slightly wider vegetated buffers to address documented water quality or habitat loss concerns. Where both wetlands and open waters exist on the project site, the Corps will determine the appropriate compensatory mitigation (e.g., stream buffers or wetlands compensation) based on what is best for the aquatic environment on a watershed basis. In cases where vegetated buffers are determined to be the most appropriate form of compensatory mitigation, the District Engineer'may waiv'e' aive or reduce the requirement to provide wetland compensatory mitigation for wetland impacts. (g) Compensatory mitigation proposals submitted with the "notification" may be either conceptual or detailed. If conceptual plans are approved under the verification, then the Corps will condition the verification to require detailed plans be submitted and approved by the Corps prior to construction of the authorized activity in waters of the US. (h) Permittees may propose the use of mitigation banks, in-lieu fee arrangements or separate activity- specific compensatory mitigation. In all cases that require compensatory mitigation, the mitigation provisions will specify the party responsible for accomplishing and/or complying with the mitigation plan. 20. Spawning Areas. Activities, including structures and work in navigable waters of the US or discharge of dredged or fill material, in spawning areas during spawning seasons must be avoided to the maximum extent practicable. Activities that result in the physical destruction (e.g., excavate, fill, r or smother downstream by substantial turbidity) of an important spawning area are not authorized. 21. Management of Water Flows. To the maximum extent practicable, the activity must be designed to maintain preconstruction downstream flow conditions (e.g., location, capacity, and flow rates). Furthermore, the activity must not permanently restrict or impede the passage of normal or expected high flows (unless the primary purpose of the fill is to impound waters) and the '. structure or discharge of dredged or fill material must withstand expected high flows. The activity must, to the maximum extent practicable, provide for retaining excess flows from the site, provide for maintaining surface flow rates from the site similar to preconstruction conditions, and provide for not increasing water flows from the project site, relocating water, or redirecting water flow beyond preconstruction conditions. Stream channelizing will be reduced to the minimal amount necessary, and the activity must, to the maximum extent practicable, reduce adverse effects such as flooding or erosion downstream and upstream of the project site, unless the activity is part of a larger system designed to manage water flows. In most cases, it will not be a requirement to conduct detailed studies and monitoring of water flow. This condition is only applicable to projects that have the potential to affect waterflows. While appropriate measures must be taken, it is not necessary to conduct detailed studies to identify such measures or require monitoring to ensure their effectiveness. Normally, the Corps will defer to state and local authorities regarding management of water flow. 22. Adverse Effects From Impoundments. If the activity creates an impoundment of water, adverse effects to the aquatic system due to the acceleration of the passage of water, and/or the restricting its flow shall be minimized to the maximum extent practicable. This includes structures and work in navigable waters of the US, or discharges of dredged or fill material. 23. Waterfowl Breeding Areas. Activities, including structures and work in navigable waters of the US or discharges of dredged or fill material, into breeding areas for migratory waterfowl must be avoided to the maximum extent practicable. s 24. Removal of Temporary Fills. Any temporary fills must be removed in their entirety and the affected areas returned to their preexisting elevation. 25. Designated Critical Resource Waters. Critical resource waters include, NOAA-designated marine sanctuaries, National Estuarine Research Reserves, National Wild and Scenic Rivers, critical habitat for Federally listed threatened and endangered species, coral reefs, state natural heritage sites, and outstanding national resource waters or other waters officially designated by a state as having particular environmental or ecological significance and identified by the District Ergineer after notice and opportunity for public comment. The District Engineer may also designate additional critical resource waters after notice and opportunity for comment. (a) Except as noted below, discharges of dredged or fill material into waters of the US are not authorized by NWPs 7, 12, 14, 16, 17, 21, 29, 31, 35, 39, 40, 42, 43, and 44 for any activity within, or directly affecting, critical resource waters, including wetlands adjacent to such waters. Discharges of dredged or fill materials into waters of the US may be authorized by the above NWPs in National Wild and Scenic Rivers if the activity complies with General Condition 7. Further, such discharges may be authorized in designated critical habitat for Federally listed threatened or endangered species if the activity complies with General Condition 11 and the USFWS or the NMFS has concurred in a determination of compliance with this condition. (b) For NWPs 3, 8, 10, 13, 15, 18, 19, 22, 23, 25, 27, 28, 30, 33, 34, 36, 37, and 38, notification is required in accordance with General Condition 13, for any activity proposed in the designated critical resource waters including wetlands adjacent to those waters. The District Engineer may authorize activities under these NWPs only after it is determined that the impacts to the critical resource waters will be no more than minimal. 26. Fills Within 100- Year Floodploins. For purposes of this General Condition, 100-year floodplains will be identified through the existing Federal Emergency Management Agency's (FEMA) Flood Insurance Rate Maps or FEMA-approved local floodplain maps. (a) Discharges in Floodploin; Below Headwaters. Discharges of dredged or fill material into waters of the US within the mapped 100-year floodplain, below 2094 Federal Register/Vol. 67, No. 10/Tuesday, January 15, 2002/Notices headwaters (i.e. five cfs), resulting in permanent above-grade fills, are not authorized by NWPs 39, 40, 42, 43, and 44. (b) Discharges in Floodway; Above Headwaters. Discharges of dredged or fill material into waters of the US within the FEMA or locally mapped floodway, resulting in permanent above-grade fills, are not authorized by NWPs 39, 40, 42, and 44. (c) The permittee must comply with any applicable FEMA-approved state or local floodplain management requirements. 27. Construction Period. For activities that have not been verified by the Corps and the project was commenced or under contract to commence by the expiration date of the NWP (or modification or revocation date), the work must be completed within 12- months after such date (including any modification that affects the project). For activities that have been verified and the project was commenced or under contract to commence within the verification period, the work must be completed by the date determined by the Corps. For projects that have been verified by the Corps, an extension of a Corps approved completion date maybe requested. This request must be submitted at least one month before the previously approved completion date. D. Further Information 1. District Engineers have authority to determine if an activity complies with the terms and conditions of an NWP. 2. NWPs do not obviate the need to obtain other Federal, state, or local permits, approvals, or authorizations required by law. 3. NWPs do not grant any property rights or exclusive privileges. 4. NWPs do not authorize any injury to the property or rights of others. 5. NWPs do not authorize interference with any existing or proposed Federal project. E. Definitions Best Management Practices (BMPs): BMPs are policies, practices, procedures, or structures implemented to mitigate the adverse environmental effects on surface water quality resulting from development. BMPs are categorized as structural or non- structural. A BMP policy may affect the limits on a development. Compensatory Mitigation: For purposes of Section 10/404, compensatory mitigation is the restoration, creation, enhancement, or in exceptional circumstances, preservation of wetlands and/or other aquatic resources for the purpose of compensating for unavoidable adverse impacts which remain after all appropriate and practicable avoidance and minimization has been achieved. Creation: The establishment of a 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 aquati c' 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 floodpplain. Independent Utility: A test to determine what constitutes a single and complete project in the Corps regulatory program. A project is considered to have independent utility if it would be constructed absent the construction of other projects in the project area. Portions of a multi-phase project that depend upon other phases of the project do not have independent utility. Phases of a project that would be constructed even if the other phases were not built can be considered as separate single and complete projects with independent utility. Intermittent Stream: An intermittent stream has flowing water during certain times of the year, when groundwater provides water for stream flow. During dry periods, intermittent streams may not have flowing water. Runoff from rainfall is a supplemental source of water for stream flow. Loss of Waters of the US: Waters of the US that include the filled area and other waters that are permanently adversely affected by flooding, excavation, or drainage because of the regulated activity. Permanent adverse effects include permanent above-grade, at-grade, or below-grade fills that change an aquatic area to dry land, increase the bottom elevation of a waterbody, or change the use of a 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. 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. ofstream 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 watermark. Aquatic vegetation within the area of standing or flowing water is either non-emergent, sparse, or absent. Vegetated shallows are considered to be open waters. The term "open water" includes rivers, streams, lakes, and ponds. For the purposes of the NWPs, this term does not include ephemeral waters. Perennial Stream: A perennial stream has flowing water year-round during a typical year. The water table is located above the stream bed for most of the year. Groundwater is the primary source of water for stream flow. Runoff from rainfall is a supplemental source of water for stream flow. Permanent Above-grade Fill: A discharge of dredged or fill material into waters of the US, including wetlands, that results in a substantial increase in ground elevation and permanently converts part or all of the waterbody to dry land. Structural fills authorized by NWPs 3, 25, 36, etc. are not included. Preservation: The protection of ecologically important wetlands or other aquatic resources in perpetuity through the implementation of appropriate legal and physical mechanisms. Preservation may include protection of upland areas adjacent to wetlands as necessary to Federal Register / Vol. 67, No, lo/Tuesday, January 15, 2002/Notices 2095 ensure protection and/or enhancement of the overall aquatic ecosystem. Restoration: Re-establishment of wetland and/or other, aquatic resource characteristics and function(s) at a site where they have ceased to exist, or exist in a substantially degraded state. Riffle and Pool Complex: Riffle and pool complexes are special aquatic sites under the 404(b)(1) Guidelines. Riffle and pool complexes sometimes characterize steep gradient sections of streams. Such stream sections are recognizable by their hydraulic characteristics. The rapid movement of water over a course substrate in riffles results in a rough flow, a turbulent surface, and high dissolved oxygen levels in the water. Pools are deeper areas associated with riffles. A slower stream velocity, a streaming flow, a smooth surface, and a finer substrate characterize pools. Single and Complete Project: The term "single and complete project" is defined at 33 CFR'330.2(i) as the total project proposed or accomplished by one owner/developer or partnership or other association of owners/developers (see definition of independent utility). For linear projects, the "single and complete project" (i.e., a single and complete crossing) will apply to each crossing of a separate water of the US (i.e., a single waterbody) at that location. An exception is for linear projects crossing a single waterbody several times at separate and distant locations: each crossing is considered a single and complete project. However, individual channels in a braided stream or river, or individual arms of a large, irregularly shaped wetland or lake, etc., are not separate waterbodies. Storm water Management: Stormwater management is the mechanism for controlling stormwater runoff for the purposes of reducing downstream erosion, water quality degradation, and flooding and mitigating the adverse effects of changes in land use on the aquatic environment. Storm wa ter Management Facilities: Stormwater management facilities are those facilities, including but not limited to, stormwater retention and detention ponds and BMPs, which retain water for a period of time to control runoff and/or improve the quality (i.e., by reducing the concentration of nutrients, sediments, hazardous substances and other pollutants) of stormwater runoff. Stream Bed: The substrate of the stream channel between the ordinary high water marks. The substrate may be bedrock or inorganic particles that range in size from clay to boulders. Wetlands contiguous to the stream bed, but outside of the ordinary high water marks, are not considered part of the stream bed. Stream Channelization: The manipulation of a stream channel to increase the rate of water flow through the stream channel. Manipulation may include deepening, widening, straightening, armoring, or other activities that change the stream cross- section or other aspects of stream channel geometry to increase the rate of water flow through the stream channel. A channelized stream remains a water of the US, despite the modifications to increase the rate of water flow. Tidal Wetland: A tidal wetland is a wetland (i.e., water of the US) that is inundated by tidal waters. The definitions of a wetland and tidal waters can be found at 33 CFR 328.3(b) and 33 CFR 328.3(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 be practically measured in a predictable rhythm due to masking by other waters, wind, or other effects. Tidal wetlands are located channelward of the high tide line (i.e., spring high tide line) and are inundated by tidal waters two times per lunar month, during spring high tides. Vegetated Buffer: A vegetated upland or wetland area next to rivers, streams, lakes, or other open waters which separates the open water from developed areas, including agricultural land. Vegetated buffers provide a variety of aquatic habitat functions and values (e.g., aquatic habitat for fish and other aquatic organisms, moderation of water temperature changes, and detritus for aquatic food webs) and help improve or maintain local water quality. A vegetated buffer can be established by maintaining an existing vegetated area or planting native trees, shrubs, and herbaceous plants on land next to open- waters. Mowed lawns are not considered vegetated buffers because they provide little or no aquatic habitat functions and values. The establishment and maintenance of vegetated buffers is a method of compensatory mitigation that can be used in conjunction with the restoration, creation, enhancement, or preservation of aquatic habitats to ensure that activities authorized by NWPs result in minimal adverse effects to the aquatic environment. (See General Condition 19.) Vegetated Shallows: Vegetated shallows are special aquatic sites under the 404(b)(1) Guidelines. They are areas that are permanently inundated and under normal circumstances have rooted aquatic vegetation, such as seagrasses in marine and estuarine systems and a variety of vascular rooted plants in freshwater systems. 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 imbricate) Endangered Kemp's ridley turtle (Lepidochelys kemppii) Endangered leatherback turtle (Dermochelys coriacea) Threatened loggerhead turtle (Caretta caretta) Application 1361 The applicant'is applying for a 5-year permit to trawl for turtles, as needed, at dredge and other construction/ destruction sites to remove the turtles to a safe location. The turtles will be captured, tagged, measured and released offshore away from the dredging activities. The applicant expects to capture and relocate 95 green, 11 hawksbill, 160 loggerhead, 14 Kemp's ridley and 4 leatherback turtles on the Atlantic coast and 105 green, 17 hawksbill, 160 loggerhead, 50 Kemp's ridley and 11 leatherback turtles on the Gulf coast. Dated: February 7, 2002. Jill Lewandowski, Acting Chief, Permits, Conservation, and Education Division, Office of Protected Resources, National Marine Fisheries Service. [FR Doc. 02-3522 Filed 2-12-02; 8:45 am) BILLING CODE 3510-22-S DEPARTMENT OF DEFENSE Department of the Army, Corps of Engineers Issuance of Nationwide Permits; Notice; Correction AGENCY: Army Corps of Engineers, DOD ACTION: Final notice; correction. SUMMARY: This document contains corrections to the final notice of issuance of Nationwide Permits (NWPs) which was published in the Federal Register on Tuesday, January 15, 2002 (67 FR 2020-2095). ADDRESSES: HQUSACE, ATTN: CECW- OR, 441 "G" Street, NW., Washington, DC 20314-1000. FOR FURTHER INFORMATION CONTACT: Mr. David Olson, at (703) 428-7570, Mr. Kirk Stark, at (202) 761-4664 or Ms. Leesa Beal at (202) 761-4599 or access the U.S. Army Corps of Engineers Regulatory Home Page at: http:// www.usace.army.mil/inet/functions/ cw/cecwo/reg/. SUPPLEMENTARY INFORMATION: In the SUMMARY section on page 2020, the third and fourth sentences are corrected to read: "All NWPs except NWPs 3, 7, 12, 14, 27, 39, 40, 41, 42, 43, and 44 expire on February 11, 2002. Existing NWPs 3, 7, 12, 14, 27, 39, 40, 41, 42, 43, and 44 expire on March 18, 2002." In the last sentence of the SUMMARY section, the expiration date is corrected as "March 18, 2007", instead of "March 19, 2007". On page 2020, in second sentence of the DATES section, the expiration date is corrected as "March 18, 2007", instead of "March 19, 2007". Therefore, the NWPs published in the January 15, 2002; Federal Register will expire on March 18, 2007, five years from their effective date of March 18, 2002. On page 2020, in the fifth paragraph of the Background section, the third and fourth sentences are corrected to read: "All NWPs except NWPs 3, 7, 12, 14, 27, 39, 40, 41, 42, 43, and 44 expire on February 11, 2002. Existing NWPs 3, 7, 12, 14, 27, 39, 40, 41, 42, 43, and 44 expire on March 18, 2002." The expiration date in the last sentence of this paragraph is corrected as "March 18, 2007", instead of "March 19, 2007". On page 2020, the paragraph in the section entitled "Grandfather Provision for Expiring NWPs at 33 CFR 330.6" is corrected to read: "Activities authorized by the current NWPs issued on December 13, 1996, (except NWPs 3, 7, 12, 14, 27, 39, 40, 41, 42, 43, and 44), that have commenced or are under contract to commence by February 11, 2002, will have until February 11, 2003, to complete the activity. Activities authorized by NWPs 3, 7, 12, 14, 27, 39, 40, 41, 42, 43, and 44, that were issued on March 9, 2000, that are commenced or under contract to commence by March 18, 2002, will have until March 18, 2003, to complete the activity." On page 2020, in the "Clean Water Act Section 401 Water Quality Certification (WQC) and Coastal Zone Management Act (CZMA) Consistency Agreement" section, the date in the fifth sentence is corrected as "February 11, 2002", instead of "February 11, 2001". On page 2023, third column, last - sentence, the number 29 is replaced with the number 19, because this. sentence refers to General Condition 19. On page 2024, first column, in the fourth sentence of the last paragraph the phrase "less than" is replaced by "greater than" because the 30 day completeness review period for NWP pre-construction notifications is greater than the 15 day completeness review period for standard permit applications. 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 the Walla Walla District Engineer is corrected to read 201 N. Third Avenue". On page 2080, second column, third paragraph from the top of the column (in the "Notification" section of NWP 12), the word "or" at the end of paragraph (e) is deleted and the period at the end of the fourth paragraph (paragraph (f)) is replaced with "; or". On page 2080, second column, paragraph (a) of NWP 13 is corrected to read: "No material is placed in excess of the minimum needed for erosion protection;" The change was not intended and we are correcting this paragraph by reinstating the original text as it appeared in the version of NWP 13 published in the December 13, 1996, Federal Register (61 FR 65915). On page 2080, third column, the word "or" is inserted at the end of paragraph (a)(1) of NWP 14, Linear Transportation Projects. Paragraph (a) of NWP 14 is corrected to read: "a. This NWP is subject to the following acreage limits: (1) For linear transportation projects in non-tidal waters, provided the discharge does not cause the loss of greater than 1/2-acre of waters of the US; or (2) For linear transportation projects in tidal waters, provided the discharge does not cause the loss of greater than'/3-acre of waters of the US." On page 2085, second column, the last sentence of NWP 36 is corrected to read as follows: "Dredging to provide Federal Register/Vol. 67, No. 30 /Wednesday, February 13, 2002/Notices 6693 access to the boat ramp may be authorized by another NWP, regional general permit, or individual permit pursuant to section 10 if located in navigable waters of the United States. * * *" The change was not intended and we are correcting this paragraph by reinstating the original text as it appeared in the version of NWP 36 published in the December 13, 1996, Federal Register (61 FR 65919). On page 2086, in the second full paragraph of the second column, "paragraph (e)" in the second sentence is replaced with "paragraph (f)" and "paragraph (i)" in the third sentence is replaced with "paragraph (j)" to accurately cite the previous paragraphs of NWP 39. The last two sentences of the paragraph before the subdivision paragraph were incorrectly divided into two sentences from the original single sentence and identified as being related to General Condition 15. This change was not intended and we are correcting this paragraph by, reinstating the original last sentence as it exists in the March 9, 2000, text of NWP 39 (65 FR 12890). On page 2086, middle column, the parenthetical statement at the end of the Note at the end of NWP 39 is corrected to read "* * * (except for ephemeral waters, which do not require PCNs under paragraph (c)(2), above; however, activities that result in the loss of greater than '/lo 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 Vio 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 by this NWP. Residential developments include multiple and single unit developments. Examples of commercial developments include retail stores, industrial facilities, restaurants, business parks, and shopping centers. Examples of institutional developments include schools, fire stations, government office buildings, judicial buildings, public works buildings, libraries, hospitals, and places of worship. The activities listed above are authorized, provided the activities meet all of the following criteria: a. The discharge does not cause the loss of greater than 1/12-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'/,o-acre of non-tidal waters of the US, excluding non-tidal wetlands adjacent to tidal waters; or (2) The discharge causes the loss of any open waters, including perennial or intermittent streams, below the ordinary hi It er mark (see Note, below); or w`gt 3) The discharge causes the loss of greater than 300 linear feet of intermittent stream bed. In such case, to be authorized the District Engineer must determine that the activity complies with the other terms and conditions of the NWP, determine adverse environmental effects are minimal both individually and cumulatively, and waive the limitation on stream impacts in writing before the permittee may proceed; d. For discharges in special aquatic sites, including wetlands, the notification must include a delineation of affected special aquatic sites; e. The discharge is part of a single and complete project; f. The permittee must avoid and minimize discharges into waters of the US at the project site to the maximum extent practicable. The notification, when required, must include a written statement explaining how avoidance and minimization of losses of waters of the US were achieved on the project site. Compensatory mitigation will normally be required to offset the losses of waters of the US. (See General Condition 19.) The notification must also include a compensatory mitigation proposal for offsetting unavoidable losses of waters of the US. If an applicant asserts that the adverse effects of the project are minimal without mitigation, then the applicant may submit justification explaining why compensatory mitigation should not be required fortthe 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 V,o-acre requires that the permittee notify the District Engineer in accordance with General Condition 13; h. Any work authorized by this NWP must not cause more than minimal degradation of water quality or more than minimal changes to the flow characteristics of any stream (see General Conditions 9 and 21); i. For discharges causing the loss of /,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., 1/2-acre of emergent wetlands); and (5) The type and acreage of any compensatory mitigation used to `offset the loss of waters of the US (e.g., 1/2-acre of emergent wetlands created on-site); j. If there are any open waters or streams within the project area, the permittee will establish and maintain, to the maximum extent practicable, wetland or upland vegetated buffers next to those open waters or streams consistent with General Condition 19. Deed restrictions, conservation easements, protective covenants, or other means of land conservation and preservation are required to protect and maintain the vegetated buffers established on the project site. Only residential, commercial, and institutional activities with structures on the foundation(s) or building pad(s), as well as the attendant features, are authorized by this NWP. The 6694 Federal Register/Vol. 67, No. 30 /Wednesday, February 13, 2002/Notices compensatory mitigation proposal that is required in paragraph (f) of this NWP may be either conceptual or detailed. The wetland or upland vegetated buffer required in paragraph (j) of this NWP will be determined on a case-by-case basis by the District Engineer for addressing water quality concerns. The required wetland or upland vegetated buffer is part of the overall compensatory mitigation requirement for this NWP. If the project site was previously used for agricultural purposes and the farm owner/operator used NWP 40 to authorize activities in waters of the United States to increase production or construct farm buildings, NWP 39 cannot be used by the developer to authorize additional activities in waters of the United States on the project site in excess of the acreage limit for NWP 39 (i.e., the combined acreage loss authorized under NWPs 39 and 40 cannot exceed 1/2 acre). Subdivisions: For residential subdivisions, the aggregate total loss of waters of US authorized by NWP 39 can not exceed 1/2-acre. This includes any loss of waters associated with development of individual subdivision lots. (Sections 10 and 404) Note: Areas where wetland vegetation is not present should be determined by the presence or absence of an ordinary high water mark or bed and bank. Areas that are waters of the US based on this criterion would require a PCN although water is infrequently present in the stream channel (except for ephemeral waters, which do not require PCNs under paragraph (c)(2), above; however, activities that result in the loss of greater than '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;" These corrections are necessary to reflect the modified language in General Condition On page 2089, third column, the text of General Condition 6 is corrected to read: "The activity must comply with any regional conditions that may have been added by the Division Engineer (see 33 CFR 330.4(e)) and with any case specific conditions added by the Corps or by the state or tribe in its Section 401 Water Quality Certification and Coastal Zone Management Act consistency determination." The change to General Condition 6 that was published in the January 15, 2002, Federal Register was not intended and we are correcting this sentence by reinstating the original text as it existed in the March 9, 2000, NWPs. On page 2090, first column, the word "Section" in the parenthetical at the end of General Condition 10 is replaced with "33 CFR" so that the parenthetical reads "(see 33 CFR 330.4(d))". On page 2090, at the top of the second column, the second Internet URL is replaced with "* * * http:// www.nmfs.noaa.gov/prot res/overview/ es.html * * *" because the Internet address for the National Marine Fisheries Service home page for endangered species has been changed. On page 2090, third column, in paragraph (b)(4) of General Condition 13, NWP 40 should be added to the list of NWPs that require submission of delineations of special aquatic sites with pre-construction notifications. Therefore, paragraph (b)(4) of General Condition 13 is corrected to read "For NWPs 7, 12, 14, 18, 21, 34, 38, 39, 40, 41, 42, and 43, the PCN must also include a delineation of affected special aquatic sites, including wetlands, vegetated shallows (e.g., submerged aquatic vegetation, seagrass beds), and riffle and pool complexes (see paragraph 13(f));" On page 2090, third column, in paragraph (b)(6) of General Condition 13, the word "Projects" replaces the word "Crossings", because the title of NWP 14 is "Linear Transportation Projects". On page 2090, third column, in paragraph (b)(8) of General Condition 13, the word "Activities" is inserted after the word "Restoration" because the title of NWP 27 is "Stream and Wetland Restoration Activities". On page 2091, first column, in paragraph (b)(10) of General Condition 13, the word "Projects" is replaced with the word "Facilities" because the title of NWP 31 is "Maintenance of Existing Flood Control Facilities". 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 o`1hhe United States." In the fourth sentence of the draft definition, we stated that the loss of stream bed Federal Register/Vol. 67, No. 30/Wednesday, February 13, 2002/Notices 6695 includes the linear feet of perennial or intermittent stream bed that is filled or excavated. This statement is inaccurate because ephemeral stream bed that is filled or excavated can also be considered a loss of waters of the United States. However, the 300 linear foot limit for stream beds filled or excavated does not apply to ephemeral streams. We have modified this sentence to define the loss of stream bed as the linear feet of stream bed that is filled or excavated." Thus, the modification of this definition was intended to clarify that activities that involve filling or excavating ephemeral streams are not included in the linear foot limits for filling or excavating stream beds in NWPs 39, 40, 42, and 43. However, it was not intended to exempt ephemeral waters or streams from calculations of impacted acreages to determine PCN or maximum acreage requirements in accordance with NWPs 39, 40, 42, and 43. In the August 9, 2001, Federal Register notice (66 FR 42099) we proposed to modify the definition of "Loss of Waters of the US" by adding the sentence "* * * The loss of stream bed includes the linear feet of perennial stream or intermittent stream that is filled or excavated * * *". The proposed change was in response to a commitment to clearly state in the text of the NWPs (which includes the definitions) that the 300 linear foot limit in NWPs 39, 40, 42, and 43 for filling and excavating stream beds would only apply to intermittent and perennial streams, not to ephemeral streams. In the January 15, 2002, Federal Register notice (67 FR 2074-2075) we erroneously stated that both the acreage and linear limits of the NWPs do not apply to ephemeral waters. This was never intended to be adopted as policy for the NWPs or the Corps regulatory program. A previously stated, in the first column of page 2075 of the January 15, 2002, Federal Register notice, we refer to page 12881 of the March 9, 2000, Federal Register notice, which only discusses the 300 linear foot limit, not the acreage limits of the NWPs. Our intent is to continue to apply acreage limits of NWPs to activities that result in the permanent loss of ephemeral waters, but the linear foot limits of the NWPs (i.e., NWPs 39, 40, 42, and 4L3) for filling or excavating stream beds would not apply to activities that involve filling or excavating ephemeral streams. The last sentence of the definition of "Loss of Waters of the US" as published in the January 15, 2002, Federal Register notice does not comport with remainder of this NWP package. Therefore, we are correcting this definition as described above. We believe that correcting the text of NWP 39 and the definition of "Loss of Waters of the US" through the publication of this correction notice is appropriate. Nevertheless, in order to give all interested parties further opportunity to comment on this matter, we intend to publish a Federal Register notice to solicit public comments on those two corrections. If we determine that any other matter relating to the final NWPs requires correction or clarification, but that matter was not adequately dealt with in this correction notice, we will address that additional matter in the forthcoming Federal Register notice, as well. We expect to publish that Federal Register notice within a few weeks. Dated: February 7, 2002. Lawrence A. Lang, Assistant Chief, Operations Division, Directorate of Civil Works. [FR Doc. 02-3555 Filed 2-12-02; 8:45 am] BILLING CODE 3710-92-P DEPARTMENT OF DEFENSE Uniformed Services University of the Health Sciences Sunshine Act Meeting AGENCY HOLDING THE MEETING: Uniformed Services University of the Health Sciences. TIME AND DATE: 8:00 a.m. to 4:00 p.m., February 5, 2002. PLACE: Uniformed Services University of the Health Sciences, Board of Regents Conference Room (D3001), 4301 Jones Bridge Road, Bethesda, MD 20814-4799. STATUS: Open-under "Government in the Sunshine Act" (5 U.S.C. 552b(e)(3)). MATTERS TO BE CONSIDERED: 8:30 a.m. Meeting-Board of Regents (1) Approval of Minutes-November 14, 2001 (2) Faculty Matters (3) Department Reports (4) Financial Report (5) Report-President, USUHS (6) Report-Dean, School of Medicine (7) Report-Dean, Graduate School of Nursing (8) Comments-Chairman, Board of Regents (9) New. Business CONTACT PERSON FOR MORE INFORMATION: Mr. Bobby D. Anderson, Executive Secretary, Board of Regents, (301) 295- 3116. Dated: February 8, 2002. Linda Bynum, OSD Federal Register Liaison Officer, Department of Defense. [FR Doc. 02-3683 Filed 2-11-02; 3:32 pm] BILLING CODE 5001-08-M DEPARTMENT OF EDUCATION Submission for OMB Review; Comment Request AGENCY: Department of Education. SUMMARY: The Leader, Regulatory Information Management Group, Office of the Chief Information Officer invites comments on the submission for OMB review as required by the Paperwork Reduction Act of 1995. DATES: Interested persons are invited to submit comments on or before March 15, 2002. ADDRESSES: Written comments should be addressed to the Office of Information and Regulatory Affairs, Attention: Lauren Wittenberg, Desk Officer, Department of Education, Office of Management and Budget, 725 17th Street, NW., Room 10202, New Executive Office Building, Washington, DC 20503 or should be electronically mailed to the internet address Lauren-Wittenberg@omb.eop.gov. SUPPLEMENTARY INFORMATION: Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that the Office of Management and Budget (OMB) provide interested Federal agencies and the public an early opportunity to comment on information collection requests. OMB may amend or waive the requirement for public consultation to the extent that public participation in the approval process would defeat the purpose of the information collection, violate State or Federal law, or substantially interfere with any agency's ability to perform its statutory obligations. The Leader, Regulatory Information Management Group, Office of the Chief Information Officer, publishes that notice containing proposed information collection requests prior to submission of these requests to OMB. Each proposed information collection, grouped by office, contains the following: (1) Type of review requested, e.g. new, revision, extension, existing or reinstatement; (2) Title; (3) Summary of the collection; (4) Description of the need for, and proposed use of, the information; (5) Respondents and frequency of collection; and (6) Reporting and/or Recordkeeping burden. OMB invites public comment.