20020264 Ver 1_Complete File_20020221

Office Use Only: Form Version October 2001
USACE Action ID No. DWQ No.02026-4
If any particular item is not applicable to this project, please enter "Not Applicable" or "N/A" rather than
leaving the space blank.
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 #33
3. If this notification is solely a courtesy copy because written approval for the 401 Certification
is not required, check here: F
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
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: Ron Van Cleef, Bridge Maintenance Engineer
Company Affiliation: NC Department of Transportation
Mailing Address: PO Box 289
Siler City, NC 27244
Telephone Number: 919-742-5649 Fax Number: 919-663-0214
E-mail Address: [e-mail]
Page 5 of 12
III. Project Information
7
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 l l by 17-inch format;
however, DWQ may accept paperwork of any size. DWQ prefers full-size construction
drawings rather than a sequential sheet version of the full-size plans. If full-size plans are
reduced to a small scale such that the final version is illegible, the applicant will be informed that
the project has been placed on hold until decipherable maps are provided.
1. Name of project: SR 1465
2. T.I.P. Project Number or State Project Number (NCDOT Only): 5.5852
Property Identification Number (Tax PIN):
4. Location
County: Richmond Nearest Town: Ellerbe
Subdivision name (include phase/lot number):
Directions to site (include road numbers, landmarks, etc.): From Ellerbe headed North on
73 Take Right on SR 1003, Left on SR 1465,
5. Site coordinates, if available (UTM or Lat/Long):
(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:
Property size (acres):
8. Nearest body of water (stream/river/sound/ocean/lake): Drowning Creek
9. River Basin: Cape Fear
(Note - this must be one of North Carolina's seventeen designated major river basins. The
River Basin map is available at http://h2o.enr.state.nc.us/admin/maps/.)
Page 6 of 12
10. Describe the purpose of the proposed work: Replace damaged pine
11. List the type of equipment to be used to construct the project: Excavator
12. Describe the land use in the vicinity of this project: Pu
IV. Prior Project History
If jurisdictional determinations and/or permits have been requested and/or obtained for this
project (including all prior phases of the same subdivision) in the past, please explain. Include
the USACE Action ID Number, DWQ Project Number, application date, and date permits and
certifications were issued or withdrawn. Provide photocopies of previously issued permits,
certifications or other useful information. Describe previously approved wetland, stream and
buffer impacts, along with associated mitigation (where applicable). If this is a NCDOT project,
list and describe permits issued for prior segments of the same T.I.P. project, along with
construction schedules.
V. Future Project Plans
Are any future permit requests anticipated for this project? If so, describe the anticipated work,
and provide justification for the exclusion of this work from the current application:
VI. Proposed Impacts to Waters of the United States/Waters of the State
It is the applicant's (or agent's) responsibility to determine, delineate and map all impacts to
wetlands, open water, and stream channels associated with the project. The applicant must also
provide justification for these impacts in Section VII below. All proposed impacts, permanent
and temporary, must be listed herein, and must be clearly identifiable on an accompanying site
plan. All wetlands and waters, and all streams (intermittent and perennial) must be shown on a
delineation map, whether or not impacts are proposed to these systems. Wetland and stream
evaluation and delineation forms should be included as appropriate. Photographs may be
included at the applicant's discretion. If this proposed impact is strictly for wetland or stream
mitigation, list and describe the impact in Section VIII below. If additional space is needed for
listing or description, please attach a separate sheet.
Page 7 of 12
1. Wetland Impacts
Wetland Impact
Site Number
(indicate on map)
Type of Impact* Area of
Impact
(acres) Located within
100-year Floodplain**
(yes/no) Distance to
Nearest Stream
(linear feet)
Type of Wetland***

' List each impact separately and identify temporary impacts. Impacts include, but are not limited to: mechanized clearing, grading, till,
excavation, flooding, ditching/drainage, etc. For dams, separately list impacts due to both structure and flooding.
100-Year floodplains are identified through the Federal Emergency Management Agency's (FEMA) Flood Insurance Rate Maps
(FIRM), or FEMA-approved local floodplain maps. Maps are available through the FEMA Map Service Center at 1-800-358-9616, or
online at http://www.fema.eov.
List a wetland type that best describes wetland to be impacted (e.g., freshwater/saltwater marsh, forested wetland, beaver pond,
Carolina Bay, bog, etc.)
List the total acreage (estimated) of existing wetlands on the property:
Total area of wetland impact proposed:
2. Stream Impacts, including all intermittent and perennial streams
Stream Impact
Site Number
(indicate on map)
Type of Impact* Length of
Impact
(linear feet)
Stream Name** Average Width
of Stream
Before Impact Perennial or
Intermittent?
(please specify)
Temporary 25 Drowning Creek 10 Perennial
Culvert 80 Drowning Creek 10 Perennial

* 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 afler, and net loss/gain),
stabilization activities (cement wall, rip-rap, crib wall, gabions, etc.), excavation, ditching/straightening, etc. If stream relocation is
proposed, plans and profiles showing the linear footprint for both the original and relocated streams must be included.
** Stream names can be found on USGS topographic maps. If a stream has no name, list as UT (unnamed tributary) to the nearest
downstream named stream into which it flows. USGS maps are available through the USGS at 1-800-358-9616, or online at
www.uses.eov. Several intemet sites also allow direct download and printing of USGS maps (e.g., www.toWzone.com,
www.mappuest.com, etc.).
Cumulative impacts (linear distance in feet) to all streams on site
Page 8 of 12
3. Open Water Impacts, including Lakes, Ponds, Estuaries, Sounds, Atlantic Ocean and any
other Water of the U.S.
Open Water Impact
Site Number
(indicate on map)
Type of Impact* Area of
Impact
(acres) Name Waterbody
)
(if applicable) Type of Waterbody
(lake, pond, estuary, sound,
bay, ocean, etc.)
/U4h.L

List each impact separateiy ana Ioentlty temporary impacts. impacts uiauuc, uul aic uui 11111RCU W. Lill, GA%,UVaLlVll, LL1t:U6-51
flooding, drainage, bulkheads, etc.
4. Pond Creation
If construction of a pond is proposed, associated wetland and stream impacts should be
included above in the wetland and stream impact sections. Also, the proposed pond should
be described here and illustrated on any maps included with this application.
Pond to be created in (check all that apply): F? uplands F? stream E] wetlands
Describe the method of construction (e.g., dam/embankment, excavation, installation of
draw-down valve or spillway, etc.): 114---
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.
VIII. Mitigation
DWQ - In accordance with 15A NCAC 2H .0500, mitigation may be required by the NC
Division of Water Quality for projects involving greater than or equal to one acre of impacts to
freshwater wetlands or greater than or equal to 150 linear feet of total impacts to perennial
streams.
Page 9 of 12
USACE - In accordance with the Final Notice of Issuance and Modification of Nationwide
Permits, published in the Federal Register on March 9, 2000, mitigation will be required when
necessary to ensure that adverse effects to the aquatic environment are minimal. Factors
including size and type of proposed impact and function and relative value of the impacted
aquatic resource will be considered in determining acceptability of appropriate and practicable
mitigation as proposed. Examples of mitigation that may be appropriate and practicable include,
but are not limited to: reducing the size of the project; establishing and maintaining wetland
and/or upland vegetated buffers to protect open waters such as streams; and replacing losses of
aquatic resource functions and values by creating, restoring, enhancing, or preserving similar
functions and values, preferable in the same watershed.
If mitigation is required for this project, a copy of the mitigation plan must be attached in order
for USACE or DWQ to consider the application complete for processing. Any application
lacking a required mitigation plan or NCWRP concurrence shall be placed on hold as
incomplete. An applicant may also choose to review the current guidelines for stream restoration
in DWQ's Draft Technical Guide for Stream Work in North Carolina, available at
http://h2o.enr.state.nc.us/ncwetlands/stnnLide.html.
Provide a brief description of the proposed mitigation plan. The description should provide
as much information as possible, including, but not limited to: site location (attach directions
and/or map, if offsite), affected stream and river basin, type and amount (acreage/linear feet)
of mitigation proposed (restoration, enhancement, creation, or preservation), a plan view,
preservation mechanism (e.g., deed restrictions, conservation easement, etc.), and a
description of the current site conditions and proposed method of construction. Please attach
a separate sheet if more space is needed.
2. Mitigation may also be made by payment into the North Carolina Wetlands Restoration
Program (NCWRP) with the NCWRP's written agreement. Check the box indicating that
you would like to pay into the NCWRP. Please note that payment into the NCWRP must be
reviewed and approved before it can be used to satisfy mitigation requirements. Applicants
will be notified early in the review process by the 401/Wetlands Unit if payment into the
NCWRP is available as an option. For additional information regarding the application
process for the NCWRP, check the NCWRP website at hU://h2o,enr.state.nc.us/wrp/index.lim,. If
use of the NCWRP is proposed, please check the appropriate box on page three and provide
the following information:
Amount of stream mitigation requested (linear feet):
Amount of buffer mitigation requested (square feet):
Amount of Riparian wetland mitigation requested (acres):
Amount of Non-riparian wetland mitigation requested (acres):
Amount of Coastal wetland mitigation requested (acres):
Page 10 of 12
IX. Environmental Documentation (DWQ Only)
Does the project involve an expenditure of public funds or the use of public (federal/state/local)
land?
Yes 4 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 R No N
If yes, has the document review been finalized by the State Clearinghouse? If so, please attach a
copy of the NEPA or SEPA final approval letter.
Yes ? No ?
X. Proposed Impacts on Riparian and Watershed Buffers (DWQ Only)
It is the applicant's (or agent's) responsibility to determine, delineate and map all impacts to
required state and local buffers associated with the project. The applicant must also provide
justification for these impacts in Section VII above. All proposed impacts must be listed herein,
and must be clearly identifiable on the accompanying site plan. All buffers must be shown on a
map, whether or not impacts are proposed to the buffers. Correspondence from the DWQ
Regional Office may be included as appropriate. Photographs may also be included at the
applicant's discretion.
Will the project impact protected riparian buffers identified within 15A NCAC 2B .0233
(Meuse), 15A NCAC 2B .0259 (Tar-Pamlico), 15A NCAC 2B .0250 (Randleman Rules and
Water Supply Buffer Requirements), or other (please identify )?
Yes 0 No E] If you answered "yes", provide the following information:
Identify the square feet and acreage of impact to each zone of the riparian buffers. If buffer
mitigation is required calculate the required amount of mitigation by applying the buffer
multipliers.
Zone* Impact
(square feet) Multiplier Required
Mitigation
1 3
2 1.5
Total
Gone 1 extenas out 3U reet perpencicuiar rrom near oanK of channel; Lone Z 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.
i(/R-
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.
XII. Sewage Disposal (DWQ Only)
Clearly detail the ultimate treatment methods and disposition (non-discharge or discharge) of
wastewater generated from the proposed project, or available capacity of the subject facility.
XIII. Violations (DWQ Only)
Is this site in violation of DWQ Wetland Rules (15A NCAC 2H .0500) or any Buffer Rules?
Yes El No
Is this an after-the-fact permit application?
Yes ? No M
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).
ZJ1 111Zoo2_
Applicant/Agent's Signature Date
(Agent's signature is valid only if an authorization letter from the applicant is provided.)
Page 12 of 12
60,
SR 1465
STREAM BED
ELEVATION
PLAN
NO SCALE
DRAWN BYi RN PROJECT; SHEET
DATE; 5/25/01 RICHMOND CO. PIPE REPLACEMENT
SR 1465 1
2 LINES 95"X67" CMPA
STONE BERM W/
FABRIC COVER
o
FABRIC LINED I
CHANNEL

TEMP. DIVERSION 1
PIPE
0
0
m
I
FABRIC LINED STONE BERM W/
CHANNEL FABRIC COVER

I Lo
PLAN
NOTES:
1. RIP RAP FOR BANK STABILIZATION AT INLET
AND OUTLET ENDS T O BE PLACED FROM NORMAL
STREAM FLOW ELEVATION TO TOP OF BANK.
2. INSTALL PIPE 1, REMOVE TEMPORARY DIVERSION
PIPE AND CHANNEL, DIVERT STREAM THRU PIPE 1.
3. INSTALL PIPE 2 AND BACKFILL.
4. CONTAINED AREA TO BE PUMPED INTO SILT BAG.
NO SCALE
DRAWN BY, RN PRO JECTS SHEET
DATE: 5/25/01 RICHMOND SR 1465
STREAM DIVERSION 2

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U.S. ARMY CORPS OF ENGINEERS
WILMINGTON DISTRICT D O ?6
Action ID: 200200461 TIP No: State Project No: 5.5852 County: Richmond
GENERAL PERMIT (REGIONAL AND NATIONWIDE) VERIFICATION
Applicant: North Carolina Department of Transportation
Address: W.F. Rosser, P.E., Division Engineer ,
North Carolina Department of Transportation
Division 8 IF ??r
P.O. Box 1067 M2
Aberdeen, North Carolina 28315 t'
Telephone Number: [phone]
Size and Location of project (waterway, road name/number, town, etc.): 80 linear feet of twin 95-inch X
67-inch CMPA culvert and temporary diversion on SR 1465 at an unnamed tributary to Drowning Creek in
Richmond County, North Carolina.
Description of Activity: To replace 35 linear feet of 60-inch CMP with 80 linear feet of twin 95-inch X 67-inch
CMPA culvert and install a temporary diversion structure consisting of a fabic-lined channel, temporary diversion pipe
and fabric-covered stone berms placed on filter cloth on the upstream and down stream side of the culverts. 20-feet of
class B rip-rap is to be placed on both banks above the plane of ordinary high water at each end of the culverts for bank
protection. Traffic will be detoured onto existing roadways during constriction. All temporary fill is to be removed
from the waterway in its entirety upon completion of the construction.
Applicable Law: X Section 404 (Clean Water Act, 33 U.S.C. 1344)
Section 10 (River and Harbor Act of 1899)
Authorization: 14/33 Nationwide Permit Number
Regional General Permit Number
Your work is authorized by this Regional General (RGP) or Nationwide (NWP) Permit provided it is accomplished
in strict accordance with the attached conditions and your submitted plans. If your activity is subject to Section 404
(if Section 404 block above is checked), before beginning work you must also receive a Section 401 water quality
certification from the N.C. Division of Environmental Management, telephone [phone]. For any activity
within the twenty coastal counties, before beginning work you must contact the N.C. Division of Coastal
Management, telephone [phone].
Please read and carefully comply with the attached conditions of the RGP or NWP. Any violation of the conditions
of the RGP or NWP referenced above may subject the permittee to a stop work order, a restoration order, and/or
appropriate legal action.
This Department of the Army RGP or NWP verification does not relieve the permittee of the responsibility to obtain
any other required Federal, State, or local approvals/permits. The permittee may need to contact appropriate State
and local agencies before beginning work.
If there are any questions regarding this authorization or any of the conditions of the RGP or NWP, please contact
the Corps Regulatory Official specified below.
Date -8 April 2002 f
Corps Regulatory Official Richard K. Spencer __Telephone No. [phone]
Expiration Date of Verification 8 April 2005 _
CF: NCDOT ( Division 8, attn: Ar ing)
DWQ, John Hennessey
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STREAM BED
ELEVATION
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PLAN
00°0
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NO SCALE
DRAWN BY! RN PROJECT; SHEET
DATE: 5/25/01 RICHMOND CO. PIPE REPLACEMENT
SR 1465 1
2 LINES 95"X67" CMPA
STOP
FABF
FABRIC L
CHANNEL
TEMP. DIVERSI(
PIPE
FABRIC LINED
CHANNEL
NOTES:
1. RIP RAP FOR BANK STABILIZATION AT INLET
AND OUTLET ENDS TO BE PLACED FROM NORMAL
STREAM FLOW ELEVATION TO TOP OF BANK.
2. INSTALL PIPE 1, REMOVE TEMPORARY DIVERSION
PIPE AND CHANNEL, DIVERT STREAM THRU PIPE 1.
3. INSTALL PIPE 2 AND BACKFILL.
4. CONTAINED AREA TO BE PUMPED INTO SILT BAG.
0
0
m
I
DRAWN BY, RN PROJECT:
DATE: 5/25/01 RICHMOND SR 1 465
STREAM DIVERSION
NO SCALE
SHEET
2
Federal Register / Vol. 67, No. 10/Tuesday, January 15, 2002/Notices 2077
New York
New York District I{ngineer, ATTN: CENAN-
OP-R, 26 Federal Plaza, New York, NY
10278--0090
North Carolina
Wilmington District Engineer, ATTN:
CESAW-RG, P.O. Box 1890, Wilmington,
NC 28402-1890
North Dakota
Omaha District Engineer, ATTN: CENWO-
OP-R, 106 South 15th Street, Omraha, NE
68102-1618
Ohio
Huntington District Engineer, ATTN:
CELRII-OR-F, 502 8th Street, Huntington,
WV 25701-2070
Oklahoma
Tulsa District Engineer, AT-FN: CESWT--PE-
R, 1645 S. 101st East Ave, Tulsa, OK
74128-4609
Oregon
Portland District Engineer, ATTN: CENWP-
PE-C;, P.O. Box 2946, Portland, OR 97208-
2946
Pennsylvania
Baltimore District Engineer, ATI'N: 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: CF.NWO-
OP-R, 106 South 15th Street, Omaha, NF.
68102-1618
Tennessee
Nashville District Engineer, ATTN: CELRN--
OP-F, P.O. Box 1070, Nashville, TN
37202-1070
Texas
Ft. Worth District Engineer, ATTN: CESWF-
PER--R, P.O. Box 17300, Ft. Worth, TX
76102--0300
Utah
Sacramento District Engineer, ATTN:
CESPK-CO--R, 1325 J Street, CA 95814-
2922
Vermont
New England District Engineer, ATTN:
CENAE: R, 696 Virginia Road, Concord,
MA 01742--2751
Virginia
Norfolk District Engineer, A1T'N: CE:NAO-
OP-R, 803 Front Street, Norfolk, VA
23518-1096
Woshin,ton
Seattle District Engineer, ATTN: CF.NWS-
OP-RG, P.O. Box 3755, Seattle, WA 98124-
2255
West Vir,iniu
!Huntington District Engineer, ATTI'N:
CELRI I--OR-F, 502 8th Street, I luttington,
WV 25701-2070
Wisconsin
St. Paul District Engineer, ATTN: CP:MVP--
CO -R, 190 Fifth Street East, St. Paul, MN
55161-1638
Wvornin„
Omaha Mshict Engineer, ATTN: CENWO-
OP-R, 106 South 15th Street, Omaha, NE
68102-1618
District of Colurnhio
Baltimore District Engineer, ATTN: CENAB-
OP-R, F.O. Box 1715, Baltimore, MD
21203-1715
Pacific Territories (American Sarnoa, Guam,
6 Commonwealth of the Northern Mariana
Islands)
Honolulu District Engineer, ATTN: CEPOH-
EC-R, Building 230, Fort Shafter,
Honolulu, 11196858-5440
Puerto Rico S- Virgin Islands
Jacksonville District Engineer, ATTN:
CESAJ--CO-R, P.O. Box 4970, Jacksonville,
FL 32202-4412
Dated: January 4, 2002.
Approved:
Robert 11. Griffin,
Brigadier Geri eral, U.S. Army, Director of Civil
Works.
Nationvide Permits, Conditions,
Further Information, and Definitions
A. Index of Nationwide Permits,
Conditions, Further Information, and
Definitions
Nationwide Permits
1. Aids to Navigation
2. Structures in Artificial Canals
3. Maintenance
4. Fish and Wildlife Harvesting,
Enhancement, and Attraction Devices and
Activities
5. Scientific Measurement Devices
6. Survey Activities
7. Outfall Structures and Maintenance
8. Oil and Gas Structures
9. Structures in Fleeting and Anchorage
Areas
10. Mooring Buoys
11. Temporary Recreational Structures
12. Utility Line Activities
13. Bank Stabilization
14. Linear Transportation Projects
15. U.S. Coast Guard Approved Bridges
16. Return Water From Upland Contained
Disposal Areas
17. 1lydropower projects
16. Minor Discharges
19. Minor Dredging
20. Oil Spill Cleanup
21. Srnface Coal Mining Activities
22. Removal of Vessels
23. Approved Categorical Exclusions
24. State Administered Section 404 Programs
25. SU'uctural Discharges
26. (Reserved]
27. Stream and Wetland Restoration
Activities
28. Modifications of Existing Marinas
29. Single-family Housing
30. Moist Soil Management for Wildlife
31. Maintenance of Existing Flood Control
Facilities
32. Completed Enforcement Actions
33. 't'emporary Construction, Access and
Dowatering
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 "Lone Management
11. Endangered Species
12. I Iistoric Properties
13. Notification
14. Compliance Certification
15. Use of Multiple Nationwide Permits.
16. Water Supply Intakes
17. Shellfish Beds
18. Suitable Material
19. Mitigation
20. Spawning Areas
21. Management of Water Flows
22. Adverse Effects from Impoundments
23. Waterfowl Breeding Areas
24. Removal of Temporary Fills
25. Designated Critical Resource Waters
26. Fills Within 100-year Floodplains
27. Construction Period
Further Information
Definitions
Best Management Practices (BMPs)
Compensatory Mitigation
Creation
E:nhancenrent
Ephemeral Stream
Farm Tract
Flood Fringe,
Floodway
Independent Utility
Intermittent Stream
Loss of Waters of the US
Non-tidal Wetland
Open Water
Perennial Stream
Permanent Above-grade Fill
Preservation
Restoration
Riffle and Pool Complex
2078 Federal Register/Vol. 67, No. 10/Tuesday, January 15, 2002/Notices
Single and Complete Project
Stormwater Management
S bridges, culverted road crossings, water
intake structures
etc
) and th clon
e primarily to obtain fill for any
torm%vater Management Facilities
Strewn 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
pernrittee notifies the District Engineer work needed to restore the upland must
be part of a single and complete
roject

ege
ate
Duffer
Vegetated Shallows
in accordance with General Condition

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

markers which are approved by and
installed in accord
ith
h
structure was built, but cannot extend
Furtheh than 200 feel in any direction .
This permit does not authorize
i
t
d
ance w
t
e
requirements of the U.S. Coast Guard
from the structure. The placement of rip
rap must be the minimu ma
n
enance
redging for the primary
purpose of navigation and beach

(USCG) (See 33 CFK, chapter I,
subchapter C part 66). (Section 10)
r m 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 connection of retained in an upland area unless
otherwise specifically approved by the cause more than minimal degradation of
water quality, more than minimal
the canal to navigable water of the US
has been previously authorized (see 33 District Engineer wider separate
authorization. Any bank stabilization changes to the flow characteristics of the
st
i

CFR 322.5(8)). (Section 10)
measures not directly associated with ream, or
ncrease flooding (See
General Conditions 9 and 21)
(Sections
I. Maintenance. Activities related to: the structure will require a separate .
10 and 404)
(i) The repair, rehabilitation, or
replacement of any previously authorization from the District Engineer.
(iii) Dischar
es of dred
d
fill Note: This NWF' authorizes the repair,
h
b

authorized, currently serviceable, g
ge
or
material, including excavation, into all re
a
ilitation, or replacement of any
previously authorized structure or fill that
structure, or fill, or of any currently waters of the US for activities associated does not qualify for the Section 404(f)
serviceable structure or fill authorized
by 33 CFR 330.3, provided that the with the restoration of upland areas
damaged by a storm
flood
th exemption for maintenance.
'
Fi
h

structure or fill is not to be put to uses ,
, or o
er
discrete event, including the 4.
s
and Wildlife Harvesting,
Enhancement
and Attraction Devi

differing from those uses specified or
contemplated for it in the original
construction, placement, or installation
of upland protection struct
d ,
ces
and Activities. Fish and wildlife
h

permit or the most recently authorized
modification
Minor deviatio
i
th ures an
minor dredging to remove obstructions
i arvesting devices and activities such as
pound nets, crab traps, crab dredging,
.
ns
n
e
structure's configuration or filled area n a water of the US. (Uplands lost as
a result of a storm, flood, or other eel pots, lobster traps, duck blinds, clam
and oyster digging; and small fish
including those due to changes in
materials, construction techniques, or discrete event can be replaced without
a Section 404 permit provided the attraction devices such as open water
fish concentrators (sea kites
etc
)
This
current construction codes or safety
standards which are necessary to make uplands are restored to their original
pre-event location. This NWP is for the ,
.
.
NWP authorizes shellfish seeding
provided (his activity does not occur in
repair, rehabilitation, or replacement are
permitted, provided the adverse activities in waters of the US associated
with the replacement of the uplands.) wetlands or sites that support
submerged aquatic vegetation (includin

environmental effects resulting from
such repair
rehabilitatio
The permittee must 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
some maintenance, but not so degraded
date of the damage and the work must
commence, or be under contract to .
.
This NWP does not authorize artificial
reefs or impoundments and seuii-
as to essentially require reconstruction,
This NWP authorizes the repair commence, within two years of the date
of the dama
e
The
er
itt
h
ld irtipoundments of waters of the US for
h
l
,
rehabilitation, or replacement of those g
.
p
nr
ee s
ou
provide evidence, such as a recent t
e cu
ture 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
justif
the extent of th
d oyster trays or clam racks. (Sections 10
d

events, provided the repair,
rehabilitation, or replacement is y
e propose
restoration. The restoration of the
damaged areas cannot exce
d th an
404)
• 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
continence, within two years of the date
of their destruction or damage. In cases
f that existed before the damage. The
District Engineer retains the right to gages, title gages, water recording
devices, water quality testin
and
o
catastrophic events, such as
hurricanes or tornadoes, this two-year determine the extent of the pre-existing
conditions and the extent of an g
improvement devices and similar

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

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

and within, existing structures (e.g.,
waterbody. The dredging may not be a
on
on.
(Sections 10 and 404)
Federal Register/ Vol. 67, No. 10/Tuesday, January 15, 2002/Notices 2079
' G. Survey Activities. Survey activities
including core sampling, seismic
exploratory operations, plugging of
seismic shot holes and other
exploratory-type bore holes, soil survey,
sampling, and historic resources
surveys. Discharges and structures
associated with the recovery of historic
resources are not authorized by this
NWP. Drilling and the discharge of
excavated material 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, pads
and other similar activities is not
authorized by this NWP. The NWP does
not authorize any permanent structures.
The discharge of drilling mud and
cuttings may require a permit under
section 402 of the CWA. (Sections 10
and 404)
-7. Outfall Structures and
Maintenance. Activities related to:
(i) Construction of outfall structures
and associated intake structures where
the effluent from the outfall is
authorized, conditionally authorized, or
specifically exempted, or are otherwise
in compliance with regulations issued
under the National Pollutant Discharge
Elimination System Program (Section
402 of the CWA), and
(ii) Maintenance excavation,
including dredging, to remove
accumulated sediments blocking or
restricting outfall and intake structures,
accumulated sediments from small
impoundments associated with outfall
and intake structures, and accumulated
sediments from canals associated with
outfall and intake structures, provided
that the activity meets all of the
following criteria:
a. The permittee notifies the District
Engineer in accordance with General
Condition 13;
b. The amount of excavated or
dredged material must be the rlrinimum
necessary to restoie the outfalls, intakes,
small impoundments, and canals to
original design capacities and design
configurations (i.e., depth and width);
C. The excavated or dredged material
is deposited and retained at an upland
site, unless otherwise approved by the
District Engineer under separate
authorization; and
d. Proper soil erosion and sediment
control measures are used to minimize
reentry of sediments into waters of the
US.
The construction Of intake structures
is not authorized by this NWP, unless
they are directly associated with an
authorized outfall structure. For
maintenance excavation and drecging to
-remove accumulated sediments, the
notification must include information
regarding the original design capacities
and configurations of the facility and
e presence of special aquatic sites
e.g., vegetated shallows) in the vicinity
of the proposed work. (Sections 10 and
404)
8. Oil and Gas Structures. Structures
for the exploration, production, and
transportation of oil, gas, and minerals
on the outer continental shelf within
areas leased for such purposes by the
DO[, Minerals Management Service
(MMS).'Such structures shall not be
placed within the limits of any
designated shipping safety fairway or
traffic separation scheme, except
temporary anchors that comply with the
fairway regulations in 33 CFR 322.5(1).
(Where such limits have not been
designated, or where changes are
anticipated, District Engineers will
consider asserting discretionary
authority in accordance with 33 CF'R
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 Briovs. 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)
s12. Utility Line Activities. Activities
required for the construction,
maintenance and repair of utility lines
and associated facilities in waters of the
US as follows:
(i) Utility lines: The construction,
maintenance, or repair of utility lines,
including outfall and intake structures
and the associated excavation, back-fill,
or bedding for the utility lines, in all
waters of the US, provided there is no
change in preconstruction contours. A
"utility line" is defined as any pipe or
pipeline for the transportation of any
gaseous, liquid, liquescent, or slurry
substance, for any purpose, and any
cable, line, or wire for the transmission
for any purpose of electrical energy,
telephone, and telegraph messages, and
radio and television communication
(see Note 1, below). Material resulting
from trench excavation may be
temporarily sidecast (up to three
months) into waters of the US, provided
that the material is not placed in such
a manner that it is dispersed by currents
or other forces. The District Engineer
may extend the period of temporary side
casting not to exceed a total of 180 days,
where appropriate. In wetlands, the top
6" to 12" of the trench should normally
be backfilled'with topsoil from the
trench. Furthermore, the trench cannot
be constructed in such a manner as to
drain waters of the US (e.g., 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-tidal waters of the
US, excluding non-tidal wetlands
adjacent to tidal waters, provided the
discharges do not cause the loss of
greater than 1h-acre of non-tidal waters
of the US. Access roads shall be the
minimum width necessary (see Note 2,
below). Access roads must be
constructed so that the lenoth of the
road minimizes the adverse effects on
waters of the US and as near as possible
to preconstruction contours and
20£30 Federal Register/Vol. 67, No. 10/Tuesday, January 15, 2002/No tices
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
e
t
f
h energy areas); zinc(,
g. The activity is part of a and
culverted to maintain surface flows.
" .
., wa
er o
t
e US)
and it runs parallel to a stream bed that , complete project.
Bank stabilization activities in exc

The term
utility line" does not
include activities which drain a water o
is within that jurisdictional area;
f (e) Discharges associated with the ess
o1500 feet in length or greater than an

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

conveying drainage from another area.
For the purposes of this NWP
the loss ,e
acre of waters of the US; or
(f) Permanent access roads notifies the District Engineer in
accordance with the "totification"
,
of waters of the US includes the filled
constructed above grade in waters of the
US f
e d General Condition 13 and the District
Engineer determines the activit

area plus waters of the US that are
adversely affected by flooding
or
istance of more than 500 feet,
(g) Permanent access roads y
complies with the other terms and
,
excavation, or drainage as a result of the
constructed in waters of the [JS with i
i conditions of the NWP and the adverse
environmental effects are minimal b
th
project. Activities authorized by
paragraph (i) through (iv) ma
not mpervious materials. (Sections 10 and
404) o
individually and cumulatively. This
y
exceed a total of/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 Section 10 waters and utility lines that
over are routed in or under Section 10 waters .
(Sections 10 and 404)
,
,
or drainage, where the project area is without a discharge of dredged or fill
material require a Section 10 permit; exce
t X14. Linear Transportation Projects.
Activities required for the construction

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

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

of the US. This includes temporary
construction mats (e.°
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
0
d the USCG pursuant to section 9 of the Rivers
and Harbors Act of 1899. However
an waters of the US, including wetlands, if
the activity meets the following criteria:
remove
upon completion of the work.
Where certain functions and valu
f ,
discharges of dredged or fill material y a. This NWP is subject to the
es 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 necessar
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,
foundations for overhead
tilit
li constructed or installed in navigable waters
of the US (i.e., Section to waters), copies of (1) The discharge causes the loss of

reater than 1h
f
f
u
y
nes,
and access roads is authorized, provided the PCN and NWP verification will be sent
by the Corps to the National Oceanic and g
o acre o
waters o
the US;
or
the cleared area is kept to the minimum Atmospheric Administration (NOAH), (2) There is a discharge in a special
necessary and preconstruction contours National Ocean Service (NOS), for charting aquatic site, including wetlands;
are maintained as"near as possible. The the utility line to protect navigation. c. The notification must include a
area of waters of the US that is filled, 013. Bank Stabilization. Bank compensatory mitigation proposal to
excavated, or flooded must be limited to stabilization activities necessary for offset permanent losses of waters of the
the minimum necessary to construct the erosion prevention provided the activity US to ensure that those losses result
utility line, substations, foundations, meets all of the following criteria: only in minimal adverse effects to the
and access roads. Excess material must a. No material is placed more than the aquatic environment and a statement
be removed to upland areas
immediately upon completion of minimum needed for erosion protection;
b. The bank stabilization activity is describing how temporary losses will be
minimized to the maximum extent
construction. This NWP may authorize
utility lines , h affecting navigable less than 500 feet in length;
c. The activity will not exceed an practicable;
d. For discharges in special aquatic
waters of the US even if there is no
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 CFR part 322). Plane of the ordinary high water mark notification must include a delineation
Notification: The permittee must
f 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

noti
y the District Engineer in
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 f. This permit does not authorize

(a) Mechanized land clearin
in a placed in any location, or in any stream channelization, and the
g
forested wetland for the utility line manner, to impair surface water flow
into or out of any wetland area; authorized activities must not cause
more than minimal chan
t
th

right-of-way;
(b) A Section 10 permit is required;
f. No material is placed in a manner
that will be eroded by normal or o
e
ges
hydraulic flow cliaracteristics of the
stream, increase flooding, or cause more
Federal Rebister / Vol. 67, No. 10/Tuesday, January 15, 2002/Notices 2081
than minimal degradation of water
quality of any stream (see General
Conditions 9 and 21);
g. This permit cannot be used to
authorize non-linear features commonly
associated with transportation projects,
such as vehicle maintenance or storage
buildings, parking lots, train stations, or
aircraft hangars; and
h. The crossing is a single and
complete project for crossing waters of
the US. Where a road segment (i.e., the
shortest segment of a road with
independent utility that is part of a
larger project) has multiple crossings of
streams (several single and complete
projects) the Corps will consider
whether it should use its discretionary
authority to require an Individual
Permit. (Sections 10 and 404)
Note: Some discharges for the construction
of farm roads, forest roads, or temporary
roads for moving mining equipment may be
eligible for an exemption from the need for
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 Prorn 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(4)), 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.defiued as a discharge
of dredged material by 33 CFR 323.2(d),
even though the disposal itself occurs
on the upland and does not require a
Section 404 permit. This NWP satisfies
the technical requirement for a Section
404 permit for the return water where
the quality of the return water is
controlled by the state through the
Section 401 certification procedures.
(Section 404)
- 17. Hydropoiver 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 RTRC) under the Federal
Power Act of 1920, as amended; and has
a total generating capacity of not more
than 5000 kkV; and the permittee
notifies the District l-:ngincer in
accordance with the "Notification"
General Condition; or (b) hydropower
projects for which the F'ERC 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 pernittee
notifies the District Engineer in
accordance with the "Notification"
General Condition. (Section 404)
18..MinorDischarges. Minor
discharges of dredged or fill material
into all waters of the US if the activity
meets all of the following criteria:
a. The quantity of discharged material
and the volume of area excavated do not
exceed 25 cubic yards below the plane
of the ordinary high water mark or the
high tide line;
b. The discharge, including anv
excavated area, will not cause the loss
of more than '/ro-acre of a special
aquatic site, including wetlands. For the
purposes of this NWP, the acreage
limitation includes the filled area and
excavated area plus special aquatic sites
that are adversely affected by flooding
and special aquatic sites that are
drained so that they would no longer be
a water of the US as a result of the
project;
c. If the discharge, including any
excavated area, exceeds 10 cubic yards
below the plane of the ordinary higlL
water mark or the high tide line or if the
discharge is in a special aquatic site,
including wetlands, the permittee
notifies the District Engineer in
accordance with the "Notification"
General Condition. For discharges in
special aquatic sites, including
wetlands, the notification must also
include a delineation of affected special
aquatic sites, including wetlands (also
see 33 CFR 330.1(e)); and
d. The discharge, including all
attendant features, both temporary and
permanent, is part of a single and
complete project and is not placed for
the purpose of a stream diversion.
(Sections 10 and 404)
19. Minor Dredging. Dredgitlg of no
more than 25 cubic yards below the
plane of the ordinary high water mark
of the mean high water mark from
navigable waters of the US (i.e., Section
10 waters) as part of a single and
complete project. This NWP does not
authorize the dredging or degradation
through siltation of coral reefs, sites that
support submerged aquatic vegetation
(including sites where submerged
aquatic vegetation is documented to
exist, but may not be present in a given
year), anadroulous fish spawning areas,
or wetlands, or the connection of canals
or other artificial waterways to
navigable waters of the US (see 33 CF'R
322.5(8)). (Sections 10 arid 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 CPR 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 ruining
activities are authorized by the DO[,
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
ininimat 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 is well as the level and type of
mitigation, the District Engineer will
enSrire 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
dreck,ed or fill iaterial required for the
removal of wrecked, abandoned, or
disabled vessels, or the removal of man-
2082 Federal Register/Vol. 67, No. 10/Tuesday, January 15, 2002/Notices
made obstructions to navigation. This within the form prior to the discharge of bed and/or banks to restore or create
NWP does not authorize the removal
f
o
concrete, sand, rock, etc. This NWP
vessels listed or determined eligible for does not authorize filled struct
l strearn meanders; the backfilling of
listing on the National Register of
Historic Places unless the Di
t
i
t ura
members that would support building edptches;
s, the removal ofrexistin drairn r
s
r
c
Engineer is notified and indicates that building pads, homes, house pacts,
parking areas
stora
e areas a
d
th g
structures; the construction of small

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

Properties
General Condition. This
NWP does not authorize mainte may water areas; the construction of oyster
require a Section 10 permit if located in habitat over unvegetated bottom in tid
l
nance
dredging, shoal removal, or riverbank navigable waters of the US. (Sectioir

04)
404)0 a
waters; activities needed to reestablish
snagging. Vessel disposal in waters of
the US may need a permit from EPA 26. [Reserved]
27. Stream and Wetland Restoratio vegetation, including plowing or discing
for seed bed preparation and the
(see 40 CFR 229.3). (Sections 10 and n
Activities. Activities in waters of the U S planting of appropriate wetland species;
404)
23. Approved Categorical Exclusions. associated with the restoration of former mechanized land clearing to remove
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.
a
he
,
,
financed, in whole or in part, by anothe r
parian areas, the creation of tidal and
r non-tidal wetlands and ri
arian ar conversion of astream
to another

Federal agency or department where
that agency or department has p
eas,
and the restoration and enhancement o aquatic use, such as the creation of an
f impoundment for waterfowl habitat

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

Quality
Implementing the Procedural Provisions s:

(a)
The activity is conducted on:
(1) Non-Federal public lands and
c
hannelization.
the co This NWP does not
authorize the nversion of natural

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

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

ti non-tidal waters, oil
including relocation
g n
wetlands
the
g
y
actions which neither individually nor e Service (FWS) or the Natural
Resources Conservation Service (NRCS) , ne
provide
prect site
t
gains
i
a
i
e
cumulatively have a significant effect on
the human environment, and the Office the National Marine Fisheries Service,
the National Ocean Service ,
n
quat
c r
ource functions and
values. For example, this NWP may

of the Chief of Engineers (ATTN: CECW-

OR) has been furnished notice
f th , or
voluntary wetland restoration,

ran open water
aimpoundment in a uthorize the creation -t
er
ent
o
e
agency's or department's application for enhancement, and creation actions
documented by the NRCS pursuant to g
wetland, provided the non-tidal

the categorical exclusion and concurs
NRCS regulations- or emergent wetland is replaced by
with that determination. Before (2) Reclaimed surface coal min creating that wetland type on the project
approval for purposes of this NWP of
' e
lands, in accordance with a Surface site. This NWP does not authorize the
relocation of tidal w
t
th

any agency
s categorical exclusions, the
Chief of Engineers will solicit
ublic
Mining Control and Reclamation Act
it i a
ers or
e
conversion of tidal waters, including
p
comment. In addressing these
comments
the Chief of En
ineer perm
ssued by the OSM or the
applicable state agency (the future tidal wetlands, to other aquatic uses,
such as the conversion of tidal wetlands
,
g
s may
require certain conditions for
authorization of an agenc
's cate
i
l reversion does not apply to streams or
wetlands created, restored, or enhanced into open water impoundments.
Reversion. For enhancement,
y
gor
ca
exclusions under this NWP. (Sections
10 and 404) as mitigation for the mining impacts,
nor naturally due to hydrologic or restoration, and creation projects
conducted under paragraphs (a)(3)
thi

24. State Administered Section 404
topographic features, nor for a
mitigation bank)
or ,
s
NM" does not authorize any future
ci

Program. Any activity permitted by a ;
(3?Any other public
rivate or trib
l scharge of dredged or fill material
i
d

state achninistering 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
(g)-(1) i
spermitted pursuant to y
public or private land that are not p
a
e perm
t would be required for

section 10 of the Rivers and Harbors Act
of 1899. Those activities that d
t
described by paragraphs (a)(1) or (a)(2) any reversion. For restoration,
enhancement, and creation projects
o no
involve a Section 404 state permit are
not included in this NWP
b
t
t
i above, the pennittee must notify the
District Engineer in accordance with conducted under paragraphs (a)(1) and
(a)(2), this NWP also authorizes any
,
u
cer
a
n
structures will be exempted by section General Condition 13; and
(c) Planting of only native s
ecie

154 of Pub. L, 94--587, 90 Stat. 2917 (33
U.S.C. 591) (see 33 CFR 322
3(a)(2)) p
s
should occur on the site.
A
ti
i material associated with the reversion of

the area
its duce en
prior
.
.
(Section 10 c
v
ties authorized by this NWP
include, to the extent that a Cor
s n
pri
condition and use (i.e., pror to the

25. Structural Discharges. Discharges
of material such as concrete, sand, rock, p
permit is required, but are not limited
to; the removal of accumulated restoration, enhancement, or creation
activities). The reversion must occur
etc., into tightly sealed forms or cells

where the material will be u
d sediments; the installation, removal,
ithin five years after expiration of a
wlimited term wetlad restortion or
r
se
as a
Structural member for standard pile
supported structures
such
b
id and maintenance of small water control
structures, dikes, and berms; the treat on agreement
or permit, even if the
discharge occurs after this NWP expires

,
as
r
ges,
transmission line footings, and
walkways or for general navi
ti
installation of current deflectors; the
enhancement, restoration, or creation of .
This NWI' also authorizes the reversion
of wetlands that were restored,
ga
on,
such as mooring cells, including the riffle and pool stream structure; the
placement of in-stream habit
t enhanced, or created on prior-converted
excavation of bottom material from a
structures; modifications of the stream ilcropland that l ccordancelw with atbibeen ncling agreement
Federal Register/ Vol. 67, No. 10 / Tuesday, January 15, 2002/Notices 2t1R3
between the landowner and NI:CS or
I'IVS (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
NW, provided the authorized work results
in a net increase in aquatic resource
functions and values in the project area. This
NWP can be used to authorize compensatory
mitigation projects, including mitigation
banks, provided the permittee notifies the
District Engineer in accordance with General
Condition 13, and the project includes
compensatory mitigation for impacts to
waters of the US caused by the authorized
work. However, this NWP does not authorize
the reversion of an area used for a
compensatory mitigation project to its prior
condition. NWP 27 can be used to authorize
impacts at a mitigation bank, but only in
circumstances where it has been approved
under the Interagency Federal Mitigation
Bank Guidelines.
28. Modifications of Existing Marinas.
Reconfiguration of existing docking
facilities within an authorized marina
area. No dredging, additional slips, dock
spaces, or expansion of any kind within
waters of the US•is authorized by this
NVVP. (Section 10)
29. Single-family Housing. Discharges
of dredged or fill material into non-tidal
waters of the US, including non-tidal
wetlands for the construction or
expansion of a single-family home and
attendant features (such as a garage,
driveway, storage shed, and/or septic
field) for an Individual Permittee
provided that the activity meets all of
the following criteria:
a. The discharge does not cause the
loss of more than Vi-acre of non-tidal
waters of the US, including non-tidal
wetlands;
b. The permittee notifies the District
Engineer in accordance with the
"Notification" General Condition;
c. The permittee has taken all
practicable actions to minimize the on-
site and off-site impacts of the
discharge. For example, the location of
the home may need to be adjusted on-
site to avoid flooding of adjacent
property owners;
d. The discharge is part of a single
and complete project; furthermore, that
for any subdivision created on or after
November 22, 1991, the discharges.
authorized under this NWP may not
exceed an aggregate total loss of waters
of the US of 1/.1-acre for the entire
subdivision;
e. Nil individual may use this NWP
only foi• a single-family home for a
personal residence;
f. This NWP may be used only once
Ile[- parcel;
g. This NVVP may not be used in
conjunction with NVVP 14 or NWP 18,
for any parcel; and,
I 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 NVVP, 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 NVVP authorizes activities
only by individuals; for this purpose,
the term "individual" refers to a natural
person and/or a married couple, but
does not include a corporation,
partnership, or similar entity. For the
purposes of this NWP, a parcel of land
is defined as "the entire contiguous
quantity of land in possession of,
recorded as property of, or owned (in
any form of ownership, including land
owned as a partner, corporation, joint
tenant, etc.) by the same individual
(and/or that individual's spouse), and
comprises not only the area of wetlands
sought to be filled, but also all land
contiguous to those wetlands, owned by
the individual (and/or that individual's
spouse) in any form of ownership."
(Sections 10 and 404)
30. Moist Soil Management for
Wildlife. Discharges of dredged or fill
material and maintenance activities that
are associated with moist soil
management for wildlife performed on
non-tidal Federally-owned or managed,
state-owned or managed property, and
local government agency-owned or
managed property, for the purpose of
continuing ongoing, site-specific,
wildlife management activities where
soil manipulation is used to manage
habitat and feeding areas for wildlife.
Such activities include, but are not
limited to: The repair, maintenance or
replacement of existing water control
structures; the repair or maintenance of
dikes; and plowing or discing to impede
succession, prepare seed beds, or
establish fire breaks. Sufficient
vegetated buffers must be maintained
adjacent to all open water bodies,
streams, etc., to preclude water quality
degradation 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 40.1)
31. Maintenonce of Existing Flood
Control Facilities. Discharge of dredge
or fill material resulting from activities
associated with the maintenance of
existing flood control facilities,
including debris basins, retention/
detention basins, and channels that
(i) were previously authorized by the
Corps by Individual Permit, General
Permit, by 33 CFR 330.3, or did not
require a permit at the time it was
constructed, or
(ii) were constructed by the Corps and
transferred to a non-Federal sponsor for
operation and maintenance. Activities
authorized by this NWP are limited to
those resulting from maintenance
activities that are conducted within the
"maintenance baseline," as described in
the definition below. Activities
including the discharges of dredged or
fill materials, associated with
maintenance activities in flood control
facilities in any watercourse that has
previously been determined to be
within the maintenance baseline, are
authorized under this NWP. The NVVP
does not authorize the rernoval of
sediment and associated vegetation from
the natural water courses except to the
extent that these have been included in
the maintenance baseline. All dredged
material must be placed in an upland
site or an authorized disposal site in
waters of the US, and proper siltation
controls must be used. (Activities of any
kind that result in only incidental
fallback, or only the cutting and
removing of vegetation above the
ground, e.g., mowing, rotary cutting,
and chainsawing, where the activity
neither substantially disturbs the root
system nor involves mechanized
pushing, dragging, or other similar
activities that redeposit excavated soil
material, do not require a Section 404
permit in accordance with 33 CFR
323.2(d)(2)).
Notification: After the maintenance
baseline is established, and before any
maintenance work is conducted, the
permittee must notify the District
Engineer in accordance with the
"Notification" General Condition. The
notification may be for activity-specific
2084 Federal Register / Vol. 67, No. 10/Tuesday, January 15, 2002/Notices
maintenance or for maintenance of the
entire flood control facility by I Iowever, if one-time mitigation is
required for impacts associated with activity subject to the terms and
d

submitting a five year (or less)
maintenance plan
maintenance activities, the District
E
i con
itions of this NWP and the
settlement agreement, including a
.
Maintenance Baseline: The ng
neer will not delay needed
maintenance, provided the District specified completion date; or
(ii) The terms of a final Federal c
t
maintenance baseline is a description of
the physical characteristics (e.g., depth, Engineer and the permittee establish a
schedule for identification
a
roval our
decision, consent decree, or settlement
a
reeme
t
l
i
f
,
pp
,
width, length, location, configuration, or development, construction and
design flood capacity
etc
) of a flood g
n
resu
t
ng
rom an
enforcement action brought by the U.S.
,
.
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 Harb
A

maintenance activities are normally
authorized by NWP 31
subject to an
mitigation described above has been
l
t
d ors
ct
of 1899; or
,
y
case-specific conditions required by the comp
e
e
, 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
i ,
,
agreement, or non-judicial settlement

based on the approved or constructed ma
ntenance activities within the
maintenance baseline. In determining agreerrrent resulting from a natural
resource damage claim brou
ht b
a
capacity of the flood control facility,
whichever is smaller, including any appropriate mitigation, the District
Engineer will give special consideration g
y
trustee or trustees for natural resources
(as defined by the National Contin
enc

areas where there are no constructed
channels, but which are part of the
to natural water courses that have been
included in the maintenance baseline g
y
Plan at 40 CFR subpart G) under section
311 of the Clean Water Act (CWA)

facility. If no evidence of the
constructed capacity exist, the approved
and require compensatory mitigation
and/or BMP ,
section 107 of the Comprehensive

constructed capacity will be used. The s as appropriate.
Emergency Situations: In emergency Environmental Response, Compensation
and Liability Act (CERCLA or
prospective permittee will provide
documentation of the physical situations, this NWP may be used to
authorize maintenance
ti
iti
i Superfund), section 312 of the National
M
i

characteristics of the flood control
facility (which will normall
consist of ac
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), ?ii) 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 Enforcernent 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 anti 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 !)ewotering. 'T'emporary structures

flood control facility that has been
abandoned. A flood control facilit
will
non-judicial settlement agreement
r
l
i
i
l ,
work and discharges, including
ff
d
y
be considered abandoned if it has eso
v
ng a v
o
ation of section 404 of
the CWA and/or section 10 of the Rivers co
er
ams, necessary for construction
activities or access fills or dewaterirrg of
operated at a significantly reduced
capacity without needed mainten and Harbors Act of 1899; or the terms construction sites; provided that the
ance
being accomplished in a timely manner. of an EPA 309(a) order on consent
resolving a violation of section 404 of associated primary activity is authorized
by the Corps of Engineers or the USCG

Mitigation: The District Engineer will
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 time that no more than 5 acres of non-tidal
wetlands or 1 acre of tidal wetlands; regulations. Appropriate measures must
be taken to maintain near normal
the maintenance baseline is approved.
Such one-time mitigation will be b. The settlement agreement provides
for environmental benefits, to an equal downstream flows and to minimize
flooding. Fill must be of materials
and
required when necessary to ensure that
adverse environmental impacts are no or greater degree, than the
l ,
placed in a manner, that will not be

more than minimal, both individually environmenta
detriments caused by the
unauthorized activity that is authorized eroded by expected high flows. The use
of dredged material may be allowed if
and cumulatively. Such mitigation will
only be required once for any s
ecific by this NWP; and
c
Th
Di
i
E it is determined by the District Engineer
p
reach of a flood control project. .
e
str
ct
ngineer issues a
verification letter authorizing the that it will not cause more than minimal
adverse effects on aquatic resources.
Federal Register/Vol. 67, No. 10/'Tuesday, January 15, 2002/Notices 9. nRr,
Temporary fill must be entirely removed
to upland areas, or dredged material
returned to its original location,
following completion of the
construction activity, and the affected
areas must be restored to the pre-project
conditions. Cofferdams cannot be used
to dewater wetlands or other aquatic
areas to change their use. Structures left
in place after cofferdams are removed
require a Section 10 permit if located in
navigable waters of the U.S. (See 33 CFR
part 322). The permittee must notify the
District Engineer in accordance with the
''Notification'' General Condition. The
notification must also include a
restoration plan of reasonable measures
to avoid and minimize adverse effects to
aquatic resources. The District Engineer
will add Special Conditions, where
necessary, to ensure environmental
adverse effects is minimal. Such
conditions may include: limiting the
temporary work to the minimum
necessary; requiring seasonal
restrictions; modifying the restoration
plan; and requiring alternative
construction methods (e.g. construction
mats in wetlands where practicable.).
(Sections 10 and 404)
34. Cranberry Production Activities.
Discharges of dredged or fill material for
dikes, berms, pumps, water control
structures or leveling of cranberry beds
associated with expansion,
enhancement, or modification activities
at existing cranberry production
operations provided that the activity
meets all of the following criteria*
-
a. The cumulative total acreage of
disturbance per cranberry production
operation, including but not limited to,
filling, flooding, ditching, or clearing,
does not exceed 10 acres of waters of the
U.S., including wetlands;
b. The permittee notifies the District
Engineer in accordance with the
''Notification" General Condition. The
notification must include a delineation
of affected special aquatic sites,
including wetlands; and,
c. The activity does riot 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 NW11 is valid. (Section 404)
35. Maintenance Dredging of Existing
Basins. Excavation and removal of
accumulated sediment for maintenance
of existing marina basins, access
channels to marinas or boat slips, and
boat slips to previously authorized
depths or controlling depths for ingress/
egress, whichever is less, provided the
dredged material is disposed of at an
upland site and proper siltation controls
are used. (Section 10)
36. Moat Ramps. Activities required
for the construction of hoat 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
rnateri;il, that causes unacceptable
chemical pollution or is structurally
unstable is not authorized);
b. The boat ramp does riot 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 arid
all excavated material is removed to the
upland; and,
e. No material is placed in special
aquatic sites, including wetlands.
Another NVVP, Regional General
Permit, or Individual Permit may
authorize dredging to provide access to
the boat ramp after obtaining a Section
10 if located in navigable waters of the
U.S. (Sections 10 and 404)
37. Emergency Watershed Protection
and Rehabilitation. Work done by or
funded bv:
a. The NRCS which is a situation
requiring immediate action under its
emergency Watershed Protection
Program (7 CFR part 624); or
b. The USFS under its Burned-Area
Emergency Rehabilitation Handbook
(FSH 509.13); or
c. The DOI for wildland fire
management burned area emergency
stabilization arid rehabilitation (DOI
Manual part 620, Ch. 3).
For all of the above provisions, the
District Engineer must be notified in
accordance with the General Condition
13. (Also, see 33 CFR 330.1(e)).
(Sections 10 and 404)
38. Cleanup of Hazardous and Toxic
Waste. Specific activities required to
effect the containment, stabilization, or
removal of hazardous or toxic waste
materials that are performed, ordered, or
sponsored by a government agency with
established legal or regulatory authority
provided the permittee notifies the
District Engineer in accordance with the
''Notification" General Condition. For
discharges in special aquatic sites,
including wetlands, the notification
must also include a delineation of
affected special aquatic sites, including
wetlands. Court ordered remedial action
plans or related settlements are also
authorized by this NWP. This NWP does
not authorize the establishment of new
disposal sites or the expansion of
existing sites used for the disposal of
hazardous or toxic waste. Activities
s undertaken entirely on a
Comprehensive Environmental
Response, Compensation, and Liability
Act (CERCLA) site by authority of
CERCLA as approved or required by
EPA, are not required to obtain permits
under section 404 of the CWA or section
10 of the Rivers and Harbors Act.
(Sections 10 and 404)
39. Residential, Commercial, and
Institutional Developments. Discharges
of dredged or fill material into non-tidal
waters of the U.S., excluding non-tidal
wetlands adjacent to tidal waters, for the
construction or expansion of residential,
commercial, and institutional building
foundations and building pads and
attendant features that are necessary for
the use and maintenance of the
structures. Attendant features may
include, but are not limited to, roads,
parking lots, garages, yards, utility lines,
stormwater management facilities, and
recreation facilities such as
playgrounds, playing fields, and golf
courses (provided the golf course is an
integral part of the residential
development). The construction of new
ski areas or oil and gas wells is not
authorized by this NWP.
Residential developments include
multiple and single unit developments.
Examples of commercial developments
include retail stores, industrial facilities,
restaurants, business parks, and
shopping centers. Examples of
institutional developments include
schools, fire stations, government office
buildings, judicial buildings, public
works buildings, libraries, hospitals,
and places of worship. The activities
listed above are authorized, provided
the activities meet all of the following
criteria:
a. 'I'tre discharge does not cause the
loss of greater than 1/2-acre of non-tidal
waters of the U.S., excluding non-tidal
wetlands adjacent to tidal waters;
b. The discharge does not cause the
loss of greater than 300 linear-feet of a
stream bed, unless for intermittent
stroarn beds this criterion is waived in
writing pursuant to a determination by
the District Engineer, as specifies]
below, that the project complies with all
terms and conditions of this NWI) arid
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
2086 Federal Register/Vol. 67, No. 10/Tuesday, January 15, 2002/Notices
(2) The discharge causes the loss of
any open waters, including perennial or of any compensatory mitigation used to
offset the loss of waters of the US (e include the installation, placement, or
const
ti
f d
i

intermittent streams, below the ordinary
high water mark (see Note
below)
or .g.,
lhz-acre of emergent wetlands created
i ruc
on o
ra
nage tiles, ditches,
or levees; mechanized land clearing;
,
;
?3) The discharge causes the loss of on-s
te);
j. If there are any open waters or land leveling; the relocation of existing

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

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

with the other terms and conditions of
the NWP
determine adverse
next to those open waters or streams ons:
a. For discharges into non-tidal
,
environmental effects are minimal both consistent with General Condition a,
Deed restrictions
conservation wetlands to improve agricultural
individual) and cumulatively, and
y Y, an
waive the limitation on stream impacts ,
easements, protective covenants, or
other means of land conservation and production, the following criteria must
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

(US
DA) Program participant

d. For discharges in special aquatic maintain the vegetated buffers
established on the project site
The permittee must
(1) obtai
r a
sites, including wetlands, the .
Only residential
commercial
and s exe
cate to
gori calminima l eff ects exemption,
notification must include a delineation ,
,
institutional activities with structures minimal effect exemption, or mitigation
of affected special aquatic sites;
e. The dischar e is art of a single and
p
on the foundation(s) or building pad(s), exemption from NRCS in accordance
with the provisions of the Food Securit

g
complete project;
as well as the attendant features, are
authorized by this NWP
The y
Act of 1985, as amended (16 U.S.C. 3801
f. The permittee must avoid and
discharges into waters of the .
compensatory mitigation proposal that et seq.);
(2) The discharge into non-tidal
US at
the project site to the maximum
t
is requited in paragraph (e) of this NWP
may be either conceptual or detailed no- t
wetlands does not result in the loss of
ex
ent practicable. The notification,
when required, must include a written ,
The wetland or upland vegetated buffer greater than 1/2-acre of non-tidal
wetlands on a farm tract;
statement explaining how avoidance
and minimization of losses of waters of
m
water required in paragraph (i) of this NWP
will be determined on a case-by-case (3) The permittee must have NRCS-
certified wetland delineation;
the
were achieved on the r
US ect
p 1
site. Compensator
miti
ation will basis by the District Engineer for

addressing water quality concerns. The

(4) The permittee must implement an
NRCS
y
g
normally be required to offset the losses
required wetland or upland vegetated
buffer is part of the overall -approved compensatory
mitigation plan that fully offsets
of waters of the US. (See General
Condition of the The notification must
compensatory mitigation requirement wetland losses, if required; and
(5) The permittee must submit a

also include a compensatory mitigation
l f for this NWP. If the project site was
previously used for agricultural
report, within 30 days of completion of
proposa
or offsetting unavoidable
losses of waters of the US. If an purposes and the farm owner/operator the authorized work, to the District
Engineer that contains the followin

applicant asserts that the adverse effects
of the project are minimal with
t
used NWP 40 to authorize activities in
waters of the US to increase production g
information: (a) The name, address, and
l
h
ou
mitigation, then the applicant may
or construct farm buildings, NWP 39 te
ep
one number of the permittee; (b)
The location of the work; (c) A
submit
explaining cannot be used by the developer to

authorize additional activities
This i description of e k; () The e

rl
c
t
compensatory m t
should not be
required for the District Engineer's .
s
more than the acreage limit for NWP 39 and acreage (o
sq a
re fee
) of the loss
of wetlands (e
g
1/3-acre of emer
ent
consideration;
g. When this NWP is used in impacts to waters of the US (i.e., the
combined acreage loss authorized under .
.,
g
wetlands); and (e) The type, acreage (or

conjunction with any other NWP, any
bi
d
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

com
ne
total permanent loss of waters
of the US exceeding 1/lo-acre requires .

Subdivisions: For residential
emergent wetland on a farm tract;
credits purchased from a miti
ation

that the perm ittee notify the District subdivisions, the aggregate total loss of g
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 NWP
t
t
loss of waters associated with
development of individual subdi
i
i wetlands to improve agricultural
production, the following criteria must
mus
no
cause more than minimal
degradation of water or more
g quality v
s
on
lots. (Sections 10 and 404) be met if the permittee is not a USDA
,
I

than minimal changes to the flow
Note: Areas where wetland vegetation is rogram participant (or a USDA
Program participant for which the
characteristics of any stream
Y (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
w
t
f th
U
b authorization under paragraph (a) of this
NWP):
'ho-acre or less of waters of the US, the a
ers o
e
S
ased on this criterion
would require a PCN although water is (1) The discharge into non tidal
permittee must submit a report, within
30 days of completion of the work, to infrequently present in the stream channel
(except for ephemeral waters
which do not wetlands does not result in the loss of
reater than 1/
-
f
tid
l
the District Engineer that contains the
f
l ,
require PCNs). g
2
acre o
non-
a
wetlands on a farm tract;
o
lowing information: (1) The name,
address, and telephone number of the 40. Agricultural Activities. Discharges
of dredged or fill material i
t
tid
l (2) The permittee must notify the
Di

permittee; (2) The location of the work; n
o non-
a
waters of the US, excluding non-tidal strict Engineer in accordance with
General Condition 13
if the dischar
e
(3) A description of the work; (4) The
type and acreage of the loss of wat
f wetlands adjacent to tidal waters, for
i
i ,
g
results in the loss of greater than Vie-
ers o
the US (e.g., 1/12-acre of emergent mprov
ng agricultural production and
the construction of building pads for acre of non-tidal wetlands;
(3) The notification must include a
wetlands); and (5) The type and acreage farm buildings. Authorized activities delineation of affected wetlands; and
Federal Register/Vol. 67, No. 10/Tuesday, January 15, 2002/Notices 2087
(4) The notification must include a
compensatory mitigation proposal to
offset losses of waters of the US; or
c. For the construction of building
pads for farm buildings, the discharge
does not cause the loss of greater than
'/2-acre of non-tidal wetlands that were
in agricultural production prior to
December 23, 1985, (i.e., farmed
wetlands) and the permittee must notify
the District Engineer in accordance with
General Condition 13; and
d. Any activity in other waters of the
US is limited to the relocation of
existing serviceable drainage ditches
constructed in non-tidal streams. This
NWP does not authorize the relocation
of greater than 300 linear-feet of existing
serviceable drainage ditches constructed
in non-tidal streams unless, for drainage
ditches constructed in intermittent non-
tidal streams, the District Engineer
waives this criterion in writing, and the
District Engineer has determined that
the project complies with all terms and
conditions of this NWP, and that any
adverse impacts of the project on the
aquatic environment are minimal, both
individually and cumulatively. For
impacts exceeding 300-linear feet of
impacts to existing serviceable ditches
constructed in intermittent non-tidal
streams, the permittee must notify the
District Engineer in accordance with the
"Notification" General Condition 13;
and
e. The term "farm tract" refers to a
parcel of land identified by the Farm
Service Agency. The Corps will identify
other waters of the US on the farm tract.
NRCS will determine if a proposed
agricultural activity meets the terms and
conditions of paragraph a. of this NWP,
except as provided below. For those
activities that require notification, the
District Engineer will determine if a
proposed agricultural activity is
authorized by paragraphs b., c., and/or
d. of this NWP. USDA Program
participants,requesting authorization for
discharges of dredged or fill material
into waters of the US authorized by
paragraphs (c) or (d) of this NWP, in
addition to paragraph (a), must notify
the District Engineer in accordance with
General Condition 13 and the District
Engineer will determine if the entire
single aril complete project is
authorized by this NW13, Discharges of
dredged or fill material into waters of
the US associated with completing
required compensatory mitigation are
authorized by this NMI. However, total
impacts, including other authorized
impacts under this NWP, may not
exceed the 1/2 acre limit of this NWP.
This MVP does not affect, or otherwise
regulate, discharges associated with
agricultural activities when the
discharge qualifies for an exemption
under section 4040 of the CWA, even
though a categorical minimal effects
exemption, minimal effect exemption,
or mitigation exemption from NRCS
pursuant to the Food Security Act of
1985, as amended, may be required.
Activities authorized by paragraphs a,
through d. may not exceed a total of/2-
acre on a single farm tract. If the site was
used for agricultural purposes and the
farm owner/operator used either
paragraphs a., b., or c. of this NWP to
authorize activities in waters of the US
to increase agricultural production or
construct farm buildings, and the
current landowner wants to use NWP 39
to authorize residential, commercial, or
industrial development activities in
waters of the US on the site, the
combined acreage loss authorized by
NWPs 39 and 40 cannot exceed 1/2-acre
(see General Condition 15). (Section
404)
41. Reshaping Existing Drainage
Ditches. Discharges of dredged or fill
material into non-tidal waters of the US,
excluding non-tidal wetlands adjacent
to tidal waters, to modify the cross-
sectional configuration of currently
serviceable drainage ditches constructed
in waters of the US. The reshaping of
the ditch cannot increase drainage
capacity beyond the original design
capacity. Nor can it expand the area
drained by the ditch as originally
designed (i.e., the capacity of the ditch
must be the same as originally designed
and it cannot drain additional wetlands
or other waters of the US).
Compensatory mitigation is not required
because the work is designed to improve
water quality (e.g., by regrading the
drainage ditch with gentler slopes,
which can reduce erosion, increase
growth of vegetation, increase uptake of
nutrients and other substances by
vegetation, etc.).
Notification: The permittee must
notify the District Engineer in
accordance with General Condition 13 if
greater than 500 linear feet of drainage
ditch will be reshaped. Material
resulting from excavation may not be
permanently sidecast into waters but
may be temporarily sidecast (up to three
months) into waters of the US, provided
the material is not placed in such a
manner that it is dispersed by currents
or other forces. The District Engineer
may extend the period of temporary
sidecasting not to exceed a total of 180
days, where appropriate. In general, this
NWP does not apply to reshaping
drainage ditches constructer in
uplands, since these areas are generally
not waters of the US, arid thus no permit
from the Corps is required, or to the
maintenance of existing drainage
ditches to their original dimensions and
configuration, which does not require a
Section 404 permit (see 33 CFR
323.4(a)(3)). This MVP does not
authorize the relocation of drainage
ditches constructed in waters of the US;
the location of the centerline of the
reshaped drainage ditch must be
approximately the same as the location
of the centerline of the original drainage
ditch. This NWP does not authorize
stream channelization or stream
relocation projects. (Section 404)
42. Recreational Facilities. Discharges
of dredged or fill material into non-tidal
waters of the US, excluding non-tidal
wetlands adjacent to tidal waters, for the
construction or expansion of
recreational facilities, provided the
activity meets all of the following
criteria:
a. The discharge does not cause the
loss of greater than 1/2-acre of non-tidal
waters of the US, excluding non-tidal
wetlands adjacent to tidal waters;
b. The discharge does not cause the
loss of greater than 300 linear-feet of a
stream bed, unless for intermittent
stream beds this criterion is waived in
writing pursuant to a determination by
the District Engineer, as specified
below, that the project complies with all
terms and conditions of this NWP and
that any adverse impacts of the project
on the aquatic environment are
minimal, both individually and
cumulatively;
c. The permittee notifies the District
Engineer in accordance with the
"Notification" General Condition 13 for
discharges exceeding 300 linear feet of
impact of intermittent stream beds. In
such cases, to be authorized the District
Engineer must determine that the
activity complies with the other terms
and conditions of the NWP, determine
the adverse environmental effects are
minimal both individually and
cumulatively, and waive this limitation
in writing before the perrnittee may
proceed;
d. For discharges causing the loss of
greater than 1/io-acre of non-tidal waters
of the US, the perrnittee notifies the
District Engineer in accordance with
General Condition 13;
e. For discharges in special aquatic
sites, including wetlands, the
notification must include a delineation
of affected special aquatic sites;
f. The discharge is part of a single and
complete project; and
g, Compensatory mitigation will
normally be required to offset the losses
of waters of the US. The notification
must also include a compensatory
mitigation proposal to offset authorized
losses of waters of the US.
2088 Federal Register/Vol. 67, No. 10/Tuesday, January 15, 2002/Notices
For the purposes of this NWP, the
term "recreational facility" is defined a greater than'/2-acre of non-tidal waters
s of the US, excluding non-tidal wetla
d that are exempt from Section 404 permit

a recreational activity that is integrated

into the natural landscape and does riot n
s
d'acent to tidal waters;
?. The discharge does not cau
th rec uirements);

The perrnittee must avoid and

substantially change preconstruction
grades or deviate from natural landscap se
e
loss of greater than 300 linear-feet of a
e stream bed
unless for i
t
i minimize discharges into waters of the
US at the project site to the maximum

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

NWP include hiking trails, bike paths,
horse paths, nature centers, and
on th'6:aquatic environment are
minimal
both i
di
id
ll cannot be achieved);
g. The stormwater management

campgrounds (excluding trailer parks).
This NWP may authorize the ,
n
v
ua
y and
cumulatively;
c. For discharges causing the loss of facility 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, the permittee BMPs and watershed protection
techniques. Examples may include
f

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

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

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

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

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

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

buildings, such as hotels, restaurants, a
wa
ers, provided the
permittee notifies the District Engineer 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 mining (i.e., sand, gravel, and

authorized by this NWP. (Section 404)
43. Storm water Mana
ement
accordance with state and local
re
ui
t
if crushed and broken stone) and
associated support activities;
g
Facilities. Discharges of dredged or fill q
remen
s,
any such requirements
exist; (ii) Lower perennial streams,

material into non-tidal waters of the US,
excluding non-tidal wetlands adjacent
(2) For discharges in special aquatic
sites, including wetlands aril excluding wetlands adjacent to lower
perennial streams, for aggregate mining
to tidal waters, for the construction and
i
t submerged aquatic vegetation, the activities (support activities in lower
perennial streams or adjacent wetland

ma
n
enance of stormwater management
facilities, including activities for the
notification must include a delineation
of affected areas; and s
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
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
dred
in
of existin
t
accomplished in designated
i from subsurface locations) and
associated support activities, provided
g
g
g s
ormwater
management ponds/facilities and ma
ntenance areas and riot within
compensatory mitigation areas (i.e., the discharge meets the following
criteria:
detention and retention basins,
provided the activity meets all of the
f
ll 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
o
owing criteria:
a. The discharge for the construction downstream end of the stormwater
management facility, in existing ,
of the US resulting front support
ti
i
i
1

of new stormwater management
facilities does riot cause the lo
f
stormwater management facilities). (No ac
v
t
es, cannot exceed
/7.-acre;
b. The permittee must avoid and
ss o mitigation will be required for activities minimize discharges into waters of the
Federal Register/Vol, 67, No. 10 / Tuesday, January 15, 2002/Notices 2089
US at the project site to the maximum
extent practicable, and the notification
must include a written statement
detailing compliance with this
condition (i.e., why the discharge must
occur in waters of the US and why
additional minimization cannot be
achieved);
c. In addition to General Conditions
17 and 20, activities authorized by this
permit must not substantially alter the
sediment characteristics of areas of
concentrated shellfish beds or fish
spawning areas. Normally, the
mandated water quality management
plan should address these impacts;
d. The permittee must implement
necessary measures to prevent increases
in stream gradient and water velocities
and to prevent adverse effects (e.g., head
cutting, bank erosion) to upstream and
downstream channel conditions;
e. Activities authorized by this permit
must not result in adverse effects on the
course, capacity, or condition of
navigable waters of the US;
f. The permittee must use measures to
minimize downstream turbidity;
S. Wetland impacts must be
compensated through mitigation
approved by the Corps;
E. Beneficiation and mineral
processing for hard rock/mineral mining
activities may not occur within 200 feet
of the ordinary high water mark of any
open waterbody. Although the Corps
does not regulate discharges from these
activities, a CWA section 402 permit
may be required;
i. All activities authorized must
comply with General Conditions 9 and
21. Further, the District Engineer may
require modifications to the required
water quality management plan to
ensure that the authorized work results
in minimal adverse effects to water
quality;
j. Except for aggregate mining
activities in lower perennial streams, no
aggregate mining can occur within
stream beds where the average annual
flow is greater than 1 cubic foot per
second or in waters of the US within
100 feet of the ordinary high water mark
of headwater stream segments where the
average annual flow of the stream is
greater than 1 cubic foot per second
(aggregate mining can occur in areas
immediately adjacent to the ordinary
higli 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
Vz-acre limit is not exceeded; and
1. Notification: The permittee must
notify the District Engineer in
accordance with General Condition 13.
The notification mast include: (1) A
description of waters of the US
adversely affected by the project; (2) A
written statement to the District
Engineer detailing compliance with
paragraph (b), above (i.e., why the
discharge must occur in waters of the
US and why additional minimization
cannot be achieved); (3) A description of
measures taken to ensure that the
proposed work complies with
paragraphs (c) through (f), above; and (4)
A reclamation plan (for aggregate
mining in isolated waters and non-tidal
wetlands adjacent to headwaters and
hard rock/mineral mining only).
This NVVP does not alorize 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, aril 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. I'ermittees are
encouraged to perform work within
waters of the United States during
periods of low-flow or no-flow.
4. Aquatic Life Movernents. No
activity may substantially disrupt the
necessary life-cycle movements of those
species of aquatic life indigenous to the
waterbody, including those species that
normally migrate through the area,
unless the activity's primary purpose is
to impound water. Culverts placed in
streams must be installed to maintain
low flow conditions.
5. Equipment. Heavy equipment
working in wetlands must be placed on
mats, or other measures must be taken
to minimize soil disturbance.
6. Regional and Case-By-Case
Conditions. The activity must comply
with any regional conditions that may
have been added by the Division
Engineer (see 33 CFR 330.4(e)).
Additionally, any case specific
conditions added by the Corps or by the
state or tribe in its Section 401 Water
Quality Certification and Coastal Zone
Management Act consistency
determination.
7. Wild and Scenic Rivers. No activity
may occur in a component of the
National Wild and Scenic River System;
or in a river officially designated by
Congress as a "study river" for possible
inclusion in the system, while the river
is in an official study status; unless the
appropriate Federal agency, with direct
management responsibility for such
river, has determined in writing that the
proposed activity will not adversely
affect the Wild and Scenic River
designation, or study status. Information
on Wild and Scenic Rivers may be
obtained from the appropriate Federal
land management agency in the area
(e.g., National Park Service, U.S. Forest
Service, Bureau of Land Management,
U.S. Fish and Wildlife Service).
8. Tribal Rights. No activity or its
operation may impair reserved tribal
rights, including, but not limited to,
reserved water rights and treaty fishing
and hunting rights.
9. Water Quality. (a) In certain states
and tribal lands an individual 401 Water
Quality Certification must be obtained
or'waived (See 33 CF'R 330.4(c)).
(b) For NWPs 12, 14, 17, 18, 32, 39,
40, 42, 43, and 44, where the state or
tribal 401 certification (either
generically or individually) does not
require or approve water quality
management measures, the permittee
must provide water quality management
measures that will ensure that the
authorized work does not result in more
than minimal degradation of water
quality (or the Corps determines that
compliance with state or local
standards, where applicable, will ensure
no more than minimal adverse effect on
water quality). An important component
of water quality management includes
stormwater management that minimizes
degradation of the downstream aquatic
system, including water quality (refer to
General Condition 21 for stormwater
2090 Federal Register/Vol. 67, No. 10/Tuesday, January 15, 2002/Notices
management requirements). Another
important component of water quality endspp.html and http://?vvviv.nfms.govl written notice from the District or
prot_res/esohome.htrnl respectivel
Di
i
i

management is the establishment and
maintenance of vegetated buffers next t y.
12. Historic Properties. No activity
o which may affect historic
ti v
s
on Engineer. Subsequently, the
permittee's right to proceed under the

open waters, including streams (refer to
General Condition 19 for vegetated proper
es
listed, or eligible for listing, in the
National Re
ister
f Hi
t
i NWP may be modified, suspended, or
revoked only in accordance with the

buffer requirements for the NWPs). g
o
s
or
c Places is
authorized, until the District Engineer procedure set forth in 33 CFR

This condition is only applicable to
projects that have the potential to affect
has complied with the provisions of 33
CFR part 325, Appendix C
The 330.5(4)(2).
(b) Contents of Notification: The
water quality. While appropriate
measures must be taken, in most cases .
prospective permittee must notify the
District Engineer if the authorized
y notification must be writing and
include the following information:
it is not necessary to conduct detailed
studies to identify such measures or to activity may affect any historic
properties listed, determined to be
s (1) Name, address and telephone
numbers of the prospective permittee;
require monitoring,
10. Coastal Zone Management. In eligible,
which the prospective
permittee has reason to believe may be (2) Location of the proposed project;
rie
f description
B
the proposed
certain states, an individual state coastal
zone management consistency eligible for listing on the National
Register of Historic Places, and shall not r
projofect
;
th
e project's purpose; direct and
indirect adverse environmental effects
concurrence must be obtained or waived begin the activity until notified by the the project would cause; any other
(see Section 330.4(d)). District Engineer that the requirements NWP(s), Regional General Permit(s), or

11. Endangered Species. (a) No
activity is authorized under any NWP of the National Historic Preservation Act

have been satisfied and that the activity Individual Permit(s) used or intended to
be used to authorize any part of the

which is likely to jeopardize the
is authorized. Information on the proposed project or any related activit
y
continued existence of a threatened or location and existence of historic Sketches should be provided when

endangered species or a species
resources can be obtained from the State necessary to show that the activity
proposed for such desi
nation
as Historic Preservation Office and the complies with the terms of the NWP
,
g
identified under the Federal Endan angered
g 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 `'hen 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 NWI's 7, 12, 14, 18, 21, 34, 38,
permittees shall notify the District
Engineer if any listed species or Register of Historic Places, the
notification must state which historic 39, 41, 42, and 43, the PCN must also
include a delineation of affected 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
critical habitat and shall not be
in wo
k map indicating the location of the
historic property, aquatic vegetation, seagrass beds), and
riffle and pool complexes (see paragraph
g
r
on the activity until notified by the 13. Notification. 13(f));
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 preconstruction design capacities and configurations of
endangered or threatened species or notification (PCN) as early as possible,
Th
Di
i those areas of the facility where
designated critical habitat
the e
str
ct Engineer must determine if maintenance dredging or excavation is
,
notification must include the name(s) of
t the notification is complete within 30 proposed;
the endangered
threatened species
re days of the date of receipt and can (6) For NWP 14 (Linear
that may be affected
the proposed request additional information Transportation Crossings), the PCN
work or that utilize the designated necessary to make the PCN complete must include a compensatory mitigation
critical habitat that may be affected by only once. However, if the prospective proposal to offset permanent losses of
the proposed work. Asa result of formal permittee does not provide all of the waters of the US and a statement
or informal consultation with the FWS requested information, then the District describing how temporary losses of
or NMFS the'District Engineer may add Engineer will notify the prospective waters of the US will be minimized to

species-specific
ecies specific regional endangered Permittee that the notification is still the maximum extent practicable;
conditions the NVVPS incomplete and the PCN review process (7) For NWP 21 (Surface Coal Minin;
.
(b) Authorization of an activity by a will not commence until all of the Activities), the PCN must include an

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

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

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

of separate authorization (e.g., an ESA
Section 10 Permit
a Biological O
i
i the activit

notified in writing by the District Engineer must determine that

the activity complies with the terms and
,
p
n
on
with "incidental take" provisions, etc.)
P District ct E Engineer that the activity may
proceed under the NWP with an conditions of the NWP and that the
adverse environmental eff
t

from the USFWS or the NMFS, both
lethal and non-lethal "takes" of y
special conditions imposed by the ec
s are
minimal both individually and

protected species are in violation of the
ESA. Information on the locatio
f District or Division Engineer; or
(2) If notified in writing by the District cumulatively and must notify the
project sponsor of this determination in
n o
threatened and endangered species and
their critical habitat can b
bt
i
d or Division Engineer that an Individual
Permit is required; or writing;
(8) For NWP 27 (Stream and Wetland
e o
a
ne
directly from the offices of the USFWS
d (3) Unless 45 days have passed from
the District Engineer's receipt of the Restoration), the PCN must include
documentation of the
rior conditi
f
an
NMFS or their world wide web
pages at http://wtivvv.fws.aov/r9eizdspp/ complete notification and the
prospective
ermittee has n
t
i
d p
on o
the site that will be reverted by the
p
o
rece
ve permittee;
Federal Register / Vol. 67, No. 10 / Tuesday, January 15, 2002/Notices 2091
(9) For NWP 29 (Single-Paunily
Flousing), the l'CN roust also include: waters of the US or justification
explaining why com
ensator affected by the proposed work or utilize
h

(i) Any past use of this NWP by the
Individual permittee and/or the p
y
mitigation should not he required. For
discharges that cause the lo
f t
e designated critical habitat that nurv
be affected by the proposed work; and

perrnittee's spouse;
(ii) A statement that the single-famil ss o
greater
than 300 linear feet of an intermittent
b (18) For activities that may affect
historic properties listed in, or eligible
y
housing activity is for a personal stream
ed, to he authorized, the Distric
Engineer must determine th
t th t for listing in, the National Register of

residence of the perrnittee;
(iii) A description
of the entire parcel a
e
activity complies with the other terms
c
I Iistori Places, the PCN must state
which historic property may be affected
,
including its size, and a delineation of and conditions of the NWP, determine
adverse environmental effect by the proposed work or include a
i
i

wetlands. For the purpose of this NWP,
parcels of land m
i
Vi s are
minimal both individually and v
c
nity map indicating the location of
the historic property

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

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

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

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

method required by the Corps. (See
paragra
h 13(0)
serviceable drainage ditches constructed ,
(d) District Engineer's Decision: In
p
;
(iv) A written description of all land in non-tidal streams unless, for drainage
ditches constructed in intermittent (ion- reviewing the PCN for the proposed
activity
the District En
ineer
ill
(including, if available, legal
descriptions) owned by the
ros
ective tidal streams, the District Engineer
i
thi ,
g
w
determine whether the activity
p
p
permittee and/or the prospective
' wa
ves
s criterion in writing, and the
District Engineer has determined that authorized by the NWP will result in
more than minimal individual or
permittee
s spouse, within a one mile
radius of the parcel, in any form of the project complies with all terms and
conditions of thi
NWP cumulative adverse environmental

ownership (including any land owned
as
t s
, and that any
adverse impacts of the project on the effects or may be contrary to the public
interest. The prospective permittee may
a par
ner, corporation, joint tenant,
co-tenant, or as a tenant-by-the-entirety) aquatic environment are minimal, both
individually and cumulatively; submit a proposed mitigation plan witli
the PCN to expedite the process
The
and any land on which a purchase and
l (15) For NWP 43 (Stormwater .
District Engineer will consider any
sa
e agreement or other contract for sale
orp?urchase has been executed; Management Facilities), the PCN must
include, for the construction of new proposed compensatory mitigation the
applicant has includ
d i
th

`10) For NWP 31 (Maintenance of
Existing Flood Control Projects), the
stormwater management facilities, a
maintenance plan (in accordanc
ith e
n
e proposal
in determining whether the net adverse
i

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

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

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

control protection or drainage is not
increased
individually and cumulatively, arid pp
y
compensatory mitigation proposal
;
(ii) A delineation of any affected
l waive the )irritation on stream impacts
in writing before the permittee may before the permittee commences work.
If the prospective perrnittee is required
specia
aquatic sites, including
wetlands; and,
(iii) Location of the dredged material proceed;
(16) For NWP 44 (Mining Activities),
the PCN must incl
d
d 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 be either conceptual or detailed. If
the prospective perrnittee elects to
p
y
Construction, Access, and Dewatering), y
e project, a description of measures
taken to minimize adverse effects to submit a compensatory mitigation plan
with the PCN
the District E
i
ill
the PCN must also include a restoration
plan of reasonable measures to
id waters of the US, a description of ,
ng
neer w
expeditiously review the proposed
avo
and minimize adverse effects to aquatic
resour measures taken to comply with the
criteria of the NWP, and a reclamation compensatory mitigation plan. The
District Engineer must review the plan
ces;
(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
P

must also include a written statement to
the District Engineer ex
lainin
how non-
a
wetlands adjacent to headwaters and
h CN and determine whether the
conceptual or specific proposed
p
g
avoidance and minimization for losses any
ard rockhnineral 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
ff minimal adverse effects on the aquatic
environment. If the net adverse effects

(13) For NWP 39 and NWP 42, the a
ect 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 encan
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
•f
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
e the proximity of a public water supply

applicant. The response will state that
the project can proceed under the ter g
ncy
comments received within the specified
ti
f intake except where the activity is for
repair of the public water supply intake
ms
and conditions of the NWP.
If the District Engineer determines me
rame, but will provide no
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 arid
work in
work are more than minimal, then the
District Engineer will notif
the administrative record associated with dnavigable waters m the US or discharges
the
redged or fill material
may occur in
y
applicant either: (1) That the project each
notification that the resource
agencies' concerns were considered
A ,
areas ofconcentrated shellfish

does riot 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
Conse4vation 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 NNfF'S within 30 days of
receipt of any Essential Fish Habitat including structures and work in
navigable waters of the US or discharges
a mitigation proposal that would reduce
the adverse effects on the aquatic conservation recommendations.
Applicants are encoura-ed to provide 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

NWP with specific modifications or
notification, disch x
discharged must be free from toxic
conditions. Where the District En neer
gi
(f) Wetland Delineations: Wetland pollutants i W
c amounts (see section

determines that mitigation is required to

delineations must be prepared in A),
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/.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
applicant submit a mitigation
ro
osal if the Corps does the delineation.
F
th environment that are more than
minimal
p
p
that would reduce the adverse effects on ur
ermore, the 45-day period will not
start until the wetland delineation has .
(a) The project must
designed and
the aquatic environment to the minimal been completed and submitted to the constructed to avoid and minimize
and
level. When conceptual mitigation is Corps, where appropriate. adverse effects to waters of the US to the
included, or a mitigation plan is
required under item (2) above, no work 14. Compliance Certification. Every
permittee who has received NWP maximum extent practicable at the
project site (i.
on site).
in waters of the US will occur until the verification from the Corps will submit (b) Mitigation in all its forms
on
District Engineer has approved a a signed certification regarding the (avoiding, minimizing, rectifying,
specific mitigation plan.
(e) Agency Coordination: The Di
t
i
t completed work and any required reducing or compensating) will be
s
r
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 need f work was done in accordance with the minimum one-for-one ratio will be
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
minimal level (b) A statement that any required Engineer determines in writing that
.
For activities requiring notification to mitigation was completed in accordance
with the permit conditions; and spore other form of mitigation would be
more environmentally appropriate and
the District Engineer that result in the
loss of greater than 1/2-acre of water
f (c) The signature of the pernittee provides a project-specific waiver of this
s o
the US, the District Engineer will certifying the completion of the work
and mitigation. requirement. Consistent with National
policy, the District Engineer will
provide immediately (e.g., via facsimile
transmission, overnight mail, or other 15. Use of Multiple Nationwide
Permits. The use of more than one NWP establish a preference for restoration of
wetlands as compensatory miti
ation

expeditious manner) a copy to the
appropriate Federal or state offices
'
for a single and complete project is
prohibited, except when the acreage loss g
,
with preservation used only in
exceptional circumstances

(USF
WS, state natural resource or water
quality agency, EPA, State Historic
of waters of the US authorized by the
NWPs does not exceed the acreage limit .
(d) Compensatory mitigation (i.e.,
replacement or substitution of a
uatic
Preservation Officer (SHPO , and, if
)
appropriate, the NMFS). With the 1 °
of the NWI with the highest specified
acreage limit (e.g. if a road crossing over q
resources for those impacted) will not
be used to increase the acrea
l

exception of NWP 37, these agencies
will then have 10 calendar da
s fro
tidal waters is constructed under NWP ge
osses
allowed by the acreage limits of some of
y
m
the date the material is transmitted to 14, with associated bank stabilization
authorized by NWP 13, the nraxinninl 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 1/ ge a
3/.1-acre loss of wetlands to a 1/2-acre loss
i
d

substantive, site-specific comments. If e
i-acre),
16. Water Supply In takes. No activity, assoc
ate
with NWP 39 verification.
However
1/2
-acre of created wetlands
so contacted by an agency, the District
Engineer will wait an additional 15 including structures and work in
navigable waters of the CIS
di
h ,
.
can be used to reduce the impacts of a

calendar days before making a decision or
sc
arges
of dredged or fill material, may occur in /?.-acre loss of wetlands to the minimum
impact level in order to meet the
Federal Register / Vol. 67, No. 10/Tuesday, January 15, 2002/Notices 2093
minimal impact requirement associated
with NWP accomplishing and/or complying with discharges of dredged or fill material

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

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

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

establishing and maintaining wetland or
or smother downstream by substantial ,
NOAH-clesignated marine sanctuaries

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

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

losses of aquatic resource functions and
21. Management of Water Flows. 'I'a ,
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
[)reconstruction downstream flow ,
and outstanding national resource
watershed. conditions (e.g., location, capacity, and waters or other waters officially
(f) Compensatory mitigation plans for flow rates). Furthermore, the activity designated by a state as having
projects in or near streams or other open must not permanently restrict or impede particular environmental or ecological
waters will normally include a the passage of normal or expected high significance and identified by the
requirement for the establishment, flows (unless the primary purpose of the District F.rigineer after notice and
maintenance, and legal protection (e.g., fill is to impound waters) and the opportunity for public comment. The
easements, deed restrictions) of structure or discharge of dredged or fill District Engineer may also designate
vegetated buffers to open waters. In material must withstand expected high additional critical resource waters after
many cases, vegetated buffers will be flows. The activity must, to the notice and opportunity for comment.
the only compensatory mitigation maximum extent practicable, provide (a) Except as noted below, discharges
required. Vegetated buffers should for retaining excess flows from the site, of dredged or fill material into waters of
consist of native species. The width of provide for maintaining surface flow the US are not authorized by NWPs 7,
the vegetated buffers required will rates from the site similar to 12, 14, 16, 17, 21, 29, 31, 35, 39, 40, 42,
address documented water quality or preconstrnctioll 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
uire htly
D
c
r
r ?
n
na i
e may
ider
ve
otated buffers
to add c
han
elizi
ll b
reduced to the be authorized by the above NWPs in
documented water quality or habitat minimal amount necessary, and the National Wild and Scenic Rivers if the
loss concerns. Where both wetlands and
Where activity must, to the maxirrntm extent activity complies with General
open waters exist
the project site
the practicable, reduce adverse effects such Condition 7. Further, such discharges
,
Corps will determine the appropriate as flooding or erosion downstream 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
t
c designed to manage water flows. In most complies with General Condition 11 and
environment
a watershed basis. cases, it wilt not be a requirement to
conduct detailed studies a
d
it
i the USFWS or the NMFS has concurred
cases where vegetated buffers are n
mon
or
ng
of water flow in a determination of compliance with
determined to be the most appropriate

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

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

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

(g) Compensatory rnitigation 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
h waters. The District Engineer may

or detailed. If conceptual plans are aut
orities regarding management of authorize activities under these NWPs

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

the Corps will condition the verification
to require detailed plans be submitted
Fmpaundrnents• 11 the activity creates all mpacts to the critical resource waters
will be no more than rninirrtal.

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

construction of the authorized activity
in waters of the LIS
acceleration of the passage of water, or purposes of this General Condition,
100-year floodplains will be identified
.
(h) Permittees may propose the use of and/or the restricting its flow shall be
minimized to the maxim
t
t through tire existing Federal Emergency
'

mitigation banks, in-lieu fee
a um ex
en
practicable. This includes structures Management Agency
s (FEMA) Flood
Insurance Rate Maps or FEMA-a
roved
rrangements or separate activity-
specific compensatory mitigation. In all and work in navigable waters of the US,
or discharges of dredged or fill material. pp
local floodplain maps.
(a) Discharges in Floodplain; Below
cases that require compensatory 23. Waterfowl Breeding Areas. Headwaters
Dischar
es of dred
ed or
mitigation, the rnitigation provisions Activities, including structures and ,
g
g
fill material into waters of the US
ithi

will specify the party responsible for
work in navigable waters of the US or w
n
the mapped 100-year floodplain, below
2094 Federal Register/Vol. 67, No. 10/Tuesday, January 15, 2002/Notices
headwaters (i.e. five cfs), resulting in
permanent above-grade fills, are not resources for the purpose of
compensating for unavoidable ad change the use of a waterbody. The

authorized by NWPs 39, 40, 42, 43, and
44. verse
impacts which remain after all acreage of loss of waters of the US is the
threshold measurement of the impact to

(b) Discharges in Floodwov; Above appropriate and practicable avoidance
and minimization has been achieved existing waters for determining whether

Headwaters. Discharges of dredged or
fill material into waters of the US withi ,
Creation: The establishment of a
n wetland or other aquatic resource whe a project may qualify for an N%VP; it is
not a net threshold that is calculated

the FEMA or locally mapped floodway, re
one did not formerly exist. after considering compensatory

resulting in permanent above-grade fills
are not authorized by NWPs 39
40
42
, Enhancement: Activities conducted in
existing wetlands or other a
uati mitigation that may be used to offset
losses of aquatic functions and values.
,
,
,
and 44,
(c) The permittee must comply with q
c
resources that increase one or more
aquaticfunctioris' The loss of stream bed includes the
linear feet of stream bed that is filled or

any applicable FEMA-approved state or
Ephemeral Stream: An ephemeral excavated. Waters of the US temporarily

local floodplain management
re
ui
t
stream'lias flowing water only during
d f filled, flooded, excavated, or drained,
but restored to
reconstructio
t

q
remen
s.
27. Construction Period. For activities
an
or a short duration after,
precipitation events in a typical year. p
n con
ours
an
and elevations after construction, are
that have not been verified by the Corps Ephemeral stream beds are located not included in the measurement of loss
and the project was commenced or above the water table year-round of waters of the US. Impacts to
under contract to commence by the .
Groundwater is not a source of water for ephemeral waters are only not included
expiration date of the NWP (or the stream. Runoff from rainfall is the in the acreage or linear foot
modification or revocation date), the primary source of water for stream flow ure
ments of loss of of
waters
the
work must be completed within 12- ,
Farm Tract: A unit of contiguous land pur
or l
oss,
of stream bed, forth e ppose
months after such date (including any under one ownership that is operated as of
compliance with the
modification that affects the project). a farm or part of a farm. threshold
threshold limits of the N?VPs.
For activities that have been verified Flood Fringe: That portion of the 100- Non-tidal Wetland: A non-tidal
and the project was commenced or year floodplain outside of the floodway wetland is a wetland (i.e., a water of the
under contract to commence within the (often referred to as "floodway fringe"). US) that is not subject to the ebb and
verification period, the work must be Floodcvoy: The area regulated by flow of tidal waters. The definition of a
completed by the date determined by Federal, state, or local requirements to wetland can be found at 33 CFR
the Corps. provide for the discharge of the base 328.3(b). Non-tidal wetlands contiguous

For projects that have been verified by flood so the cumulative increase in to tidal waters are located landward of
the Corps, an extension of a Corps water surface elevation is no more than the high tide line (i.e., spring high tide
approved completion date maybe a designated amount (not to exceed one line).
requested. This request must be foot as set by the National Flood Open Water: An area that, during a
submitted at least one month before the Insurance Program) within the 100-year year with normal patterns of
previously approved completion date. flood lain. precipitation, has standing or flowing

D. Farther Information Independent Utility: A test to
determine what constitutes a single and water for sufficient duration to establish
an ordinary high water mark. Aquatic
1. District Engineers have authority to complete project in the Corps regulatory vegetation within the area of standing or
determine if an activity complies with program. A project is considered to have flowing water is either non-emer
ent,
the terms and conditions of an NWP. independent utility if it would be g
sparse, or absent, Vegetated shallows are
2. NWPs do not obviate the need to constructed absent the construction of considered to be open waters. The term
obtain other Federal, state, or local other projects in the project area. "open water" includes rivers, streams,
permits, approvals, or authorizations Portions of a multi-phase project that lakes, and ponds. For the purposes of
required by law. depend upon other phases of the project the NWPs, this term does not include
3. NvVPs do not grant any property do not have independent utility. Phases ephemeral waters.
rights or exclusive privileges. of a project that would be constructed Perennial Stream: A perennial stream
4. NWPs do not authorize any injury
to the property or rights of others. even if the other phases were riot built
can be considered as separate single and has flowing water year-round during a
typical year. The water table is located
5. NWPs do not authorize interference complete projects with independent above the stream bed for most of the
with any existing or proposed Federal utility. year. Groundwater is the primary source
project. Intermittent Stream: An intermittent of water for stream flow. Runoff from
E. Definitions stream has flowing water during certain rainfall is a supplemental source of

Best Management Practices (BMPsJ: times of the year, when groundwater
provides water for stream flow. During water for stream flow.
Permanent Above-grade Fill: A
BMPs are policies, practices,
procedures, or structures implemented dry periods, intermittent streams may
not hav
fl
i discharge of dredged or fill material into

to mitigate the adverse environmental e
ow
ng water. Runoff from
rainfall is a supplemental source of waters of the US, including wetlands,
that results in a substantial increase in
effects on surface water quality resulting
from development. BMPs are water for stream flow,
Loss of Waters of the US: Waters of ground elevation and permanently
converts part or all of the waterbody to
categorized as structural or non-
structural. A BMP policy may affect the the US that include the filled area and
other waters that are permanently dry land. Structural fills authorized by
NWPs 3
25
36
etc
are not included

limits on a development,
Compensatory Mitigation: For
adversely affected by flooding,
excavation, or drainage because of the ,
,
,
.
.
Preservation: The protection of
ecologically important wetlands or ot}rer
purposes of Section 10/404,
compensatory mitigation is the
t
i regulated activity. Permanent adverse
effects include permanent above-grade, aquatic resources in perpetuity through
the implementation of appropriate legal
res
orat
on, creation, enhancement, or in
exceptional circumstances
preservation at-grade, or below-grade fills that change
an
ti
d
l and physical mechanisms. Preservation
,
of wetlands and/or other aquatic aqua
c area to
ry
and, increase the
bottom elevation of a waterbody, or may include protection of upland areas
adjacent to wetlands as necessary to
Federal Register/Vol. 67, No. 10/1'uesday, January 15, 2002/Notices 9noC;
ensure protection and/or enhancement
of the overall aquatic ecosystem.
Restoration: Re-establishment of
wetland and/or other aquatic resource
characteristics and function(s) at a site
where they have ceased to exist, or exist
in a substantially degraded state.
Riffle and Pool Complex: Riffle and
pool complexes are special aquatic sites
under the 404(6)(1) Guidelines. Riffle
and pool complexes sometimes
characterize steep gradient sections of
streams. Such stream sections are
recognizable by their hydraulic
characteristics. The rapid movement of
water over a course substrate in riffles
results in a rough flow, a turbulent
surface, and high dissolved oxygen
levels in the water. Pools are deeper
areas associated with riffles. A slower
stream velocity, a streaming flow, a
smooth surface, and a finer substrate
characterize pools.
Single and Complete Project: The
term "single and complete project" is
defined at 33 CFR 330.2(i) as the total
project proposed or accomplished by
one owner/developer or partnership or
other association of owners/developers
(see definition of independent utility).
For linear projects, the "single and
complete project'' (i.e., a single and
complete crossing) will apply to each
crossing of a separate water of the US
(i.e., a single waterbody) at that location.
An exception is for linear projects
crossing a single waterbody several
times at separate and distant locations:
each crossing is considered a single and
complete project. However, individual
channels in a braided stream or river, or
individual arms of a large, irregularly
shaped wetland or lake, etc., are not
separate waterbodies.
StormrvoterManagernent: Storrnwater
management is the mechanism for
controlling stormwater runoff for the
purposes of reducing downstream
erosion, water quality degradation, and
flooding and mitigating the adverse
effects of changes in land rise on the
aquatic environment.
Storm-ater Management Facilities:
StOrlnwater 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
pollulorits) of stormwater runoff.
Stream Bed: The substrate of the
stream channel between the ordinary
high water marks. The substrate may be
bedrock or inorganic particles that rane
in size from clay to boulders. Wetlands'
contiguous to the stream bed, but
outside of the ordinary high water
marks, are not considered part of the
stream bed.
Stream 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 stream channel.
A channelized stream remains a water
of the US, despite the modifications to
increase the rate of water flow.
Tidal Wetlond: A tidal wetland is a
wetland (i.e., water of the US) that is
inundated by tidal waters. The
definitions of a wetland and tidal waters
can be found at 33 CFR 328.3(b) and 33
CFR 328.3(0, respectively. Tidal waters
rise and fall in a predictable and
measurable rhythm or cycle due to the
gravitational pulls of the moon and sun.
Tidal waters end where the rise and fall
of the water surface can no longer be
practically measured in a predictable
rhythm due to masking by other waters,
wind, or other effects. Tidal wetlands
are located cliannelward of the high tide
line (i.e., spring high tide line) and are
inundated by tidal waters two times per
lunar month, during spring high tides.
Vegetated Buffer: A vegetated upland
or wetland area next to rivers, streams,
lakes, or other open waters which
separates the open water from
developed areas, including agricultural
land, Vegetated buffers provide a variety
of aquatic habitat functions and values
(e.g., aquatic habitat for fish and other
aquatic organisms, moderation of water
temperature changes, and detritus for
aquatic food webs) and help improve or
maintain local water quality. A
vegetated buffer can be established by
maintaining an existing vegetated area
or planting native trees, shrubs, and
herbaceous plants on land next to open-
waters. Mowed lawns are not
considered vegetated buffers because
they provide little or no aquatic habitat
functions and values. The establishment
and maintenance of vegetated buffers is
a method of compensatory mitigation
that can be used in conjunction with the
restoration, creation, enhancement, or
preservation of aquatic habitats to
ensure that activities authorized by
NWPs result in minimal adverse effects
to the aquatic environment. (See
General Condition 19.)
Vegetated Shallows: Vegetated
shallows are special aquatic sites under
the 404(b)(1) Guidelines. They are areas
that are permanently inundated and
under normal circumstances have
rooted aquatic vegetation, such as
seagrasses in marine and estuarine
systems and a variety of vascular rooted
plants in freshwater systems.
Waterbody: A waterbody is any area
that in a normal year has water flowing
or standing above ground to the extent
that evidence of an ordinary high water
mark is established. Wetlands
contiguous to the waterbody are
considered part of the waterbody.
[FR Doc. 02-539 Filed 1--14-02; 8:45 an1]
BILLING CODE 3710-92-P
6692 Federal Register/ Vol. 67, No, 30 / Wednesday, February 13, 2002 /Notices
ADDRESSES). The holding of such
hearing is at the discretion of the
Assistant Administrator for Fisheries,
NOAA. All statements and opinions
contained in the permit action
summaries are those of the applicant
and do not necessarily reflect the views
of NMFS.
Species Covered in This Notice
The following species are covered in
this notice:
Sea turtles
Threatened and endangered green
turtle (Chelonia mydas)
Endangered hawksbill turtle
(F,retmochelys imbricate)
Endangered Kemp's ridley turtle
(Lepidochelys kempii)
Endangered leatherback turtle
(Dermochelys coriacea)
Threatened loggerhead turtle (Caretta
caretta)
Application 1361
The applicant is applying for a 5-year
permit to trawl for turtles, as needed, at
dredge and other construction/
destruction sites to remove the turtles to
a safe location. The turtles will be
captured, tagged, measured and released
offshore away from the dredging
activities. The applicant expects to
capture and relocate 95 green, 11
hawksbill, 160 loggerhead, 14 Kemp's
ridley and 4 leatherback turtles on the
Atlantic coast and 105 green, 17
hawksbill, 160 loggerhead, 50 Kemp's
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
1?esotrrces, National Marine Fisheries Service.
[FR Doc. 02-3522 Filed 2-12-02; 8:45 am]
BILLING CODE 3510-22-S
DEPARTMENT OF DEFENSE
Department of the Army, Corps of
Engineers
Issuance of Nationwide Permits;
Notice; Correction
AGENCY: Army Corps of Engineers, DoD
ACTION: Final notice; correction.
SUMMARY: This document contains
corrections to the final notice of
issuance of Nationwide Permits (NWPs)
which was published in the Federal
Register on Tuesday, January 15, 2002
(67 FR 2020-2095).
ADDRESSES: HQUSACE, ATTN: CECW-
OR, 441 "G" Street, NW., Washington,
DC 20314-1000.
FOR FURTHER INFORMATION CONTACT: Mr.
David Olson, at [phone], Mr.
Kirk Stark, at [phone] or Ms.
Leesa Beal at [phone] or access
the U.S. Army Corps of Engineers
Regulatory Home Page at: http://
www.tisace.army.miI/inet/functious/
cw/cecwo/reg/.
SUPPLEMENTARY INFORMATION: In the
SUMMARY section on page 2020, the third
and fourth sentences are corrected to
read: "All NWPs except NWPs 3, 7, 12,
14, 27, 39, 40, 41, 42, 43, and 44 expire
on February 11, 2002. Existing NWPs 3,
7, 12, 14, 27, 39, 40, 41, 42, 43, and 44
expire on March 18, 2002." In the last
sentence of the SUMMARY section, the
expiration date is corrected as "March
18, 2007", instead of "March 19, 2007
On page 2020, in second sentence of
the DATES section, the expiration date is
corrected as "March 18, 2007", instead
of "March 19, 2007". Therefore, the,
NWPs published in the January 15,
2002; Federal Register will expire on
March 18, 2007, five years from their
effective date of March 18, 2002.
On page 2020, in the fifth paragraph
of the Background section, the third and
fourth sentences are corrected to read:
"All NWPs except NWPs 3, 7, 12, 14,
27, 39, 40, 41, 42, 43, and 44 expire on
February 11, 2002. Existing NWPs 3, 7,
12, 14, 27, 39, 40, 41, 42, 43, and 44
expire on March 18, 2002." The
expiration date in the last sentence of
this paragraph is corrected as "March
18, 2007", instead of "March 19, 2007".
On page 2020, the paragraph in the
section entitled "Grandfather Provision
for Expiring NWPs at 33 CFR 330.6" is
corrected to read: "Activities authorized
by the current NWPs issued on
December 13, 1996, (except NWPs 3, 7,
12, 14, 27, 39, 40, 41, 42, 43, and 44),
that have commenced or are under
contract to commence by February 11,
2002, will have until February 11, 2003,
to complete the activity. Activities
authorized by NWPs 3, 7, 12, 14, 27, 39,
40, 41, 42, 43, and 44, that were issued
on March 9, 2000, that are commenced
or under contract to commence by
March 18, 2002, will have until March
18, 2003, to complete the activity."
On page 2020, in the "Clean Water
Act Section 401 Water Quolity
Certification (WQQ and Coastal Zone
Management Act (CZMA) Consistency
Agreernent" 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 clay completeness review
period for standard permit applications.
On page 2031, second column, second
full paragraph, the number 31 is
replaced with the number 3 because this
paragraph refers to NWP 3,
On page 2044, second column, fourth
complete paragraph, the title is
corrected to read "Stream and Wetland
Restoration Activities" because that is
the title of NWP 27.
On page 2054, second column, the
year cited in the third sentence of the
second paragraph is the year 2000, not
1996.
On page 2058, third column, in the
second sentence of the second complete
paragraph the word "intermittent" is
inserted before the phrase "stream bed"
because the waiver for filling or
excavating greater than 300 linear feet of
stream beds can apply only to
intermittent stream beds.
On page 2072, third column, last
sentence, the number 19 is inserted after
the term "General Condition" since this
sentence refers to General Condition 19.
On page 2076, second column, the
street address for the Walla Walla
District Engineer is corrected to read
"201 N. Third Avenue".
On page 2080, second column, third
paragraph from the top of the column
(in the "Notification" section of NWP
12), the word "or" at the end of
paragraph (e) is deleted and the period
at the end of the fourth paragraph
(paragraph (f)) is replaced with "; or".
On page 2080, second column,
paragraph (a) of NWP 13 is corrected to
read: "No material is placed in excess of
the minimum needed for erosion
protection;" The change was not
intended and we are correcting this
paragraph by reinstating the original
text as it appeared in the version of
NWP 13 published in the December 13,
1996, Federal Register (61 FR 65915).
On page 2080, third column, the word
"or" is inserted at the end of paragraph
(a)(1) of NWP 14, Linear Transportation
Projects. Paragraph (a) of NWP 14 is
corrected to read: "a. This NWP is
subject to the following acreage limits:
(1) For linear transportation projects in
non-tidal waters, provided the discharge
does not cause the loss of greater than
r/z-acre of waters of the US; or (2) For
linear transportation projects in tidal
waters, provided the discharge does not
cause the loss of greater than'/3-acre of
waters of the US."
On page 2085, second column, the
last sentence of NWP 36 is corrected to
read as follows: "Dredging to provide
Federal Register/Vol. 67, No. 30/Wednesday, February 13, 2002/Notices 6693
access to the boat ramp may be
authorized by another NWP, regional
general permit, or individual permit
pursuant to section 10 if located in
navigable waters of the United States.
* * - The change was not intended
and we are correcting this paragraph by
reinstating the original text as it
appeared in the version of NWP 36
published in the December 13, 1996,
Federal Register (61 FR 65919).
On page 2086, in the second full
paragraph of the second column,
"paragraph (e)" in the second sentence
is replaced with "paragraph (f)" and
"paragraph (i)" in the third sentence is
replaced with "paragraph (j)" to
accurately cite the previous paragraphs
of NWP 39. The last two sentences of
the paragraph before the subdivision
paragraph were incorrectly divided into
two sentences from the original single
sentence and identified as being related
to General Condition 15. This change
was not intended and we are correcting
this paragraph by reinstating the
original last sentence as it exists in the
March 9, 2000, text of NWP 39 (65 FR
12890).
On page 2086, middle column, the
parenthetical statement at the end of the
Note at the end of NWP 39 is corrected
to read "* * * (except for ephemeral
waters, which do not require PCNs
tinder 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)." The addition to the Note
was intended to clarify that under
paragraph (c)(2) only the loss of
ephemeral open waters were not
included in the requirement for a pre-
construction notification (PCN).
However, under paragraph (c)(1) all
ephemeral waters of the United States
are included in the measurement for the
V,o acre PCN requirement. The
correction is needed because the
statement in the parentheses could be
incorrectly interpreted to apply to
paragraph (c)(1) and possibly to all
PCNs, not just those affected by
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,
stornnwater inauagement 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
incl>,cle 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 file
loss of greater than Vi z-acre of non-tidal
waters of the U.S., excluding non-tidal
wetlands adjacent to tidal waters;
b. The discharge does not cause the
loss of greater than 300 linear-feet of a
stream bed, unless for intermittent
stream beds this criterion is waived in
writing pursuant to a determination by
the District Engineer, as specified
below, that the project complies with all
terms and conditions of this NWP and
that any adverse impacts of the project
on the aquatic environment are
minimal, both individually and
cumulatively;
c. The permittee must notify the
District Engineer in accordance with
General Condition 13, if any of the
following criteria are met:
(1) The discharge causes the loss of
greater than 'ho-acre of non-tidal waters
of the US, excluding non-tidal wetlands
adjacent to tidal waters; or
(2) The discharge causes the loss of
any open waters, including perennial or
intermittent streams, below the ordinary
hi It water mark (see Note, below); or
5) The discharge causes the loss of
greater than 300 linear feet of
intermittent stream bed. In such case, to
be authorized the District Engineer unust
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 streann impacts
in writiii„ before the permittee may
proceed;
d. For discharges in special aquatic
sites, including wetlands, the
notification must include a delineation
of affected special aquatic: sites;
e. The discharge is part of a single and
complete project;
f. The pernittee must avoid and
minimize discharges into waters of the
CIS at the project site to the maximum
extent practicable. The notification,
when required, must include a written
statement explaining how avoidance
and minimization of losses of waters of
the US were achieved on the project
site. Compensatory mitigation will
normally be required to offset the losses
of waters of the US. (See General
Condition 19.) The notification must
also include a compensatory mitigation
proposal for offsetting unavoidable
losses of waters of the US. If an
applicant asserts that the adverse effects
of the project are minimal without
mitigation, then the applicant may
submit justification explaining why
compensatory mitigation should not be
required for,the District Engineer's
consideration;
g. When this NWP is used in
conjunction with any other NWP, any
combined total permanent loss of waters
of the CIS exceeding V,o-acre requires
that the permittee notify the District
Engineer in accordance with General
Condition 13;
Ii. Any work authorized by this NWP
must not cause more than minimal
degradation of water quality or more
than minimal changes to the flow
characteristics of any stream (see
General Conditions 9 and 21);
i. For discharges causing the loss of
I/,o-acre or less of waters of the US, the
permittee must submit a report, within
30 days of completion of the work, to
the District Engineer that contains the
following information: (1) The name,
address, and telephone number of the
permittee; (2) The location of the work;
(3) A description of the work; (4) The
type and acreage of the loss of waters of
the US (e.g., 1/2-acre of emergent
wetlands); and (5) The type and acreage
of any compensatory mitigation used to
offset the loss of waters of the US (e.g.,
1/2-acre of emergent wetlands created
on-site);
j. If there are any open waters or
streams within the project area, the
permittee will establish and maintain, to
the maximum extent practicable,
wetland or upland vegetated buffers
next to those open waters or streams
consistent with General Condition 19.
Deed restrictions, conservation
easements, protective covenants, or
other means of land conservation and
preservation are required to protect and
maintain flue vegetated buffers
established oil 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 Vz-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 V a acre of ephemeral waters
would require PCNs under paragraph (c)(1),
above).
On page 2088, in the sixth sentence of
the first paragraph in the first column,
the phrase "an adequate water quality
management plan" is replaced with the
phrase "adequate water quality
management measures" to reflect the
modified language in General Condition
9. This sentence is corrected to read
"The facility must have adequate water
quality management measures in
accordance with General Condition 9,
such as a stormwater management
facility, to ensure that the recreational
facility results in no substantial adverse
effects to water quality."
On page 2089, first column, the
second sentence of paragraph (c) of
NWP 44 is corrected to read "Normally,
the water quality management measures
required by General Condition 9 should
address these impacts;". In addition, 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
Watar 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://
Wwrv, nm fs. n oaa.go v/pro t_res/overview/
es.html * * *" because the Internet
address for the National Marine
Fisheries Service home page for
endangered species has been changed.
On page 2090, third column, in
paragraph (b)(4) of General Condition
13, NWP 40 should be added to the list
of NWPs that require submission of
delineations of special aquatic sites with
pre-construction notifications.
Therefore, paragraph (b)(4) of General
Condition 13 is corrected to read "For
NWPs 7, 12, 14, 18, 21, 34, 38, 39, 40,
41, 42, and 43, the PCN must also
include a delineation of affected special
aquatic sites, including wetlands,
vegetated shallows (e.g., submerged
aquatic vegetation, seagrass beds), and
riffle and pool complexes (see paragraph
13(0);"
On page 2090, third column, in
paragraph (b)(6) of General Condition
13, the word "Projects" replaces the
word "Crossings", because the title of
NWP 14 is "Linear Transportation
Projects",
On page 2090, third co1u11111, in
paragraph (b)(8) of General Condition
13, the word "Activities" is inserted
after the word "Restoration" because the
title of NWP 27 is "Stream and Wetland
Restoration Activities".
On page 2091, first column, in
paragraph (b)(10) of General Condition
13, the word "Projects" is replaced with
the word "Facilities" because the title of
NWP 31 is "Maintenance of Existing
Flood Control Facilities".
On page 2094, third column, we are
correcting the definition of "Loss of
Waters of the US" by deleting the last
sentence and inserting the following
sentence after the fourth sentence of this
definition: "Impacts to ephemeral
streams are not included in the linear
foot measurement of loss of stream bed
for the purpose of determining
compliance with the linear foot limits of
NWPs 39, 40, 42, and 43."
Due to the number of corrections
made to the definition of "Loss of
Waters of the US", we are providing the
text of this definition in its entirety,
with the corrections described above:
Loss of Waters of the US: Waters of
the US that include the filled area and
other waters that are permanently
adversely affected by flooding,
excavation, or drainage because of the
regulated activity. Permanent adverse
effects include permanent above-grade,
at-grade, or below-grade fills that change
an aquatic area to dry land, increase the
bottom elevation of a waterbody, or
change the use of a waterbody. The
acreage of loss of waters of the US is the
threshold measurement of the impact to
existing waters for determining whether
a project may qualify for an NWP; it is
not a net threshold that is calculated
after considering compensatory
mitigation that may be used to offset
losses of aquatic functions and values,
The loss of stream bed includes the
linear feet of stream bed that is filled or
excavated. Impacts to ephemeral
streams are not included in the linear
foot measurement of loss of stream bed
for the purpose of determining
compliance with the linear foot limits of
NWPs 39, 40, 42, and 43. Waters of the
US temporarily filled, flooded,
excavated, or drained, but restored to
preconstruction contours and elevations
after construction, are not included in
the measurement of loss of waters of the
US.
In the January 15, 2002, Federal
Register, it was stated that the definition
was being revised (to clarify that
ephemeral waters and streams are not
included in the acreage or linear
thresholds for NWPs) to comport with
language in the preamble of the March
9, 2000 Federal Register notice.
However, the language in the preamble
of the March 9, 2000 Federal Register
notice (65 FR 12881, third column) does
not support this revision. Rather, the
referenced preamble states, "During our
review of the comments received in
response to the July 21, 1999, Federal
Register notice, we found an error in the
proposed definition of the term, "loss of
waters of the United States." In the
fourth sentence of the draft definition,
we stated that the loss of stream bed
Federal Register/ Vol. 67, No. 30 /Wednesday, February 13, 2002 /Notices 6695
includes the linear feet of perennial or
intermittent stream bed that is filled or
excavated. This statement is inaccurate
because ephemeral stream bed that is
filled or excavated can also be
considered a loss of waters of the United
States. However, the 300 linear foot
limit for stream beds filled or excavated
does not apply to ephemeral streams.
We have modified this sentence to
define the loss of stream bed as the
linear feet of stream bed that is filled or
excavated." Thus, the modification of
this definition was intended to clarify
that activities that involve filling or
excavating ephemeral streams are not
included in the linear foot limits for
filling or excavating stream beds in
NWPs 39, 40, 42, and 43. However, it
was not intended to exempt ephemeral
waters or streams from calculations of
impacted acreages to determine PCN or
maximum acreage requirements in
accordance with NWPs 39, 40, 42, and
43.
In the August 9, 2001, Federal
Register notice (66 FR 42099) we
proposed to modify the definition of
"Loss of Waters of the US" by adding
the sentence "* * * The loss of stream
bed includes the linear feet of perennial
stream or intermittent stream that is
filled or excavated * * *". The
proposed change was in response to a
commitment to clearly state in the text
of the NWPs (which includes the
definitions) that the 300 linear foot limit
in NWPs 39, 40, 42, and 43 for filling
and excavating stream beds would only
apply to intermittent and perennial
streams, not to ephemeral streams.
In the January 15, 2002, Federal
Register notice (67 FR 2074-2075) we
erroneously stated that both the acreage
and linear limits of the NWPs do not
apply to ephemeral waters. This was
never intended to be adopted as policy
for the NWPs or the Corps regulatory
program. A previously stated, in the first
column of page 2075 of the January 15,
2002, Federal Register notice, we refer
to page 12881 of the March 9, 2000,
Federal Register notice, which only
discusses the 300 linear foot limit, not
the acreage limits of the NWPs. Our
intent is to continue to apply acreage
limits of NWPs to activities that result
in the permanent loss of ephemeral
waters, but the linear foot limits of the
NWPs (i.e., NWPs 39, 40, 42, and 43) for
filling or excavating stream beds would
not apply to activities that involve
filling or excavating ephemeral streams.
The last sentence of the definition of
"Loss of Waters of the US" as published
in the January 15, 2002, Federal
Register notice does not comport with
remainder of this NWP package.
Therefore, we are correcting this
definition as described above.
We believe that correcting the text of
NWP 39 and the definition of "Loss of
Waters of the US" through the
publication of this correction notice is
appropriate. Nevertheless, in order to
give all interested parties further
opportunity to comment on this matter,
we intend to publish a Federal Register
notice to solicit public comments on
those two corrections. If we determine
that any other matter relating to the final
NWP9 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 tVorks.
[FR Doc. 02-3555 Filed 2-12-02; 8:45 am]
BILLING CODE 3710-92-P
DEPARTMENT OF DEFENSE
Uniformed Services University of the
Health Sciences
Sunshine Act Meeting
AGENCY HOLDING THE MEETING:
Uniformed Services University of the
Health Sciences.
TIME AND DATE: 8:00 a.m. to 4:00 p.m.,
February 5, 2002.
PLACE: Uniformed Services University
of the Health Sciences, Board of Regents
Conference Room (D3001), 4301 Jones
Bridge Road, Bethesda, MD 20814-4799.
STATUS: Open-under "Government in
the Sunshine Act" (5 U.S.C. 5521)(e)(3)).
MATTERS TO BE CONSIDERED:
8:30 a.m. Meeting Board of Regents
(1) Approval of Minutes--November 14,
2001
(2) Faculty Matters
(3) Department Reports
(4) Financial Report
(5) Report-President, USUHS
(6) Report-Dean, School of Medicine
(7) Report-Dean, Graduate School of
Nursing
(8) Comments--Chairman, Board of
Regents
(9) New Business
CONTACT PERSON FOR MORE INFORMATION:
Mr. Bobby D. Anderson, Executive
Secretary, Board of Regents, (301) 295-
3116.
Dated: February 8, 2002.
Linda Bynun),
OSD Federal Regis ter Liaison Officer,
Department ojDejense.
[FIZ Doc. 02-3683 Filed 2-11-02; 3:32 pre)
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