20020139 Ver 1_Complete File_20020129

O?O? W AT ?RpG
o ?
Michael F. Easley
Governor
William G. Ross, Jr., Secretary
Department of Environment and Natural Resources
Gregory J. Thorpe, Ph.D., Acting Director
Division of Water Quality
April 3, 2002
Randolph County
DWQ Project # 02-0139
WAIVER of 401 Water Quality Certification and Catawba Buffer Rules
W.F. Rosser
North Carolina Department of Transportation
P.O. Box 1067
Aberdeen, NC, 28315
Dear Mr. Rosser:
Your application for a 401 Water Quality Certification for paving of SR 1338 in Randolph County was received in the
Division of Water Quality's Central Office on January 29, 2002. According to our rules [15A NCAC 2H .0507 (A)], if final
action is not taken within 60 days, the Certification is waived unless DWQ has objected in writing to your application.
Therefore, DWQ has waived the requirement for a 401 Water Quality Certification for your plans to impact waters as
described in your January 29, 2002 application materials.
However, if additional impact occurs or your development plans change, this waiver is no longer valid and a 401 Water
Quality Certification will be required.
If you have any questions, please telephone John Dorney or Cyndi Karoly at 919-733-1786.
cerely,
R. Dorney
Cc: DWQ Winston-Salem Regional Office
Raleigh Regulatory Field Office, U.S. Army Corps of Engineers
Wilmington District Office Corps of Engineers
Central Files
File Copy
020139
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 (phcne), 919-733-6893 (fax), http:/lh2o.enr.state.nc.us/ncwetlands/
Triage Check List' Date: d Z
To: ?RRO Steve hfit_hell Project Fame
?rR0 Ken Av e DWO ?roiect - PlDr-,, r a 3
?WaRO Deborah Saw}-_ County
?WiRO Joanne St._.-nhc
- Y?SRO -Jennifer Frye
?ARO Mike PaekE-_
?M O Pete. ?:otr,?Jr - - -
From: Telephone (919)'733-2641
fiie af;ache is being ;?-.n-err to you for your eva ua:;c:-.. Please call if you need
assistants.
? Stream le?-eth infj.?-rl
? Stream cf=z-
? Wetianc ce a: . n sc c5sance to thue-line sur?az° waters on USGW topo macs
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?Are the =___m,, a-3:f xw_and mitica-t-c n sites a:aila?ie and viable?
? Check d,-. o ir-.cs iDr a=s.-qf
? Is the apc?ix=atxr„ c-sr?ith pre-application meetinas?
? CumulE--,- inFac.- ?_ =
Comments
-;'
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02 01 09
STATE OF North CAROLINA
DEPARTMENT OF TRANSPORTATION
MICHAEL F. EASLEY DIVISION OF HIGHWAYS LYNDO TIPPETT
GOVERNOR SECRETARY
January 24, 2002
Mr. Rob Ridings
Divsion of Water Quality 0 r)
401 Wetlands Unit JAN 2
1650 Mail Service Center
Raleigh, North Carolina 27699-1650
Dear Mr. Ridings:
Subject: Randolph County - SR 1338 (Jim Pierce Road)
In an effort to obtain the permits required for a pipe replacement on SR 1338 (Jim Pierce
Road) from SR 1340 to SR 1339 in Randolph County, we are providing the pre-
construction notification application and the supporting materials.
A Minimum Criteria Checklist and a natural resource investigation was conducted by the
NCDOT on October 16, 2001. To our knowledge there are no Wetlands, High Quality
Waters or Outstanding Water Resources occurring within the project area. We anticipate
that our activities will be authorized under US Army Corps of Engineers 404, Nationwide
Permit Numberl4, and N.C. General 401 Water Quality Certification 3289. Any detours
required for this project will be done off site.
This letter and a copy of the application materials will be submitted to N.C. Division of
Water Quality, U.S. Fish and Wildlife Service, and U.S. Army Corps. of Engineers for
approval.
If you have any questions or comments, or need additional information, please contact
our office at [phone]. Thank you for your cooperation in this matter.
Sincerely,
(/?-
PAYMENT Art C. King
Division Environmental Officer
RECEIVED
P.O. BOX 1067, ABERDEEN, NoR' i CAROLINA 28315
PHONE [phone] FAX [phone]
./
STATE
?PMM1?
STATE OF NORTH CAROLINA
DEPARTMENT OF TRANSPORTATION
MICHAEL F. EASLEY DIVISION OF HIGHWAYS
GOVERNOR
January 24, 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 1338 - Randolph Co.
Work Order #: 6.572948
TIP Number: N/A
Fee Category: $475.00
Please submit for automated payment.
020139
JAN 2 9
Sincerely,
6-?? C//' ;4n,
Art C. King
Division Environmental Officer
LYNDo TIPPETT
SFCRFI ARY
"ENT
RECEIVED
Office Use Only: Form Version October 2001
0201 39
USACE Action ID No. DWQ No.
If any particular item is not applicable to this project, please enter "Not Applicable" or "N/A" rather than
leaving the space blank.
1. Processing
1. Check all of the approval(s) requested for this project:
® Section 404 Permit
Section 10 Permit
® 401 Water Quality Certification
Riparian or Watershed Buffer Rules
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: El
4. If payment into the North Carolina Wetlands Restoration Program (NCWRP) is proposed for
mitigation of impacts (see section VIII - Mitigation), check here:
II. Applicant Information
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:
E-mail Address:
2. Agent Information (A signed and dated copy of the Agent Authorization letter must be
attached if the Agent has signatory authority for the owner/applicant.)
Name: R Thomas McManus, Jr County Maintenance Engineer
Company Affiliation: NC Department of Transportation
Mailing Address: 948 Sout mont Drive
Asheboro NC 27203
Telephone Number: [phone] Fax Number: 336-625-0146
E-mail Address: tmcmanus@.dot state nc s
Page 5 of 12
III. Project Information
Attach a vicinity map clearly showing the location of the property with respect to local
landmarks such as towns, rivers, and roads. Also provide a detailed site plan showing property
boundaries and development plans in relation to surrounding properties. Both the vicinity map
and site plan must include a scale and north arrow. The specific footprints of all buildings,
impervious surfaces, or other facilities must be included. If possible, the maps and plans should
include the appropriate USGS Topographic Quad Map and NRCS Soil Survey with the property
boundaries outlined. Plan drawings, or other maps may be included at the applicant's discretion,
so long as the property is clearly defined. For administrative and distribution purposes, the
USACE requires information to be submitted on sheets no larger than 11 by 17-inch format;
however, DWQ may accept paperwork of any size. DWQ prefers full-size construction
drawings rather than a sequential sheet version of the full-size plans. If full-size plans are
reduced to a small scale such that the final version is illegible, the applicant will be informed that
the project has been placed on hold until decipherable maps are provided.
1. Name of project: Jim Pierce Road (SR 1338)
2. T.I.P. Project Number or State Project Number (NCDOT Only): 6.572948
3. Property Identification Number (Tax PIN):
4. Location
County: Randolph Nearest Town: Jackson Creek
Subdivision name (include phase/lot number): N/A
Directions to site (include road numbers, landmarks, etc.): From Asheboro take Hwy 64
West 10.3 miles, turn left on Bescher Chanel Rd (SR 1311) 2.4 miles, turn right on Ross
Wood Road (SR 1339) 0.3 miles, turn left on Jim Pierce Road (SR 1338)5. Site coordinates, if available (UTM or Lat/Long): See attached sheet
(Note - If project is linear, such as a road or utility line, attach a sheet that separately lists the
coordinates for each crossing of a distinct waterbody.)
6. Describe the existing land use or condition of the site at the time of this application:
Unpaved Secondary Road Pipe Crossing
7. Property size (acres): N/A Roadway
8. Nearest body of water (stream/river/sound/ocean/lake): Jackson Creek
9. River Basin: Yadkin River Basin
(Note - this must be one of North Carolina's seventeen designated major river basins. The
River Basin map is available at hit p //h2o enr state nc us/admin/maps/.)
Page 6 of 12
10. Describe the purpose of the proposed work: Piper lacement and upgrade in conjunction
with Secondary Road Improvement Project• Grade, Drain. Base. Pave. and Erosion Control
on Tim Pierce Road (SR 1338) from SR 1340 to SR 1339.
11. List the type of equipment to be used to construct the project: Trackhoe, Dozer, Pan,
Rackhoe, Compactor. and Motor Grader
12. Describe the land use in the vicinity of this project: Private Homes
IV. Prior Project History
If jurisdictional determinations and/or permits have been requested and/or obtained for this
project (including all prior phases of the same subdivision) in the past, please explain. Include
the USACE Action ID Number, DWQ Project Number, application date, and date permits and
certifications were issued or withdrawn. Provide photocopies of previously issued permits,
certifications or other useful information. Describe previously approved wetland, stream and
buffer impacts, along with associated mitigation (where applicable). If this is a NCDOT project,
list and describe permits issued for prior segments of the same T.I.P. project, along with
construction schedules.
N/A
V. Future Project Plans
Are any future permit requests anticipated for this project? If so, describe the anticipated work,
and provide justification for the exclusion of this work from the current application:
VI. Proposed Impacts to Waters of the United States/Waters of the State
It is the applicant's (or agent's) responsibility to determine, delineate and map all impacts to
wetlands, open water, and stream channels associated with the project. The applicant must also
provide justification for these impacts in Section VII below. All proposed impacts, permanent
and temporary, must be listed herein, and must be clearly identifiable on an accompanying site
plan. All wetlands and waters, and all streams (intermittent and perennial) must be shown on a
delineation map, whether or not impacts are proposed to these systems. Wetland and stream
evaluation and delineation forms should be included as appropriate. Photographs may be
included at the applicant's discretion. If this proposed impact is strictly for wetland or stream
mitigation, list and describe the impact in Section VIII below. If additional space is needed for
listing or description, please attach a separate sheet.
Page 7 of 12
1. Wetland Impacts
Wetland Impact
Site Number
(indicate on map)
Type of Impact* Area of
Impact
(acres) Located within
100-year Floodplain**
(yes/no) Distance to
Nearest Stream
(linear feet)
Type of Wetland***
None

' List each impact separately and identify temporary impacts. Impacts include, but are not limited to: mechanized clearing, grading, fill,
excavation, flooding, ditching/drainage, etc. For dams, separately list impacts due to both structure and flooding.
104-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 hUp://www.fema4?Lv.
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 reap)
Type of Impact* Length of
Impact
(linear feet)
Stream Name** Average Width
of Stream
Before Impact Perennial or
Intermittent?
(please specify)
I P 64 UT of Jackson Creek 3' I
2 P 172 UT of Jackson Creek 3' I

* List each impact separately and identify temporary impacts. Impacts include, but are not limited to: culverts and associated rip-rap,
dams (separately list impacts due to both structure and flooding), relocation (include linear feet before and after, and net lossigain),
stabilization activities (cement wall, rip-rap, crib wall, gabions, etc.), excavation, ditching/straightening, etc. If stream relocation is
proposed, plans and profiles showing the linear footprint for both the original and relocated streams must be included.
** Stream names can be found on USGS topographic maps. If a stream has no name, list as UT (unnamed tributary) to the nearest
downstream named stream into which it flows. USGS maps are available through the USGS at 1-800-358-9616, or online at
w-,ti-%v,uses.gov. Several internet sites also allow direct download and printing of USGS maps (e.g., www.topozone.com,
www.mal2quest.com, etc.).
Cumulative impacts (linear distance in feet) to all streams on site: 236
Page 8 of 12
3. Open Water Impacts, including Lakes, Ponds, Estuaries, Sounds, Atlantic Ocean and any
other Water of the U.S.
Open Water Impact
Site Number
(indicate on map)
Type of Impact* Area of
Impact
(acres) Name of Waterbody
(if applicable) Type of Waterbody
(lake, pond, estuary, sound,
bay, ocean, etc.)
None

List each impact separately 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): 0 uplands F-1 stream wetlands
Describe the method of construction (e.g., dam/embankment, excavation, installation of
draw-down valve or spillway, etc.): N/A
Proposed use or purpose of pond (e.g., livestock watering, irrigation, aesthetic, trout pond,
local stormwater requirement, etc.):
Size of watershed draining to pond: Expected pond surface area:
VII. Impact Justification (Avoidance and Minimization)
Specifically describe measures taken to avoid the proposed impacts. It may be useful to provide
information related to site constraints such as topography, building ordinances, accessibility, and
financial viability of the project. The applicant may attach drawings of alternative, lower-impact
site layouts, and explain why these design options were not feasible. Also discuss how impacts
were minimized once the desired site plan was developed. If applicable, discuss construction
techniques to be followed during construction to reduce impacts.
Erosion control devices will be installed prior to and during construction
VIII. Mitigation
DWQ - In accordance with 15A NCAC 2H .0500, mitigation may be required by the NC
Division of Water Quality for projects involving greater than or equal to one acre of impacts to
freshwater wetlands or greater than or equal to 150 linear feet of total impacts to perennial
streams.
Page 9 of 12
V
USACE - In accordance with the Final Notice of Issuance and Modification of Nationwide
Permits, published in the Federal Register on March 9, 2000, mitigation will be required when
necessary to ensure that adverse effects to the aquatic environment are minimal. Factors
including size and type of proposed impact and function and relative value of the impacted
aquatic resource will be considered in determining acceptability of appropriate and practicable
mitigation as proposed. Examples of mitigation that may be appropriate and practicable include,
but are not limited to: reducing the size of the project; establishing and maintaining wetland
and/or upland vegetated buffers to protect open waters such as streams; and replacing losses of
aquatic resource functions and values by creating, restoring, enhancing, or preserving similar
functions and values, preferable in the same watershed.
If mitigation is required for this project, a copy of the mitigation plan must be attached in order
for USACE or DWQ to consider the application complete for processing. Any application
lacking a required mitigation plan or NCWRP concurrence shall be placed on hold as
incomplete. An applicant may also choose to review the current guidelines for stream restoration
in DWQ's Draft Technical Guide for Stream Work in North Carolina, available at
http://h2o.enr.state.nc,us/ncwetlands/-strmizide.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 hup://h2o.enr.state.nc.us/=/index.htm. If
use of the NCWRP is proposed, please check the appropriate box on page three and provide
the following information:
Amount of stream mitigation requested (linear feet):
Amount of buffer mitigation requested (square feet):
Amount of Riparian wetland mitigation requested (acres):
Amount of Non-riparian wetland mitigation requested (acres):
Amount of Coastal wetland mitigation requested (acres):
Page 10 of 12
IX. Environmental Documentation (DWQ Only)
Does the project involve an expenditure of public funds or the use of public (federaUstate/local)
land?
Yes ® No
If yes, does the project require preparation of an environmental document pursuant to the
requirements of the National or North Carolina Environmental Policy Act (NEPA/SEPA)?
Note: If you are not sure whether a NEPA/SEPA document is required, call the SEPA
coordinator at [phone] to review current thresholds for environmental documentation.
Yes F-1 No
If yes, has the document review been finalized by the State Clearinghouse? If so, please attach a
copy of the NEPA or SEPA final approval letter.
Yes ? No
X. Proposed Impacts on Riparian and Watershed Buffers (DWQ Only)
It is the applicant's (or agent's) responsibility to determine, delineate and map all impacts to
required state and local buffers associated with the project. The applicant must also provide
justification for these impacts in Section VII above. All proposed impacts must be listed herein,
and must be clearly identifiable on the accompanying site plan. All buffers must be shown on a
map, whether or not impacts are proposed to the buffers. Correspondence from the.DWQ
Regional Office may be included as appropriate. Photographs may also be included at the
applicant's discretion.
Will the project impact protected riparian buffers identified within 15A NCAC 213 .0233
(Meuse), 15A NCAC 2B .0259 (Tar-Pamlico), 15A NCAC 213 .0250 (Randleman Rules and
Water Supply Buffer Requirements), or other (please identify N/A )?
Yes f-] No F-1 If you answered "yes", provide the following information:
Identify the square feet and acreage of impact to each zone of the riparian buffers. If buffer
mitigation is required calculate the required amount of mitigation by applying the buffer
multipliers.
Zone* Impact
(square feet) Multiplier Required
Mitigation
1 3
2 1.5
Total
• "Lone 1 extends out 3U feet perpendicular from near banK of channel; Lone L extends an
additional 20 feet from the edge of Zone 1.
Page 11 of 12
If buffer mitigation is required, please discuss what type of mitigation is proposed (i.e., Donation
of Property, Conservation Easement, Riparian Buffer Restoration / Enhancement, Preservation or
Payment into the Riparian Buffer Restoration Fund). Please attach all appropriate information as
identified within 15A NCAC 2B .0242 or.0260.
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.
N/A
XII. Sewage Disposal (DWQ Only)
Clearly detail the ultimate treatment methods and disposition (non-discharge or discharge) of
wastewater generated from the proposed project, or available capacity of the subject facility.
N/A
XIII. Violations (DWQ Only)
Is this site in violation of DWQ Wetland Rules (15A NCAC 2H.0500) or any Buffer Rules?
Yes ? No
Is this an after-the-fact permit application?
Yes E] 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).
N/A
x-25-zoo
Applicant/Agent's Signature Date
(Agent's signature is valid only if an authorization letter from the applicant is provided.)
Page 12 of 12
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T

U.S. ARMY CORPS OF ENGINEERS
WILMINGTON DISTRICT O 2 O/37
Action ID: 200200395 TIP No: State Project No: 6.572948 County: Randolph
GENERAL PERMIT (REGIONAL AND NATIONWIDE) VERIFICATION
Applicant: North Carolina Department of Transportation
Address: W.F. Rosser, P.E., Division Engineer
i
North Carolina Department of Transportation
Division 8 APR 5 20
P.O. Box 1067
Aberdeen, North Carolina 28315
nn t.AITua unvur
1"JnI E4t QUALITY SECTION
-- -
Telephone Number: [phone] -
Size and Location of project (waterway, road name/number, town, etc.): 156 linear feet of 48-inch RCP culvert
with two FES at Centerline Station 32+00 on SR 1338 at an unnamed tributary to Jackson Creek in Randolph
County, North Carolina.
Description of Activity: To replace 52 linear feet of 30-inch RCP with 156 linear feet of 48-inch RCP culvert with an
FES on each end bring the total length to 172 feet. Traffic will be detoured onto existing roadways during construction
Applicable Law: X Section 404 (Clean Water Act, 33 U.S.C. 1344)
Section 10 (River and Harbor Act of 1899)
Authorization: 14 Nationwide Permit Number
Regional General Permit Number
Your work is authorized by this Regional General (RGP) or Nationwide (NWP) Permit provided it is accomplished
in strict accordance with the attached conditions and your submitted plans. If your activity is subject to Section 404
(if Section 404 block above is checked), before beginning work you must also receive a Section 401 water quality
certification from the N.C. Division of Environmental Management, telephone [phone]. For any activity
within the twenty coastal counties, before beginning work you must contact the N.C. Division of Coastal
Management, telephone [phone].
Please read and carefully comply with the attached conditions of the RGP or NWP. Any violation of the conditions
of the RGP or NWP referenced above may subject the permittee to a stop work order, a restoration order, and/or
appropriate legal action.
This Department of the Army RGP or NWP verification does not relieve the permittee of the responsibility to obtain
any other required Federal, State, or local approvals/permits. The permittee may need to contact appropriate State
and local agencies before beginning work.
If there are any questions regarding this authorization or any of the conditions of the RGP or NWP, please contact
the Corps Regulatory Official specified below.
Date 8 April 2002 Ai? Corps Regulatory Official Spencer _ Telephone No. [phone]
Expiration Date of Verification 8 April 2005
CF: NCDOT ( Division 8, attn: rt King)
DWQ, John Hennessey
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57 9958
R

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-KG, 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 Btlr Street, Huntington
WV 25701-2070
Oklahoma
Tulsa District Engineer, ATTN: CESWT--PF.-
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: CFLRN--
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-K, 1325 J Street, CA 95814-
2922
Vermont
New England District Engineer, ATTN:
CENAE-R, (396 Virginia Road, Concord,
MA 01742-2751
Virginia
Norfolk District Engineer, AT" TN: CENAO-
OP-R, 803 Front Street, Norfolk, VA
23510--1096
Washington
Seattle District Engineer, ATTN: CENWS-
OP--KG, P.O. Box 3755, Seattle, WA 98124-
2255
West Virginia
Huntington District Engineer, ATTN:
CELK11--OR-F, 502 8th Street, 111intington,
WV 25701-2070
Wisconsin
St. Paul District Engineer, ATTN: CEMVP-
C:O--R, 190 Fifth Street East, St. Paul, Iv1N
55101-1638
Wyoming
Omaha District Engineer, ATTN: CF:NWO--
OP--R, 106 South 15th Street, Omaha, NE
68102-1618
District of Columbia
Baltimore District Engineer, ATTN: CF?.NA13-
OP-R, P.O. Box 1715, Baltimore, MD
21203-1715
Pacific Territories (American Samoa, Guam,
& Commonwealth of the Northern Mariana
Islands)
Flonolulu District Engineer, ATTN: CEPOH-
EC-R, Building 230, Fort Shafter,
Honolulu, HE 96858-5440
Puerto Rico & Virgin Islands
Jacksonville District Engineer, ATl'N:
CESAJ--CO-R, P.O. Box 4970, Jacksonville,
FL 32202-4412
Dated: January 4, 2002.
Approved:
Robert 11. Griffin,
Brigadier General, U.S. Army, Director of Civil
Works.
Nationwide Permits, Conditions,
Further Information, and Definitions
A. Index of Nationwide Permits,
Conditions, Furtherlnformation, 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. I lydropower 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.(Reservedl
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
Bast 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 Strearn
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 an

Stormwater Management Facilities
Stream Bed y
intake structures, etc.) and the
placement of new or additional riprap to dredged orr filltmateriallandtalll
elated
Stream Channelization
'T'idal Wetland
V
t
t
d B
ff protect the structure, provided the
permittee notifies the District Engineer work needed to restore the upland must
be part of a single and complete
roject

ege
a
e
u
er
Vegetated Shallows
in accordance with General Condition
13. The removal of sediment is limited p
.
This permit cannot be used in

Waterbody conjunction with NWP 18 or NWP 19 to
to the minimum necessary to restore the restore damaged upland areas
This
13. Nationwide Permits
1
Aid waterway in the immediate vicinity of
the structure to the ap
roximate .
permit cannot be used to reclaim
h
.
s 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
rocesses

markers which are approved by and
installed in accordan
ith th
structure was built, but cannot extend
furtheF than 200 feet in any direction p
.
This permit does not authorize
i
t
d
ce w
e
requirements of the U.S. Coast Guard ma
n
enance
redg g
in for the primary
from the structure. The placement of rip purpose of navigation and beach
rap must be the mini
(USCG) (See 33 CFR, chapter I,
subchapter C part R, (Section 10)
r mum necessary to
protect the structure or to ensure the restoration. This permit does not
authorize new stream channelizatio

2. Structures
- in
Artificial Canals.
Structures constructed in artificial

safety of the structure. All excavated
materials must be deposited and n or

strearn 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 District Engineer under separate ,
changes to the flow characteristics of th

has been previously authorized (see 33
authorization. Any bank stabilization e
stream, or increase flooding (See
CFR 322.5(8)). (Section 10)
I. Maintenance. Activities related to: measures not directly associated with
the structure will require a separate General Conditions 9 and 21). (Sections

(i) The repair, rehabilitation
or
authorization from the District Engineer 10 and 404)
,
replacement of any previously .
(iii) Discharges of dredged or fill Note: This MVP authorizes the repair,
rehabilitation
or replacement of an

authorized, currently serviceable,
material, including excavation, into all ,
y
previously authorized structure or fill that
structure, or fill, or of any currently
serviceable structure or fill authorized waters of the US for activities associated
with the restoration of upland areas does not qualify for the Section 404(f)
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 Attractio
D
i

differing from those uses specified or
contemplated for it in the original
construction, placement, or installation
of upland protection structures and ,
n
ev
ces
and Activities. Fish and wildlife
harvesting devices and activities s
h

permit or the most recently authorized
modification. Minor deviations in the
t
'
minor dredging to remove obstructions
in a water of the US. (Uplands lost as uc
as
pound nets, crab traps, crab dredging,
eel pots, lobster traps
duck blinds
clam
s
ructure
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
att
ti
d

materials, construction techniques, or p
ou
a Section 404 permit provided the rac
on
evices 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
En
ineer
in accordance with G
l g
sites where submerged aquatic

replacement are minimal. Currently
serviceable means useable as is or with ,
enera
g
Condition 13, within 12-months of the
date of the dama
e and th
k vegetation is documented to exist, but
may not be present in a given year.).
Th

some maintenance, but not so degraded g
e wor
must
commence, or be under contract to is NWP does not authorize artificial
reefs or impoundments and semi-
as to essentially require reconstruction.
This NWP authorizes the repair commence, within two years of the date
of the dam
Th impoundments of waters of the US for
,
rehabilitation, or replacement of those age.
e 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 clarn racks. (Sections 10
and 404)
events, provided the repair,
rehabilitation, or replacement is restoration. The restoration of the
damaged areas cannot exceed th • 5. Scientific Measurement Devices,

commenced, or is under contract to e
contours, or ordinary high water mark, Devices, whose purpose is to measure
and record scientific data such as
t
ff
commence, within two years of the date
of their destruction or damage. In cases that existed before the damage. The
District Engineer retains the ri
ht to s
a
gages, tide gages, water recording
d
i

of catastrophic events, such as
hurricanes or tornadoes
this two-
ea g
determine the extent of the pre-existing
diti
d ev
ces, water quality testing and
improvement devices and similar
,
y
r
limit may be waived by the District
E
i con
ons an
the extent of any
restoration work authorized by this structures. Small weirs and flurries
constructed primaril
to record wat

ng
neer, provided the permittee can
demonstrate funding, contract, or other
permit. Minor dredging to remove
obstructions from the adjacent y
er
quantity aril velocity are also
h

similar delays.
(ii) Dischar
es of dred
d
fill
waterbody is limited to 50 cubic yards aut
orized provided the discharge is
limited to 25 cubic yards and further for
g
ge
or
material, including excavation, into all below the plane of the ordinary high
water mark
aril is limited t
th discharges of 10 to 25 cubic yards

waters of the US to remove accumulated
sediments and debris in the vicinit
of ,
o
e
amount necessary to restore the pre-
i
ti
b provided the permittee notifies the
District Engineer in accordance with the
y
,
and within, existing structures (e.g., ex
s
ng
ottom contours of the
waterbody. The dredging may not be "Notification" General Condition.
(Sections 10 and 404)
Federal Register/Vol. 67, No. 10 / Tuesday, January 15, 2002/Notices 2079
' G. Survey Activities. Survey activities
including core sampling, seismic
exploratory operations, plugging of
seismic shot holes and other
exploratory-type bore holes, soil survey,
sampling, and historic: resources
surveys. Discharges and structures
associated with the recovery of historic
resources are not authorized by this
NWP. Drilling and the discharge of
excavated material frorn test wells for
oil and gas exploration is not authorized
by this NWP; the plugging of such wells
is authorized. Fill placed for roads, pacts
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., deFrth and width);
cexcavated 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 seclinrent
control measures are used to minimize
reentry of sediments into waters of the
LM.
The construction of intake structures
is not authorized by this NWP, unless
they are directly associated with an
authorized outf,ill structure. For
maintenance excavation and dredging to
remove accumulated sediments, the
notification most include information
regarding the original design capacities
and configurations of the facility and
re 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
(N1MS).'Such structures shall not be
placed within the limits of any
design ited stripping 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
ck-signated, 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 clays
after use has been discontinued. At
Corps of Engineers reservoirs, the
reservoir manager must approve each
buoy or marker individually. (Section
10)
02. 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,
rnainteli'ltu:o, or repair of utility lines,
inclculint; 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
8" to 12" of the trench should normally
be backfilled'with topsoil from the
trench. Furthermore, the trench cannot
be constructed in such a manner as to
drain waters of the US (e.g., backfilling
with extensive gravel layers, creating a
french drain effect). For example, utility
line trenches can be backfilled with clay
blocks to ensure that the trench does not
drain the waters of the US through
which the utility line is installed. Any
exposed slopes and stream banks must
be stabilized immediately upon
completion of the utility line crossing of
each waterbody.
(ii) Utility line substations: The
construction, maintenance, or
expansion of a substation facility
associated with a power line or utility
line in non-tidal waters of the US,
excluding non-tidal wetlands adjacent
to tidal waters, provided the activity
does not result in the loss of greater than
1/2-acre of non-tidal waters of the US.
(iii) Foundations for overhead utility
line towers, poles, and anchors: The
construction or maintenance of
foundations for overhead utility line
towers, poles, and anchors in all waters
of the US, provided the foundations are
the minimum size necessary and
separate footings for each tower leg
(rather than a larger single pact) are used
where feasible.
(iv) Access roads: The construction of
access roads for the construction and
maintenance of utility lines, including
overhead power lines and utility line
substations, in non-ticlal 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 Z,
below). Access roads must be
constructed So that the length of the
road minimizes the adverse effects on
waters of the US and as near as possible
to preconstruction contours and
2080 Federal Register/Vol. 67, No. 10/Tuesday, January 15, 2002/Notices
elevations (e.g., at grade corduroy roads (c) The utility line in waters of the
or geotextile/gravel roads). Access roads US, excluding overhead lines
e
d expected high flows (properly anchored

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

contours and elevations in waters of the
US must be properly bridged or
(d) The utility line is placed within a
jurisdictional area (i
t
f
h energy areas); and,
g. The activity is part of a single and

culverted to maintain surface flows. .e., wa
er o
t
e LIS)
and it runs parallel to a stream bed that , complete project,
13ank stabilization activities in exc

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

the US, such as drainage tile, or french
d
construction of utility line substations average of one cubic yard per running
foot may be authorized if the permittee
rains; however, it does apply to pipes that result in the loss of greater than '/,o - notifies the District Engineer in
conveying drainage from another area.
For the purposes of this NWP
the loss acre of waters of the US; or
(f) Pomanent access roads accordance with the ''Notification''
,
of waters of the US includes the filled
constructed above grade in waters of the
US f
e Gencral Condition 13 and the District
Engineer determines the activit

area plus waters of the US that are
adversely affected by flooding
Y
or
distance of more than 500 feet,
(g) Permanent access roads y
complies with the other terms and
,
o
excavation, or drainage as a result of the
constructed in waters of the US with i
i conditions of the NWP and the adverse
environmental effects are mini
l b
th
project. Activities authorized by
paragraph (i) through (iv) ma
not mpervious materials. (Sections 10 and
404) ma
o
individually and cumulatively. This
y
exceed a total of 1/2-acre loss of waters
Note 1: Overhead utility lines constructed NWP may not be used for the
channelization of waters of the US

of the US. Waters of the US temporarily

affected by filling, flooding
excavation
over Section 10 waters and utility lines that
are routed in or under Section 10 waters .

(Sections 1
and 404)
,
,
or drainage, where the project area is without a discharge of dredged or fill
material require a Section 10 permit; except r
X14. Linear Transportation Projects.
Activities required for the construction

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

calculation of permanent loss of waters
substances over navigable waters of the US, ransportat
on
crossings (e.g., highways, railways

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

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

expansion of utility line substations, constructed or installed in navigable waters
of the US (i.e., Section 10 waters)
copies of (1) The discharge causes the loss of
foundations for overhead utility lines, ,
the PCN and NIVP verification will be sent greater than 1ho acre of waters of the US;
and access roads is authorized, provided by the Corps to the National Oceanic and 01
the cleared area is kept to the miuinlum Atmospheric Administration (NOAA), (2) Where is a discharge in a special
necessary and preconstruction contours National Ocean Service (NOS), for chartin aquatic site, including wetlands;
are maintained as'near as possible. The g
the utility line to protect navigation. c. The notification must include a
area of waters of the US that is filled, 113. Bank Stabilization. Bank compensatory mitigation proposal to
excavated, or flooded must be limited to stabilization activities necessary for offset permanent losses of waters of the
the minimum necessary to construct the erosion prevention provided the activity US to ensure that those losses result
utility line, substations, foundations, meets all of the following criteria: only in minima) adverse effects to the
and access roads. Excess material must a. No material is placed more than the aquatic environment and a statement
be removed to upland areas minimum needed for erosion protection; describing how temporary losses will be
immediately upon completion of b. The bank stabilization activity is minimized to the maximum extent
construction. This NWP may authorize
utility lines in or affecting navigable
o
b less than 500 feet in length;
c. The activity will not exceed an practicable;
d. For discharges in special aquatic
waters of the LIS
even if there is
associated discharge of dredged n fill average of one cubic yard per running
foot placed along the bank below the sites, including wetlands, and stream
riffle and pool complexes, the
material (See 33 CFP part 322). plane of the ordinary high water mark notification must include a delineation
Notification: The permittee must or the high tide line;
d. No material is placed in any special of the affected special aquatic sites;
e
The width of the fill i
li
it
d t
notify the District Engineer to

accordance with General Condition 13
aquatic site, including wetlands; .
s
m
e
o
the minimum necessary for the crossing;
,
if any of the following criteria are met: e. No material is of the type, or is
placed in any location
or in any f, This permit does not authorize
stream channelization
a
d th

(a) Mechanized land clearing in a
forested wetland for the utility line ,
manner, to impair surface water flow
i
t ,
n
e
authorized activities must not cause

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

(b) A Section 10 permit is required;
that will be eroded by normal or e
stream, increase flooding, or cause more
Federal Register/Vol, 67, No. lo/Tuesday, January 15, 2002/Notices 2,ng1
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 3212(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 kNV; and the perrnittee
notifies the District Engineer in
accordance with the "Notification"
General Condition; or (b) hydropower
projects for which the FERC has granted
an exemption from licensing pursuant
to section 408 of the Energy Security
Act of 1980 (16 U.S.C. 2705 and 2708)
and section 30 of the Federal Power Act,
as amended; provided the perrnittee
notifies the District Engineer in
accordance with the "Notification"
General Condition. (Section 404)
18.: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 riot
exceed 25 cubic yards below the plane
of the ordinary high water mark or the
high tide line;
b. The discharge, including any
excavated area, will not cause the loss
of more than '/,o-acre of a special
aquatic site, including wetlands. For the
purposes of this 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 riot 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 arid
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), anadronrous fish spawning areas,
or wetlands, or the connection of canals
or other artificial waterways to
navigable waters of the US (see 33 CFR
322.5(8)). (Sections 10 and 404)
20. Oil Spill Cleanup. Activities
required for the containment and
cleanup of oil and hazardous substances
which are subject to the National Oil
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 /'l'uesclay, January 15, 2002/Notices
made obstructions to navigation. This
NWP does not authorize the removal
f within the form prior to the discharge of bed and/or banks to restore or create
o
vessels listed or determined eligible for concrete, sand, rock, etc. This NWP
does not authorize filled struct
l stream meanders; the backfilling of

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

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

Properties
General Condition. This
NWP does not authorize mainten a
require a Section 10 permit if located in y water areas; the construction of oyster
habitat over unvegetated bottom in tidal
ance
dredging, shoal removal, or riverbank navigable waters of the US. (Section
404) waters; activities needed to reestablish
sna in Vessel disposal in waters of
gg g
the US may need a
ermit from EPA 26. (Reserved]

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

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

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

Activities undertaken, assisted,

authorized, regulated
funded
or g
tidal and non-tidal wetlands and

i
i vegetation; and other related activities.

This NWP does not authorize the
,
,
r
par
an areas, the creation of tidal aril
financed, in whole or in part, by another non-tidal wetlands and ri
a
i conversion of a strearn to another

Federal agency or department where p
r
an areas,
and the restoration and enhancem
t
f aquatic use, such as the creation of an
i

that agency or department has
determined, pursuant to the Council on en
o
non-tidal streams and non-tic}al open mpoundment for waterfowl habitat.
This NWP does not authorize strearn

Environmental Quality Regulation for water areas as follows:
(a) The activity is conducted on channelization. This NWP does not

Implementing the Procedural Provisions
of the National Environmental Policy :
(1) Non-Federal public lands and-. .
private lands, in accordance with the authorize the conversion of natural
wetlands to another aquatic use, such as

Act (NEPA) (40 CFR part 1500 et seq.),
that the activity
work
or dischar
e i
terms and conditions of a binding
w
tl
d
h creation of waterfowl impoundments
where a forested wetland previously
,
,
g
s
categorically excluded from e
an
en
ancement, restoration, or
creation agreement between th existed. However, this NWP authorizes

environmental documentation, because
it is included within a cate
or
of e
landowner and the U.S. Fish and
Wildlif
including relocation tinon-tidal waters,
ncluding non-tidal non-wetlands, the
g
y
actions which neither individually nor e Service (FWS) or the Natural
Resources Conservation Service (NRCS) project site provided there are net gains
i
ti

cumulatively have a significant effect on
the human environment
and th
Offi ,
the National Marine Fisheries Service,
h n aqua
c resource functions and
values. For example, this NWP may
,
e
ce
of the Chief of Engineers (ATTN: CECW- t
e National Ocean Service, or
voluntary wetland restoration authorize the creation of an open water

OR) has been furnished notice of the
agency's or department's a
lication f ,
enhancement, and creation actions
d impoundment in a non-tidal emergent
wetland, provided the non-tidal
pp
or
the categorical exclusion and concurs ocumented by the NRCS pursuant to
NRCS re
ulation emergent wetland is replaced by

with that determination. Before
approval for purposes of this NWP of g
s; or
(2) Reclaimed surface coal mine
lands, in accordance with a Su
f creating that wetland type on the project
site. This NWP does not authorize the

any agency's categorical exclusions, the
Chief of Engineers will solicit public r
ace
Mining Control and Reclamation Act
it i
d relocation of tidal waters or the
conversion of tidal waters, including

comment. In addressing these
h perm
ssue
by the OSM or the
applicable state agency (the future tidal wetlands, to other aquatic uses,
such as the conversion of tid
l
tl
d

continents, t
e Chief of Engineers may
require certain conditions for
reversion does not apply to streams or
wetlands created
restored
o
h
d a
we
an
s
into open water impoundments.
R

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

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

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

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

1344(8)-(1) is
permitted pursuant to y
public or private land that are not p
a
e perm
t would be required for
any reversion
For r
t
ti

section 10 of the Rivers and Harbors Act
of 1899
Those activities th
t d
t
described by paragraphs (a)(1) or (a)(2) .
es
ora
on,
enhancement, and creation projects
.
a
o no
involve a Section 404 state permit are above, the permittee mast notify the
District Engineer in accordance with conducted under paragraphs (a)(1) and

this NWP also
th
i
not included in this NWP, but certain

structures will be exempted by section
General Condition 13; and
(c) Plantin
f
l
i ,
au
or
zes any
fuhruturre discharge of dredged or fill

154 of Pub. L. 94-587, 90 Stat. 2917 (33
U.S.C. 591) (see 33 CFR 322
3(x)(2)) g o
on
y nat
ve species
should occur on the site.
A
ti
i
i material associated with the reversion of
the area to its documented prior
.
.
(Section 10) v
c
t
es authorized by this NVVP
include, to the extent that a Cor
s condition and use (i.e., prior to the

25. Structural Discharges. Discharges
of material such as concrete
sa
d
k p
permit is required, but are not limited restoration, enhancement, or creation
activities). The reversion must occur
,
n
, roc
,
etc„ into tightly sealed forms or cells to: the removal of accumulated
sediments; the installation
rem
l within five years after expiration of a

where the material will be used as a ,
ova
,
and maintenance of small water control limited term wetland restoration or

structural member for standard pile
supported structures
such as brid
structures, dikes, and berms; the creation agreement or permit, even if the
discharge occurs after this NWP expires.
,
ges,
transmission line footings, and installation of current deflectors; the
enhancement, restoration, or creation of This NWP also authorizes the reversion
of wetlands that w
t
d

walkways or for general navigation,
such as mooring cells, including the
riffle and pool stream structure; the
placement of in-stream habit
t ere res
ore
,
enhanced, or created on prior-converted

excavation of bottom material from a
structures; modifications of the stream cropland that has not been abandoned,
in accordance with a bi
di
g
n
n
agreement
Federal Register/ Vol. 67, No. 10 /'Tuesday, January 15, 2002/Notices 2003
between the landowner and NRCS or
FWS (even though the restoration, discharge. For example, the location of
the )ionic may need to be adjusted dikes; and plowing or discing to impede

enhancement, or creation activity did on-
site to avoid flooding of adjacent succession, prepare seed beds, or
establish fire breaks
Sufficient
not require a Section 404 permit). The
five-year reversion limit does not apply property owners;
d. The discharge is part of a single .
vegetated buffers must be maintained
adjacent to all open water bodies

to agreetrrents without time limits
reached under paragraph (a)(1)
The
and complete project; furthermore, that
for any subdivision created o
ft ,
streams, etc., to preclude water quality
.
prior condition will be documented in n or a
er
November 22, 1991, the discharges, degradation due to erosion and
sedimentation
This NWP does not
the original agreement or permit, and authorized under this NWP may not .
authorize the construction of new dikes

the determination of return to prior
exceed an aggregate total loss of waters ,
roads, water control structures
etc

conditions will be made by the Federal
of the US of 1/-acre for the entire ,
.
associated with the management areas

agency or appropriate state agency
executing the agreement or permit.
subdivision;
e. A•n individual may use this NWI' ,
This NWP does not authorize converting
wetlands to uplands, impoundments Oro
Before any reversion activity the only fo1• a single-family home fora other open water bodies. (Section 404)
permittee or the appropriate Federal or
state agency must notify the District personal residence;
f. This NWP may be used only once 31. Maintenance of Existing Flood
Control Facilities. Discharge of dred
e
Engineer and include the

documentation of the prior condition. per parcel;
?. This NWP may not be used in g
or fill material resulting from activities
associated with the maintenance of
Once an area has reverted to its prior conjunction with NWP 14 or NbVP 18,
for an
arcel
and existing flood control facilities,
physical condition, it will be subject to
whatever the Corps Regulatory y p
;
,
h. Sufficient vegetated buffers must be including debris basins, retention/
detention basins
and channels that
requirements will be at that future date.
(Sections 10 and 404) maintained adjacent to all open water
bodies, streams, etc., to preclude water ,
(i) were previously authorized by the
C
b
I
d

Note: Compensatory mitigation is not
quality degradation due to erosion and
sedimentation orps
y
n
ividual Permit, General
Permit, b3 CFR 330.3, or did not
Y
required for activities authorized by this
NWP, provided the authorized work results .
For the purposes of this "P, the require a permit at the time it was
constructed
or
in a net increase in aquatic resource

functions and values in the project area. This acreage of loss of waters of the US
includes the filled area fpreviousl
previously ,
(u) were constructed the Corps and
transferred to anon-Federnon-Federal sponsor for
NWP can be used to authorize compensatory permitted, the proposed filled area, and operation and maintenance
Activities
mitigation projects, including mitigation
banks, provided the permittee notifies the any other waters of the US that are
adversely affected b
floodin .
authorized by this NtiVP are limited to

District Engineer in accordance with General
Condition 13
and the
roject includes y
g,
excavation, or drainage as a result of the those resulting from maintenance
activities that are conducted within the
,
p
compensatory mitigation for impacts to project. This NWP authorizes activities
only by individuals; for this purpose "maintenance baseline," as described in
h

works of the UStca NWP dtoesal thorizedize ,
the term "individual" refers to a natural t
e definition below. Activities
including the discharges of dredged or
the reversion of an area used fora
com
ensator
miti
ti person and/or a married couple, but
does not include a corporation fill materials, associated with
p
y
ga
on project to its prior
condition. NWP 27 can be used to authorize ,
partnership, or similar entity. For the maintenance activities in flood control
facilities in any watercourse that has
impacts at a mitigation bank, but only in
Y purposes of this NWP, a parcel of land
previously been determined to be
circumstances where it has been approved
under the Interagency Federal Mitigation is defined as "the entire contiguous
quantity of land in possession of within the maintenance baseline, are

Bank Guidelines. ,
recorded as property of, or owned (in authorized under this NWP. The NWP
does not authorize the removal of
28. Modifications of hxisting Marinas. any form of ownership, including land sediment and associated vegetation from
Reconfiguration of existing docking owned as a partner, corporation, joint the natural water courses except to the
facilities within an authorized marina tenant, etc.) by the same individual extent that these have been included in
area. No dredging, additional slips, dock (and/or that individual's spouse), and the maintenance baseline. All dredged
spaces, or expansion of any kind within comprises not only the area of wetlands material must be placed in an upland
waters of the US•is authorized by this sought to be filled, but also all land site or an authorized disposal site in
NWP. (Section 10)
29. Single-family Housing. Discharges contiguous to those wetlands, owned by
the individual (and/or that individual's waters of the US, and proper siltation
controls must be used. (Activities of an

of dredged or fill material into non-tidal
spouse) in any form of ownership." y
kind that result in only incidental
waters of the US, including non-tidal (Sections 10 and 404) fallback, or only the cutting and
wetlands for the construction or 30. Moist Soil Xfonagemsnt for removing of vegetation above the
expansion of a single-family home and

attendant features (such as a garage, wildlife. Discharges of dredged or fill

material and maintenance activities chat ground, e.,,., mowing, rotary Cuttin ,
o ?•
and chainsawing, where the activity
driveway, storage sired, and/or septic are associated with moist soil neither substantially disturbs the root
field) for an Individual Permittee management for wildlife performed on system nor involves mechanized
provided that the activity meets all of non-tidal Federally-owned or managed, pushing, dragging, or other similar
the following criteria: state-owned or managed property, and activities that redeposit excavated soil
a. The discharge does not cause the local government agency-owned or material, do not require a Section 40-1
loss of more than 1/c-acre of non-tidal managed property, for the purpose of permit in accordance with 33 CFR
waters of the US, including non-tidal continuing ongoing, site-specific, 323.2(d)(2)).
wetlands;
b. The permittee notifies the District wildlife management activities where
soil manipulation is used to manage Notification: After the maintenance
baseline is established, and before any
Engineer in accordance with the
" habitat and feeding areas for wildlife. maintenance work is conducted
the
Notification" General Condition; Such activities include, but are not ,
permittee must notify the District
c. The permittee has taken all limited to: The repair, maintenance or Engineer in accordance with the
practicable actions to minimize the on- replacement of existing water control "Notification'' General Condition
The
site and off-site impacts of the structures; the repair or maintenance of .
notification may be for activity-specific
20134 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
E
i conditions of this NWP and the
settlement agreement, including a
.
Maintenance Baseline: The
maintenance baseline is a descri
tion o ng
neer will not delay needed
maintenance, provided the District
f E
i specified completion date; or
(ii) The terms of a final Federal court
p
the physical characteristics (e,g., depth, ng
neer and the permittee establish a
schedule for identification
a
roval decision, consent decree, or settlement
a
re
t
l
i

width, length, location, configuration, o
desi
n flood
i ,
pp
,
r development, construction and g
emen
resu
t
ng from an
enforcement action brought by the U
S

g
capac
ty, etc.) of a flood
control project within which
completion of any such required .
.
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 de
ttl

District Engineer. The District Engineer
will approve the maintenance baseline ,
further mitigation will be required for ,
cree, 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
includin
a
appropriate mitigation, the District g
y a
trustee or trustees for natural resources
,
g
ny
areas where there are no constructed
h Engineer will give special consideration
to natural water courses that have been (as defined by the National Contingency
Plan at 40 CFR subpart G) under secti

c
annels, but which are part of the
facility
If no evidence of th
included in the maintenance baseline on
311 of the Clean Water Act (CWA),
.
e
constructed capacity exist, the approved and require compensatory mitigation
and/or BMPs as appropriate. section 1b7 of the Comprehensive
Environmental Response
Com
ensation
constructed 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
h
flood control facilities for
hi ,
e
a
ona
Marine Sanctuaries Act (NMSA), section

facility (which will normally consist of w
c
no
maintenance baseline has been 1002 of the Oil Pollution Act of 1990
(OPA), or the Park System Resource
as-built or approved drawings) and
documentation of the design capacities approved. Emergency situations are
those which would result i Protection Act at 16 U.S.C. '19jj, to the

of the flood control facility. The n an
unacceptable hazard to life, a significant extent that a Corps permit is required.
For either (i)
(ii) 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 .
Any structure, work or discharge of ,
p
will ensure compliance with the
or activity-specific conditions. Once
determined, the maintenance baseline dredged or fill material, remaining in
place, or undertaken for mitigation provisions of 33 CFR part 326 and 33
CFR 330.6 (d)(2) and (e)
(Sections 10
will remain valid for any subsequent ,
restoration, or environmental benefit in .
and 404)
reissuance of this NWP, This permit
does not authorize maintenance of a compliance with either:
(i) The terms of a final written Cor
s 33. Temporary Construction, Access
and Dewaterin
Tem
orar
t
t

flood control facility that has been p
non-judicial settlement agreement g.
p
y s
ruc
ures,
work and discharges
including
abandoned. A flood control facility will
be considered abandon
d if it h resolving a violation of section 404 of ,
cofferdams, necessary for construction
e
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 reso
ving a violation of section 404 of
the CWA, provided that: by the Corps of Elie ineers or the USCG,
or for other construction activities not
determine any required mitigation one-
time only for impacts associated with a. The unauthorized activity affected subject to the Corps or USCG

maintenance work at the same time that no more than 5 acres of non-ticlal
wetlands or 1 acre of tidal wetlands; regulations. Appropriate measures must
be taken to maintain near normal
the maintenance baseline is approved.
Such one-time mitigation will be b. The settlement agreement provides
f downstream flows and to minimize

required when necessary to ensure that or environmental benefits, to an equal
or greater degree, than the flooding, Fill must be of materials, and
placed in a manner
that will not b

adverse environmental impacts are no
more than minimal
both individ
ll
environmental detriments caused by the ,
e
eroded by expected high flows. The use
,
ua
y
and cumulatively, Such mitigation will unauthorized activity that is authorized
by this NWP
and of dredged material may be allowed if
i
i
d

only be required once for any specific ;
c. Tire District Engineer issues a t
s
etermined by the District Engineer
that it will not cause more than mi
i
l
reach of a flood control project. verification letter authorizing the n
ma
adverse effects on aquatic resources.
Federal Register/Vol. 67, No. 10/Tuesday, January 15, 2002/Notices 9nne;
Temporary fill must be entirely remove(
to upland areas, or dredged material
returned to its original location,
following completion of the
construction activity, and the affected
areas must be restored to the pre-project
conditions. Cofferdams cannot be used
to dewater wetlands or other aquatic
areas to change their use. Structures left
in place after cofferdams are removed
require a Section 10 permit if located in
navigable waters of the U.S. (See 33 CF'R
part 322). The permittee most 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 witli 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
accuuuilated sediment for maintenance
of existing marina basins, access
channels to marinas or boat slips, and
boat slips to previously authorized
depths or controlling depths for ingress/
egress, whichever is less, provided the
1 dredged material is disposed of at in
upland site and proper siltation control;
are used. (Section 10)
36. float 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
clremiIcal 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 rernoved to the
upland; arid,
e. No material is placed in special
aquatic sites, including wetlands.
Another NMI, 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 art 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 Ifazardaus and Toxic
Waste. Specific activities required to
effect the containment, stabilization, or
removal of hazardous or toxic waste
materials that are performed, ordered, or
sponsored by a government agency with
established legal or regulatory authority
provided the permittee notifies the
District Engineer in accordance with the
"Notification" General Condition. For
discharges in special aquatic sites,
including wetlands, the notification
must also include a delineation of
affected special aquatic sites, including
wetlands. Court ordered remedial action
plans or related settlements are also
authorized by this NWP. This NWP does
not authorize the establishment of new
disposal sites or the expansion of
existing sites used for the disposal of
hazardous or toxic waste. Activities
s undertaken entirely on a
Comprehensive Environmental
Response, Compensation, and Liability
Act (CERCL.A) site by authority of
CERCLA as approved or required by
EPA, are not required to obtain permits
under section 404 of the CWA or section
10 of the Rivers and Harbors Act.
(Sections 10 arid 404)
39. Residential, Commercial, and
Institutional Developments. Discharges
of dredged or fill material into non-tidal
waters of the U.S., excluding non-tidal
wetlands adjacent to tidal waters, for the
construction or expansion of residential,
commercial, and institutional building
foundations and building pads and
attendant features that are necessary for
the use and maintenance of the
structures. Attendant features may
include, but are not limited to, roads,
parking lots, garages, yards, utility lines,
stormwater management facilities, and
recreation facilities such as
playgrounds, playing fields, and golf
courses (provided the golf course is an
integral part of the residential
development). The construction of new
ski areas or oil and gas wells is not
authorized b l this NWP
Residentia 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 1h-acre of non-tidal
waters of the U.S., excluding non-ticlal
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 NMI arid
that any adverse impacts of the project
oil the aquatic environment are
minimal, both individually and
cumulatively;
C. 'I,Ile permittee must notify the
District Engineer in accordance with
General Condition 13, if any of the
following criteria are met:
(1) 'I'll(, discharge causes the loss of
greater than Mo-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 o of any compensatory mitigation used to
r offset the loss of waters of the US (e include the installation, placement, or
const
ti
f d
.g.,
intermittent streams, below the ordinary 1/12-acre of emergent wetlands created
high water mark (see Note
below)
or ruc
on o
rainage tiles, ditches,
or levees; mechanized land clearing;
,
;
N The discharge causes the loss of on-site);
j. If there are any open waters or land leveling; the relocation of existing

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

determine that the activity complies
with the other terms and conditions
f ,
.
wetland or upland vegetated buffers complies with the following terms and
conditions:
o
the NWP, determine adverse next to those open waters or streams
consistent with General Conditio
19
a. For discharges into non-tidal
environmental effects are minimal both
individually and cumulatively
d
and .
n
Deed restrictions, conservation wetlands to improve agricultural
production, the following criteria must
,
waive the limitation on stream impacts easements, protective covenants, or
other means of land conservation and be met if the permittee is an United
in writing before the permittee may
proceed; preservation are required to protect and States Department of Agriculture
(USDA) Program participant:
d. For discharges in special aquatic
i maintain the vegetated buffers
established on the project site The permittee must obtain a
s
tes, including wetlands, the
notification must include a delineation .
Only residential, commercial, and
i cate to
gorical minimal effects exemption,
minimal effect exemption
or miti
ation

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

complete project;
f. The permittee must avoid and
as well as the attendant features, are
authorized by this NWP. The ur
y
Act of 1985, as amended (16 U.S.C. 3801
et se
q )'
minimize discharges into waters of the
US at the project site to the maximum compensatory mitigation proposal that
is required in paragraph (e) of this NWP (2) The discharge into non-tidal
wetlands does not result in th
l
f

extent practicable. The notification,
when required, must include a written may be either conceptual or detailed.

The wetland or upland vegetated buffer e
oss o
,
greater than h-acre of non tidal
wetlands on a farm tract;
statement explaining how avoidance
and minimization of losses of w
s
t
f
m
t required in paragraph (i) of this NWP
will be determined on a case-by-case (3) The permittee must have NRCS-
a
ers o
the
were achieved o
US ect
the r wa
er
p i
sit
C
basis by the District Engineer for

addressing water qualit
concer
Th certified wetland delineation;

(4) The permittee must implement an
e.
ompensatory mitigation will
normally be required to offset the losses y
ns.
e
required wetland or upland vegetated
b
f NRCS-approved compensatory
mitigation plan that full
offsets

of waters of the US. (See General
of the u
fer is part of the overall y
wetland losses, if required; and
Condition
The notification must
also include a compensatory mitigation compensatory mitigation requirement
for this NWP. If the project site was
(5) The permittee must submit a

proposal for offsetting unavoidable
avoidable
f
un
previously used for agricultural report, within 30 days of completion of
the authorized work
to the District
losses of waters o
the
If
applicant asserts that the advers
ff
t purposes and the farm owner/operator
used NWP 40 to authorize activities in ,
Engineer that contains the following
e e
ec
s
of the project are minimal without
waters of the US to increase production information: (a) The name, address, and
telephone number of the permittee; (b)
mitigation, then the applicant may
submit justification ex lainino wh or construct farm buildings, NWP 39
cannot be used by the developer to The location of the work; (c) A
d

compensatory mitigation should not be
i
d f
'
authorize additional activities. This is
more than the acrea
e limit f
NWP 39 escription of the work; (d) The type
and acreage (or square feet) of the loss
requ
re
or the District Engineer
s
consideration; g
or
impacts to waters of the US (i.e., the
b of wetlands (e.g., 1/3-acre of emergent
wetlands); and (e) The type
acrea
e (or
g. When this NWP is used in
conjunction with any other NWP
an com
ined acreage loss authorized under
NWPs 39 and 40 cannot exceed 1/z-acre, ,
g
square feet), and location of
,
y
combined total permanent loss of waters
of the US exceeding V1o-acre re
i
see General Condition 15).
Subdivisions: For residential compensatory mitigation (e.g. 1/3-acre of
emergent wetland on a farm tract;
qu
res
that the perm ittee rrotify the District
subdivisions, the aggregate total loss of credits purchased from a mitigation
bank); or
Engineer accordance with General

Condition 13; waters of US authorized by NWP 39 can
not exceed 1/2-acre. This includes any
b. For discharges into non tidal

h. Any work authorized by this NvVP
must
t loss of waters associated with

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

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

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

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

1/ro-acre or less of waters of the US, the
permittee must submit a report
within waters of the US based on this criterion
would require a PCN although water is
i
f NWP):
(1) The discharge into non-tidal
,
30 days of completion of the work, to n
requently present in the stream channel
(except for ephemeral waters, which do not wetlands does not result in the loss of
greater than 1/2-acre of non-tidal
the District Engineer that contains the
following information: (1) The name,
dd require PCNs).
40. Agricultural Activities. Discharges wetlands on a farm tract;
(2) The permittee must notif
the
a
ress, and telephone number of the
permittee; (2) The location of the work; of dredged or fill material into non-tidal
waters of the US
excludin
tid
l y
District Engineer in accordance with

(3) A description of the work; (4) The
type and acreage of the loss of waters of ,
g non-
a
wetlands adjacent to tidal waters, for
i General Condition 13, if the discharge
results in the loss of greater than 1/10-

the US (e.g., 1/12-acre of emergent mproving agricultural production and
the construction of building pads for acre of non-tidal wetlands;
(3) The notification must in
l
d

wetlands); and (5) The type and acreage
farm buildings. Authorized activities c
u
e a
delineation of affected wetlands; and
Federal Register/ Vol. 67, No. 10/Tuesday, January 15, 2002/Notices 20137
(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 MA, even
though a categorical minimal
ff
t configuration, which does not require a
S

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

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

December 23, 1985, (i.e., farmed
wetlands) and the permittee must notif g
p
,
through d. may not exceed a total of 112.- res
aped drainage ditch must be
approximately the same as the location
y
the District Engineer in accordance with acre on a single farm tract. If the site was
used for agricultural pur
oses and the of the centerline of the original drainage
d

General Condition 13; and
d. Arty activity in other waters of the p
farm owner/operator used either
• itch. This NWY does not authorize
stream channelization or stream

US is limited to the relocation of 1Para i
x hs a., b., or c. of this MVP to
g 'P
author-i'ze activities in waters of the US
relocation projects. (Section 404)

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

o
g e
ater than 30linear-fe

to authorize residential, commercial
or wetlands adjacent to tidal waters, for the
s
e
iceable
drainage
constructed ,
industrial development activities in construction or expansion of

in non-tidal streams unless, for drainage
waters of the US on the site
the recreational facilities, provided the
ditches constructed in intermittent non- ,
combined acreage loss authorized h
y activity meets all of the following
tidal streams, the District Engineer

waives this criterion in writing, and the
NWT's 39 and 40 cannot exceed '/?-acre
(see General Condition 15)
(Section criteria:
a. The discharge does not cause the
District Engineer has determined that .
404) loss of greater than 1/z acre of non-tidal
the project complies with all terms and 41. Reshaping Existing Drainage waters of the US, excluding non-tidal
conditions of this NWP, and that any Ditches. Discharges of dredged or fill wetlands adjacent to tidal waters;
adverse impacts of the project on the material into non-tidal waters of the US h• The discharge does not cause the
aquatic environment are minimal, both ,
excluding non-tidal wetlands adjacent loss of greater than 300 linear-feet of a
individually and cumulatively. For to tidal waters, to modify the cross- stream bed, unless for intermittent
impacts exceeding 300-linear feet of sectional configuration of currently stream beds this criterion is waived in
impacts to existing serviceable ditches 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 roust notify the the ditch cannot increase drainage below, that the project complies with all
District Engineer in accordance with the
" capacity beyond the original design terms and conditions of this NWT' and
Notification" General Condition 13; capacity. Nor can it expand the area that any adverse impacts of the project
and
" drained by the ditch as originally on the aquatic environment are
e. The term
farm tract" refers to a designed (i.e., the capacity of the ditch minimal, both individually and
parcel of land identified by the Farm
' must be the same as originally designed cumulatively;
Service Agency.
Pile Corps will identify
other waters of the US on the farm tract. and it cannot drain additional wetlands
or other waters of the US). c. The permittee notifies the District
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 im
rove "Notification" General Condition 13 for
discharges exceeding 300 linear feet of
conditions of paragraph a. of this NWP, p
water quality (e.g., by regrading the impact of intermittent stream beds. In
except as provided below. For those drainage ditch with gentler slopes such cases, to be authorized the District
activities that require notification, the ,
which can reduce erosion
increase Engineer roust determine that the
District Engineer will determine if a
proposed agricultural activit
i ,
growth of vegetation, increase uptake of
d' activity complies with the other terms
s
y
authorized by paragraphs b., c., and/or nutrients an
nd 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 rnlnimal both individually and
participants, requesting authorization for
discharges ofdred
ed or fill mate
i
l notify the District Engineer in cumulatively, and waive this limitation
g
r
a
into waters of the US authorized by accordance with General Condition 13 if
greater than 500 linear feet of drainage in writing before the permittee may
proceed;
paragraphs (c) or (d) of this NWP, in
addition to paragraph (a)
must notif ditch will be reshaped. Material °
l
i
f d. For discharges causing the loss of
,
y
the District Engineer in accordance with resu
t
ng
rom excavation may not be
permanently sidecast into waters but greater than ho-acre of non-ticial waters
of the US, the permittee notifies the
General Condition 13 and the District
Engineer will determine if the entire may be temporarily sidecast (up to three
months) into waters of the US, provided District Engineer in accordance with
General Condition 13;
single and complete project is
authorized by this NWP
Dischar
es
f the material is not placed in such a a For discharges in special aquatic:
.
g
o
dredged or fill material into waters of manner that it is dispersed by currents
or other forces. 1'he District Engineer sites, including wetlands, the
notification must include a delineation
the US associated with completing
required compensatory mitigation are rRay extend tire, period of temporary
sidecasthi not to exceed a total of 180 of affected special aquatic sites;
f. The discharge is part of a single and
authorized by this NWP. Ilowever, total
impacts, including other authorized days, where appropriate. In general, this
MVP does not apply to resha
in complete project; and
C
i

impacts under this NWP, may not p
g
drainage ditches constructed in g.
ompensatory m
tigation will
normally be required to offset the losses
exceed the 1/2-acre limit of this NWP.
This NWY does not affect
or othe
i uplands, since these areas are generally of waters of the US. The notification
,
rw
se
regulate, discharges associated with not waters of the US, and thus no permit
from the Corps is required, or to the must also include a compensatory
mitigation proposal to offset authorized
agricultural activities when the maintenance of existing drainage losses of waters of the US.
2088 Federal Register/Vol. 67, No. 10/Tuesday, January 15, 2002/Notices
For the purposes of this NWP, the
term ''recreational facility'' is defined as greater than '/,-acre of non-tidal waters
of the US, excluding non-tidal wetla
d that are exempt from Section 404 permit

a recreational activity that is integrated
into the natural landscape and does not n
s
ad cent to tidal waters;
t?. The discharge does not caus
th requirements);
f. The permittee must avoid and

substantially change preconstruction
grades or deviate from
t
l l
d e
e
loss of greater than 300 linear-feet of a minimize discharges into waters of the
US at the project site to the maximum
na
ura
an
scape stream bed, unless for intermittent
contours. For the purpose of this permit, stream beds this criterion is waived in
h extent practicable, and the notification
must include a written stateme
t t
h

t
e primary function of recreational
facilities does not include the use of
writing pursuant to a determination by
the District Engineer
as specified n
o t
e
District Engineer detailing compliance
i
h

motor vehicles, buildings, or impervious
surfaces
Exam
les of recreati
l ,
below, that the project complies with all
t
d w
t
this condition (i.e. why the
discharge must occur in waters of the
.
p
ona
facilities that may be authorized by this erms an
conditions of this NWP and
that any adverse impacts of the project US and why additional minimization
b

NWP include hiking trails, bike paths,
horse paths, nature centers, and
on th66:aquatic environment are
minimal, both individuall
and cannot
e achieved);
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

construction or expansion of golf
courses and the expansion of ski areas
greater than 300 linear feet of
intermittent stream beds
th
i BMPs and watershed protection
techniques. Examples may include
,
provided the golf course or ski area does ,
e perm
ttee
notifies the District Engineer in forebays (deeper areas at the upstream
end of the stormwater mana
t
not substantially deviate from natural
landscape contours. Additionally, these accordance with the "Notification"
General Condition 13
In such cases
to gemen
facility that would be maintained
'

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

adverse effects to waters of the US and
i
i
determine that the activity complies, and siting considerations to minimize
adverse effects to aquatic resources

r
par
an areas through the use of such
practices as integrated pest
with the other terms and conditions of
the NWP
determine the adverse .
Another example of a BMP would be

management, adequate stormwater
management facilities; vegetated buffers, ,
environmental effects are minimal both
individually and cumulatively
and bioengineering methods incorporated
into the facility design to benefit water

reduced fertilizer use, etc. The facility ,
waive this limitation in writin
before quality and minimize adverse effects to

must have an adequate water quality g
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 of 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
e
i
f
l
management facilities or for the maintenance plan and will not exceed
the original contours of the facilit
as
xpans
on o
sma
l support facilities,
such as maintenance and storage maintenance of existing stormwater
management facilities causing the loss y
approved and constructed; and

buildings and stables that are directly
of greater than '/lo-acre of non-tidal i. The discharge is part of a single and
complete project
(Section 404)
related to the recreational activity. This
NWP does not authorize other waters, excluding non-tidal wetlands
adjacent to tidal waters
provided the .
44. Mining Activities. Discharges of

buildings, such as hotels, restaurants, ,
permittee notifies the District Engineer dredged or fill material into:
(i) 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 addition
th annual average flow is 1 cubic foot per
,
football fields), basketball and tennis .
,
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. Stormwater 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,
(2) For discharges in special aquatic excluding wetlands adjacent to lower
perennial streams
for ag
re
ate minin

excluding non-tidal wetlands adjacent
to tidal waters, for the construction and
sites, including wetlands and
submerged aquatic vegetation
the ,
g
g
g
activities (support activities in lower

maintenance of stormwater management
facilities, including activities for the ,
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 wat or
(iii) Isolated waters and non-tidal
,
retention basins; the installation and ers
of the US. Maintenance in constructed wetlands adjacent to headwater streams,
for hard rock/mineral minin
activities
maintenance of water control structures,
outfall structures and emergency areas will not require mitigation
provided such maintenance is g
(i.e., extraction of metalliferous ores

spillways; and the maintenance
dred
in
of existi
t
accomplished in designated
i from subsurface locations) and
associated support activities, provided
g
g
ng s
ormwater
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 acreage loss of waters
following criteria:
a, The discharge for the construction downstream end of the stormwater
management facility
in existing of the US resulting from support
ti
i
i
1

of new stormwater management ,
stormwater management facilities). (No ac
v
t
es, cannot exceed
/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 nntst
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 tlce 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 cat, 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 crust
notify the District Engineer in
accordance with General Condition 13.
Tice notification must include: (1) A
description of waters of the US
adversely affected by the project; (2) A
written statement to the District
Engineer detailing compliance with
paragraph (b), above (i.e., why the
discharge must occur in waters of the
US and why additional minimization
cannot be achieved); (3) A description o
measures taken to ensure that the
proposed work complies with
paragraphs (c) through (f), above; and (4
A reclamation plan (for aggregate
mining in isolated waters and non-tidal
wetlands adjacent to headwaters and
hard rock/mineral mining only).
This NWP does not autiorize 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 Xfovements. No
activity may substantially disrupt the
necessary life-cycle movements of those
species of aquatic life indigenous to the
waterbody, including those species that
normally migrate through the area,
sinless the activity's primary purpose is
to impound water. Culverts placed in
streams must be installed to maintain
low flow conditions.
5. Equipment. Heavy equipment
working in wetlands must be placed on
mats, or other measures must be taken
to minimize soil disturbance.
6. Regional and Case-By-Case
Conditions. The activity must comply
with any regional conditions that may
have been added by the Division
f Engineer (see 33 CFR 330.4(e)).
Additionally, any case specific
conditions added by the Corps or by the
state or tribe in its Section 401 Water
Quality Certification and Coastal Zone
Management Act consistency
determinatioh.
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 all 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
mist provide water quality management
treasures 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
tin more than minimal adverse effect on
water quality). An important component
of water quality management includes
stormwater management that minimizes
degradation of the downstream aquatic
system, including water quality (refer to
General Condition 21 for stormwater
./
2090 Federal Register/Vol, 67, No. 10 /'Tuesday, January 15, 2002/Notices
management requirements). Another
important component of water quality endspp.litml and http://cvtivtiv.tlfrns.govl written notice from the District or
prot_res/esohome.htnil respectivel
Di
i
i
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 Engineer. Subsequently, the
permittee's right to proceed tinder the

open waters, including streams (refer to
General Condition 19 for ve
etated proper
es
listed, or eligible for listing, in the
Natio
l R
i NWP may be modified, suspended, or
revoked only in accordance with the
g
buffer requirements for the NWPs). na
eg
ster of Historic Places is
authorized, until the District En
i procedure set forth in 33 CFR

This condition is only applicable to
projects that have the potential to affect g
neer
has complied with the provisions of 33
CFR part 325, Appendix C
The 330.5(d)(2).
(b) Contents of Notification: The
water quality. While appropriate
measures must be taken, in most cases .
prospective permittee must notify the
District Engineer if the authorized notification must be in writing and
include the following information:
it is not necessary to conduct detailed
studies to identify such measures or to activity may affect any historic
properties listed, determined to be (1) Name, address and telephone
numbers of the prospective permittee;
require monitoring, eligible, or which the prospective (2) Location
the proposed project;
10. Coastal Zone Management. In permittee has reason to believe may be ri
Br description it descrion
the proposed
certain states, an individual state coastal
zone management consistency eligible for listing on the National
Register of Historic Places, and shall no r
oj
project; project ' s purpose; direct and
t indirect adverse environmental effects
concurrence must he obtained or waived begin the activity until notified by the the project would cause; any other
(see Section 330.4(d)). District Engineer that the requirements NWP(s), Regional General Permit(s), or
11. Endangered Species. (a) No
activity is authorized under any NWP of the National Historic Preservation Ac
have been satisfied and that the activity t Individual Permit(s) used or intended to
used to authorize any part of the
which is likely to jeopardize the is authorized. Information on the pr
project
any related activity.
continued existence of a threatened or location and existence of historic Sketches
be
es should be provided when
endangered species or a species
proposed for such designation
as resources can be obtained from the State
Historic Preservation Office and the necessary to show that the activity
complies with the terms of the NtiVP
,
identified under the Federal Endangered National Register of Historic Places (see (Sketches usually clarify the project and
Species Act (ESA), or which will 33 CFR 330.4(8)). For activities that may when provided result in a quicker
destroy or adversely modify the critical affect historic properties listed in, or decision.);
habitat of such species. Non-federal eligible for listing in, the National (4) For NWPs 7, 12, 14, 18, 21, 34, 38,
permittees shall notify the District Register of Historic Places, the 39, 41, 42, and 43, the PCN must also
Engineer if any listed species or notification must state which historic include a delineation of affected special
designated critical habitat might be property may be affected by the aquatic sites, including wetlands,
affected or is in the vicinity of the proposed work or include a vicinity vegetated shallows (e.g., submerged
project, or is located in the designated map indicating the location of the aquatic vegetation, seagrass beds), and
critical habitat and shall not begin work historic property, riffle and pool complexes (see paragraph
on the activity until notified by the 13. Notification. 13 (0);
District Engineer that the requirements (a) Timing; where required by the (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 preconstructio? design capacities and configurations of
endangered or threatened species or
designated critical habitat
the notification (PCN) as early as possible.
The District Engineer must determine if those areas of the facility where
maintenance dredging or excavation is
,
notification must include the name(s) of
the endangered t threatened species
re the notification is complete within 30
days of the date of receipt and can proposed;
(6) For NWP 14 (Linear
that may be affected
the proposed request additional information Transportation Crossings), the PCN
work or that utilize the designated
critical habitat that may be affected b necessary to make the PCN complete
only once. However, if the prospective must include a compensatory mitigation
proposal to offset permanent losses of
y
the proposed work. 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
ecies specific regional endangered
an permittee that the notification is still the maximum extent practicable;
conditions the
e VY
s incomplete and the PCN review process (7) For NWP 21 (Surface Coal Mining
(b) Authorization of
T
. b
y by a will not commence until all of the Activities), the PCN must include an

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

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

defined under the ESA. In the absence prospective permittee shall not begin To be authorized by this NWP, the

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

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

protected species are in violation of the
ESA. Information on the location
f District or Division Engineer; or
(2) If notified in writing by the District cumulatively and must notify the
project sponsor of this determination in
o
threatened and endangered species and
their critical habitat can 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 N (3) Unless 45 days have passed from
the District Engineer's receipt of the Restoration), the PCN must include
documentation of the
rior c
diti
f
an
MFS or their world wide web
pages at http://wwiv.fvvs.-ovlr9ends
l complete notification and the
r
ti p
on
on o
the site that will be reverted by the
pp p
ospec
ve 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: waters of the US or justification
explaining why com
ensat affected by the proposed work or utilize

(i) Any past use of this NWP by the
Individual Permittee arid/or the p
ory
mitigation should not be required. For the designated critical habitat that may
be affected by the proposed work; and

permittee's spouse;

(ii) A statement that the sin
le-f
il discharges that cause the loss of reater
g
than 300 linear feet of an intermittent
(18) For activities that may affect

historic properties listed in
or eli
ible
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 ,
g
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
, arid 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 mea
i
' adverse environmental effects are
minimal both individually and vicinity inap indicating the location of
the historic property

sur
ng
A-acre or les
will not require a formal on-site
s cumulatively, and waive the limitation .
(c) Form of Notification: The standard

delineation. However, the applicant
shall provide an indication of wh
th on stream impacts in writing before the
permitt'ee may, proceed; Individual Permit application form
(Form ENG 4345) may be used as the
ere
e
wetlands are and the amount of
wetlands that exists on th (14) For NWP 40 (Agricultural
Activities), the PCN must include a notification but must clearly indicate
that it is a PCN and must include all of
e property. For compensatory mitigation proposal to
parcels greater than 1/4-acre in size, offset losses of waters of the US. This
formal wetland delineation
t b the information required in (b) (1)-(18)
of General Condition 13. A letter
mus
e
prepared in accordance with the current NWP does not authorize the relocation
of greater than 300 linear-feet of existing containing the requisite information
may also be used

method required by the Corps. (See
paragraph 13(0);
serviceable drainage ditches constructed
i .
(d) Districe Engineer's Decision: In

OvI A written description of all land
(including
if available
le
al n non-tidal streams unless, for drainage
ditches constructed in intermittent lion- reviewing the PCN for the proposed
activity, the District Engineer will
,
,
g
descriptions) owned by the prospective tidal streams, the District Engineer
waives this criterion in writing, and the determine whether the activity
authorized by the NWP will res
lt 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 u
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 im
acts of th nmen
a
effects or may be contrary to the public
i

as a partner, corporation, joint tenant,
co-tenant, or as a tenant-by-the-entirety) p
e project on the
aquatic environment are minimal, both
individuall
and cu
l
ti
l nterest. The prospective permittee may
submit a proposed mitigation plan with
h

and any land on which a purchase and
sale a
reement
th y
mu
a
ve
y;
(15) For NWP 43 (Stormwater t
e PCN to expedite the process. The
District Engineer will consider any
g
or o
er 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 included in the
r
l
110) For NWP 31 (Maintenance of
Existing Flood Control Projects), the stormwater management facilities, a
maintenance plan (in accordan
ith p
oposa
in determining whether the net adverse
i

prospective permittee must either notify
th
Di ce w
state and local requirements, if env
ronmental effects to the aquatic
environment of the proposed work are
e
strict Engineer with a PCN prior
to each maintenance activity or submit
fi applicable) and a compensatory
mitigation proposal to offset losses of minimal. If the District Engineer
determines that the activity com
lies
a
ve year (or less) maintenance plan.
In addition, the PCN must include all of waters of the US. For discharges that
cause the loss of greater than 300 li p
with the terms and conditions of the
NWP

the following:
(i) Sufficient baseline information near
feet of an intermittent stream bed, to be
authorized
the District En
i and that the adverse effects on the
aquatic environment are minimal, after
id

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

authorized, provided the approved flood
control protection or drainage is not
environmental effects are minimal both
individuall
and cum
l
ti
l
d ms necessary. T
e District
Engineer must approve any

increased;
(ii) A delineation of an
affected y
u
a
ve
y, an
waive the limitation on stream impacts
in w
iti
b
f compensatory mitigation proposal
before the permittee commences work.
y
special aquatic sites, including r
ng
e
ore the permittee may
proceed; If the prospective permittee is required

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

disposal site;
(11) For NWI 33 ('T' p
all waters of the US adversely affected may
e eit
er conceptual or detailed. If
the prospective permittee elects to
emporary
Construction, Access, and Dewaterind, by the project, a description of measures
taken to minimize adverse effects to submit a compensatory mitigation plan
with th
PCN

the PCN must also include a restoration
plan of reasonable measures t
id
waters of the US, a description of e
, the District Engineer will
expeditiously review the proposed
o avo
and minimize adverse effects to aquatic
resources measures taken to comply with the
criteria of the NWP, and a reclamation compensatory mitigation plan. The
District Engineer must review the plan
;
(12) For NWPs 39, 43 and 44, the PCN plan (for all aggregate mining activities
in isolated waters and
tid
l within 45 days of receiving a complete

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

of waters of the US were achieved on
the project site;
(17) For activities that may adversely minimal adverse effects on the aquatic
environment. If the net adverse effects

(13) For NWT' 39 and NWP 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
er
d environment (after consideration of the

mitigation proposal to offset losses of g
e
or threatened species that may be compensatory mitigation proposal) are
determined by the District Engineer to
2092 Federal Register/Vol. 67, No. 10/Tuesday, January 15, 2002/Notices
be minimal, the District Engineer will
provide a timely written response to the on the notification. The District
Engineer will fully consider a
enc the proximity of a public water supply
i
t
k

applicant. The response will state that
the project can proceed under the terms g
y
comments received within the specifie
time frame, but will provide no n
a
e except where the activity is for
d repair of the public water supply intake

and conditions of the NWP,
If the District Engineer determines
response to the resource agency, except structures or adjacent bank stabilization.
17. Shellfish Beds. No activity

that the adverse effects of the proposed
as provided below. The District
Engineer will indicate in the ,

including structures and work in
work are more than minimal, then the acirninistrative record associated with navigable waters
the US or discharges
'

District Engineer will notify the
applicant either: (1) That the project
each notification that the resource

i
'
m
d
areas redged c fill material, may occur
in
areas of concentrated shellfish

does not qualify for authorization under agenc
es
concerns were considered. As
required by section 305(b)(4)(B) of the populations, unless the activity is

the NWP and instruct the applicant on
Magnuson-Stevens Fisher directly related to a shellfish harvesting

the procedures to seek authorization y
Cons&Cvation and Management Act
th
activity authorized by NWP 4.
under an Individual Permit; (2) that the ,
e
District Engineer will provide a 18. Suitable Material. No activity,
project is authorized under the N1VP
subject to the applicant's submission of response to NMFS within 30 days of
receipt of any Essential Fish Habitat including structures and work in
navigable waters
the US or discharges
a mitigation proposal that would reduce
the adverse effects on the aquatic conservation recommendations,
Applicants are encourao-ed to provide m
ofdredged le fill material, may consist
material (e. t
trash,
environment to the minimal level; or (3) the Corps multiple copies of ,
debris, car
ris, car bodies, asphalt, etc.) and
that the project is authorized under the notifications to expedite agency material used for construction or
NWP with specific modifications or notification discharged must be free Eros( toxic
conditions. Where the District Engineer .
(f) Wetland Delineations: Wetland pollutants i W
's
amounts (see section
determines that mitigation is required to delineations must be prepared in A),
307 of the
ensure no more than minimal adverse
effects occur to the aquatic accordance with the current method
required by the Corps (Far NWP 29 see 19. Mitigation. The District Engineer
will consider the factors discussed
environment, the activity will be
authorized within the.45 day YCN paragraph (b)(9)(iii) for parcels less than
(1/4-acre in size). The permittee may ask below when determining the
acceptability of appropriate and
period. The authorization will include
the necessary conceptual or specific the Corps to delineate the special
aquatic site. There may be some dela practicable mitigation necessary to
offset adverse effects on the aquatic
mitigation or a requirement that the
applicant submit a mitigation proposal y
if the Corps does the delineation,
Furthermore, the 45-day period will not environment that are more than
minimal,
that would reduce the adverse effects on
the aquatic environment to the minimal start until the wetland delineation has
been completed and submitted to the (a) The project must be designed and
constructed to avoid and minimize
level. When conceptual mitigation is
included, or a mitigation plan is Corps, where appropriate.
14. Compliance Certification. Every adverse effects to waters of the US to the
maximum extent practicable at the
required under item (2) above, no work permittee who has received NWP project site (i
on site
in waters of the US will occur until the
District Engineer has approved a verification from the Corps will submit
a signed certification regarding the on
(b) Mitigation in all its forms
its
(avoiding, minimizing, rectifying,
specific mitigation plan.
(e) Agency Coordination: The Distri
t completed work and any required reducing or compensating) will be
c
Engineer will consider any comments mitigation. The certification will be
forwarded by the Corps with the required to the extent necessary to
ensure that the adverse effects to the
from Federal and state agencies
concerning the proposed activity's authorization letter and will include:
(a) A statement that the authorized aquatic environment are minimal.
(c) Compensatory mitigation at a
compliance with the terms and
conditions of the NWPs and the n
d f work was done in accordance with the minimum one-for-one ratio will be
ee
or
mitigation to reduce the project's
adverse environme
t
l
ff
t Corps authorization, including any
general or specific conditions; required for all wetland impacts
requiring a PCN, unless the District
n
a
e
ec
s to a
minimal level (b) A statement that any required Engineer determines in writing that
.
For activities requiring notification to
h mitigation was completed in accordance
with the permit conditions; and some other form of mitigation would be
more environmentally appro
riate and
t
e District Engineer that result in the
loss of greater than 1/2-acre of wat
f (c) The signature of the permittee p
provides a project-specific waiver of this
ers o
the US, the District Engineer will certifying the completion of the work
a
d
iti
i requirement. Consistent with National

provide immediately (e.g., via facsimile n
m
gat
on.
15. Use of Multiple Nationwide policy, the District Engineer will
establish a preference for restoration of
transmission, overnight mail, or other
expeditious trranner) a copy to the
i Permits. The rise of more than one NWP
for a single and complete project is wetlands as compensatory mitigation,
with preservation used only in
appropr
ate Federal or state offices
(USFWS, state natural resource or water prohibited, except when the acreage loss
of waters of the US authorized b
th exceptional circumstances.
(d) C

quality agency, EPA, State Historic
Preservation Officer (SHPO)
and
if y
e
NWPs does riot exceed the acreage limit ompensatory (litigation (i.e.,
replacement or substitution of aquatic
,
,
appropriate, the NMFS). With the of the NWP with the highest specified
acreage limit (e.g. if a road crossing over resources for those impacted) will not
be used to increase the acrea
e losse

exception of NWI 37, these agencies
will then have 10 calendar da
s f
tidal waters is constructed under NWP g
s
allowed by the acreage limits of some of
y
rom
the date the material is transmitted to
telephone or fax the District En
ine 14, with associated bank stabilization
authorized by NWP 13, the maximum the NWPs. For example, 1/4-acre of
wetlands cannot be created to change a
g
er
notice that they intend to provide
substantive, site-specific comments
if acreage loss of waters of the US for the
total project cannot exceed 'b-acre).
1 '/4 acre loss of wetlands to a 1/2-acre loss
associated with NWP 39 verification.
.
so contacted by an agency, the District
E
i
ll 6. Water Supply Intakes. No activity,
including structures and work in however, 1/2-acre of created wetlands
can be used to reduce the im
acts of a
ng
neer wi
wait an additional 15
calendar days before making a decision navigable waters of the US or discharges
of dredged or fill material
i p
1/L-acre loss of wetlands to the minimum
, may occur
n impact level in order to meet the
Federal Register/Vol. 67, No. 10 /Tuesday, January 15, 2007. /Notices 2093
minimal impact requirement associated
with NbV
P accomplishing and/or complying with
discharges of dredged or fill material
s.
(e) To be practicable, the mitigation the mitigation plan.
20. Spawning Areas. Activities, into breeding areas for migratory
waterfowl must be avoided to th

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

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

practicable include, but are not limited
practicable. Activities that result in,the ,
25. Designated Critical Resource
to: reducing the size of the project;
establishing and maintaining wetland or physical destruction (e.g., excavate, fill,
or smother downstream by substantial Waters. Critical resource waters include,
NOAH designated marine sanctuaries

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

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

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

values, preferably in the same
preconstruction downstream flow ,
and outstanding national resource
watershed, conditions (e.g., location, capacity, and waters or other waters officially
(f) Compensatory mitigation plans for flow rates). Furthermore, the activity designated by a state as having
projects in or near streams or other open nntst not permanently restrict or impede particular environmental or ecoloical
waters will normally include a the passage of normal or expected high significance and identified by the'
requirement for the establishment, flows (unless the primary purpose of the District Engineer after notice and
maintenance, and legal protection (e. a,, fill is to impound waters) and the opportunity for public comment. The
easements, deed restrictions) of structure or discharge of dredged or fill District Engineer may also designate
vegetated buffers to open waters. In material must withstand expected high additional critical resource waters after
many cases, vegetated buffers will be flows. The activity must, to the notice and opportunity for comment.
the only compensatory mitigation maximum extent practicable, provide (a) Except as noted below, discharges
required. Vegetated buffers should for retaining excess flows from the site, of dredged or fill material into waters of
consist of native species. The width of provide for maintaining surface now 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, aril 44 for any activity within, or
aquatic habitat loss concerns. Normally, for not increasing water flows flour the directly affecting, critical resource
the vegetated buffer will be 25 to 50 feet Project site, relocating water, or waters, including wetlands adjacent to
wide on each side of the stream, but the redirecting water flow beyond such waters. Discharges of dredged or

Dis
tr
i
c
t
ightly
r Strea

n
r
r
f the
ray
l
r
id
e
r
ve
buffers
to addres chan
elizing
will be
educed to the authorized
by the above NW-Ps in
be
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 erosion d
t Condition 7. Further, such discharges
Corps will determine the appropriate g
owns
ream and may be authorized in designated critical
compensatory mitigation (e.g., stream upstream of the project site, unless the habitat for Federally listed threatened or
buffers or wetlands compensation) activity is part of a larger system endangered species if the activity
based on what is best for the aquatic
at
c designed to manage water flows. In most complies with General Condition 11 and
environment
a watershed basis.
Ili
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 he the most appropriate

form of compensatory mitigation
the .
This condition is only applicable to this condition.
(b) For NANPs 3, 8, 10, 13, 15, 18, 19,
,
District Engineer'rpay waive or reduce projects that have the potential to affect
waterflows. While a
ro
riate meas 22, 23, 25, 27, 28, 30, 33, 34, 36, 37, and
38
if

the requirement to provide wetland
compensatory mitigation for wetland pp
p
ures
mist be 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 such measures or require monitoring to designated critical resource waters

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

notification'' may be either conceptual Corps will defer to state and local
authorities re
ardin
mana
t
f waters. The District Eii-i
weer
e
may

or detailed. If conceptual plans are g
g
gemen
o
water flow N
authorize activities under thes
e
WPs
approved under the verification, then ,
22. Adverse Effects From Drily after it is determined that the

the Corps will condition the verification
to require detailed plans be
submitted
Impoundments. If the activity creates an impacts to the critical resource watCrS
will be no more than minimal.
.
and approved by the Corps prior to inipoundnrent of water, adverse effects
to the aquatic system due to the 26. Fills Within 100-Year F'loodplains.
F

construction of the authorized activity
in waters of the US
acceleration of the passage of water, or purposes of this General Condition,
100-year floodplains will be identified
.
(h) Perrnrittees pray propose the use of
i
i and/or the restricting its flow shall be
nrinitnized to the maximum extent through the existing Federal Emergency
Managenient A
enc
's (FF
MA) Fl
d
m
t
gation banks, ill-lieu fee
arranements or separate activity-
0 practicable. This includes structures

and work in navi
able wate
f th
US g
y
.
oo
Insurance Rate Maps or FEMA-approved
l

specific compensatory mitigation. In all
cases that require compensatory g
rs o
e
,
or discharges of dredged or fill material
23
W
t
l B ocal floodplaiu maps,
(a) Discharges in Floodplain; Below

mitigation, the mitigation provisions
will s
ecif
the
art
res
ibl
f .
a
erfow
reeding Arcos.
Activities, including structures and Headwaters. Discharges of dredges} or
fill material into waters of the US within
p
y
p
y
pons
e
or work in navigable waters of the US or 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
}4,
(b) Discharges in Floodway; Above
Headwaters. Discharges of dredged or
fill material into waters of the US withit
the FEMA or locally mapped floodway,
resulting in permanent above-grade fills
are not authorized by NWPs 39, 40, 42,
and 44.
(c) Tile 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 NWT.
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.
Creotion:'rhe establishment of a
i wetland or other aquatic resource where
one did not formerly exist.
Enhancement: Activities conducted it
existing wetlands or other aquatic
resources that increase one or more
aquatic'functions.
Ephemeral Stream: An ephemeral
strean'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").
Floodwoy: The area regulated by
Federal, state, or local requirements to
provide for the discharge of the base
flood so the cumulative increase in
water surface elevation is no more than
a designated amount (not to exceed one
foot as set by the National Flood
Insurance Program) within the 100-year
flood lain.
Independent Utility: A test to
determine what constitutes a single and
complete project in the Corps regulatory
program. A project is considered to have
independent utility if it would be
constructed absent the construction of
other projects in the project area.
Portions of a multi-phase project that
depend upon other phases of the project
do not have independent utility. Phases
of a project that would be constructed
even if the other phases were not built
can be considered as separate single and
complete projects with independent
utility.
Intermittent Stream: An intermittent
stream has flowing water during certain
times of the year, when groundwater
provides water for stream flow. During
dry periods, intermittent streams may
not have flowing water. Runoff from
rainfall is a supplemental source of
water for stream flow.
Loss of Waters of the CIS: Waters of
the US that include the filled area and
other waters that are permanently
adversely affected by flooding,
excavation, or drainage because of the
regulated activity. Permanent adverse
effects include permanent above-grade,
at-grade, or below-grade fills that change
an aquatic area to dry land, increase the
bottom elevation of a waterbody, or
change the use of a waterbody. The
acreage of loss of waters of the US is the
threshold measurement of the impact to
existing waters for determining whether
a project may qualify for an N\OVP; it is
not a net threshold that is calculated
e after considering compensatory
mitigation that may be used to offset
1 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 CF'R
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, 35, etc. are not included,
Preservation: The protection of
ecologically important wetlands or other
aquatic resources in perpetuity through
the implementation of appropriate legal
and physical mechanisms. Preservation
may include protection of upland areas
adjacent to wetlands as necessary to
Federal Register/Vol. 07, No. 10 / Tuesday, January 15, 2002/Notices 2095
ensure protection and/or enhancement
Of the overall aquatic ecosystem.
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(h)(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.
StorrnivaterManagement: Storrnwater
management is the mechanists for
controlling stormwater runoff for the
purposes of reducing downstream
erosion, water quality degradation, and
flooding and mitigating the adverse
effects of changes in land use on the
aquatic environment.
Storrnwater Management Facilities:
Storrnwater 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
pollutllits) 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.
Strearn Channelizotion: 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 Strearn 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 ticial waters
can be found at 33 CFR 328.3(b) and 33
CFR 328.3(1), respectively. Tidal waters
rise and fall in a predictable and
measurable rhythm or cycle due to the
gravitational pulls of the moon and sun.
Ticial 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. 'T'idal wetlands
are located channelward of the high title
line (i.e., spring high tide line) and are
inundated by tidal waters two times per
lunar month, during spring high titles.
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 wehs) 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 waterhody 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 waterhody.
[FR DOC. 02-539 Filed 1-14-02; 8:45 arn]
BILLING CODE 1714-92-P
6692 Federal Register/ Vol. 67, No. 30 /Wednesday, February 13, 2002 /Notices
ADDRESSES). The holding of such
hearing is at the discretion of the
Assistant Administrator for Fisheries,
NOAA. All statements and opinions
contained in the permit action
summaries are those of the applicant
and do not necessarily reflect the views
of NMFS.
Species Covered in This Notice
The following species are covered in
this notice:
Sea turtles
Threatened and endangered green
turtle (Chelonia mydas)
Endangered hawksbill turtle
(Eretmochelys imbricata)
Endangered Kemp's ridley turtle
(Lepidochelys kempii)
Endangered leatherback turtle
(Dermochelys coriacea)
Threatened loggerhead turtle (Caretto
caretta)
Application 1361
The applicant is applying for a 5-year
permit to trawl for turtles, as needed, at
dredge and other construction/
destruction sites to remove the turtles to
a safe location. The turtles will be
captured, tagged, measured and released
offshore away from the dredging
activities. The applicant expects to
capture and relocate 95 green, 11
hawksbill, 160 loggerhead, 14 Kemp's
ridley and 4 leatherback turtles on the
Atlantic coast and 105 green, 17
hawksbill, 160 loggerhead, 50 Kemp 's
ridley and 11 leatherback turtles 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 Dec. 02-3522 Filed 2-12-02; 8:45 arn]
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, Doll.
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: FIQUSACE, ATTN: CF(,W-
OR, 441 "G" Street, NW., Washington,
DC; 20314-1000.
FOR FURTHER INFORMATION CONTACT: Mr.
David Olson, at [phone], Mr.
Kirk Stark, at [phone] or Ms.
Leesa Beal at [phone] or access
the U.S. Army Corps of Engineers
Regulatory Home Page at: http://
www.tisace.ariny.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 oil
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 issuecl
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 (C7MA) 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).
Oil 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
correctecl to read: "a. This NWP is
subject to the following acreage limits:
(1) For linear transportation projects in
Iron-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 tharr'A-acre of
waters of the US."
On page 2085, second column, the
last sentence of NWP 36 is corrected to
read as follows: "Dredging to provide
Federal Register / Vol. 67, No. 30 / Wednesday, February 13, 2002 /Notices 6693
access to the boat ramp may be
authorized by another NWP, regional
general permit, or individual permit
pursuant to section 10 if located ill
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 fill]
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 I/,o acre of ephemeral waters
would require PCNs under paragraph
(c)(1), above)." The addition to the Note
was intended to clarify that tinder
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 (0(1) and possibly to all
PCNs, not just those affected by
paragraph (c)(2).
For clarity, we are providing the text
of NWP 39 in its entirety, with the
corrections described above:
39. Residential. Commercial, and
Institutional Developments. Discharges
of dredged or fill material into non-ticlal
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, provider]
the activities meet all of the following
criteria:
a. The discharge does not cause the
loss of greater than V12-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 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. 'I'lie discharge is part of a single and
complete project;
f. The permittee must avoid and
minimize discharges into waters of the
US at the project site to the maximum
extent practicable. The notification,
when required, most include a written
statement explaining how avoidance
and minimization of losses of waters of
the US were achieved on the project
site. Compensatory mitigation will
normally be required to offset the losses
of waters of the US. (See General
Condition 19.) 'File 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
Vi 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., 'h-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.,
Yz-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 (t) of this NWP
may be either conceptual or detailed.
The wetland or upland vegetated buffer
required in paragraph (j) of this NWP
will be determined on a case-by-case
basis by the District Engineer for
addressing water quality concerns. The
required wetland or upland vegetated
buffer is part of the overall
compensatory mitigation requirement
for this NWP. If the project site was
previously used for agricultural
purposes and the farm owner/operator
used NWP 40 to authorize activities in
waters of the United States to increase
production or construct farm buildings,
NWP 39 cannot be used by the
developer to authorize additional
activities in waters of the United States
on the project site in excess of the
acreage limit for NWP 39 (i.e., the
combined acreage loss authorized under
NWPs 39 and 40 cannot exceed 1/2 acre).
Subdivisions: For residential
subdivisions, the aggregate total loss of
waters of US authorized by NWP 39 can
not exceed 1/2-acre. This includes any
loss of waters associated with
development of individual subdivision
lots. (Sections 10 and 404)
Note: Areas where wetland vegetation is
not present should be determined by the
presence or absence of an ordinary high
water mark or bed and bank. Areas that are
waters of the US based on this criterion
would require a PCN although water is
infrequently present in the stream channel
(except for ephemeral waters, which do not
require PCNs under paragraph (c)(2), above;
however, activities that result in the loss of
greater than vio acre of ephemeral waters
would require PCNs under paragraph (c)(1),
above).
On page 2088, in the sixth sentence of
the first paragraph in the first column,
the phrase "an adequate water quality
management plan" is replaced with the
phrase "adequate water quality
management measures" to reflect the
modified language in General Condition
9. This sentence is corrected to read
"The facility must have adequate water
quality management measures in
accordance with General Condition 9,
such as a stormwater management
facility, to ensure that the recreational
facility results in no substantial adverse
effects to water quality."
On page 2089, first column, the
second sentence of paragraph (c) of
NWP 44 is corrected to read "Normally,
the water quality management measures
required by General Condition 9 should
address these impacts;". In addition, the
second sentence of paragraph (i) of NWP
44 is corrected to read "Further the
District Engineer may require water
quality management measures to ensure
the authorized work results in minimal
adverse effects to water quality;" These
corrections are necessary to reflect the
modified language in General Condition
9.
On page 2089, third column, the text
of General Condition 6 is corrected to
read: "The activity must comply with
any regional conditions that may have
been added by the Division Engineer
(see 33 CFR 330.4(e)) and with any case
specific conditions added by the Corps
or by the state or tribe in its Section 401
Water Quality Certification and Coastal
Zone Management Act consistency
determination." The change to General
Condition 6 that was published in the
January 15, 2002, Federal Register was
not intended and we are correcting this
sentence by reinstating the original text
as it existed in the March 9, 2000,
NWPs.
On page 2090, first column, the word
"Section" in the parenthetical at the end
of General Condition 10 is replaced with
"33 CFR" so that the parenthetical reads
"(see 33 CFR 330.4(d))".
On page 2090, at the top of the second
column, the second Internet URL is
replaced with "* * * http://
wrvtiv.iiiizfs.noan.gov/Pi-ot-res/ovei-view/
es.html * * *" because the Internet
address for the National Marine
Fisheries Service home page for
endangered species has been changed.
On page 2090, third column, in
paragraph (b)(4) of General Condition
13, NWP 40 should be added to the list
of NWPs that require submission of
delineations of special aquatic sites with
pre-construction notifications.
Therefore, paragraph (b)(4) of General
Condition 13 is corrected to read "For
NWPs 7, 12, 14, 18, 21, 34, 38, 39, 40,
41, 42, and 43, the PCN must also
include a delineation of affected special
aquatic sites, including wetlands,
vegetated shallows (e.g., submerged
aquatic vegetation, seagrass beds), and
riffle and pool complexes (see paragraph
13(0);"
On page 2090, third column, in
paragraph (b)(6) of General Condition
13, the word "Projects" replaces the
word "Crossings", because the title of
NWP 14 is "Linear Transportation
Projects".
On page 2090, third column, in
paragraph (b)(8) of General Condition
13, the word "Activities" is inserted
after the word "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.
'T'he last sentence of the definition of
"Loss of Waters of the US" as published
in the January 15, 2002, Federal
Register notice does not comport with
remainder of this NWP package.
Therefore, we are correcting this
definition as described above.
We. believe that correcting the text of
NWP 39 and the definition of ''Loss of
Waters of the US" through the
publication of this correction notice is
appropriate. Nevertheless, in order to
give all interested parties further
opportunity to comment on this matter,
we intend to publish a Federal Register
notice to solicit public comments on
those two corrections. If we determine
that any other matter relating to the final
NWP§ requires correction or
clarification, but that matter was not
adequately dealt with in this correction
notice, we will address that additional
matter in the forthcoming Federal
Register notice, as well. We expect to
publish that Federal Register notice
within a few weeks.
Dated: February 7, 2002.
Lawrence A. Lang,
Assistant Chief, Operations Division,
Directorate of Civil 6Vorks.
[FR Doc. 02-3555 Filed 2-12-02; 8:45 aml
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-
3115.
Dated: February 8, 2002.
Linda Bynum,
OSD Federal Register Liaison Officer,
Department of Defense.
[FR Doc. 02-3683 Filed 2-11-02; 3:32 pin)
BILLING CODE s001-0B-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 rr 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
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consultation to the extent that public
participation in the approval process
would defeat the purpose of the
information collection, violate State or
Cederal 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
ruquests to OMB. Each proposed
information collection, grouped by
office, contains the following: (1) Type
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Recordkeeping burden. OMB invites
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U.S. ARMY CORPS OF ENGINEERS
WILMINGTON DISTRICT ;') r1 nl37
Action ID: 200200394 TIP No: State Project No: 6.572948 County: Randolph
GENERAL PERMIT (REGIONAL AND NATIONWIDE) VERIFICATION
Applicant: North Carolina Department of Transportation

Address: W.F. Rosser, P.E., Division Engineer a
North Carolina Department of Transportation APR
5 20
Division 8
P.O. Box 1067
Aberdeen, North Carolina 28315 WAWE LANLSTYSECTION
Telephone Number: [phone]
Size and Location of project (waterway, road name/nurnber, town, etc.): 48 linear feet of 48-inch RCP culvert
with two FES at Centerline Station 1+50 on SR 1338 at an unnamed tributary to Jackson Creek in Randolph County,
North Carolina.
Description of Activity: To replace 24 linear feet of 36-inch RCP with 48 linear feet of 48-inch RCP culvert with an
FES on each end bring the total length to 64 feet. Traffic will be detoured onto existing roadways during construction
Applicable Law: X Section 404 (Clean Water Act, 33 U.S.C. 1344)
Section 10 (River and Harbor Act of 1899)
Authorization: 14 Nationwide Permit Number
Regional General Permit Number
Your work is authorized by this Regional General (RGP) or Nationwide (NWP) Permit provided it is accomplished
in strict accordance with the attached conditions and your submitted plans. If your activity is subject to Section 404
(if Section 404 block above is checked), before beginning work you must also receive a Section 401 water quality
certification from the N.C. Division of Environmental Management, telephone [phone]. For any activity
within the twenty coastal counties, before beginning work you must contact the N.C. Division of Coastal
Management, telephone [phone].
Please read and carefully comply with the attached conditions of the RGP or NWP. Any violation of the conditions
of the RGP or NWP referenced above may subject the 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. Tile permittee may need to contact appropriate State
and local agencies before beginning work.
If there are any questions regarding this authorization or any of the conditions of the RGP or NWP, please contact
the Corps Regulatory Official specified below.
Date _8 April 2002
Corps Regulatory Official Richard K. Spencer--- _ _ Telephone No. [phone]
Expiration Date of Verification 8 April 2005 __
CF: NCDOT ( Division 8, a t King)
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Federal Register/Vol. 67, Na. 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. 130x 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:
CELRIf--OR-F, 502 801 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, AT`N: CENWP-
PE-G, P.O. Box 2946, Portland, OR 97208-
2946
Pennsylvania
Baltimore District Engineer, A'I-rN: 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, A1-FN: 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: CFSWF-
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, AT TN: CE;NAO--
OP-R, 803 Front Strcet, Norfolk, VA
23510-1096
Washington
Seattle District Engineer, ATTN: CENWS--
Of'-RG, P.O. Box 3755, Seattle, WA 9812,1-
2255
West Virginia
Eluntington District Engineer, ATTN:
Cf. LRI I--OR- F, 502 8th Street, Iluntington,
WV 25701-2070
Wisconsin
St. Paul District Engineer, ATTN: CEMVP--
CO--R, 190 Fifth Street East, St. Paul, MN
55101-1638
Wyorning
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 SomOa, Guam,
& Commonwealth of the Northern >Vforiona
Islands)
I lonolulu District Engineer, ATTN: CEPOI I-
EC-R, Building 230, Fort Shafter,
Honolulu, HI 96858-5440
Puerto Rico & Virgin Islands
Jacksonville District Engineer, A'I"I'N:
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. Lfnear 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. Slate Administered Section 404 Programs
25. Structural Discharges
26. [Reserved]
27. Stream and Wetland Restoration
Activities
28. Modifications of Existing Marinas
29. Singte-family Housing
30. Moist Soil Management for Wildlife
31. Maintenance of Existing Flood Control
Facilities
32. Completed Enforcement Actions
33. 'T'emporary 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. Agricciltural 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 l,loodplains
27. Construction Period
Further Information
Definitions
Best Management Practices (BMPs)
Compensatory Mitigation
Creation
Enhancement
I-'phemeral Stream
Farnr 'T'ract
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 / Tuesclay, January 15, 2002 / Notices
Single and Complete Project

Stormwater Management
S
bridges, culverted road crossings, wate
r
intake structures
etc
) and th

clone primarily to obtain fill for any
tormwater Management Facilities

Stream Bed ,
.
e
placement of new or additional riprap t
restoration activities. The discharge of
o dredged or fill material and all related
Stream Channelization
Tidal Wetland
V
t
d protect the structure, provided the
permittee notifies the District Engineer work needed to restore the upland must
he part of a single and complete project

ege
ate
Buffer
Vegetated Shallows
in accordance with General Condition
13. The removal of sediment is limit
d .
This permit cannot be used in
Waterbo
dy e
conjunction with NWP 18 or NYV]' 19 to
to the minimum necessary to restore the restore damaged upland areas
This
B. Nationwide Permits waterway in the immediate vicinity of
the structure to the a
roximate .
permit cannot be used to reclaim
h
1. Aids to Navigation. The placement
of aids to navigation and Regulatory pp
dimensions that existed when the istoric lands lost, over an extended
period, to normal erosion processes

markers which are approved by and
i
t
ll
d i
structure was built, but cannot extend
furth4 than 200 feet in an
dire
ti .
This permit does not authorize
ns
a
e
n accordance with the
requirements of the U.S. Coast Guard y
c
on
from tiie 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

2. Structures
, in
Artificial Canals.
Structures constructed in artificial

safety of the structure. All excavated
materials must be deposited and or

stream relocation projects. Any work
authorized by this permit must not
canals within principally residential
developments where the co
ti
f retained in an upland area unless
otherwise specifically approved by the cause more than minimal degradation of
nnec
on o
the canal to navigable water of the US
District Engineer under separate water quality, more than minimal
changes to the flow characteristics of th

has been previously authorized (see 33
authorization. Any bank stabilization e
stream, or increase flooding (See
CFR 322.5(8)). (Section 10)
3. Maintenance
Activities related t measures not directly associated with
the structure will require a separate General Conditions 9 and 21). (Sections
.
o;
(i) The repair, rehabilitation, or
authorization from the District Engineer. 10 and 404)
Note: This NWP authorizes the re
air

replacement of any previously
authorized, currently serviceable,
(iii) Discharges of dredged or fill
material, including excavation, into all p
,
rehabilitation, or replacement of any
previously authorized structure or fill that
structure, or fill, or of any currently
serviceable structure or fill authorized waters of the LIS for activities associated
with the restoration of upland areas does not qualify for the Section 404(1)
exemption for maintenance.
by 33 CFR 330.3, provided that the
structure or fill is riot to be put to uses damaged by a storm, flood, or other
discrete event, including the '4. Fish and Wildlife Harvesting,
Enhancement
and Attraction D
vi

differing from those uses specified or
contemplated for it in the original
construction, placement, or installation
of upland protection structures and ,
e
ces
and Activities. Fish and wildlife
kiarvesting devices and activities such a

permit or the most recently authorized
modification. Minor deviations in the
t
'
minor dredging to remove obstructions
in a water of the US. (Uplands lost as s
pound nets, crab traps, crab dredging,
eel pots, lobster traps
duck blinds
clam
s
ructure
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
att
ti
d

materials, construction techniques, or p
ou
a Section 404 permit provided the rac
on
evices 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
rehabilitatio
The permittee nrust notify the District
E
i g
sites where submerged aquatic
,
n, or
replacement are minimal. Currently ng
neer, in accordance with General
Condition 13, within 12-months of the vegetation is documented to exist, but
may not be present in a given year
)

serviceable means useable as is or with
date of the damage and the work must .
.
This NWP 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 f

This NWP authorizes the repair,
rehabilitation
or re
lacement of th
of the damage. The permittee should
id
d or
the culture or holding of motile species
,
p
ose
structures or fills destroyed or damaged prov
e evi
ence, such as a recent
topographic survey or photographs, to such as lobster or the use of covered
oyster trays or clam racks
(Sections 10
by storms, floods, fire or other discrete justify the extent of the proposed .
and 404)
events, provided the repair,
rehabilitation, or replacement is restoration. The restoration of the
damaged areas cannot 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. Tire
District Engineer retains the ri
ht to gages, tide gages, water recording
d
i

of catastrophic events, such as
hurricanes or tornadoes
this two- g
determine the extent of the pre-existing
diti
d ev
ces, water quality testing and
improvement devices and similar
,
year
limit may be waived by the District con
ons an
the extent of any
restoration work authorized by this structures. Small weirs and flumes
constructed primarily to record water
Engineer, provided the permittee can
demonstrate funding, contract, or other permit. Minor dredging to remove
obstructions from the adjacent quantity and velocity are also
h

similar delays.
(ii) Discharges of dredged or fill
waterbody is limited to 50 cubic yards
below the plane of the ordinar
hi
h aut
orized provided the discharge is
limited to 25 cubic yards and further for
di
h

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

and within, existing structures (e.g.,
waterbody. The dredging may not be on
on.
(Sections 10 and 404)
Federal Register/Vol. 67, No. 10 / 'I'uesday, January 15, 2002/Notices 2079
' G. Survey Activities. Survey activities
including core sampling, seismic
exploratory operations, plugging of
seismic shot holes and other
exploratory-type bore holes, soil survey,
sampling, and historic resources
surveys. Discharges and structures
associated with the recovery of historic
resources are not authorized by this
NWP. Drilling and the discharge of
excavated material front test wells for
oil and gas exploration is not authorized
by this NWP; the plugging of such wells
is authorized. Fill placed for roads, pacts
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 restoEe 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
tJS.
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 clesign capacities
and configurations of the facility and
to 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).'Sucb structures shall not be
placed within the limits of any
designated shipping safety fairway or
traffic separation scheme, except
temporary anchors that comply witli the
fairway regulations in 33 CFIR 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 he
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 davs,
where appropriate. In wetlands, the top
6" to 12" of the trench should normally
be backfilled'with topsoil from the
trench. Furthermore, the trench cannot
be constructed in such a manner as to
drain waters of the US (e.g., backfilling
with extensive gravel layers, creating a
french drain effect). For example, utility
line trenches can be backfilled with clay
blocks to ensure that the trench does not
drain the waters of the US through
which the utility line is installed. Any
exposed slopes and stream banks must
be stabilized immediately upon
completion of the utility line crossing of
each waterbody.
(ii) Utility line substations: The
construction, maintenance, or
expansion of a substation facility
associated with a power line or utility
line in non-tidal waters of tire US,
excluding non-tidal wetlands adjacent
to ticlal waters, provided the activity
does not result in the loss of greater than
1/2-acre of non-tidal waters of the US.
(iii) Foundations for overhead utility
line towers, poles, and anchors: The
construction or maintenance of
foundations for overhead utility line
towers, poles, and anchors in all waters
of the US, provided the foundations are
the minimum size necessary and
separate footings for each tower leg
(rather than a larger single pad) are used
where feasible.
(iv) Access roads: The construction of
access roads for the construction and
maintenance of utility lines, including
overhead power lines and utility line
substations, in non-tidal waters of the
US, excluding non-ticlal wetlands
adjacent to tidal waters, provided the
discharges do not cause the loss of
greater than 1/2-acre of non-tidal waters
of the US. Access roads shall be the
mininnun 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 preccnstruction contours and
20130 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, of 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 limo is placed within a
jurisdictional area 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 I/,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 LIS 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 rcquir! a permit from
the USCG pursuant to section 9 of the Rivers
and I Iarbors 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: 6Vhere 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.
113. 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
nuruniunt 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
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 pertnittee
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'Transportotion 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 LIS, 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 perrnittee 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 r/lo-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) hydropower navigable waters of the US (see 33 CFR
322.5(g)). (Sections 10 and 404)
Conditions 9 and 21);
g. This permit cannot be used to projects for which the FERC has granted 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 substances
associated with transportation projects,
such as vehicle maintenance
r
t Act of 1980 (16 U.S.C. 2705 and 2708) which are subject to the National Oil
o
s
orage
buildings, parking lots, train stations, or and section 30 of the Federal Power Act,
as amended; provided the permittee and Hazardous Substances Pollution
Contingency Plan (40 CFR part 300)
aircraft hangars; and
h. The crossing is a sin
le and notifies the District Engineer in provided that the work is done in
g

complete project for crossing waters of
h accordance with the ''Notification''

General Condition. (Section 404)
accordance with the Spill Control and
Countermeasure Plan required b
40
t
e US. Where a road segment (i.e., the
shortest segment of a road with 18.. Minor Discharges, Minor y
CF'R 112.3 and any existing state

independent utility that is part of a discharges of dredged or fill material
l contingency plan and provided that the

larger project) has multiple crossings of into al
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 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
Permit. (Sections 10 and 404) high tide line; into waters of the US associated with
(vote: Some discharges for the construction
of Farm roads, forest roads, or temporary b. The discharge, including any surface coal 'mining and reclamation

roads for moving mining equipment may be excavated area, will not cause the loss operations provided the coal mining

eligible for an exemption from the need for
of more than '/,o-acre of a special activities are authorized b the DO[,
y
a Section 404 permit (sec 33 CF'R 323.4). aquatic site, including wetlands. For the Office of Surface Mining (OSM), or by
• 15. U.S. Coast Guard Approved purposes of this NVVP, 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 lon
er be Notification'' General Condition. In
construction and access fills provided g
a water of the US as a result of the addition, to be authorized by this NWP,
the District Engineer must d
t
i
such discharges have been authorized
by the USCG as part of the bridge project;
c. If the discharge, including any e
erm
ne
that the activity complies with the terms

permit. Causeways and approach fills
excavated area, exceeds 10 cubic yards and conditions of the NWP and that the
adverse environmental effect

are not included in this NWP and will
below the plane of the ordinary high s are
minimal both individually and
require 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 pertnittee
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 the
material disposal area. The dredging
itself may require a Section 404 permit General Condition. For discharges in
special aquatic sites, including mitigation, if no other Federal or state

(33 CF'R 323.2(d)), but will require a
wetlands, the notification must also agency has required one. For discharges
in special aquatic sites
including
Section 10 permit if located in navigable include a delineation of affected special ,
wetlands
and strearn riffle and
ool
waters of the US. The return water from
a contained disposal area is aquatic sites, including wetlands (also
see 33 CFR 330
1(e)); and ,
p
complexes, the notification must also

administratively.defined as a discharge .
d. The discharge, including all include a delineation of affected special
aquatic sites
including wetlands
(also

of dredged material by 33 CFR 323.2(d),
attendant features, both temporary and ,
.
,
see 33 CFR 330
1(e))
even though 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: [n determining the need
f
ll

Section 404 permit. This NWP satisfies
the purpose of a stream diversion. or as we
as tire level and type of
mitigation
the District En
ineer will
the technical requirement for a Section (Sections 10 and 404) ,
g
ensure no more than minimal adverse
404 permit for the return water where
the quality of the return water is 19. Minor Dredging. Dredging of no
more than 25 cubic yards below the effects to the aquatic: environment

controlled by the state through 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
i
bl requirement for adequate mitigation to

- 17. Hydropower Project s. Discharges nav
ga
e 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 the
of dredged Or fill material associated
with (a) small hydropower projects at complete project. This NWP does not
atttlroriZe
the dred
in
or d
d
ti .
state has required mitigation for the loss

existing reservoirs where the project, ,
g
g
egra
a
on
through siltation of coral reefs, sites that Of aquatic habitat, the Corps may
consider this in determining appropriate
which includes the fill, are licensed by
the Federal Energy Regulatory support submerged aquatic vegetation
(includin
sites wher
b
c mitigation under Section 404. (Sections

Commission (FERC) under the Federal g
e su
merge
aquatic: vegetation is documented to 10 and 404)
22. Removal of Vessels. Temporary
Power Act of 1920, as amended; and has exist, but may not be present in a given structures or minor discharges of
a total generating capacity of not more
than 5000 kW; and the permittee year), anadrom0uS fish spawning areas,
or wetlands
or the
o
ti
f
l clredged or fill material required for the

notifies the District Enineer in
0 ,
c
nnec
on o
cana
s
or other artificial waterways to removal of wrecked, abandoned, or
disabled vessels, or the removal of mail-
2082 Federal Register/Vol. 67, No. 10/Tuesday, January 15, 2002/Notices
made obstructions to navigation. This within the form prior to the discharge of bed and/or hanks to restore or create
NWP does not authorize the removal
f
o
concrete, sand, rock, etc. This NWP
vessels listed or determined eligible for does not authorize filled struct
l stream meanders; the backfilling of

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

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

Properties
General Condition. This
NWP does not authorize mainten ma
require a Section 10 permit if located in y water areas; the construction of oyster
habitat over unvegetated bottom in tidal
ance
dredging, shoal removal, or riverbank navigable waters of the US. (Section
404) waters; activities needed to reestablish
snagging. Vessel disposal in waters of
o
the US may need a permit from EPA 26. [Reservedl

27. Stream and Wetland Restoration Vegetation, including plowing or discing
for seed bed preparation and the

(see 40 CFR 229.3). (Sections 10 and planting of appropriate wetland species;
ActivVies. Activities in waters of the US

404)
associated with the restoration of forme mechanized land clearing to remove
r
23. Approved Categorical Exclusions. waters, the enhancement of degraded non-native invasive, exotic or nusiance
Activities undertaken, assisted,
authorized, regulated
funded
or tidal and non-tidal wetlands and

i vegetation; and other related activities.
This NWI' does not authorize the
,
,
financed, in whole or in part, by anothe r
parian areas, the creation of tidal and
r non-tidal wetlands and ri
i conversion of a stream to another

Federal agency or department where par
an areas,
and the restoration and enhanceme
t
f aquatic use, such as the creation of an
i

that agency or department has
determined, pursuant to the Council on n
o
non-tidal streams and non-tidal open mpoundment for waterfowl habitat.
'['his NWP does not authorize stream

Environmental Quality Regulation for water areas as follows:
(a) The activity is conducted o
c
hannelization.
This NWP does not
n:
Implementing the Procedural Provisions (1) Non-Federl public lands and
.
of the National Environmental Policy private lands
in accord
i
h uththori the c
auori
ze the conversion aquatic
wetlands to another a
quatic use, such as
Act (NEPA) (40 CFR part 1500 et seq.),
that the activity
work
or dischar
e i ,
ance w
t
the
terms and conditions of a bindino
w
tl
d
h where o a n fo o waterfowl impoundments
rested wetland previously
,
,
g
s
categorically excluded from e
an
en
ancement, restoration, or
creation agreement between th existed. However, this NWP authorizes
environmental documentation, because

it is included within a cate
or
of e
landowner and the U.S. Fish and
Wildlif the relocation non-tidal waters,
including non-tidal wetlands
on the
g
y
actions which neither individually nor e Service (FWS) or the Natural
Resources Conservation Service (NRCS) ,
project site provided there are net gains
i
i

cumulatively have a significant effect on
the human environment
and th
Offi ,
the National Marine Fisheries Service,
h n aquat
c resource functions and
values. For example, this NWP ma

,
e
ce
of the Chief of Engineers (ATTN: CECW-
t
e National Ocean Service, or
voluntary wetland restoration y

authorize the creation
an open water
OR) has been furnished notice of the ,
enhancement
and creation a
ti -t
jergent
rl
l
agency's or department's application for
the categorical exclusion and con ,
c
ons
documented by the NRCS pursuant to wetland, provided the no
i--t
i i
emergent wetland is replaced by
curs
with that determination. Before NRCS re-ulations; or
(2) Rec aimed surface coal mi
creating that wetland type
oil
the project

approval for purposes of this NWP of
' ne
lands, in accordance with a Surface t
h
site. This NWI does not authorize the
relocation of tidal w
t
th

any agency
s categorical exclusions, the
Chief of Engineers will solicit public
Mining Control and Reclamation Act
e
it i
d b a
ers or
e
conversion of tidal waters, including

comment. In addressing these p
rm
ssue
y the OSM or the
applicable state agenc
(the futur tidal wetlands, to other aquatic uses,

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

exclusions under this NWP. (Sections
10 and 404) m
ga
on
or the mining impacts,
nor naturally due to hydologic or restoration, and creation projects
conducted under paragraphs (a)(3), this

24. State Administered Section 404
Program. Any activity permitted by a topographic: features, nor for a
mitigation bank); or
(3YAny other
ublic
ri
t
ib
l NWP does not authorize any future
discharge of dredged or fill material

state administering its own Section 404 p
, p
va
e or tr
a
lands; associated with the reversion of the area

permit program pursuant to 33 U.S.C.
'
'
(b) Notification: For activities on any to its prior condition. In such cases a
se
arat
i
l

1344(8)-(I) i
s
permitted pursuant to
public or private land that are not p
e perm
t wou
d be required for

section 10 of the Rivers and Harbors Act
of 1899. 'T'hose activities that d
t
described by paragraphs (a)(1) or (a)(2) any reversion. For restoration,
enhancement, and creation projects
o no
involve a Section 404 state permit are
not included in this NWP
b
t above, the permittee must notify the
District Engineer in accordance with conducted under paragraphs (a)(1) and

, this NWl' also authorizes any
,
u
certain
structures will be exempted by section
154 of Pub
L
94
58 General Condition 13; and
(c) Planting of only native species f futur utur
e discharge of dredged or fill
material associated with the reversion of
.
.
-
7, 90 Stat. 2917 (33
U.S.C. 591
(see 33 CFR 322.3(a)(2)). should occur on the site.

Activities authorized by this MVP
the area to its documented prior

(Section 10)
include, to the extent that a Cor
s condition and use (i.e., prior to the

25. Structural Discharges. Discharges
of material such as concrete
sand
k p
permit is required, but are not limited restoration, enhancement, or creation
activities). The reversion must occur
,
, roc
,
etc., into tightly sealed forms or cells to: the removal of accumulated
sediments; the installation
re
l
within five years
expiration o
r a
a
r
where the material will be used as a ,
mova
,
and maintenance of small water control li
mited term wetl
nd
re
storation o

structural member for standard pile
supported structures
such as b
id
structures, dikes, and berms; the creation agreement or permit, even if the
discharge occurs after this NWP expires

,
r
ges,
transmission line footings, and
installation of current deflectors; the
enhancement
restoration
o
ti
f .
This NWP also authorizes the reversion

walkways or for general navigation,
such as moorin
cells
in
l
di
th ,
,
r crea
on o
riffle and pool stream structure; the of wetlands that were restored,
enhanced, or created on prior-converted
g
,
c
u
ng
e
excavation of bottom material from placement of in stream habitat
structures; modifications of th
t
cropland that
been
l
at
nb
r
e s
ream i
accordance
w th
bi
ag ee
ment
ndi
Federal Register/Vol. 07, 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
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, clock
spaces, or expansion of any kind within
waters of the US,is authorized by this
NWP. (Section 10)
29. Single-family Flo using. Discharges
of dredged or fill material into non-tidal
waters of the US, including non-tidal
wetlands for the construction or
expansion of a single-family home and
attendant features (such as a garage,
driveway, storage shed, and/or septic
field) for an Individual Pernrittee
provided that the activity meets all of
the following criteria:
a. The discharge does not cause the
loss of more than Vi-acre of non-tidal
waters of the. US, including non-ticlal
wetlands;
b. The permittee notifies the District
Engineer in accordance with the
"Notification" General Condition;
C. The permittee has taken all
practicable actions to minimize the on-
site and off-site impacts of the
dischars?e. For example, the location of
the home may need to be adjusted on-
site to avoid flooding of adjacent
property owners;
d. The discharge is part of a single
and complete project; furthermore, that
for any subdivision created on or after
November 22, 1991, the discharges.
authorized under this NWP may not
exceed an aggregate total loss of waters
of the US of 1/-acre for the entire
subdivision;
e. An individual may use this NWP
only fa a single-family home for a
personal residence;
f. This NMI may be used only once
per parcel;
g. '['his 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 force 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 F'ecferally-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
successim), 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 clue 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 P*acilities. Discharge of dredge
or fill material resulting from activities
associated with the maintenance of
existing flood control facilities,
inclucling debris basins, retention/
cletentiou 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 riot authorize the removal of
sediment and associated vegetation from
the natural water courses except to the
extent that these have been included in
the maintenance baseline. All dredged
material must be placed in an upland
site or an authorized disposal site in
waters of the US, and proper siltation
controls must be used. (Activities of any
kind that result in only incidental
fallhack, or only the cutting and
removing of vegetation above the
ground, e.g., rnowing, 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
per mittee 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 IIowever, if one-time mitigation is
required for impacts associated
ith activity subject to the terms and
d

submitting a five year (or less)
maintenance plan w
maintenance activities, the District
E con
itions of this NWP and the
settlement agreement, including a
.
Maintenance /3oseline: The ngineer will not delay needed
maintenance, provided the District specified completion date; or
(ii) The terms of a final Federal
t
maintenance baseline is a description of
the physical characteristics (e.g., depth, Engineer and the permittee establish a
schedule for identifi
ti cour
decision, consent decree, or settlement
ca
on, approval,
width, length, location, configuration, or development, construction and
design flood capacit
etc
) of a flood agreement resulting from an
enforcement action brought by the U.S.
y,
.
control project within which completion of any such required
mitigation. Once the one-time under section 404 of the CWA and/or
section 10 of the Rivers and H
b
A

maintenance activities are normally
authorized by NWP 31
subject to an
mitigation described above has been ar
ors
ct
of 1899; or
,
y
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 decree
settlement
District Engineer. The District Engineer
will approve the maintenance baseline further mitigation will be required for ,
,
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 dama
e claim brou
ht b

capacity of the flood control facility,
whichever is smaller, including any
appropriate mitigation, the District
En
ineer will
i
i
l g
g
y a
trustee or trustees for natural resources

areas where there are no constructed g
g
ve spec
a
consideration
to natural water courses that have been (as defined by the National Contingency
Plan at 40 CFR subpart G) under section
channels, but which are part of the
facility
If no evidence of the included in the maintenance baseline 311 of the Clean Water Act (CWA),
.
constructed capacity exist, the approved and require compensatory mitigation
and/or BMPs as appropriate. section 107 df the Comprehensive
Environmental Response
Compensation
constructed capacity will be used. The Emergency Situations: In emergency ,
and Liability Act (CERCLA or
prospective permittee will provide
documentation of the physical situations, this NWP may be used to
authorize maintenance a
ti
iti
i Superfund), section 312 of the National
M
i

characteristics of the flood control
facility (which will normall
consist of c
v
es
n
flood control facilities for which no
i
t
b ar
ne Sanctuaries Act (NMSA), section
1002 of the Oil Pollution Act of 1990
y
as-built or approved drawings) and ma
n
enance
aseline has been
approved. Emergency situations are (OPA), or the Park System Resource
Protection Act at 16 U
S
C
'19jj
to the
documentation of the design capacities
of the flood control facility. The those which would result in an
unacceptable hazard to life, a significant .
.
.
,
extent that a Cor s permit is required.
For either (i)
(Pi) or (iii) above

documentation will also include BMPs
loss of property, or an immediate, ,
,
compliance is a condition of the NWP
to ensure that the impacts to the aquatic unforeseen, and significant economic itself. Any authorization under this
environment are minimal, especially in hardship if action is not taken before a NWP is automatically revoked if the
maintenance areas where there are no
constructed channels. (The Corps may maintenance baseline can be approved.
In such situations, the determination of permittee does not comply with the
terms of this NWP or the terms of the
request maintenance records in areas
where there has not 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 Corps
the need for mitigation and any regional Any structure, work or discharge of 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
GFR 330.6 (d)(2) and (e). (Sections 10
will remain valid for any subsequent ,
restoration, or environmental benefit in and 404)
reissuance of this NWP. This permit
does not authorize maintenance of a compliance with either:
(i) The terms of a final written Corps 33. Temporary Construction, Access
and Dewatering. Temporary structures

flood control facility that has been
non-judicial settlement agreement ,
work and discharges
including
abandoned. A flood control facility will resolving a violation of section 404 of ,
cofferdams, necessary for construction
be considered abandoned if it has
operated at a significantl
reduced the CWA and/or section 10 of the Rivers
d activities or access fills or dewatering of
y
capacity without needed maintenance an
harbors Act of 1899; or the terms
of an EPA 309(a) order on consent construction sites; provided that the
associated primary activity is authorized
being accomplished in a timely manner.
Mitigation: The District En
ineer will resolving a violation of section 404 of by the Corps of Engineers or the USCG,
g
determine any required mitigation one- the CWA, provided that:
a. The unauthorized activity affected or for other construction activities not
subject to the Corps or USCG
time only for impacts associated with
maintenance work at the same tim
th
t no more than 5 acres of nou-tidal regulations. Appropriate measures must
e
a
the maintenance baseline is approved, wetlands or 1 acre of tidal wetlands;
b. The settlement agreement provides be taken to maintain near normal
downstream flows and to minirnize
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 high flows
The use
more than minimal, both individually
and cumulatively
Such miti
ation will unauthorized activity that is authorized .
of dredged material may be allowed if
.
g
only be required once for any specific by this NWP; and
c. The District Engineer issues a it is determined by the District Engineer
that it will not cause more than minimal
reach of a flood control project. verification letter authorizin- the adverse effects on aquatic resources.
Federal Register / Vol. 67, No. 10 / Tttesclay, January 15, 2002 / Notices 2t1R5
"Temporary fill must be entirely remove(
to upland areas, or dredged material
returned to its original location,
following completion of the
construction activity, and the affected
areas most 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. Tire
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 rninirnunr
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. CranberryProduction Activities.
Discharges of dredged or fill material for
dikes, berms, pumps, water control
structures or leveling of cranberry beds
associated with expansion,
enhancennent, 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 sedinient 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
I dredged material is disposed of at au
upland site and proper siltation control";
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. (foes not exceed 50 cubic yards of
concrete, rock, crushed stone or gravel
into forms, or placement of pre-cast
concrete planks or slabs. (Unsuitable
material, that causes unacceptable
chemiral pollution or is structurally
unstable is not authorized);
b. The boat ramp does not exceed 20
feet in width;
c. The base material is crushed stone,
gravel or other suitable material;
d. The excavation is limited to the
area necessary for site preparation and
all excavated material is removed to the
upland; and,
e. No material is placed in special
aquatic sites, including wetlands.
Another NWP, Regional General
Permit, or Individual Permit may
authorize dredging to provide access to
the boat ramp after obtaining a Section
10 if located in navigable waters of the
U.S. (Sections 10 and 404)
37. Emergency Watershed Protection
and Rehabilitation. Work done by or
funded by:
a. The NRCS which is a situation
requiring immediate action under its
emergency Watershed Protection
Program (7 CFR part 624); or
b. The USFS under its Burned-Area
Emergency Rehabilitation Handbook
(FSH 509.13); or
c. The DOI for wildland fire
management burned area emergency
stabilization and rehabilitation (D01
Manual part 620, Ch. 3).
For alll of the above provisions, the
District Engineer must be notified in
accordance with the General Condition
13. (Also, see 33 CFR 330.1(e)).
(Sections 10 and 404)
38. Cleanup of Hazardous and "Toxic
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 NWl'. This NWP does
not authorize the establishment of new
disposal sites or the expansion of
existing sites used for the disposal of
hazardous or toxic waste. Activities
s undertaken entirely on a
Comprehensive Environmental
Response, Compensation, and Liability
Act (CERCLA) site by authority of
CE:RCLA 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, arid
Institutional Developments. Discharges
of dredged or fill material into non-tidal
waters of the U.S., excluding non-tidal
wetlands adjacent to tidal waters, for the
construction or expansion of residential,
commercial, and institutional building
foundations and building pads and
attendant features that are necessary for
the use and maintenance of the
structures. Attendant features may
include, but are not limited to, roads,
parking lots, garages, yards, utility lines,
stormwater management facilities, and
recreation facilities such as
playgrounds, playing fields, and golf
courses (provided the golf course is an
integral part of the residential
development). The construction of new
ski areas or oil and gas wells is not
authorized b this NWP.
Residential developments include
multiple anti 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. Tire 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. Tire 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
helow, that the project complies with all
terms and conditions of this NWP and
that any adverse impacts of the project
oil the aquatic environment are
minimal, both individually and
Cumulatively;
C. The permittee must notify the
Pistrict Engineer in accordance with
General Condition 13, if any of the
following criteria are met:
(1) The discharge causes the loss of
greater than Vio-acre of non-tidal waters
of the US, excluding non-tidal wetlands
adjacent to tidal waters; or
2086 Federal Register/Vol. 67, No. 10/Tuesday, January 15, 2002/Notices
(2) The discharge causes the loss of of any compensatory mitigation used to include the installation, placernent, or
any open waters, including perennial or offset the loss of waters of the US (e
co
t
ti
i
f d

ntermittent streams, below the ordinar
hi-h water mark (see Note
below)
or .g.,
y 1/12-acre of emergent wetlands created ns
ruc
on o
rainage tiles, ditches,
or levees; mechanized land clearing;
,
;
Y3) The discharge causes the loss of on-site);
j. If there are any open en waters or
y P
land leveling; the relocation of existing
greater than 300 linear feet of
streams witirin the project area
the serviceable drainage ditches constructed
,
intermittent stream bed. In such case, to permittee will establish and maintain, t
be authorized the District Engineer must the maximum extent practicable
' in waters of the US; and similar
o activities, provided the permittee

determine that the activity complies ,
.
wetland or upland vegetated buffers' complies with the following terms and

with the other terms arid conditions of
the NWP, determine adverse
next to those open waters or streams conditions:

a. For discharges into non-tidal
environmental effects are minimal both consistent with General Condition 19,
Deed restrictions
conservatio wetlands to improve agricultural
individually and cumulative l and
waive the limitation on stream im acts
p ,
n
easements, protective covenants, or
h production, the following criteria must
be met if the permittee is an United
in writing before the ermittee ma
p y
roceed ot
er means of land conservation and
preservation are required to protect arid States Department of Agriculture
(USDA
P
p
;
d. For discharges in special aquatic
it
maintain the vegetated buffers
established on the
roject site )
rogram participant:
(1) The permittee must obtain a
s
es, including wetlands, the p
.
Only residential
commercial
d categorical minimal effects exemption,
notification must include a delineation
of affected special aquatic sites; ,
, an
institutional activities with structures minimal effect exemption, or mitigation
exemption from NRCS in accord

on the foundation(s) or building ad(s),
e. The discharge is part of a single and p
as well as the attendant features, are
complete project ance
p
with the provisions of the Food Security
A
f
;
f. The permittee must avoid and
authorized by this NMI. The ct o
1985, as amended (16 U.S.C. 3801
et se
q
)'
minimize discharges into waters of the
US at the project site to the m
i compensatory mitigation proposal that
is required in paragraph (e) of this NWP (2)
The discharge into non-tidal
ax
mum
extent practicable. The notification,
when required
must include a w
itt
may be either conceptual or detailed.
The wetland or upland vegetated buffer wetlands does not result in the loss of
greater than'/2-acre of non-tidal
,
r
en
statement explaining how avoidance
and minimization of losse
f
t
f
required in paragraph (i) of this NWI'
will be determined on a case-by-case wetlands on a farm tract;

The permittee must have NRCS-
s o
wa
ers o
the US were achieved on the project
basis by the District Engineer for
addressi certified wetland delineation;

(4) The permittee must implement an
site. Compensatory mitigation will
normally be required to offset the loss ng water quality concerns. The
required wetland or upland vegetated NRCS-approved compensatory
es
of waters of the US. See General
(
buffer is part of the overall
co mitigation plan that fully offsets

wetland
losses,
required; and
Condition 19.) The notification must
also include a compensator
miti
ti mpensatory mitigation requirement
for this NWP. If the project site was (5) Th
tt
(5) The permittee must submit a
y
ga
on
proposal for offsetting unavoidable
previously used for agricultural report, within 30 days of completion of
the authorized work
to the Di
t
i
t
losses of waters of the US. If an
applicant asserts that the adverse eff
t purposes and the farm owner/operator
used NWP 40 to authorize activities in ,
s
r
c
Engineer that contains the following
ec
s
of the project are minimal without
waters of the US to increase production
or
t
f information: (a) The name, address, and
telephone number of the permittee
(b)
mitigation, then the applicant may
submit justification explaining wh cons
ruct
arm buildings, NWP 39
cannot be used by the developer to ;
The location of the work; (c) A
d
y
compensatory mitigation should not be
required for the District En
ineer'
authorize additional activities. This is
more than the acreage limit for NWP 39 escription of the work; (d) The type
and acreage (or square feet) of the loss
g
s
consideration;
g. When this NWP is used in
impacts to waters of the US (i.e., the
combined acreage loss authorized under of wetlands (e.g., 1/3-acre of emergent
wetlands); and (e) The type, (or
conjunction with any other NWP, any
combined total permanent loss of waters NWPs 39 and 40 cannot exceed 1/2-acre,
see General Condition 15). square feet), and location of
compensatory mitigation (e.g. 1/3-acre of

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

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

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

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

must not cause more than minimal

de
radation of
t
l
development of individual subdivision
lots. (Sections 10 and 404) production, the following criteria must

be met if the permittee is not a USDA
g
wa
er qua
ity or more
th
an minimal changes to the flow
Note: Areas where wetland vegetation is Program participant (or a USDA

characteristics of any stream (see
General Conditions 9 and 21);
not present should be determined h the
presence or absence of an ordinary high program participant for which the
proposed work does not qualify for
i. For discharges causing the loss of water mark or bed and bank. Areas that are authorization under paragraph (a) of this

1/ro-acre or less of waters of the US, the
permittee must submit a re
ort
withi waters of the US based on this criterion
would require a PCN although water is NWP):

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

the District Engineer that contains the
f
ll
i ,
c
o not
require PCNs). greater than 1/2-acre of non-tidal
wetlands on a farm tract

o
ow
ng information: (1) The name,
address, and telephone number of the
40. Agricultural Activities. Discharges
of dredged or fill material i
t
id
l ;
(2) Tile permittee must notify the

permittee; (2) The location of the work;
(3) A description of the work
(4) Ti n
o non-t
a
waters of the US, excluding non-tidal
l District Engineer in accordance with
General Condition 13, if the discharge
;
le
type and acreage of the loss of waters of
h wet
ands adjacent to tidal waters, for
improving agricultural production and results in the loss of greater than'/ro-
acre of non-tidal w
tl
d

t
e US (e.g., 1/12 acre of emergent
wetlands); and (5) The type and acreage
the construction of building ads for
farm buildings
Authorized
ti
iti e
an
s;
(3) The notification ust include a
r
.
ac
v
es delineation of affected
wetlands; acid
Federal Register/Vol. 67, No. 10 / Tuesclay, 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 cinder section 404(0 of the CWA, even
though a categorical minimal eff
t configuration, which does not require a

C. For the construction of building
pads for farm buildings
the dischar
e ec
s
exemption, minimal effect exemption, Section 404 permit (see 33 CFR
3214(a)(3)). This MVP does not
,
g
does not cause the loss of greater than
'h or mitigation exemption from NRCS
pursuant to the Food Security Act of authorize the relocation of drainage
ditches constructed in wate
f th
US

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

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

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

US is limited to the relocation of paragraphs a., b., or c. of this NWP to

authorize activities in waters of the US
relocation projects. (Section 404)

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

eater than
00
of gr
ud
s
to authorize residential
commercial
or wetlands adjacent to tidal waters, for the
i
i
e
itche
constructed
se ,
,
industrial development activities in construction or expansion of
non-tidal streams unless, for drainage
waters of the US on the site
the recreational facilities, provided the

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

tidal streams, the District Engineer
NWPs 39 and 40 cannot exceed '/nacre 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/z acre of non-tidal
the project complies with all terms and 41. Reshaping Existing Drainage ?^ aters of the US, excluding non ticial
conditions of this NWP, and that any Ditches. Discharges of dredged or fill wetlands adjacent to tidal waters;
adverse impacts of the project on the material into non-tidal waters of the US b. The discharge does not cause the
aquatic environment are minimal, both ,
excluding non-tidal wetlands adjacent loss of greater than
300
linear-feet of a
individually and cumulatively. For to tidal waters, to modify the cross- o
r i
stream bed, unless for ntermittent
impacts exceeding 300-linear feet of sectional configuration of currently stream beds this criterion is waived in
impacts to existing serviceable ditches serviceable drainage ditches constructed "riling pursuant to a determination by
constructed in intermittent non-tidal in waters of the US. The reshaping of the Distract Engineer, as specified
streams, the permittee must notify the the ditch cannot increase drainage below, that the project complies with all
District Engineer in accordance with the
" capacity beyond the original design terms and conditions of this NWP and
Notification" General Condition 13; capacity. Nor can it expand the area that any adverse impacts of the project
and
e. The term "farm tract" refers to a drained by the ditch as originally
designed (i.e., the capacity of the ditch on the aquatic environment are
minimal, both individually and
parcel of land identified by the Farm must be the same as originally designed cumulatively;
Service Agency. The Corps will identify
other waters of the US on th
f
t
t and it cannot drain additional wetlands c. The permittee notifies the District
E
e
arm
rac
.
NRCS will determine if a proposed or other waters of the US).
Compensatory mitigation is not required ngineer in accordance with the
General Condition
for
13
"
agricultural activity meets the terms and because the work is designed to improve et
discharges
discharges exceeding 300 linear feet of
conditions of paragraph a. of this NWP, water quality (e.g., by regrading the impact of intermittent stream beds. In
except as provided below. For those
activities that require notification
the drainage ditch with gentler slopes, such cases, to be authorized the District
F
i
,
District Engineer will determine if a which can reduce erosion, increase ng
neer must determine that the

proposed agricultural activity is growth of vegetation, increase uptake of
nutrients and other substances b activity complies with the other terms
and conditions of the NWP
determine
authorized by paragraphs b., c., and/or
d, of this NWP
USDA Pro y
vegetation, etc.). ,
the adverse environmental effects are
.
gram
participants, requesting authorization for Notification: The permittee must
notify the District Engineer in minimal both individually and
cumulatively, and waive this limitation
discharges of dredged or fill material
into waters of the US authorized b accordance with General Condition 13 if in writing before the permittee may
y
paragraphs (c) or (d) of this NWP, in greater than 500 linear feet of drainage
ditch will be reshaped. Material proceed;
d. For discharges causing the loss of
addition to paragraph (a), must notify
the District Engineer in accordance with resulting from excavation may, not be greater than 'ho-acre of non-tidal waters

General Condition 13 and the District permanently sidecast into waters hilt
may be temporarily sidecast (up to three of the US, the permittee notifies the
District Engineer in accordance with
Engineer will determine if the entire
single and com
lete
roject i months) into waters of the US, provided General Condition 13;
p
p
s
authorized by this NWI . Discharges of the material is not placed in such a
manner that it is dispersed by currents e. For discharges in special aquatic
sites, including wetlands
the
dredged or fill material into waters of
the US associated with com
letin or other forces. The District Engineer
d ,
notification must include a delineation
p
g
required compensatory mitigation are may exten
the period of temporary
sidecasting not to exceed a total of 180 of affected special aquatic sites;
f. The dischar
e is
art of a sin
le and
authorized by this NMI. However, total
impacts, including other authorized clays, where appropriate. In general, this
NWP does not apply to resha
in g
p
g
complete project; and
C

impacts under this N\VP, may not
exceed the 'h-acre limit
f thi
NWP p
g
drainage ditches constructed in g.
ompensatory mitigation will
normally be required to offset the losses
o
s
.
This NWP does not affect, or otherwise uplands, since these areas are generally
not waters of the US, and thus no permit of waters of the US. The notification
mast also include a compensatory
regulate, discharges associated with
agricultural activities when th from the Corps is required, or to the mitigation proposal to offset authorized
e maintenance of existing drainage 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 greater than 1/2-acre of non-tidal waters
term "recreational facility" is defined as of the US, excluding non-tidal wetl
d that are exempt from Section 404 permit

a recreational activity that is integrated
into the natural landsca
e and d an
s
ad))'acent to tidal waters;
l
Th
d requirements);
f. The permittee must avoid and
p
oes not
substantially change preconstruction r.
e
ischarge does riot cause the
loss of greater than 300 linear-feet of a minimize discharges into waters of the
US at the project site to the ma
i

grades or deviate from natural landscape stream bed, unless for intermittent
contours. For the purpose of this permit, stream beds this criterion is waived i x
mum
extent practicable, and the notification

the primary function of recreational
facilities does not include th
f n
writing pursuant to a determination by
th
Di must include a written statement to the
District Engineer detailing compliance
e use o
e
strict Engineer, as specified
motor vehicles, buildings, or impervious below, that the project complies with all
f with this condition (i.e. why the
discharge must occur in
t
f
h

sur
aces. Examples of recreational
facilities that may be authorized by this
terms and conditions of this NWP and
that any adverse impacts of the project wa
ers o
t
e
US and why additional minimization

NWP include hiking trails, bike paths,
horse paths, nature centers, and
on tho aquatic environment are
minimal, both individuall
and cannot be achieved);
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

construction or expansion of golf
courses and the expansion of ski areas
greater than 300 linear feet of
intermittent stream beds
th
itt BMPs and watershed protection
techniques. Examples may include
,
provided the golf course or ski area does ,
e 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
to agemen
facility that would be maintained

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

adverse effects to waters of the US and
i
i
h
determine that the activity complies and siting considerations to minimize
adverse effects to a
uatic resourc

r
par
an areas t
rough the use of such
practices as integrated pest
with the other terms and conditions of
the NWP, determine the adverse q
es.
Another example of a BW would be

management, adequate stormwater
management facilities; vegetated buffers,
environmental effects are minimal both
individually and cumulatively
aril bioengineering methods incorporated
into the facility design to benefit water

reduced fertilizer use, etc. The facility ,
waive this limitation in writing before quality and minimize adverse effects to

must have an adequate water quality
the permittee may proceed; aquatic resources from storm flows,

management plan in accordance with
d. The discharges of dred
ed or fill especially downstream of the facility,

General Condition 9, such as a g
material for the construction of new 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
ansi
f
ll
management facilities or for the
i maintenance plan and will not exceed
the original contours of the facilit
as
p
on o
sma
support facilities,
such as maintenance and storage ma
ntenance of existing stormwater
management fa
ilities causin
the loss y
approved and constructed; and

buildings and stables that are directly t
g
of greater than /io-acre of non-tidal i. The discharge is part of a single and

related to the recreational activity. This
NWP d
waters, excluding non-tidal wetlands complete project. (Section 404)
44. Alining Activities
Dischar
es of
oes not authorize other
buildings, such as hotels, restaurants, adjacent to tidal waters, provided the
permittee notifies the District Engineer .
g
dredged or fill material into:
(i) Isolated waters; streams wher
th

etc. The construction or expansion of
playing fields (e.g., baseball, soccer, or
in accordance with the "Notification"
General Condition 13
In addition
th e
e
annual average flow is 1 cubic foot per

football fields), basketball and tennis .
,
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 miming (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. StormwaterManogement
Facilities. Discharges of dredged or fill
requirements, if any such requirements
exist; ;
(ii) Lower perennial streams,

material into non-tidal waters of the US,
(2) For discharges in special aquatic excluding wetlands adjacent to lower
perennial streams
for a
re
t
i
i

excluding non-tidal wetlands adjacent
to tidal waters, for the construction and
sites, including wetlands and
submerged aquatic vegetation
the ,
gg
ga
e m
n
ng
activities (support activities in lower

maintenance of stormwater management
facilities, including activities for the ,
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
dredging of existing stormwater
accomplished in designated
maintenance areas a
d
t
i
hi from subsurface locations) and
associated support activities, provided

management ponds/facilities and n
no
w
t
n
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
normall
at the a. The mined area within waters of
h

following criteria:
a. The dischar
e for the constr
ti ,
y
downstream end of the stormwater t
e US, plus the acreage loss of waters
of the US resulting from support
g
uc
on
of new stormwater management management facility, in existing
stormwater managerent facilities). (No activities, cannot exceed 1/2-acre;
b. The permittee must avoid and
facilities does riot 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 complete mining operation can be
authorized by this NWP
rovided the waterbody, including those species that
ll

most include a written statement
detailing compliance with this p
1h-acre limit is not exceeded; and
1. Notification: The permittee must norma
y migrate through the area,
unless the activity's primary purpose is

condition (i.e., why the discharge must
i
notify the District Engineer in to impound water. Culverts placed in
streams must be installed to mai
t
i

occur
n waters of the US and why
additional minimization cannot be
accordance with General Condition 13.
The notification must include: (1) A n
a
n
low flow conditions.
E

achieved);
c. In addition to General Conditions
description of waters of the US
adversely affected b
the
t
2
A 5.
quipment. Heavy equipment
working in wetlands must be placed on

17 and 20, activities authorized by this
i y
projec
; (
)
written statement to the District mats, or other measures must be taken
to minimize soil disturbance

perm
t must not substantially alter the
sediment characteristics of areas of
Engineer detailing compliance with
paragraph (b)
above (i
e
wh
the .
6. Regional and Case-By,-Case
C
diti
Th

concentrated shellfish beds or fish ,
.
.,
y
discharge must occur in waters of the on
ons.
e activity must comply
with any regional conditions that ma

spawning areas. Normally, the
mandated water quality management
US and why additional minimization
cannot be achieved)
(3) A d
i
i y
have been added by the Division
E
i

plan should address these impacts;
d. The permittee must im
lement ;
escr
pt
on o
measures taken to ensure that the
d ng
f
neer (see 33 CFR 330.4(e)).
Additionally, any case specific
p
necessary measures to prevent increases propose
work complies with
paragraphs (c) through (0, above; and (4 conditions added by the Corps or by the
) state or tribe in its Section 401 Water
in stream gradient and water velocities
and to prevent adverse effects (e
head A reclamation plan (for aggregate
i
i
i
i
l Quality Certification and Coastal Zone
.g.,
cutting, bank erosion) to upstream and m
n
ng
n
so
ated waters and non-tidal
wetlands adjacent to headwaters and Management Act consistency
determination

downstream channel conditions;
e. Activities authorized by this permit
hard rock/mineral mining only).
This NWP does not aut%oriz
h
d .
7. Wild and Scenic Rivers. No activity
ma
oc
i

must not result in adverse effects on the e
ar
rock/mineral mining, including placer y
cur
n a component of the
National Wild and Scenic River System;
course, capacity, or condition of
navigable waters of the US; mining, in streams: No hard rock/
min
l
i
i or in a river officially designated by
''

f. The permittee must use measures to era
m
n
ng can occur in waters of
the US within 100 feet of the ordinary Congress as a
study river" for possible
inclusion in the system
while the river
minimize downstream turbidity;
g. Wetland impacts must be high water mark of headwater streams.
'
" ,
is in an official study status; unless the

compensated through mitigation The term
s
headwaters" and ''isolated
" appropriate Federal agency, with direct

approved by the Corps;
h. Beneficiation and mineral waters
are defined at 33 CFR 330.2(d)
and (e), respectively. For the purposes management responsibility for such
river, has determined in writing that the

processing for hard rock/mineral minin of this NWP, the term ''lower perennial
'' proposed activity will not adversely
g
activities may not occur within 200 feet stream
is defined as follows: "A stream affect the Wild and Scenic River

of the ordinary high water mark of any in which the gradient is low and water designation, or study status. Information

open waterbody. Although the Corps velocity is slow, there is no tidal on Wild and Scenic Rivers may be

does not regulate discharges from these influence, some water flows throughout obtained from the appropriate Federal

activities, a CWA section 402 permit the year, and the substrate consists land management agency in the area

may be required; mainly of sand and mud." (Sections 10 (e.g., National Park Service, U.S. Forest

i. All activities authorized must and 404) Service, Bureau of Land Management,

comply with General Conditions 9 and
2
F
h
C. Nationwide Permit General U.S. Fish and Wildlife Service).
8. Tribal Rights. No activit
or its
1.
urt
er, the District Engineer may
require modifications to the re
uired Conditions y
operation may impair reserved tribal
q
water quality management plan to
e
th
h The following General Conditions
must be followed in order for any rights, including, but not limited to,
reserved water rights and treaty fishin

nsure
at t
e authorized work results
in minimal adverse effects to wat
authorization by an NWP to be valid: g
and hunting rights.
er
quality; 1. Navigation. No activity may cause
Y 9. Water
Quality. (a) In certain states

j. Except for aggregate mining more than a minimal adverse effect on and tribal lands an individual 401 Water

activities in lower-perennial streams, no navigation.
2. Proper Maintenance. Any structure Quality Certification must be obtained
or'waived (See 33 CFR 330
4(c))

aggregate mining can occur within
stream beds where the avera
e annual
or fill authorized shall be properly .
.
(b) For NWPs 12, 14, 17, 18, 32, 39,
g
flow is greater than 1 cubic foot per maintained, including maintenance to
ensure public safety. 40, 42, 43, and 44, where the state or
tribal 401 certification (either
second or in waters of the US within
100 feet of the ordinary high water mark 3. Soil Erosion and Sediment
Controls. Appropriate soil erosion and generically or individually) does not
re
uir

of headwater stream segments where the
sediment controls must be used and q
e or approve water quality
management measures
the permittee
average annual flow of the stream is
greater than 1 cubic foot per second maintained in effective operating
condition durin
constructi
d
ll ,
must provide water quality managerrrent

(aggregate mining can occur in areas g
on, an
a
exposed soil and other fills, as well as measures that will ensure that the
authorized work does not result in more
immediately adjacent to the ordinary
high water mark of a stream where the any work helow the ordinary high water
mark or hi
h tid
li
b than minimal degradatimi of water

average annual flow is 1 cubic foot per g
e
ne, must
e
permanently stabilized at the earliest quality (or the Corps determines that
compliance with state or local
second or less);
k. Single and complete project: The practicable date. Permittees are standards, where applicable, will ensure

discharge must be for a single and encouraged to perform work within
waters of the United States during no more than minimal adverse effect on
water quality). An important com
onent
complete project, including support
activities. Discharges of dredged or fill periods of low-flow or no-flow,
4. Aquatic Life Movements
No p
of water quality management includes
t

material into waters of the US for
multiple minin
activities on
l .
activity may substantially disrupt the s
ormwater management that minimizes
degradation of the downstream aquatic
g
severa
designated parcels of a single and necessary life-cycle movements of those
species of aquatic life indigenous to the system, including water quality (refer to
General Condition 21 for stormwater
2090 Federal Register/Vol, 67, No. 10/Tuesday, Januarv 15. 2002 / Nntiraa
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., all 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://rvtivw.fws.oovlr9endsppl
endspp.htrnl and http://wwsv.nfrns.govl
prot_res/esohome.httnl respectively.
12. Historic Properties. No activity
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(-)). For activities that may
affect historic properties listed in, or
eligible for listing in, the National
Re-ister of Historic Places, the
notification must state which historic
property may be affected by the
proposed work or include a vicinity
map indicating the location of the
historic property.
13. Notification.
(a) Tinning, where required by the
terms of the 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
En-ineer 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 NWl' 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
perrnittee'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(4)(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;
- J Federal Register/Vol, h7, No. 10/Tuesday, January 15, 2002/Notices 2091
(9) For NWP 29 (Single-F'arnily
Housing), the PCN must also include: waters of the US or justification
explainin
wh
com
t affected by the proposed work or utilize

W Any past use of this NVVP by the
Individual permittee and/
th g
y
pensa
ory
mitigation should not be required. For the designated critical habitat that may
)e affected by the proposed work; and
or
e
permittee's spouse;
(ii) A statement that the single-family discharges that cause the loss of greater
than 300 linear Feet of an intermittent
t
b
d (18) F'or activities that may affect
historic properties listed in, or eligible

housing activity is for a personal
residence of the permittee; s
ream
e
, to be authorized, the District for listing in, the National Register of
Engineer must determine that the Historic Places, the PCN must state

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

p
rce
s o
an
measuring '/a-acre or less cumulatively, and waive the limitation
will not require a formal on-site p
p
y.
(c) Forrn of Notification: The standard

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

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

prepared in accordance with the current
method required by the Cor
s
(Se oca
on
of greater than 300 linear-feet of existing
i
b conta
ning the requisite information
may also be used.
p
.
e
paragraph 13(0); serv
cea
le drainage ditches constructed (d) Districe Engineer's Decision: In

(iv) A written description of all land in non-tidal streams unless, for drainage
ditches constructed in intermittent non- reviewing the PCN for the proposed
activity
the District En
ine
ill
(including, if available, legal
descriptions) owned by the
ros
ective tidal streams, the District Engineer
i
hi ,
g
er w
determine whether the activity
p
p
permittee and/or the prospective
' wa
ves t
s criterion in writing, and the
District Engineer has determined that authorized by the NWP will result in
more than minimal individual or
permittee
s spouse, within a one mile
radius of the parcel, in any form of the project complies with all terms and
conditions of this NWP, and that an cumulative adverse environmental
effects or ma
be co
t
t
h

ownership (including any land owned
as a
t y
adverse impacts of the project on the y
n
rary
o t
e public
interest. The prospective permittee may
par
ner, corporation, joint tenant,
co-tenant, or as a tenant-by-the-entirety)
d aquatic environment are minimal, both
individually and cumulatively; submit a proposed mitigation plan with
the PCN to expedite the process
The
an
any land on which a purchase and
sale agreement or other contract for sale (15) For NWP 43 (Stormwater
Management Facilities), the PCN must .
District Fngineer will consider any
proposed compensatory miti
ation the
orpurchase 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 adver

Existing Flood Control Projects), the
r
ti
maintenance plan (in accordance with se
environmental effects to the aquatic
p
ospec
ve permittee must either notify
the District Engineer with a PCN prior state and local requirements, if
applicable) and a com
ensator environment of the proposed work are
i
i
l
f

to each maintenance activity or submit
f p
y
mitigation proposal to offset losses of m
n
ma
. I
the District Engineer
determines that the activity complies
a
ive year (or less) maintenance plan.
In addition, the PCN must include all of waters of the US. For discharges that
cause the loss of
reater than 300 li with the terms and conditions of the
NWI'
d

the following:
W Sufficient baseline i
f
i g
near
feet of an intermittent stream bed, to be
h an
that the adverse effects on the
aquatic environment are minimal, after
n
ormat
on
identifying the approved channel
d aut
orized, the District Engineer must
determine that the activity complies considering mitigation, the District
Engineer will notify the permittee and
epths and configurations and existing
facilities. Minor deviations are with the other terms and conditions of
the NWP
determine adv include any conditions the District
E

authorized, provided the approved flood ,
erse
environmental effects are minimal both ngineer deems necessary, The District
Engineer must approve any
control protection or drainage is not
increased individually and cumulatively, and compensatory mitigation proposal
;
(ii) A delineation of any affected
i
l waive the limitation on stream impacts
in writing before the permittee may before the permittee commences work.
If the prospective permittee is re
uired
spec
a
aquatic sites, including
wetlands; arid,
(iii) Location of the dredged material proceed;
(16) For NVVP 44 (Mining Activities),
the PCN must incl
d
d q
to submit a compensatory mitigation
proposal with the PCN, the proposal

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

the PCN must also include a restoration
plan of reasonable measures t
id
waters of the US, a description of e
, t
e District Engineer will
expeditiously review the proposed
o avo
and minimize adverse effects to aquatic treasures taken to comply with the
criteria of the NVVP
and a reclamation compensatory mitigation plan. The
District E
i

resources;
(12) For NWPs 39, 43 and 44, the PCN ,
plan (for all aggregate mining activities
in isolated waters and
tid
l ng
neer must review the plan
within 45 days of receiving a complete
P

must also include a written statement to
the District Engineer ex
laini
h non-
a
wetlands adjacent to headwaters and CN and determine whether the
conceptual or specific proposed
p
ng
ow
avoidance and minimization for losses any hard rock/mineral mining
activities); mitigation would ensure no more than

of waters of the US were achieved on
the project site;
(17) For activities that may adversely
f nrininnal adverse effects on the aquatic
environment. If the net adverse effects

(13) For NWP 39 and NWP 42, the a
fect Federally-listed endangered or
threatened species
the PCN must of the project on the aquatic

PCN must include a compensatory ,
include the riame(s) of those endan
e
d environment (after consideration of the

mitigation proposal to offset losses of g
re
or threatened species that may be compensatory mitigation proposal) are
determined by the District Engineer to
•F
2092 Federal Register/Vol. 67, No. 10 / Tuesday, January 15, 2002/Notices
be minimal, the District Engineer will on the notification. The District
provide a timely written response to the Engineer will fully consider a
enc the proximity of a public water supply
i
k

applicant. The response will state that
the project can proceed under the terms g
y
comments received within the specified
time frame, but will provide no nta
e except where the activity is for
repair of the public water supply intake

and conditions of the NWP.
If the District Engineer determines
response to the resource agency, except structures or adjacent bank stabilization.
17. Shellfish Feeds. No activity

that the adverse effects of the proposed
as provided below. The District
Engineer will indicate in the ,

including structures and work in
work are more than minimal, then the

District Engineer will notify the administrative record associated with

h
the al or discharges
ofnavdreigable waters ma of US
dge
fill
teri
a
l,
occur in

applicant either: (1) That the project eac
notification that the resource
agencies' concerns were considered
A
fish
areas
concentrated ce
ntrated s
h
e
llfish

does not qualify for authorization under
the NWP and instruct the applicant on .
s
required by section 305(b)(4)(B) of the
M
s populations, unless the activity is
directly related to a shellfish harvestin

the procedures to seek authorization
agnu
on-Stevens Fishery
Conservation and Management Act
the g
activity authorized by NWP 4.

under an Individual Permit; (2) that the ,
District Engineer will provide a 18. Suitable Material, No activity,
project is authorized under the NWP
subject to the applicant's submission of response to NMFS within 30 days of
receipt of any Essential Fish Habitat aviga le swaters tructures the work in
navigable
e US or discharges
a mitigation proposal that would reduce
the adverse effects on the aquatic conservation recommendations.
Applicants are encouraged to provide m
of dredged le fill material, may consist
of unsuitable material (e.g., trash,
environment to the minimal level; or (3) the Corps multiple copies of debris, car bodies, asphalt, etc.)
and
that the project is authorized under the notifications to expedite agency material used for construction or
or
NWP with specific modifications or notification discharged must be free from toxic
conditions. Where the District Engineer .
(f) Wetland Delineations: Wetland pollutants iri'toxic amounts (see section

determines that mitigation is required to
delineations must be prepared in 307 of the CWA).
ensure no more than minimal adverse accordance with the current method 19. Mitigation. The District Engineer
effects occur to the aquatic required by the Corps (For NWP 29 see will consider the factors discussed
environment, the activity will be paragraph (b)(9)(iii) for parcels less than below when determining the
authorized within the.45-day PCN
period. The authorization will include (1/.,-acre in size). The permittee may ask
the Corps to delineate the special acceptability of appropriate and
practicable mitigation necessary to
the necessary conceptual or specific aquatic site. There may be some delay offset adverse effects on the aquatic
mitigation or a requirement that the if the Corps does the delineation environment that are more than
applicant submit a mitigation proposal
that would reduce the adverse effects on ,
Furthermore, the 45-day period will not
start until the wetland delineation has minimal.
(a) The project must be designed and
the aquatic environment to the minimal
level. When conceptual mitigation is been completed and submitted to the
Corps, where appropriate. constructed to avoid and minimize
adverse effects
waters
to of
the
to the
included, or a mitigation plan is 14. Compliance Certification. Every t
b
th
maximum extent practicable at the
required under item (2) above, no work
in waters of the US will occur until the permittee who has received NWP
verification from the Corps will submit project site (ion on site),
lb) Mitigation in all its forms
District Engineer has approved a a signed certification regarding the (avoiding, minimizing, rectifying,
specific mitigation plan.
(e) Agency Coordination: The District completed work and any required
mitigation. The certification will be reducing or compensating) will be
required to the extent necessary to
Engineer will consider any comments
from Federal and state agencies forwarded by the Corps with the ensure that the adverse effects to the
i

concerning the proposed activity's authorization letter and will include:
(a) A statement that the authorized aquat
c environment are minimal,
(c) Compensatory mitigation at a
compliance with the terms and
conditions of the NWPs and the n
d f work was done in accordance with the rninirnum one-for-one ratio will be
ee
or
mitigation to reduce the project's Corps authorization, including any
general or specific conditions; required for all wetland impacts
requiring a PCN, unless the District
adverse environmental effects to a (b) A statement that any required Engineer determines in writing that
minimal level.
For activities requiring notification to mitigation was completed in accordance
with the permit conditions; and some other form of mitigation would be
more environmentally appropriate and
the District Engineer that result in the
loss of greater than '/z-acre of waters
f (c) The signature of the permittee provides a project-specific waiver of this
o
the US, the District Engineer will certifying the completion of the work
d
i
i
i requirement. Consistent with National

provide immediately (e.g., via facsimile an
m
t
gat
on.
15. Use of Multiple Nationwide policy, the District Engineer will
establish a preference for restoration of
transmission, overnight mail, or other
expeditious manner) a copy to the Permits. The use of more than one NWP
for a single and complete project is wetlands as compensatory mitigation,
with preservation used only in
appropriate Federal or state offices
(USFWS, state natural resource or water prohibited, except when the acreage loss
of waters of the US
th
i
d b
h exceptional circumstances.

quality agency, EPA, State Historic
Preservation Officer (SHPO
and
if ) au
or
ze
y t
e
NWPs does not exceed the acreage limit (d) Compensatory mitigation (i.e.,
replacement or substitution of aquatic
,
,
appropriate, the NMFS). With the of the NWI with the highest specified
acreage limit (e.g. if a road crossing over resources for those imparted) will not
be used to increase the acrea
e losses
exception of NWI 37, these agencies
will then have 10 calendar da
s f tidal waters is constructed under NWP g
allowed by the acreage limits of some of
y
rom
the date the material is transmitted to 14, with associated bank stabilization
authorized by NWP 13, the maximum the NWPs. For example, 1/4-acre of
wetlands cannot be created to chan

telephone or fax the District Engineer
notice that they intend to provide
acreage loss of waters of the US for the
total project cannot exce
d'/ ge a
`/4-acre loss of wetlands to a 1/2-acre loss
i
d

substantive, site-specific comments. If
so contacted by an agenc
the Distri
t e
,-acre).
16. Water Supply Intakes. No activity,
i
l
d assoc
ate
vvith NWP 39 verification.
Ilowever, 1/2-acre of created wetlands
y,
c
Engineer will wait an additional 15
calendar days before makin
a decisio nc
u
ing structures and work in
navigable waters of the US or discharges
f d
d
d can be used to reduce the impacts of a
1/2-acre loss of wetlands to the minimum
g
n o
re
ge
or fill material, may occur in impact level in order to meet the
Federal Register/ Vol. 67, No. 10 /'Tuesday, January 15, 2002/Notices 2093
minimal impact requirement associated
with NWP accomplishing and/or complying with discharges of dredged or fill material

s.
(e) To be practicable, the mitigation
the mitigation plan,
20..Sparvning Areas. Activities, ,
into breeding areas for migratory
waterfowl must be avoided to the
],'list be available and capable of being
clone considering costs, existing including structures and work in
navigable waters of the US or disch maximum extent practicable.

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

practicable include, but are not limited
practicable. Activities that result in tile .
25. Desranated 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 fiuictions and
21. Monagernent of Water Flows. To ,
critical habitat for Federally listed
values by creating, restoring, enhancing, the maximum extent practicable, the threatened and endangered species,
or preserving similar functions and activity must be designed to maintain coral reefs, state natural heritage sites

values, preferably in the same
preconstruction downstream flow ,
and outstanding national resource
watershed. conditions (e.g., location, capacity, and waters or other waters officially
(f) Compensatory mitigation plans for flow rates). Furthermore, the activity designated by a state as having
projects in or near streams or other open
waters will normally include a 'dust not permanently restrict or impede
the passage of normal or expected high particular environmental or ecological
significance and identified by the
requirement for the establishment, flows (unless the primary purpose of the District Engineer after notice and
maintenance, and legal protection (e.g., fill. is to impound waters) and the. opportunity for public comment. The
easements, deed restrictions) of structure or discharge of dredged or fill District Engineer may also designate
vegetated buffers to open waters. In material must withstand expected high additional critical resource waters after
many cases, vegetated buffers will be flows. The activity must, to the notice and opportunity for comment.
the only compensatory mitigation rraxirnum 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 be
ond waters, including wetlands adjacent to
h
w
e on each side of the stream, but the y suc
waters. Discharges of dredged or
District Engineers may requite slightly t
d
r lav
r
l
r
wider vegetated buffers to address channelizing
r
educed to the
will be h
e
a tthorized
by the above NWPs in
y
documented water quality or habitat minimal amount necessary, and the National Wild and Scenic Rivers if the
loss concerns. Where both wetlands and
Where activity must, to the maximum extent activity complies with General
open waters exist
the project site, the
Corps will determine the appropriate practicable, reduce adverse effects such
as flooding or erosion downstream and Condition 7. Further, such discharges
may be authorized in designated critical
compensatory mitigation (e.g., stream upstream of the project site, unless the habitat for Federally listed threatened or
buffers or wetlands compensation) activity is part of a larger system endangered species if the activity
based on what is best for the aquatic
c designed to manage water flows. In most complies with General Condition 11 and
environment on a watershed basis. cases, it wilt not be a requirement to
conduct detailed studies and
it
i the USFWS or the NMF'S has concurred
i
cases where vegetated buffers are mon
or
ng
of water flow n a determination of compliance with
determined to be the most appropriate

form of compensatory mitigation
the .
This condition is only applicable to this condition,
(b) For MVPs 3, 8, 10, 13, 15, 18, 19,
,
District Engineer"]tray waive or reduce projects that have the potential to affect
waterflows. While a
ro
riate me 22, 23, 25, 27, 28, 30, 33, 34, 36, 37, acd
3
f

the requirement to provide wetland pp
p
asures
must be t
k
it i 8, noti
ication is required in

compensatory mitigation for wetland
im
acts a
en,
s not necessary to
conduct detailed studies to identifv accordance with General Condition 13,
for any activity
ro
osed in the
p
.
(g) Compensatory mitigation such treasures or require monitoring to p
p
designated critical resource waters

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

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

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

approved under the verification, then .

22. Adverse Effects Front
only after it is determined that the
i

the Corps will condition the verification
to require detailed plans be submitted
impoundments. If the activity creates an mpacts to the critical resource waters
will be no more than minimal.

and approved by the Corps prior to impoundment of water, adverse effects
to the aquatic system due to the 26. F'iIIs Within 100-Year Floodplains.
F

construction of the authorized activity
in waters of the US
acceleration of the passage of water, or purposes of this General Condition,
100-year floodplains will be identified
.
(h) Perrnittees may propose the use of
i
i and/or the restricting its flow shall be
minimized to the maximum extent through the existing Federal Emergency
Management Agenc
's (FEMA) Flood
m
t
gation banks, in-lieu fee
arrangements or separate activity- practicable. This includes structures
d
k i y
Insurance Rate Maps or FEMA-approved

specific compensatory mitigation. In all an
wor
n navigable waters of the US,
or discharges of dredged or fill material local floodplain maps.
(a) Discltnr
es in F•lood
loin
l
B

cases that require compensatory
miti
ation
the miti
ati
i
i .
23. Waterfowl Breeding Areas. g
p
;
ow
e
Headwaters. Discharges of dredged or
g
,
g
on prov
s
ons
will specify the party responsible for Activities, including structures and
work in navigable waters of the US 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.
(h) Discharges in Floodwoy; 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 it
existing wetlands or other aquatic
resources that increase one or more
aquatic' functions.
Eph?emer•al Stream: An ephemeral
strearn''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").
Floodrvoy: The area regulated by
Federal, state, or local requirements to
provide for the discharge of the base
flood so the cumulative increase in
water surface elevation is no more than
a designated amount (not to exceed one
foot as set by the National Flood
Insurance Program) within the 100-year
flood 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.
I,oss 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 rnay 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
measurer nents 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(6). 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-enrergent,
sparse, or absent. Vegetated shallows are
considered to be open waters. The term
"open water'' includes rivers, streams,
lakes, and ponds. For the purposes of
the NWPs, this term does not include
ephemeral waters.
Perennial Stream: A perennial stream
has flowing water year-round during a
typical year. The water table is located
above the stream bed for most of the
year. Groundwater is the primary source
of water for stream flow. Runoff from
rainfall is a supplemental source of
water for stream flow.
Permanent Above-grade Fill: A
discharge of dredged or fill material into
waters of the US, including wetlands,
that results in a substanti rl 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 2(195
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
tinder 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(1) 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.
Stormwater Management: Stormwater
management is the mechanism for
controlling stormwater runoff for the
purposes of reducing downstream
erosion, water quality degradation, and
flooding and.mitigating the adverse
effects of changes in land use on the
aquatic environment.
Stormwater Management Facilities:
Stormwater management facilities are
those facilities, including but not
limited to, stormwater retention and
detention ponds and BMPs, which
retain water for a period of time to
control runoff and/or improve the
quality (i.e., by reducing the
concentration of nutrients, sediments,
hazardous substances and other
pollutarits) of stormwater runoff.
Strearn 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 Chan nelizotion: 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
luriar 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, inclucing agricultural
land. Vegetated buffers provide a variety
of aquatic habitat functions and values
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 ain]
BILLING CODE 37111-92--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,
NOAH. 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 rnydas)
Endangered hawksbill turtle
(Eretmochelys imbricata)
Endangered Kemp's ridley turtle
(Lepidochelys kernppii)
Endangered leatherback turtle
(Derrnochelys coriacea)
'T'hreatened 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
Rosoruces, 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 oil Tuesday, January 15, 2002
(G7 FR 2020-2095).
ADDRESSES: HQUSACE, ATI'N: CE'CW-
OR, 441 "G" Street, NW., Washington,
DC 20314-1000.
FOR FURTHER INFORMATION CONTACT: Mr.
David Olson, at [phone], Mr.
Kirk Stark, at [phone] or Ms.
Leesa Beal at [phone] or access
the U.S. Array 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 elate 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 "GrondfatherProvision
for Expiring MWPs 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 (WQQ and Coastal /,one
Management Act (CZMA) Consistency
Agreernent" section, the date in the filth
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 NWI'
pre-construction notifications is greater
than the 15 clay completeness review
period for standard permit applications.
On page 2031, second column, second
full paragraph, the number 31 is
replaced with the number 3 because this
paragraph refers to NWP 3,
On page 2044, second column, fourth
complete paragraph, the title is
corrected to react "Stream and Wetland
Restoration Activities" because that is
the title of NWP 27.
On page 2054, second column, the
year cited in the third sentence of the
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 terra "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 1,t, Linear Transportation
Projects. Paragraph (a) of NWP 14 is
corrected to read: "a. This NWP is
subject to tire, following acreage limits:
(1) For linear transportation projects in
non-tidal waters, provided the discharge
does not cause the loss of greater than
V.-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'/:-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 0)" in the third sentence is
replaced with "paragraph (j)" to
accurately cite the previous paragraphs
of NWP 39. The last two sentences of
the paragraph before the subdivision
paragraph were incorrectly divided into
two sentences from the original single
sentence and identified as being related
to General Condition 15. This change
was not intended and we are correcting
this paragraph by reinstating the
original last sentence as it exists in the
March 9, 2000, text of NWP 39 (65 FR
12890).
On page 2086, middle column, the
parenthetical statement at the end of the
Note at the end of NWP 39 is corrected
to read "* * * (except for ephemeral
waters, which do not require PCNs
under paragraph (c)(2), above; however,
activities that result in the loss of greater
than V,o acre of ephemeral waters
would require PCNs under paragraph
(c)(1), above)." The addition to the Note
was intended to clarify that under
paragraph (c)(2) only the loss of
ephemeral open waters were not
included in the requirement for a pre-
construction notification (PCN).
However, colder paragraph (c)(1) all
ephemeral waters of the United States
are included in the measurement for the
'/,o acre PCN requirement. The
correction is ndeded because the
statement in the parentheses could be
incorrectly interpreted to apply to
paragraph (c)(1) and possibly to all
PCNs, not just those affected by
paragraph (c)(2).
For clarity, we are providing the text
of NWP 39 in its entirety, with the
corrections described above:
39. Residoutiol. 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
stonnwater management facilities, and
recreation facilities such as
playgrounds, playing fields, and golf
courses (provided the golf course is an
integral part of the residential
development). The construction of new
ski areas or oil and gas wells is not
authorized b this NWP.
l:esidential developments include
multiple and single unit developments.
Examples of commercial developments
inchtde 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 V12-acre of non-tidal
waters of the U.S.; excluding non-tidal
wetlands adjacent to tidal waters;
b. The discharge does not cause the
loss of greater than 300 linear-feet of a
stream bed, unless for intermittent
stream beds this criterion is waived in
writing pursuant to a determination by
the District Engineer, as specified
below, that the project complies with all
terms and conditions of this NWP and
that any adverse impacts of the project
on the aquatic environment are
minimal, both individually and
cumulatively;
C. The permittee must notify the
District Engineer in accordance with
General Condition 13, if any of the
following criteria are met:
(1) The discharge causes the loss of
greater than V,o-acre of non-tidal waters
of the US, excluding non-tidal wetlands
adjacent to tidal waters; or
(2) The discharge causes the loss of
any open waters, including perennial or
intermittent streams, below the ordinary
hi It 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
proceecl;
d. For discharges in special aquatic:
sites, including wetlands, the
notification trust include a delineation
of affected special aquatic sites;
e. The discharge is part of a single and
complete project;
L 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
norinally he required to offset the losses
of waters of the US. (See General
Condition 19.) The notification must
also include a compensatory mitigation
proposal for offsetting unavoidable
losses of waters of the US. If an
applicant asserts that the adverse effects
of the project are minimal without
mitigation, then the applicant may
submit justification explaining why
compensatory mitigation should not be
required for,the District Engineer's
consideration;
g. When this NWP is used in
conjunction with any other NWP, any
combined total permanent loss of waters
of the US exceeding Vo-acre requires
that the permittee notify the District
Engineer in accordance with General
Condition 13;
1). 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/,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., 'h-acre of emergent
wetlands); and (5) The type and acreage
of any compensatory mitigation used to
offset the loss of waters of the LIS (e.g.,
,h-acre of emergent wetlands created
on-site);
j. If there are any open waters or
streams within the project area, the
peruittee 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 Vin 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 "Farther the
District Engineer may require water
quality management measures to ensure
the authorized work results in minimal
adverse effects to water quality;" These
corrections are necessary to reflect the
modified language in General Condition
9.
On page 2089, third column, the text
of General Condition 6 is corrected to
read: "The activity must comply with
any regional conditions that may have
been added by the Division Engineer
(see 33 CFR 330.4(e)) and with any case
specific conditions added by the Corps
or by the state or tribe in its Section 401
Water Quality Certification and Coastal
Zone Management Act consistency
cletermination." The change to General
Condition 6 that was published in the
January 15, 2002, Federal Register was
not intended and we are correcting this
sentence by reinstating the original text
as it existed in the March 9, 2000,
NWPs.
On page 2090, first column, the word
"Section" in the parenthetical at the end
of General Condition 10 is replaced with
"33 CFR" so that the parenthetical reads
"(see 33 CFR 330.4(4))".
On page 2090, at the top of the second
column, the second Internet URL is
replaced with "* * * http://
wWv.iiizifs.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(fl);"
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
trade 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,
excavat0n, 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
LIS.
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 terns, "loss of
waters of the United States." In the
fourth sentence of the draft definition,
we stated that the loss of stream bed
Federal Register/ Vol. 67, No. 30 /Wednesday, February 13, 2002 /Notices 6695
includes the linear feet of perennial or
intermittent stream bed that is filled or
excavated. This statement is inaccurate
because ephemeral stream bed that is
filled or excavated can also be
considered a loss of waters of the United
States. However, the 300 linear foot
limit for stream beds filled or excavated
does not apply to ephemeral streams.
We have modified this sentence to
define the loss of stream bed as the
linear feet of stream bed that is filled or
excavated." 'T'hus, the modification of
this definition was intended to clarify
that activities that involve filling or
excavating 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 publisher)
in the January 15, 2002, Federal
Register notice does not comport with
remainder of this NWP package.
'T'herefore, we are correcting this
definition as described above.
We believe that correcting the text of
NWP 39 and the definition of "Loss of
Waters of the US" through the
publication of this correction notice is
appropriate. Nevertheless, in order to
give all interested parties further
opportunity to comment on this matter,
we intend to publish a Federal Register
notice to solicit public comments on
those two corrections. If we determine
that any other matter relating to the final
NWP§ requires correction or
clarification, but that matter was not
adequately dealt with in this correction
notice, we will address that additional
matter in the forthcoming Federal
Register notice, as well. We expect to
publish that Federal Register notice
within a few weeks.
Dated: February 7, 2002.
Lawrence A. Lang,
Assistant Chief, Operations Division,
Directorate of Civil Works.
[FR Doc. 02-3555 Filed 2-12-02; 8:45 aml
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) Cornments-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,
O SO Federal Ifegister Liaison Officer,
Department of Defense.
[FR Doc. 02-3683 Filed 2-11-02; 3:32 pml
BILLING CODE 5004-08-M
DEPARTMENT OF EDUCATION
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