20020721 Ver 1_Complete File_20020507

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STATE OF NORTH CAROLINA
DEPARTMENT OF TRANSPORTATION
MICHAEL F. EASLEY
GOVI'.RNOR
P.O. BOX 25201, RALEIGH, N.C. 2761 1-5201
August 18, 2004
North Carolina Division of Water Quality
401 /Wetlands Unit
1621 Mail Service Center
Raleigh, NC 27699-1621
Reference: DWQ Project No.020721
NCDOT/SR 2903 Randolph County
Dear Sir or Madam:
LYNDO TIPPETT
S1; R F1 A R Y
WETLANDS/ 401 GROUP
AUG 2 3 2004
WATER QUALITY SECTION
Attached is certification of completion for the work performed under the above
referenced permit. The certification is signed by our field agent. If additional
information is required please advise.
Sincerely,
Timothy 3bh son P.E.
Division Engineer
Attachment
cc: J. L. Picklesimer, PE, PLS
Reuben Blakley
Art King
File
DIVISION 8, P. O. BOX 1067, ABERDEEN, NC 28315
Telephone: [phone] Fax: [phone]
i
Michael F. Easley
Governor
William G. Ross, Jr., Secretary
Department of Environment and Natural Resources
Gregory J. Thorpe, Ph.D.
Acting Director
Division of Water Quality
DWQ Project No.: oZo "1 2_? - - - County: P Acl,?PL, _
-----
Applicant: fl e_r)c5r
---- -----------------
Project Name: 2 Z9o3 O_;?
1p c_4 v_-_ c
Date of Issuance of 401 Water Quality Certification: _ M 11 . ZZoo7
Certificate of Completion
Upon completion of all work approved within the 401 Water Quality Certification or applicable Buffer
Rules, and any subsequent modifications, the applicant is required to return this certificate to the
401/Wetlands Unit, North Carolina Division of Water Quality, 1650 Mail Service Center, Raleigh, NC,
27699-1650. This form may be returned to DWQ by the applicant, the applicant's authorized agent, or the
project engineer. It is not necessary to send certificates from all of these.
Applicant's Certification
1, ._, hereby state that, to the best of my abilities, due care and
diligence was used in the observation of the construction such that the construction was observed to be built
within substantial compliance and intent of the 401 Water Quality Certification and Buffer Rules, the
approved plans and specifications, and other supporting materials.
Signature:-. ____ _- __ Date:__________ -
Agent's Certification
I, ELBA Al D AaC.LI'•l/ , hereby state that, to the best of my abilities, due care and
diligence was used in the observation of the construction such that the construction was observed to be built
within substantial compliance and intent of the 401 Water Quality Certification and Buffer Rules, the
approved pips and sp i ?c tions, and other supporting materials.
I/
Signature: _ Date: 0/04
If this project was designed by a Certified Professional
I, -- , as a duly registered Professional (i.e., Engineer,
Landscape Architect, Surveyor, etc.) in the State of North Carolina, having been authorized to observe
(periodically, weekly, full time) the construction of the project, for the Permitee hereby state that, to the
best of my abilities, due care and diligence was used in the observation of the construction such that the
construction was observed to be built within substantial compliance and intent of the 401 Water Quality
Certification and Buffer Rules, the approved plans and specifications, and other supporting materials.
Signature _ Registration No. Date ___
?. ?0F W A TES, p
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lplw
NZ`b Mkt
Division of Water Quality 1650 Mail Service Center Raleigh, NC 27699-1650
Wetlands/401 Unit: [phone]
Fax: [phone]
? WATF Michael F. Easley, Governor
Q 9 William G. Ross Jr., Secretary
?O? QG North Carolina Department of Environment and Natural Resources
C/) r Gregory J. Thorpe, Ph.D.
> Acting Director
O `C 11 Division of Water Quality
May 14, 2002
Randolph County
DWQ Project No. 020721
SR 2903 (Osborne Mill Road)
APPROVAL of 401 Water Quality Certification with Additional Conditions
Mr. W.F. Rosser, P.E., Division Engineer
NCDOT Division 8
P.O. Box 1067
Aberdeen, NC 28315
Dear Mr. Rosser:
You have our approval, in accordance with the attached conditions and those listed below, to incur
permanent impacts of 70 linear feet and temporary impacts of 25 linear feet to an unnamed tributary
to Bachelor Creek in order to improve SR 2903 (Osborne Mill Road) in Randolph County. The
project must be constructed in accordance with your application dated April 29, 2002 (received May
7, 2002). After reviewing your application, we have decided that this fill is covered by General
Water Quality Certification Nos. 3366 and 3375, corresponding to the U.S. Army Corps of Engineers
Nationwide Permit Numbers 33 and 14. In addition, you must acquire any other federal, state or local
permits before you proceed with your project including (but not limited to) Sediment and Erosion
Control, Non-Discharge and Water Supply Watershed regulations. This approval will expire with the
accompanying 404 permit unless otherwise specified in the Water Quality Certification.
This approval is valid solely for the purpose and design described in your application (unless
modified below). Should your project change, you must notify the DWQ in writing and submit a new
application. If the property is sold, the new owner must be given a copy of this Certification and
approval letter, and is thereby responsible for complying with all the conditions. If total wetland fills
for this project (now or in the future) exceed one acre, or of total impacts to streams (now or in the
future) exceed 150 linear feet, compensatory mitigation may be required as described in 15A NCAC
2H .0506 (h) (6) and (7). For this approval to be valid, you must follow the conditions listed in the
attached certification and any additional conditions listed below.
1. Riparian vegetation must be reestablished within the construction limits of the project by the end
of the growing season following completion of construction.
2. NCDOT is encouraged to use existing on-site vegetation and materials for stream bank
stabilization and to minimize the use of rip rap.
3. The dimension, pattern, and profile of the stream and floodplain above and below the structure
shall not be modified by widening the stream channel or reducing the depth of the stream.
4. All work shall be performed during low flow conditions.
5. Heavy equipment must be operated from the banks rather than in the stream channel in order to
minimize sedimentation and reduce the likelihood of introducing other pollutants into the stream.
6. All mechanized equipment operated near surface waters must be regularly inspected and
maintained to prevent contamination of stream waters from fuels, lubricants, hydraulic fluids, or
other toxic materials.
7. Upon completion of the project, the NCDOT shall complete and return the enclosed "Certificate
of Completion" form to notify NCDWO when all work included in the 5401 Certification has
North Carolina Division of Water Quality, 401 Wetlands Certification Unit,
1650 Mail Service Center, Raleigh, NC 27699-1650 (Mailing Address)
2321 Crabtree Blvd., Raleigh, NC 27604-2260 (Location)
919-733-1786 (phone), 919-733-6893 (fax), http://h2o.enr.state.nc.us/ncwetlands/
been completed. The responsible party shall complete the attached form and return it to the
401/Wetlands Unit of the NC Division of Water Quality upon completion of the project.
If you do not accept any of the conditions of this certification, you may ask for an adjudicatory
hearing. You must act within 60 days of the date that you receive this letter. To ask for a hearing,
send a written petition which conforms to Chapter 150B of the North Carolina General Statutes to the
Office of Administrative Hearings, 6714 Mail Service Center, Raleigh, N.C. 27699-6714. This
certification and its conditions are final and binding unless you ask for a hearing.
This letter completes the review of the Division of Water Quality under Section 401 of the Clean
Water Act. If you have any questions, please telephone Ms. Cynthia Van Der Wiele at 919.733.5715
or Ms. Jennifer Frye of the Winston-Salem Regional Office at 336.771.4600.
Sincerely,
G Gregory J. Thorpe, Ph.D.
Acting Director
Attachment
cc: Wilmington District Corps of Engineers
Richard Spencer, USACE Wilmington Field Office
NCDWQ Winston-Salem Regional Office
Central Files
File Copy
FI
Office Use Only: Form Version October 2001
USACE Action ID No. DWQ No. 020721
If any particular item is not applicable to this project, please enter "Not Applicable" or "N/A" rather than
leaving the space blank.
g *SUED - D
1. Processin
1. Check all of the approval(s) requested for this project: MAY - 7 ?M?
® Section 404 Permit _ _......._._... _ r
+ pans grout,
? Section 10 Permit r. ;utv si LrIUN
® 401 Water Quality Certification
? Riparian or Watershed Buffer Rules
2. Nationwide, Regional or General Permit Number(s) Requested: Nationwide #14 &_#33
If this notification is solely a courtesy copy because written approval for the 401 Certification
is not required, check here: ?
4. If payment into the North Carolina Wetlands Restoration Program (NCWRP) is proposed for
mitigation of impacts (see section VIII - Mitigation), check here: ?
H. Applicant Information
Owner/Applicant Information
Name: North Carolina Department of Transportation
Mailing Address: W. F. Rosser, P.E., Division Engineer
North Carolina Department of Transportation, Division 8
P.O. Box 1067
Aberdeen, North Carolina 28315
Telephone Number: 910-944-2344 Fax Number: 910-944-5623
E-mail Address: [e-mail]
2. Agent Information (A signed and dated copy of the Agent Authorization letter must be
attached if the Agent has signatory authority for the owner/applicant.)
Name: R. Thomas McManus, Jr., County Maintenance Engineer
Company Affiliation: NC Department of Transportation
Mailing Address: 948 Southmont Drive
Asheboro, NC 27203
Telephone Number: [phone] Fax Number: 336-625-0146
E-mail Address: [e-mail]

-5-
III. Project Information
Attach a vicinity map clearly showing the location of the property with respect to local
landmarks such as towns, rivers, and roads. Also provide a detailed site plan showing property
boundaries and development plans in relation to surrounding properties. Both the vicinity map
and site plan must include a scale and north arrow. The specific footprints of all buildings,
impervious surfaces, or other facilities must be included. If possible, the maps and plans should
include the appropriate USGS Topographic Quad Map and NRCS Soil Survey with the property
boundaries outlined. Plan drawings, or other maps may be included at the applicant's discretion,
so long as the property is clearly defined. For administrative and distribution purposes, the
USACE requires information to be submitted on sheets no larger than 11 by 17-inch format;
however, DWQ may accept paperwork of any size. DWQ prefers full-size construction
drawings rather than a sequential sheet version of the full-size plans. If full-size plans are
reduced to a small scale such that the final version is illegible, the applicant will be informed that
the project has been placed on hold until decipherable maps are provided.
1. Name of project: SR 2903 (OsbornMill Road) Si 4e
2. T.I.P. Project Number or State Project Number (NCDOT Only): 6.572055T
3. Property Identification Number (Tax PIN):
4. Location
County: Randolph Nearest Town: Asheboro
Subdivision name (include phase/lot number):
Directions to site (include road numbers, landmarks, etc.): Take Highway 42 south from
Asheboro 10 miles, turn right on Old NC Highway 13 (SR 2845). Go 1.3 miles, turn left
on Kemp Mill Road (SR 2911) 0.3 miles, turn right onto Osborn Mill Road (SR 2903)
5. Site coordinates, if available (UTM or Lat/Long): See Attached Sheet
(Note - If project is linear, such as a road or utility line, attach a sheet that separately lists the
coordinates for each crossing of a distinct waterbody.)
6. Describe the existing land use or condition of the site at the time of this application:
Unpaved SecondM Road pipe crossing
7. Property size (acres): N/A Roadway
8. Nearest body of water (stream/river/sound/ocean/lake): Bachelor 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/.)
-6-
mitigation, list and describe the impact in Section VIII below. If additional space is needed for
listing or description, please attach a separate sheet.
1. Wetland Impacts
Wetland Impact
Site Number
indicate on ma
Type of Impact* Area of
Impact
acres Located within
100-year Floodplain**
es/no Distance to
Nearest Stream
linear feet
Type of Wetland***
None

* List each impact separately and identify temporary impacts. Impacts include, but are not limited to: mechanized clearing, grading, fill,
excavation, flooding, ditching/drainage, etc. For darns, 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://wlvw.femagov.
sss List a wetland type that best describes wetland to be impacted (e.g., freshwater/saltwater marsh, forested wetland, beaver pond,
Carolina Bay, bog, etc.)
List the total acreage (estimated) of existing wetlands on the property:
Total area of wetland impact proposed:
2. Stream Impacts, including all intermittent and perennial streams
Stream Impact
Site Number
indicate on ma
Type of Impact* Length of
Impact
linear feet
Stream Name** Average Width
of Stream
Before Impact Perennial or
Intermittent?
leases ecif ,)
I Permanent Pipe 70' UT of Bachelor Creek 2' - 4' I
1 Temporary 25' UT of Bachelor Creek 2' - 4' I

* List each impact separately and identify temporary impacts. Impacts include, but are not limited to: culverts and associated rip-rap,
dams (separately list impacts due to both structure and flooding), relocation (include linear feet before and after, and net losslgain),
stabilization activities (cement wall, rip-rap, crib wall, gabions, etc.), excavation, ditch ing/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
uuNv.lisp s.,o%. Several intemet sites also allow direct download and printing of USGS maps (e.g., \»V\v.toW7one.com,
wu\v.mapquest.com, etc.).
Cumulative impacts (linear distance in feet) to all streams on site: 95'
-8-
Open Water Impacts, including Lakes, Ponds, Estuaries, Sounds, Atlantic Ocean and any
other Water of the U.S.
Open Water Impact
Site Number
indicate on ma
Type of Impact* Area of
Impact
acres Name Waterbody
)
(if applicable) Type of Waterbody
(lake, pond, estuary,
bay, ocean etc sound
None

List each impact separately and identify temporary impacts. Impacts include, but are not limited to: fill, excavation, dredging,
flooding, drainage, bulkheads, etc.
4. Pond Creation
If construction of a pond is proposed, associated wetland and stream impacts should be
included above in the wetland and stream impact sections. Also, the proposed pond should
be described here and illustrated on any maps included with this application.
Pond to be created in (check all that apply): ? uplands ? stream ? wetlands
Describe the method' of construction (e.g., dam/embankment, excavation, installation of
draw-down valve or spillway, etc.): N/A
Proposed use or purpose of pond (e.g., livestock watering, irrigation, aesthetic, trout pond,
local stormwater requirement, etc.):
Size of watershed draining to pond: Expected pond surface area:
VII. Impact Justification (Avoidance and Minimization)
Specifically describe measures taken to avoid the proposed impacts. It may be useful to provide
information related to site constraints such as topography, building ordinances, accessibility, and
financial viability of the project. The applicant may attach drawings of alternative, lower-impact
site layouts, and explain why these design options were not feasible. Also discuss how impacts
were minimized once the desired site plan was developed. If applicable, discuss construction
techniques to be followed during construction to reduce impacts.
N/A
VIII.. Mitigation
DWQ - In accordance with 15A NCAC 2H .0500, mitigation may be required by the NC
Division of Water Quality for projects involving greater than or equal to one acre of impacts to
freshwater wetlands or greater than or equal to 150 linear feet of total impacts to perennial
streams.
-9-
freshwater wetlands or greater than or equal to 150 linear feet of total impacts to perennial
streams.
USACE - In accordance with the Final Notice of Issuance and Modification of Nationwide
Permits, published in the Federal Register on March 9, 2000, mitigation will be required when
necessary to ensure that adverse effects to the aquatic environment are minimal. Factors
including size and type of proposed impact and function and relative value of the impacted
aquatic resource will be considered in determining acceptability of appropriate and practicable
mitigation as proposed. Examples of mitigation that may be appropriate and practicable include,
but are not limited to: reducing the size of the project; establishing and maintaining wetland
and/or upland vegetated buffers to protect open waters such as streams; and replacing losses of
aquatic resource functions and values by creating, restoring, enhancing, or preserving similar
functions and values, preferable in the same watershed.
If mitigation is required for this project, a copy of the mitigation plan must be attached in order
for USACE or DWQ to consider the application complete for processing. Any application
lacking a required mitigation plan or NCWRP concurrence shall be placed on hold as
incomplete. An applicant may also choose to review the current guidelines for stream restoration
in DWQ's Draft Technical Guide for Stream Work in North Carolina, available at
http://h2o.enr.state.nc.us/ncwetlands/strm,izide.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 http://li2o.enr.statc.nc.us/NN-ro/index.htin. 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):
- 10-
If buffer mitigation is required, please discuss what type of mitigation is proposed (i.e., Donation
of Property, Conservation Easement, Riparian Buffer Restoration / Enhancement, Preservation or
Payment into the Riparian Buffer Restoration Fund). Please attach all appropriate information as
identified within 15A NCAC 2B .0242 or.0260.
XI. Stormwater (DWQ Only)
Describe impervious acreage (both existing and proposed) versus total acreage on the site.
Discuss stormwater controls proposed in order to protect surface waters and wetlands
downstream from the property.
Neither the current impervious cover (gavel road bed) nor the new proposed impervious cover
(asphalt pavement) will exceed 30% of the total site area Erosion control device appropriate to
the site will be utilized on this project which may include silt fences check dam and storm
water retaining basins.
XII. Sewage Disposal (DWQ Only)
Clearly detail the ultimate treatment methods and disposition (non-discharge or discharge) of
wastewater generated from the proposed project, or available capacity of the subject facility.
XIII. Violations (DWQ Only)
Is this site in violation of DWQ Wetland Rules (15A NCAC 2H .0500) or any Buffer Rules?
Yes F-] No
Is this an after-the-fact permit application?
Yes [-] No
XIV. Other Circumstances (Optional):
It is the applicant's responsibility to submit the application sufficiently in advance of desired
construction dates to allow processing time for these permits. However, an applicant may
choose to list constraints associated with construction or sequencing that may impose limits on
work schedules (e.g., draw-down schedules for lakes, dates associated with Endangered and
Threatened Species, accessibility problems, or other issues outside of the applicant's control).
Applicant/Agent's Signature Date
(Agent's signature is valid only if an authorization letter from the applicant is provided.)
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020721
STATE OF NORTH CAROLINA
DEPARTMENT OF TRANSPORTATION
MICHAEL F. EASLEY DIVISION OF I4IGHWAYS
GOVERNOR
Mr. Rob Ridings FILE
Division Of Water Quality
401 Wetlands Unit
1650 Mail Service Center
Raleigh, NC 217699-1650
Dear Mr. Ridings:
Subject: Randolph County - SIt 2903 - Osborn Mill Road
LYNDO TIPPF,TT
S1:( RF.1ARY
PAYMENT
RECEIVED
In an effort to obtain the permits needed for pipe replacement on SR 2903 from end of pavement
to SR 2911 in Randolph County, we are providing the pre construction notification application
and the supporting materials.
A survey for the presence of Schweinitz's Sunflower (Helianthus Schweinitz) was conducted by
myself as part of the required minimum criteria check. No Schwienitz Sunflowers were found
within the road's right of way.
Any detours required for this project will be done off site.
To our knowledge there are No IIigh Quality Waters or Outstanding Water Resources occurring
in the project area. We anticipate that these activities will be authorized under Nationwide Permit
Number 14 and 33.
This letter and a copy of the application materials will be submitted to N.C. Division of Water
Quality, U.S. Fish and Wildlife Service, and U.S. Army Corps. of Engineers for approval.
If you have any questions or comments, or need additional information, please contact our office
at [phone]. Thank you for your cooperation in this matter.
Sinc eI
Art C. King
Division Environmental Officer
cc: W. F. Rosser, PE
J. Picklesimer, PE
R. T. McManus, Jr.
File
April 29, 2002
COPY
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P.O. BOX 1067, ABERDEEN, NoR,ni CAROLINA 28315
Pf 10NE [phone] FAX [phone]
02 0721

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STATE OF NORTH CAROLINA
DEPARTMENT OF TRANSPORTATION
MICHAEL F. EASLEY DIVISION OF HIGHWAYS LYNDO TIPPETT
GOVERNOR SECRETARY
May 3, 2002
Mr. Rob Riding
Division of Water Quality u?
401 Wetlands Unit
1650 Mail Service Center p
Raleigh, North Carolina 27699-1650 WSW 40N
Dear Mr. Ridings:
Enclosed is the permit application for the following project:
Description: SR 2903 Site 1- Randolph County
Work Order #: 6.572055T
TIP Number: N/A PAYMENT
Fee Category: $200.00 RECEIVED
Please submit for automated payment.
Sincerely,
a-1- (f-
Art C. King
Division Environmental Officer
0 ;- 0 7,? 6
U.S. ARMY CORPS OF ENGINEERS
WILMINGTON DISTRICT
Action Ill: 200200790 TIP No: State Project No: 6.572055T County: Randolph
GENERAI. PERMIT (REGIONAL AND NATIONWIDE) VERIFICATION
Applicant: North Carolina Department of Transportation
Address: W.F. Rosser, P.F., Division Engineer
North Carolina Department of Transportation
Division 8
P.O. Box 1067 WETLANDS 000UP
Aberdeen, North Carolina 28315 _WE1Z QUALITY SECTION
Telephone Number: [phone]
Size and Location of project (waterway, road name/number, town, etc.): 70 linear feet of 103-inch by 71-inch
CMPA culvert at centerline station 30-1-74 on SR 2903 in an unnamed tributary to Bachelor Creek in Randolph
County, North Carolina.
Description•of Activity: To replace 32 linear feet of existing 36-inch RCP culvert with 70 linear feet of 103-inch by
71-inch CMPA culvert with headwalls and install a temporary diversion structure consisting of a fabric-lined channel,
temporary diversion pipe and fabric-covered stone berms placed on filter cloth on the upstream and down stream side
of the culvert. 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 culvert for bank protection. Traffic will be detoured onto existing roadways during construction. All
temporary fill is to be removed from the waterway in its entirety upon completion of the construction.
Applicable Law: X Section 404 (Clean Water Act, 33 U.S.C. 1344)
Section 10 (River and Harbor Act of 1899)
Authorization: 14/33 Nationwide Permit Number
Regional General Permit Number
Your work is authorized by this Regional General (RGP) or Nationwide (NWP) Permit provided it is accomplished
in strict accordance with the attached conditions and your submitted plans. If your activity is subject to Section 404
(if Section 404 block above is checked), before beginning work you must also receive a Section 401 water quality
certification from the N.C. Division of Environmental Management, telephone [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 12 Juinc 2002
Corps Regulatory OfficialRichard K.-Spencer Telephone No. (910)_251-4172
Expiration Date of Verification 12 June 2005
CF: NCDOT, Art King (Division 8)
NDDWQ, Cynthia Van Der Wieltv--**"
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Federal Register/Vol. 67, No. 10/Tuesday, January 15, 2002/Notices 2077
New York
New York District Engineer, ATTN: CENAN-
OP-R, 26 Federal Plaza, New York, NY
10278-0090
North Carolina
Wilmington District Engineer, ATTN:
CESAW-RG, P.O. Box 1890, Wilmington,
NC 28402-1890
North Dakota
Omaha District Engineer, ATTN: CENWO-
OP-R, 106 South 15th Street, Omaha, NE
68102-1618
Ohio
Huntington District Engineer, ATTN:
CELRH-OR-F, 502 8th Street, Huntington,
WV 25701-2070
Oklahoma
Tulsa District Engineer, ATTN: CESWT-PE-
R, 1645 S. 101st East Ave, Tulsa, OK
74128-4609
Oregon
Portland District Engineer, ATTN: CENWP-
PE-G, P.O. Box 2946, Portland, OR 97208-
2946
Pennsylvania
Baltimore District Engineer, ATTN: CENAB-
OP-R, P.O. Box 1715, Baltimore, MD
21203-1715
Rhode Island
New England District Engineer, ATTN:
CENAE-R, 696 Virginia Road, Concord,
MA 01742-2751
South Carolina
Charleston District Engineer, ATTN: CESAC-
CO-P, P.O. Box 919, Charleston, SC
29402-0919
South Dakota
Omaha District Engineer, ATTN: CENWO-
OP-R, 106 South 15th Street, Omaha, NE
68102-1618
Tennessee
Nashville District Engineer, ATTN: CELRN--
OP-F, P.O. Box 1070, Nashville, TN
37202-1070
Texas
Ft. Worth District Engineer, ATTN: CESWF-
PER-R, P.O. Box 17300, Ft. Worth, TX
76102-0300
Utah
Sacramento District Engineer, ATTN:
CESPK-CO-R, 1325 J Street, CA 95814-
2922
Vermont
New England District Engineer, ATTN:
CENAE-R, 696 Virginia Road, Concord,
MA 01742-2751
Virginia
Norfolk District Engineer, AT°I iN: CENAO-
OP-R, 803 Front Street, Norfolk, VA
23510--1096
Washington
Seattle District Engineer, ATTN: CENWS-
OP-RG, P.O. Box 3755, Seattle, WA 98124-
2255
West Virginia
Huntington District Engineer, ATTN:
CELRH-OR-F, 502 8th Street, Huntington,
WV 25701-2070
Wisconsin
St. Paul District Engineer, ATTN: CEMVP-
CO-R, 190 Fifth Street East, St. Paul, MN
551a1-1638
Wyoming
Omaha District Engineer, ATTN: CENWO--
OP-R, 106 South 15th Street, Omaha, NE
68102-1618
District of Columbia
Baltimore District Engineer, ATTN: CENAB-
OP-R, P.O. Box 1715, Baltimore, MD
21203-1715
Pacific Territories (American Samoa, Guam,
& Commonwealth of, the Northern Mariana
Islands)
Honolulu District Engineer, ATTN: CEPOH-
EC-R, Building 230, Fort Shafter,
Honolulu, HI 96858-5440
Puerto Rico & Virgin Islands
Jacksonville District Engineer, ATTN:
CESAJ-CO-R, P.O. Box 4970, Jacksonville,
FL 32202-4412
Dated: January 4, 2002.
Approved:
Robert H. Griffin,
Brigadier General, U.S. Army, Directorof Civil
Works.
Nationwide Permits, Conditions,
Further Information, and Definitions
A. Index of Nation Wide Permits,
Conditions, Further Information, and
Definitions
Nationwide Permits
1. Aids to Navigation
2. Structures in Artificial Canals
3. Maintenance
4. Fish and Wildlife Harvesting,
Enhancement, and Attraction Devices and
Activities
5. Scientific Measurement Devices
6. Survey Activities
7. Outfall Structures and Maintenance
8. Oil and Gas Structures
9. Structures in Fleeting and Anchorage
Areas
10. Mooring Buoys
11. Temporary Recreational Structures
12. Utility Line Activities
13. Bank Stabilization
14. Linear Transportation Projects
15. U.S. Coast Guard Approved Bridges
16. Return Water From Upland Contained
Disposal Areas
17. Hydropower Projects
18. Minor Discharges
19. Minor Dredging
20. Oil Spill Cleanup
21. Surface Coal Mining Activities
22. Removal of Vessels
23. Approved Categorical Exclusions
24. State Administered Section 404 Programs
25. Structural Discharges
26. [Reserved]
27. Stream and Wetland Restoration
Activities
28. Modifications of Existing hfarinas
29. Single-family Housing
30. Moist Soil Management for Wildlife
31. Maintenance of Existing Flood Control
Facilities
32. Completed Enforcement Actions
33. Temporary Construction, Access and
Dewatering
34. Cranberry Production Activities
35. Maintenance Dredging of Existing Basins
36. Boat Ramps
37. Emergency Watershed Protection and
Rehabilitation
38. Cleanup of Hazardous and Toxic Waste
39. Residential, Commercial, and
Institutional Developments
40. Agricultural Activities
41. Reshaping Existing Drainage Ditches
42. Recreational Facilities
43. Stormwater Management Facilities
44. Mining Activities
Nationwide Permit General Conditions
1. Navigation
2. Proper Maintenance
3. Soil Erosion and Sediment Controls
4. Aquatic Life Movements
5. Equipment
6. Regional and Case-by-Case Conditions
7. Wild and Scenic Rivers
8. Tribal Rights
9. Water Quality
10. Coastal Zone Management
11. Endangered Species
12. Historic Properties
13. Notification
14. Compliance Certification
15. Use of Multiple Nationwide Permits.
16. Water Supply Intakes
17. Shellfish Beds
18. Suitable Material
19. Mitigation
20. Spawning Areas
21. Management of Water Flows
22. Adverse Effects from Impoundments
23. Waterfowl Breeding Areas
24. Removal of Temporary Fills
25. Designated Critical Resource Waters
26. Fills Within 100-year Floodplains
27. Construction Period
Further Information
Definitions
Best Management Practices (BMPs)
Compensatory Mitigation
Creation
Enhancement
Ephemeral Stream
Farm Tract
Flood Fringe
F'loodway
Independent Utility
Intermittent Stream
Loss of Waters of the US
Non-tidal Wetland
Open Water
Perennial Stream
Permanent Above-grade Fill
Preservation
Restoration
Riffle and Pool Complex
2078 Federal Register/ Vol. 67, No. 10/'Tuesday, January 15, 2002/Notices
Single and Complete Project
Stormwater Management bridges, culverted road crossings, water
intake structures
eta) and the done primarily to obtain fill for anti
Stormwater Management Facilities
Stream lied ,
restoration activities. The discharge of
placement of new or additional riprap to dredged or fill material and all related
Stroam Channelization protect the structure, provided the work needed to restore the upland must
Tidal Wetland
Vegetated Duffer permittee notifies the District Engineer
in accordance with General Condition be part of a single and complete project.
This permit cannot be used in
Vegetated Shallows
Waterbody 13. The removal of sediment is limited
to the rninimurn necessar
to restore th conjunction with NWP 1f3 or NWI' 19 to
d

B. Nationwide Permits y
e
waterway in the immediate vicinity of restore
amaged upland areas. This
permit cannot be used to reclaim
1. Aids to Navigation. The placement the structure to the approximate
dimensions that existed whe
th historic lands lost, over an extended
of aids to navigation and Regulatory
markers which areapproved b and
y n
e
structure was built, but cannot extend period, to normal erosion processes.
This permit does not authorize

installed in accordance with the
i
f further than 200 feet in anv direction
from the structure. The placement of ri maintenance dredging for the primary
f

requ
rements o
the U.S. Coast Guard
(USCG) (See 33 CFIt, chapter I p
rap must be the minimum necessar y to
1 cur ose o
navigation and beach
1 p
restoration. 'I'bis permit does not
,
subchapter C part 66). (Section 10) protect the structure or to ensure the
safety of the structure
All exc
t
d authorize new stream channelization or

2. Structures in Artificial Canals.
Structures constructed in artificial .
ava
e
materials must be deposited and k
stream relocation projects. Any wort.
authorized by this permit must not
canals within principally residential
developments where the connection of retained in an upland area unless
otherwise specifically approved by the cause more than minimal degradation of
water quality, more than minimal
the canal to navigable water of the US
has been previously authorized (see 33 District Engineer under separate
authorization. Any bank stabilization changes to the flow characteristics of the
stream, or increase flooding (See
CFR 322.5(8)). (Section 10)
-3. Maintenance. Activities related to: measures not directly associated with
the structure will require a separate General Conditions 9 and 21). (Sections
10 and 404)
(i) The repair, rehabilitation, or authorization from the District Engineer. Note: This NWP authorizes the repair

replacement of any previously
(iii) Discharges of dredged or fill ,
rehabilitation, or replacement of any
authorized, currently serviceable, material, including excavation, into all previously authorized structure or fill that
structure, or fill, or of any currently waters of the US for activities associated does not qualify for the Section 404(f)
serviceable structure or fill authorized with the restoration of upland areas exemption for maintenance.
by 33 CFR 330.3, provided that the damaged by a storm, flood, or other '4. Fish and Wildlife Harvesting

structure or fill is not to be put to uses
discrete event, including the ,
Enhancement, and Attraction Devices
differing from those uses specified or construction, placement, or installation and Activities. Fish and wildlife
contemplated for it in the original of upland protection structures and harvesting' devices and activities such as
permit or the most recently authorized
modification. Minor deviations in the
' minor dredging to remove obstructions
in a water of the US. (Uplands lost as pound nets, crab traps, crab dredging,
eel pots, lobster traps, duck blinds
clam
structure
s configuration or filled area
including those due to changes in a result of a storm, flood, or other
discrete event can be replaced without ,
and oyster digging; and small fish
attraction devices such as open water
materials, construction techniques, or a Section 404 permit provided the fish concentrators (sea kites, etc.). This
current construction codes or safety uplands are restored to their original NWP authorizes shellfish seeding
standards which are necessary to make pre-event location. This NWP is for the provided this activity does not occur in
repair, rehabilitation, or replacement are activities in waters of the US associated wetlands or sites that support
permitted, provided the adverse with the replacement of the uplands.) submerged aquatic vegetation (including
environmental effects resulting from The permittee must notify the District sites where submerged aquatic
such repair, rehabilitation, or
replacement are minimal. Currently Engineer, in accordance with General
Condition 13, within 12-months of the vegetation is documented to exist, but
may not be present in a given year.).
serviceable means useable as is or with date of the damage and the work must This NWP does not authorize artificial
sortie maintenance, but not so degraded commence, or be under contract to reefs or impoundments and serni-
as to essentially require reconstruction.
This NWP authorizes the repair, commence, within two years of the date
of the damage. The permittee should impoundments of waters of the US for
the culture or holding of motile species
rehabilitation, or replacement of those provide evidence, such as a recent such as lobster or the use of covered
structures or fills destroyed or damaged
by storms, floods, fire or other discrete topographic survey or photographs, to
justify the extent of the proposed oyster trays or clam racks. (Sections 10
and 404)
events, provided the repair,
rehabilitation, or replacement is restoration. The restoration of the
damaged areas cannot exceed the • 5. Scientific Measurement Devices.
Devices, whose purpose is to measure
commenced, or is under contract to contours, or ordinary high water mark, and record scientific data such as staff
commence, within two years of the date
of their destruction or damage
In cases that existed before the clamage. The
District En
ineer retain
th
i
ht gages, tide gages, water recording
.
of catastrophic events, such as g
s
e r
g
to
determine the extent of the pre-existing devices, water quality testing and
improvement devices and similar
hurricanes or tornadoes, this two-year
limit may be waived by the District conditions and the extent of any
restoration work authorized b
this structures. Small weirs and flumes
t
d

Engineer, provided the permittee can y
permit. Minor dredging to remove cons
ructe
primarily to record water
quantity and velocity are also
demonstrate funding, contract, or other
similar dela
s obstructions from the adjacent
t
b
d authorized provided the discharge is
y
.
(ii) Discharges of dredged or fill wa
er
o
y is limited to 50 cubic yards
below the plane of the ordinary high limited to 25 cubic yards and further for
discharges of 10 to 25 cubic yards
material, including excavation, into all
waters of the US to remove accum
l
t
d water mark, and is limited to the provided the permittee notifies the
u
a
e
sediments and debris in the vicinity of, amount necessary to restore the pre-
existing bottom contours of the District Engineer in accordance with the
"Notification" General Condition

and within, existing structures (e.0 .,
waterbody. The dredging may not be .
(Sections 10 and 404)
Federal Register/Vol. 07, No. 10 / Tuesclay, 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 from test wells for
oil and gas exploration is not authorized
by this NWP; the plugging of such wells
is authorized. Fill placed for roads, pads
and other similar activities is not
authorized by this NW'P. 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. Outfoll 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 perrnittee notifies the District
Engineer in accordance with General
Condition 13;
b. The amount of excavated or
dredged material must be the minimum
necessary to restore the outfalls, intakes,
small impoundments, and canals to
original design capacities and design
configurations (i.e., depth and width);
C. The excavated or drod-ed 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 0utfall structure. For
maintenance excavation and dredging to
_removc accunnulated sediments, the
notification must include information
regarding the original design capacities
and configurations of the facility and
re presence of special aquatic sites
e.g., , vegetatecl 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(l).
(Where such limits have not been
designated, or where changes are
anticipated, District Engineers will
consider asserting discretionary
authority in accordance with 33 CFR
330.4(e) and will also review such
proposals to ensure they comply with
the provisions of the fairway regulations
in 33 CFR 322.5(1). Any Corps review
tinder this permit will be limited to the
effects on navigation and national
security in accordance with 33 CFR
.322.5(f)). Such structures will not be
placed in established danger zones or
restricted areas as designated in 33 CFR
part 334: nor will such structures be
permitted in EPA or Corps designated
dredged material disposal areas.
(Section 10)
9. Structures in Fleeting and
Anchorage Areas. Structures, buoys,
floats and other devices placed within
anchorage or fleeting areas to facilitate
moorage of vessels where the USCG has
established such areas for that purpose.
(Section 10)
, 10. Mooring Buovs. Non-commercial,
single-boat, mooring buoys, (Section 10)
11. Temporary Recreational
Structures. Temporary buoys, markers,
small floating docks, and similar
structures placed for recreational use
during specific events such as water
skiing competitions and boat races or
seasonal use provided that such
structures are removed within 30 days
after use has been discontinued. At
Corps of Engineers reservoirs, the
reservoir manager must approve each
buoy or marker individually. (Section
10)
.12. Utilitv 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 beddin; for the utility lines, in all
waters of the US, provided there is 110
change in [)reconstruction 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
G" 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
he 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: Tire
construction or maintenance of
foundations for overhead utility line
towers, poles, and anchors in all waters
of the US, provided the foundations are
the minimum size necessary and
separate footings for each tower leg
(rather than a larger single pad) are used
where feasible.
(iv) Access roads: The construction of
access roads for the construction and
maintenance of utility lines, including
overhead power litres and utility litre
substations, in iron-tidal waters of the
US, excluding non-ticlal wetlands
adjacent to tidal waters, provided the
discharges do not cause die loss of
greater than 1/2-acre of non-tidal waters
of the US. Access roads shall be, the
rnrininruin width necessary (see Note
below). Access roads mast be
constructed so that the length of the
road minimizes the adverse effects on
waters of the US and as near as possible
to proconstruction contours and
2080 federal Register / Vol. 67, No. 10/Tuesday, January 15, 2002/Notices
elevations (e.g., at grade corduroy roads
or geotextile/gravel roads). Access roads (c) The utility line in waters of the
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
energy areas); arid

contours and elevations in waters of the
(d) The utility line is placed within a ,
g. The activity is part of a single and
US must be properly bridged or
culverted to maintain surface flows. jurisdictional area (i.e., water of the LIS)
and it runs parallel to a stream bed that , complete project.
Bank stabilization activities in excess
The term "utility line" does not is within that jurisdictional area; of 500 feet in length or greater than an
include activities which drain a water of (e) Discharges associated with the average of one cubic yard per running
the US, such as drainage tile, or french construction of utility line substations foot may be authorized if the permittee
drains; however, it does apply to pipes that result in the loss of greater than Vto- notifies the District Engineer in
conveying drainage from another area.
For the purposes of this NWP
the loss acre of waters of the US; or
Petnranent access roads accordance with the "Notification"
,
of waters of the US includes the filled
constructed above grade in waters of the General Condition 13 and the District
Engineer determines the activity
area plus waters of the US that are
adversely affected by floodin US for a distance of more than 500 feet.
(g) Permanent access roads complies with the other terms and
g,
excavation, or drainage as a result of the
constructed in waters of the US with conditions of the NWP and the adverse
environmental effects are minimal both
project. Activities authorized by 40 pervious materials. (Sections 10 and
) individually arid cumulatively. This
paragraph (i) through (iv) may not
exceed a total of 1h-acre loss of waters
Note 1: Overhead utility lines constructed NWP may not be used for the
chanuelization of waters of the US

of the US. Waters of the US tem oraril
p y
affected by fillin
floodin
ex
av
ti
over Section 10 waters and utility lines that
are routed in or under Section 10 waters .

(Sections 10 and 404)
'
`
'
g,
g,
c
a
on,
or drainage, where the project area is without a discharge of dredged or fill
material require a Section 10 permit; except r14. Lin
eor
T
ransportation Projects.
Activities required for the construction,
restored to preconstruction contours for pipes or pipelines used to transport expansion, modification, or
and elevation, is not included in the gaseous, liquid, liquescent, or slurry improvement of linear transportation
calculation of permanent loss of waters substances over navigable waters of the US, crossings (e.g., highways, railways

of the US. This includes tem orar y
p y
construction teats (e
timber
steel
which are considered to be bridges, not

utility lines, and may require a permit from ,

trails, airport runways, and taxiways) in
f
h
.g.,
,
,
geotextile) used during construction and
the USCG pursuant to section of the Rivers
and Harbors Act of 1899
However
an waters o
t
e US, including wetlands, if
the activity meets the following criteria:
upon
removed a completion of the work.
Where certain functions and valu
f .
,
y
discharges of dredged or fill material This NWP is
a. subject to the
f
ll
i
es o
waters of the US are permanently associated with such pipelines wilt require a
Corps permit under Section 404. o
ow
ng acreage limits:
(1) For linear transportation projects
adversely affected, such as the Note 2: Access roads used for both in non-tidal waters, provided the
conversion of a forested wetland to a
herbaceous wetland in the permanently construction and maintenance may be
authorized, provided they meet the terms arid discharge does not cause the loss of
greater than 1/2-acre of waters of the US;
maintained utility line right-of-way, conditions of this NWP. Access roads used (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
ad
verse be removed upon completion of the work and does not cause the loss of greater than
minimal
level.
the area restored to preconstruction contours,
elevations
and wetland conditio
vi-acre of waters of the US.
Mechanized land clearing necessary
o Y ,
ns.
'Temporary access roads for construction may b. The permittee must notify the

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

expansion of utility line substations, constructed or installed in navigable waters
of the US (i.e., Section 10 waters), copies of (1) The discharge causes the loss of
foundations for overhead utility lines, the PCN and NWP verification will be sent greater than 'ho acre of waters of the TJS;
and access roads is authorized, provided by the Corps to the National Oceanic and or
the cleared area is kept to the minimum Atmospheric Administration (NOAA), (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 LIS that is filled •13. 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 minimum needed for erosion protection; describing how temporary losses will be
immediately upon completion of b. The bank stabilization activity is minimized to the maximum extent
construction. This NWP may authorize
utility lines in or affecting navigable 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

i average of one cubic yard per running
foot placed along the bank below the sites, including wetlands, and stream
riffle and pool com
lexes
the
assoc
ated discharge of dredged or fill
material (See 33 CFR part 322). plane of the ordinary high water nnark p
,
notification trust include a delineation

Notification: The permittee trust or the high tide line;
d. No material is placed in any special of the affected special ac )vatic sites;
e. The width of the fill is limited to
notify the District Engineer in
accordance with General Condition 13 aquatic site, including wetlands; the minimum necessary for the crossing;
,
if any of the following criteria are met: e, No material is of the type, or is
placed in any location, or in any f. This permit does not authorize
stream channelization
and the
(a) Mechanized land clearing in a
forested wetland for the utility line manner, to impair surface water flow
i ,
authorized activities must not cause

right-of-way; nto or out of any wetland area;
f. No material is placed in a manner more than minimal changes to the
hydraulic flow characteristics of the
(b) A Section 10 permit is required; that will be eroded by normal or streann, increase flooding, or cause more
Federal Register / Vol. 67, No, 10/Tuesday, January 15, 2002/Notices 2081
than minimal degradation of water
quality of any stream (see General
Conditions 9 and 21);
g. This permit cannot be used to
authorize non-linear features commonly
associated with transportation projects,
such as vehicle maintenance or storage
buildings, parking lots, train stations, or
aircraft hangars; and
h. The crossing is a single and
complete project for crossing waters of
the US. Where a road segment (i.e., the
shortest segment of a road with
independent utility that is part of a
larger project) has multiple crossings of
streams (several single and complete
projects) the Corps will consider
whether it should use its discretionary
authority to require an Individual
Permit. (Sections 10 and 404)
Note: Some discharges for the construction
of farm roads, forest roads, or temporary
roads for moving mining equipment may be
eligible for an exemption from the need for
a Section 404 permit (see 33 CFR 323.4).
15. U.S. Coast Guard Approved
Bridges. Discharges of dredged or fill
material incidental to the construction
of bridges across navigable waters of the
US, including cofferdams, abutments,
foundation seals, piers, and temporary
construction and access fills provided
such discharges have been authorized
by the USCG as part of the briclge
permit. Causeways and approach fills
are not included in this NWP and will
require an individual or regional
Section 404 permit. (Section 404)
16. Return Water From Upland
Contained Disposal Areas. Return water
from upland, contained dredged
material disposal area. The dredging
itself may require a Section 404 permit
(33 CFR 323.2(d)), but will require a
Section 10 permit if located in navigable
waters of the US. The return water from
a contained disposal area is
administratively,defined as a discharge
of dredged material by 33 CFR 323.2(d),
even though the disposal itself occurs
on the upland and does not require a
Section 404 permit. This MVP satisfies
the technical requirement for a Section
404 permit for the return water where
the quality of the return water is
controlled by the state through the
Section 401 certification procedures.
(Section 404)
- 17. FlydropoiverProjec'ts. Discharges
of dredged or fill material associated
with (a) small hydropower projects at
existing reservoirs where the project,
which includes the fill, are licensed by
the Federal Energy Regulatory
Commission (FERC) under the Federal
Power Act of 1920, as amended; and has
a total gonerating capacity of not Inore
than 5000 k1V; and the permittee
notifies the District Engineer in
accordance with the ''Notification''
General Condition; or (b) hydropower
projects for which the FERC has granted
an exemption from licensing pursuant
to section 408 of the Energy Security
Act of 1980 (16 U.S.C. 2705 and 2708)
and section 30 of the Federal Power Act,
as aulencled; provided the permittee
notifies the District Engineer in
accordance with the "Notification''
General Condition. (Section 404)
18...Minor Discharges. Minor
clisch,irges of dredged or fill material
into all waters of the US if the activity
meets all of the following criteria:
a. The quantity of discharged material
and the volume of area excavated do not
exceed 25 cubic yards below the plane
of the ordinary high water mark or the
high tide line;
b. The discharge, including any
excavated area, will not cause the loss
of more than I/ro-acre of a special
aquatic site, including wetlands. For the
purposes of this MVP, the acreage
limitation includes the filled area and
excavated area plus special aquatic sites
that are adversely affected by flooding
and special aquatic sites that are
drained so that they would no longer be
a water of the US as a result of the
project;
c. If the discharge, including any
excavated area, exceeds 10 cubic yards
below the plane of the ordinary high
water mark or the high tide line or if the
discharge is in a special aquatic site,
including wetlands, the permittee
notifies the District Engineer in
accordance with the "Notification"
General Condition. For discharges in
special aquatic sites, including
wetlands, the notification must also
include a delineation of affected special
aquatic sites, including wetlands (also
see 33 CFR 330.1(e)); and
cf. 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. Dreclgim, of no
more than 25 cubic yards below the
plane of the ordinary high water mark
or the mean high water mark front
navigable waters of the US (i.e., Section
10 waters) as part of a single and
complete project. This MVP 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 Inay not be present in a f;iven
year), anadrontous fish spawning; areas,
or wetlands, or the connection of canals
or other artificial waterways to
navigable waters of the US (see 33 CFR
322.5(g)). (Sections 10 and 404)
20. Oil Spill Cleanup. Activities
required for the containment and
cleanup of oil and hazardous substances
which are subject to the National Oil
and Hazardous Substances Pollution
Contingency Plan (40 CF'R part 300)
provided that the work is clone 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 ;dining Activities.
Discharges of dredged or fill material
into waters of the US associated with
surface coal mining and reclamation
operations provided the coal mining
activities are authorized by the DO1,
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 NbVP,
the District Engineer must determine
that the activity complies with the terms
and conditions of the NWP and that the
adverse environmental effects are
minimal both individually and
cumulatively and must notify the
project sponsor of this determination in
writing. The Corps, at the discretion of
the District Engineer, may require a
bond to ensure success of the
mitigation, if no other Federal or state
agency has required one. For discharges
in special aquatic sites, including
wetlands, and stream riffle and pool
complexes, the notification must also
include a delineation of affected special
aquatic sites, including wetlands. (also,
see 33 CFR 330.1(e))
Mitigation: In determining the need
for as well as the level and type of
rnitis;ation, the District Engineer will
ensure no more than rninirttal 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
Ininimal. In cases where OSM or the
slate has required mitigation for the loss
of aquatic habitat, the, Corps may
consider this in cletermining appropriate
mitigation under Section 404. (Sections
10 and 401)
22. Removal of Vessels. 'T'emporary
structures or minor discharges of
dredged or fill material required for the
removal of wrecked, abandoned, or
disabled vessels, or the removal of man-
2082 Federal Register/Vol. 67, No. 10 / `T'uesday, January 15, 2002/Notices

made obstructions to navigation. This
NWP does not authorize the removal
f within the form prior to tlue discharge o f bed and/or banks to restore or create
o
vessels listed or determined eligible for concrete, sand, rock, etc. This NWP
does not authorize filled stru
t
l stream meanders; the backfilling of

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

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

Properties" General Condition. This
NWP does not authorize maint may
require a Section 10 permit if located in water areas; the construction of oyster
habitat over unvegetated bottom in tidal
enance
dredging, shoal removal, or riverbank navigable waters of the US. (Section
404) waters; activities needed to reestablish

snagging. Vessel disposal in waters of
the US may need a permit from EPA
26. [TZeserved]
27. Stream and Wetland Restorati vegetation, including plowing or discing
for seed bed preparation and the

(see 40 CFR 229.3). (Sections 10 and
404) on
Activities. Activities in waters of the US planting of appropriate wetland species;
mechanized land clearing to remove

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

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

Federal agency or department where
that agency or department has par
an areas,
and the restoration and enhancement of aquatic use, such as the creation of an
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 Quality Regulation for
I
l s:
(a) The activity is conducted on: channelization. This NWP does riot
authorize the conversion of
t
l
mp
ementing the Procedural Provisions
of the National Environmental Policy (1) Non-Federal public lands and-.
private lands, in accordance with the na
ura
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
wetl
d
h creation of waterfowl impoundments
where a forested wetland previously
,
,
g
s
categorically excluded from an
en
ancement, restoration, or
creation agreement between the existed. However, this NWP authorizes
the relocation of non-tid
l
t

environmental documentation, because
it is included within a category of
landowner and the U.S. Fish and
Wildlife Service (FWS) or the Natural a
wa
ers,
including non-tidal wetlands, on the

actions which neither individually nor
cumulatively have a significant effect on
Resources Conservation Service (NRCS),
the National Marine Fisherie
S
i project site provided there are net gains
in aquatic resource functions and

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

with that determination. Before ;
(2) Reclaimed surface coal mine creating that wetland type on the project
site, This NWP does not autho
i
th

approval for purposes of this NWP of
'
lands, in accordance with a Surface r
ze
e
relocation of tidal waters or the
any agency
s categorical exclusions, the
Chief of Engineers will solicit
ublic Mining Control and Reclamation Act
it i
d conversion of tidal waters, including
p
comment. In addressing these perm
ssue
by the OSM or the
applicable state agency (the future tidal wetlands, to other aquatic uses,
such as the conversion of tidal wetl
d

comments, the Chief of Engineers may
require certain conditions for
reversion does not apply to streams or
wetlands created, restored, or enhanced an
s
into open water impoundments.
Reversion
For enhancement

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

24. State Administered Section 404 topographic features, nor for a
mitigation bank); or NWP does riot authorize any future
discharge of dred
ed or fill m
t
i
l
Program. Any activity permitted by a
state administering its own Section 404 (3YAny other public, private or tribal
lands; g
a
er
a
associated with tho reversion of the area

permit program pursuant to 33 U.S.C.
1344(8)-(1) is permitted
ursuant to
(b) Notification: For activities on any
bli to its prior condition. In such cases a
separate permit would be required for
p
section 10 of the Rivers and Harbors Act pu
c or private land that are riot
described by paragraphs (a)(1) or (a)(2) any reversion. For restoration,
enhancement
and creati

of 1899. Those activities that do not
involve a Section 404 st
t
i
above, the permittee must notify the ,
on projects
conducted under paragraphs (a)(1) and
a
e perm
t are
not included in this NWP, but certain District Engineer in accordance with
General Condition 13; and (a)(2), this NWP also authorizes any
future discharge of dred
ed or fill
structures will be exempted by section
154 of Pub. L. 94-587, 90 Stat. 2917 (33 (c) Planting of only native species
should occur on th
it g
material associated with the reversion of

U.S.C. 591) (see 33 CFR 322.3(a)(2)).
(Section 10) e s
e.
Activities authorized by this MVP
i the area to its documented prior
condition and use (i.e., prior to tile.

25. Structural Discharges. Discharges
of material such as concr
t
d
k nclude, to the extent that a Corps
permit is required, but are not limited restoration, enhancement, or creation
activities). The reversion must occur
e
e, san
, roc
,
etc., into tightly sealed forms or cells to: the removal of accumulated
sediments; the installation, removal, within five years after expiration of a
limited term wetland r
t
ti

where the material wilt be used as a
structural member for standard pile
and maintenance of small water control
structures
dikes
and berm
th es
ora
on or
creation agreement or permit, even if the

supported structures, such as bridges,
transmission line footin
s
a
d ,
,
s;
e
installation of current deflectors; the discharge occurs after this NWP expires,
This NWP also authorizes the reversion
g
,
n
walkways or for general navigation,
h enhancement, restoration, or creation of
riffle and pool stream structure; the of wetlands that were restored,
enhanced
or created oil
rior-converted
suc
as mooring cells, including the
excavation of bottom material f placement of iii-stream habitat ,
p
cropland that has not been abandoned,
rom structures; modifications of the stream in accordance with a binding agreement
Federal Register/Vol. 67, No. 10/Tuesday, January 15, 2002/Notices 2083
between the landowner and NRCS or
F VS (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 he documented in
the original agreement or permit, and
the determination of return to prior
conditions will be made by the Federal
agency or appropriate state agency
executing the agreement or permit.
Before any reversion activity the
permittee or the appropriate Federal or
state agency must notify the District
Engineer and include the
documentation of the prior condition.
Once an area has reverted to its prior
physical condition, it will be subject to
whatever the Corps Regulatory
requirements will be at that future date.
(Sections 10 and 404)
Note: Compensatory mitigation is not
required for activities authorized by this
NWP, provided the authorized work results
in a net increase in aquatic resource
functions and values in the project area. This
NWP can be used to authorize compensatory
mitigation projects, including mitigation
banks, providers 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 NDVP does not authorize
the reversion of an area used for a
compensatory mitigation project to its prior
condition. MVP 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. Wodifications of Existing Marinas.
Reconfiguration of existing docking
facilities within an authorized marina
area. No dredging, additional slips, clock
spaces, or expansion of any kind within
waters of the US-is authorized by this
NWP. (Section 10)
29. Single-family Housing. Discharges
of dredged or fill material into non-tidal
waters of the US, including non-tidal
wetlands for the construction or
expansion of a single-family home and
attendant features (such as a garage,
driveway, storage shed, and/or septic
field) for an Individual Permittee
provided that the activity meets all of
the following criteria:
a. 'Fhe discharge does not cause the
loss of store than '/nacre of non-ticlal
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
dischar'_ e. For example, the location of
the home may need to be adjusted on-
site to avoid flooding of adjacent
property owners;
d. The discharge is part of a single
and complete project; furthermore, that
for any subdivision created on or after
November 22, 1991, the discharges
authorized under this NWP may not
exceed an aggregate total loss of waters
of the US of V,-acre for the entire
subdivision;
e. An individual may use this NWP
only for a single-family home for a
personal residence;
f. This NWP may be used only once
per parcel;
g. This NWP may not be used in
conjunction with NWP 14 or NWP 18,
for any parcel; and,
h. Sufficient vegetated buffers must be
maintained adjacent to all open water
bodies, streams, etc., to preclude water
quality degradation due to erosion arid
sedimentation.
For the purposes of this NWP, the
acreage of loss of waters of the US
includes the filled area previously
permitted, the proposed filled area, and
any other waters of the US that are
adversely affected by flooding,
excavation, or drainage as a result of the
project. This NWP authorizes activities
only by individuals; for this purpose,
the term "individual" refers to a natural
person and/or a married couple, but
does not include a corporation,
partnership, or similar entity. For the
purposes of this NWP, a parcel of land
is defined as "the entire contiguous
quantity of land in possession of,
recorded as property of, or owned (in
any form of ownership, including land
owned as a partner, corporation, joint
tenant, etc.) by the same individual
(and/or that individual's spouse), and
comprises not only the area of wetlands
sought to be filled, but also all land
contiguous to those wetlands, owned by
the individual (and/or that individual's
spouse) in any form of ownership."
(Sections 10 and 404)
30. Xfoist Soil A4anouement 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-specifir_,
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 irnpede
succession, prepare seed beds, or
estahlish fire breaks. Sufficient
vca;etatecl buffers must be maintained
adjacent to all open water bodies,
strearns, 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. Maintenance of Existing Flood
Control Facilities. Discharge of dredge
or fill material resulting from activities
associated with the maintenance of
existing flood control facilities,
including debris basins, retention/
detention basins, and channels that
(i) were previously authorized by the
Corps by Individual Permit, General
Permit, by 33 CFR 330.3, or did not
require a permit at the time it was
constructed, or
(ii) were constructed by the Corps and
transferred to a non-Federal sponsor for
operation and maintenance. Activities
authorized by this MVP are limited to
those resulting from maintenance
activities that are conducted within Lie
"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 tinder this NWP. The MVP
does not authorize the removal of
sediment and associated vegetation from
the natural water courses except to the
extent that these have been included in
the maintenance baseline. All dredged
material must be placed in an upland
site or an authorized disposal site in
waters of the US, and proper siltation
controls must be used. (Activities of any
kind that result in only incidental
fallback, or only the cutting and
removing of vegetation above the
ground, e.g., mowing, rotary cutting,
and chainsawing, where the activity
neither substantially disturbs the root
system nor involves mechanized
pushing, dragging, or other similar
activities that redeposit excavated soil
material, do not require a Section 404
permit in accordance with 33 CFR
323.2(d)(2)).
Notification: After the maintenance
baseline is established, and before any
maintanwnce work is conducted, the
permittee must notify the District
Engineer in accordance with the
"Notification" General Condition. The
notification may be for activity-specific

2084 Federal Register / Vol. 67, No. 10/Tuesday, January 15, 2002/Notices
maintenance or for maintenance of the
entire flood control facility by However, if one-time mitigation is
required for im
acts associated
ith activity subject to the terms and
d

submitting a five year (or less)
i p
w
maintenance activities, the District con
itions of this MVP and the
settlement agreement, including a
ma
ntenance plan.
Maintenance Baseline: The Engineer will not delay needed
maintenance, provided the District specified completion date; or
(ii) -1-he terms of a final Federal court
maintenance baseline is a description of
the physical characteristics (e.g., depth, Engineer and the permittee establish a
schedule for identification
a
roval decision, consent decree, or settlement
a
reeme
t
lti
f
,
pp
,
width, length, location, configuration, or development, construction and
design flood capacity
etc
) of a flood
l g
n
resu
ng
rom art
enforcement action brought by the U.S.
,
.
control project within which comp
etion of any such required
mitigation. Once the one-time under section 404 of the CWA and/or
section 10 of the Rivers and Harbors Act
maintenance activities are normally
authorized by NWP 31, subject to any mitigation described above has been
completed, or a determination made of 1899; or
(iii) The terms of a final court
case-specific conditions required by the that mitigation is not required, no 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 agreement resulting from a natural
resource damage claim brought by a
capacity of the flood control facility,
whichever is smaller, including any appropriate mitigation, the District
Engineer will give special consideration trustee or trustees for natural resources
(as defined by the National Contingency
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 Plan at 40 CF'R subpart G) tinder section
311 of the Clean Water Act (CWA)

facility. If no evidence of the
constructed capacity exist
the approved
arid require compensatory mitigation
and/or BMP ,
section 107 of the Comprehensive
e
,
constructed capacity will be used. The s as appropriate.
Emergency Situations: In emergency Environm
ntal Response, Compensation
and Liability Act (CERCLA or
prospective permittee will provide
documentation of the physical situations, this NWP may be. used to
authorize maintenance activities in Superfund), section 312 of the National
Marine Sanctuaries Act (NMSA)
section
characteristics of the flood control
facility (which will normally consist of flood control facilities for which no
maintenance baseline has been ,
1002 of the Oil Pollution Act of 1990
(CPA), or the Park System Resource
as-built or approved drawings) and
documentation of the design capacities approved. Emergency situations are
those which would result in an Protection Act at 16 U.S.C, '19jj, to the
extent that a Coups permit is re
uired

of the flood control facility. The
unacceptable hazard to life, a significant q
.
For either (i), Ci) or (iii) above

documentation will also include BMPs
loss of property, or an immediate, ,
compliance is a condition of the MVP
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 maintenance baseline can be approved. permittee does not comply with the
constructed channels. (The Corps may In such situations, the determination of terms of this MVP 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 established expeditiously, and NWP does not apply to any activities
done in accordance with 33 CFR 330.5. mitigation, including mitigation for occurring after the date of the decision

Except in emergencies as described
below
this NWP can not be used until
maintenance conducted during the ,
decree, or agreement that are not for the
,
the District Engineer approves the emergency, must be required as purpose of mitigation, restoration, or

maintenance baseline and determines appropriate. (Sections 10 and 404)
32. Completed Enforcement Actions. environmental benefit. Before reaching
any settlement agreement, the Corps
the need for mitigation and any regional Any structure, work or discharge of will ensure compliance with the
or activity-specific conditions. Once
determined, the maintenance baseline dredged or fill material, remaining in
place, or undertaken for mitigation, provisions of 33 CFR part 326 and 33
CFR 330.6 (d)(2) and (e). (Sections 10
will remain valid for any subsequent restoration, or environmental benefit in and 404)
reissuance of this NWP. This permit
does not authorize maintenance of a compliance with either:
(i) The terms of a final written Corps 33. Ternporory Construction, Access
and Dewatering. Temporary structures,
flood control facility that has been non-judicial settlement agreement work and discharges, including
abandoned. A flood control facility will resolving a violation of section 404 of cofferdams, necessary for construction
be considered abandoned if it has the CWA and/or section 10 of the Rivers activities or access fills or dewatering of
operated at a significantly reduced and Harbors Act of 1899; or the terms construction sites; provided that the
capacity without needed maintenance
being accomplished in a timel
manner of an EPA 309(a) order on consent associated primary activity is authorized
b
h
y
.
Ntitigotion: The District Engineer will resolving a violation of section 404 of
the CWA, provided that: y t
e Corps of Engineers or the USCG,
or for other construction activities not
determine any required mitigation one- a. The unauthorized activity affected subject to the Corps or USCG
time only for impacts associated with
maintenance work at the same ti
th
t no more than 5 acres of non-tidal regulations. Appropriate measures must
me
a
the maintenance baseline is approved. wetlands or 1 acre of tidal wetlands;
b. The settlement agreement provides be taken to maintain near normal
downstream flows and to minimize
Such one-time mitigation will be
required when necessary to ensure that for environmental benefits, to an equal
d flooding. Fill must be of materials, and

adverse environmental impacts are no or greater
egree, than the
environmental detriments caused by the placed in a manner, that will not be
eroded by expected high flows. The use
more than minimal, both individually
and cumulatively
Such miti
ation will unauthorized activity that is authorized of dredged material may be allowed if
.
g
only be required once for any specific by eiis NWP; and
c. The District Engineer issues a it is determined by the District Engineer
that it will not cause more than minimal
reach of a flood control project. verification letter authorizing the adverse effects on aquatic resources.
Federal Register/Vol. 67, No. 10/Tuesday, January 15, 2002/Notices 9..nR5
Temporary fill must he entirely remove
to upland areas, or dredged material
returned to its original location,
following completion of the
construction activity, and the affected
areas must be restored to the pre-project
conditions. Cofferdams cannot be used
to dewater wetlands or other aquatic
areas to change their use. Structures left
in place after cofferdams are removed
require a Section 10 permit if located in
navigable waters of the U.S. (See 33 CFR
part 322). The permittee must notify the
District Engineer in accordance with the
"Notification'' General Condition. The
notification must also include a
restoration plan of reasonable measures
to avoid and minimize adverse effects to
aquatic resources. The District Engineer
will add Special Conditions, where
necessary, to ensure environmental
adverse effects is minimal. Such
conditions may include: limiting the
temporary work to the minimum
necessary; requiring seasonal
restrictions; modifying the restoration
plan; and requiring alternative
construction methods (e.g. construction
mats in wetlands where practicable.).
(Sections 10 and 404)
34. Cranberry Production Activities.
Discharges of dredged or fill material for
dikes, berms, pumps, water control
structures or leveling of cranberry beds
associated with expansion,
enhancement, or modification activities
at existing cranberry production
operations provided that the activity
meets all of the following criteria-
a. The cumulative total acreage of
disturbance per cranberry production
operation, including but not limited to,
filling, flooding, ditching, or clearing,
does not exceed 10 acres of waters of the
U.S., including wetlands;
b. The permittee notifies the District
Engineer in accordance with the
"Notification'' General Condition. The
notification must include a delineation
of affected special aquatic sites,
including wetlands; and,
c. The activity does not result in a net
loss of wetland acreage. This NWP does
not authorize any discharge of dredged
or fill material related to other cranberry
production activities such as
warehouses, processing facilities, or
parking areas. For the purposes of this
NWP, the cumulative total of 10 acres
will be measured over the period that
this NWP is valid. (Section 404)
35. Mointenonce 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
d dredged material is disposed of at an
upland site and proper siltation control
are used. (Section 10)
36. Hoot Romps. Activities required
for the construction of boat ramps
provided:
a. The discharge into waters of the
U.S. does not exceed 50 cubic yards of
concrete, rock, crushed stone or gravel
into forms, or placement of pre-cast
concrete planks or slabs. (Unsuitable
material that causes unacceptable
chemical pollution or is structurally
unstable is not authorized);
b. The boat ramp does not exceed 20
feet in width;
c. The base material is crushed stone,
gravel or other suitable material;
d. The excavation is limited to the
area necessary for site preparation and
all excavated material is removed to the
upland; and,
e. No material is placed in special
aquatic sites, including wetlands.
Another NWP, Regional General
Permit, or Individual Permit may
authorize dredging to provide access to
the boat ramp after obtaining a Section
10 if located in navigable waters of the
U.S. (Sections 10 and 404)
37. Emergency Watershed Protection
and Rehabilitation. Work done by or
funded 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
(F'SH 509.13); or
c. The DOI for wildland fire
management burned area emergency
stabilization and rehabilitation (DOI
Manual part 620, Ch. 3).
For all of the above provisions, the
District Engineer must be notified in
accordance with the General Condition
13. (Also, see 33 CFR 330.1(e)).
(Sections 10 and 404)
38. Cleanup of Hazardous and Toxic
IVoste. Specific activities required to
effect the containment, stabilization, or
removal of hazardous or toxic waste
materials that are perforated, ordered, or
sponsored by a government agency with
established legal or regulatory authority
provided the permittee notifies the
District Engineer in accordance with the
''Notification'' General Condition. For
discharges in special aquatic sites,
including wetlands, the notification
must also include a delineation of
affected special aquatic sites, including
wetlands. Court ordered remedial action
plans or related settlements are also
authorized by this NWP. This NWP does
not authorize the establishment of new
disposal sites or the expansion of
existing sites used for the disposal of
hazardous or toxic waste. Activities
undertaken entirely on a
Comprehensive Environmental
Response, Compensation, and Liability
Act (CERCLA) site by authority of
CERCLA as approved or required by
EPA, are not required to obtain permits
under section 404 of the CWA or section
10 of the Rivers and Harbors Act.
(Sections 10 and 404)
39. Residential, Commercial, and
Institutional Developments. Discharges
of dredged or fill material into non-tidal
waters of the U.S., excluding non-tidal
wetlands adjacent to tidal waters, for the
construction or expansion of residential,
commercial, and institutional building
foundations and building pads and
attendant features that are necessary for
the use and maintenance of the
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 NW-P.
Residential developments include
multiple and single unit developments.
Examples of commercial developments
include retail stores, industrial facilities,
restaurants, business parks, and
shopping centers. Examples of
institutional developments include
schools, fire stations, government office
buildings, judicial buildings, public
works buildings, libraries, hospitals,
and places of worship. The activities
listed above are authorized, provided
the activities meet all of the following
criteria:
a. The discharge does not cause the
loss of greater than 1/2-acre of non-tidal
waters of the U.S., excluding non-tidal
wetlands adjacent to tidal waters;
b. The discharge does not cause the
loss of greater than 300 linear-feet of a
stream bed, unless for intermittent
stream beds this criterion is waived in
writing pursuant to a determination by
the District Engineer, as specified
below, that the project complies with all
terms and conditions of this NWP and
that any adverse impacts of the project
on the aquatic environment are
minimal, both individually and
cumulatively;
c. The permittee must notify the
District Engineer in accordance with
General Condition 13, if any of the
following criteria are met:
(1) The discharge causes the loss of
greater than 1/1o-acre of non-tidal waters
of the US, excluding non-tidal wetlands
adjacent to tidal waters; or
2086 Federal Register/Vol, 67, No. 10/Tuesday, January 15, 2002/Notices
(2) The discharge causes the loss of
any open waters, including perennial or
intermittent streams, below the ordinar
hi-h water mark (see Note, below); or
N The discharge causes the loss of
greater than 300 linear feet of
intermittent stream bed. In such case, to
be authorized the District Engineer must
determine that the activity complies
with the other terms and conditions of
the NWP, determine adverse
environmental effects are minimal both
individually and cumulatively, and
waive the limitation on stream impacts
in writing before the permittee may
proceed;
d. For discharges in special aquatic
sites, including wetlands, the
notification must include a delineation
of affected special aquatic sites;
e. The discharge is part of a single and
complete project;
f. The permittee must avoid and
minimize discharges into waters of the
US at the project site to the maximum
extent practicable: The notification,
when required, must include a written
statement explaining how avoidance
and minimization of losses of waters of
the US were achieved on the project
site. Compensatory mitigation will
normally 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 MVP, any
combined total permanent loss of waters
of the US exceeding V1o-acre requires
that the permittee notify the District
Engineer in accordance with General
Condition 13;
h. Any work authorized by this NVVP
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
Vio-acre or less of waters of the US, the
permittee must submit a report, within
30 days of completion of the work, to
the District Engineer that contains the
following information: (1) The name,
address, and telephone number of the
permittee; (2) The location of the work;
(3) A description of the work; (4) 'File
type and acreage of the loss of waters of
the US (e.g., 1h2-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.,
y 1/12-acre of emergent wetlands created
on-site);
j. If there are any open waters or
streams within the project area, the
permittee will establish and maintain, t c
maximum extent practicable,
wetland or upland vegetated buffers
next to those open waters or streams
consistent with General Condition 19.
Deed restrictions, conservation
easements, protective covenants, or
other means of land conservation and
preservation are required to protect and
maintain the vegetated buffers
established on the project site.
Only residential, commercial, and
institutional activities with structures
on the foundation(s) or building pad(s),
as well as the attendant features, are
authorized by this NWP. The
compensatory mitigation proposal that
is required in paragraph (e) of this NWP
may be either conceptual or detailed.
The wetland or upland vegetated buffer
required in paragraph (i) of this NWP
will be determined on a case-by-case
basis by the District Engineer for
addressing water quality concerns. The
required wetland or upland vegetated
buffer is part of the overall
compensatory mitigation requirement
for this MVP. If the project site was
previously used for agricultural
purposes and the farm owner/operator
used NWP 40 to authorize activities in
waters of the US to increase production
or construct farm buildings, NWP 39
cannot be used by the developer to
authorize additional activities. This is
more than the acreage limit for NWP 39
impacts to waters of the US (i.e., the
combined acreage loss authorized under
NWPs 39 and 40 cannot exceed 1/2-acre,
see General Condition 15).
Subdivisions: For residential
subdivisions, the aggregate total loss of
waters of US authorized by NWP 39 can
not exceed V2-acre. This includes any
loss of waters associated with
development of individual subdivision
lots. (Sections 10 and 404)
Note: Areas where wetland vegetation is
not present should be determined by the
presence or absence of an ordinary high
water mark or bed and bank. Areas that are
waters of the US based on this criterion
would require a PCN although water is
infrequently present in the stream channel
(except for ephemeral waters, which do not
require PCNs).
40. Agricultural Activities. Discharges
of dredged or fill material into non-tidal
waters of the US, excluding non-tidal
wetlands adjacent to tidal waters, for
improving agricultural production and
the construction of building pads for
farm buildings. Authorized activities
include the installation, placement, or
construction of drainage tiles, ditches,
or levees; mechanized land clearing;
land leveling; the relocation of existing
serviceable drainage ditches constructed
in waters of the US; and similar
o activities, provided the permittee
complies with the following terms and
conditions:
a. For discharges into non-tidal
wetlands to improve agricultural
production, the following criteria must
be met if the permittee is an United
States Department of Agriculture
(USDA) Program participant:
(1) The permittee must obtain a
categorical minimal effects exemption,
minimal effect exemption, or mitigation
exemption from NRCS in accordance
with the provisions of the Food Security
Act of 1985, as amended (16 U.S.C. 3801
et seq.);
(2) The discharge into non-tidal
wetlands does not result in the loss of
greater than 1/2-acre of non-tidal
wetlands on a farm tract;
(3) The permittee must have NRCS-
certified wetland delineation;
(4) The permittee must implement an
NRCS-approved compensatory
mitigation plan that fully offsets
wetland losses, if required; and
(5) The permittee must submit a
report, within 30 days of completion of
the authorized work, to the District
Engineer that contains the following
information: (a) The name, address, and
telephone number of the permittee; (b)
The location of the work; (c) A
description of the work; (d) The type
and acreage (or square feet) of the loss
of wetlands (e.g., 1/3-acre of emergent
wetlands); and (e) The type, acreage (or
square feet), and location of
compensatory mitigation (e.g. 1/3-acre of
emergent wetland on a farm tract;
credits purchased from a mitigation
bank); or
b. For discharges into non-tidal
wetlands to improve agricultural
production, the following criteria must
be met if the permittee is not a USDA
Program participant (or a USDA
Program participant for which the
proposed work does not qualify for
authorization under paragraph (a) of this
NWP):
(1) The discharge into non-tidal
wetlands does not result in the loss of
greater than V2-acre of non-tidal
wetlands on a farm tract;
(2) The permittee must notify the
District Engineer in accordance with
General Condition 13, if the discharge
results in the loss of greater than 1/,o-
acre of non-ticlal wetlands;
(3) The notification must include a
delineation of affected wetlands; and
Federal Register/Vol. 67, No. 10/Tuesday, January 15, 2002/Notices 2087
(4) The notification must include a
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
'/z-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 pcrmittee 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 NW11. USDA Program
participants, requesting authorization for
discharges of dredged or fill material
into waters of the US authorized by
paragraphs (c) or (d) of this NWP, in
addition to paragraph (a), must notify
the District Engineer in accordance with
General Condition 13 and the District
Engineer will determine if the entire
single and complete project is
authorized by this NMI. 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 MVP, may not
exceed the V -acre limit of this NMI.
This MVP does not affect, or otherwise
regulate, discharges associated with
agricultural activities when the
discharge qualifies for an exemption
under section 404(f) of the MA, 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 I/,-
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 NVV-P 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
clays, where appropriate. In general, this
MVP does not apply to reshaping
drainage ditches constructed in
uplands, since these areas are generally
not waters of the US, and thus no permit
from the Corps is required, or to the
maintenance of existing drainage
ditches to their original dimensions and
configuration, which does not require a
Section 404 permit (see 33 CFR
323.4(x)(3)). This NWP does not
authorize the relocation of drainage
ditches constructed in waters of the US;
the location of the centerline of the
reshaped drainage ditch must be
approximately the same as the location
of the centerline of the original drainage
ditch. This MVP 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 pcrmittee 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 NVVP, determine
the adverse environmental effects are
minimal both individually and
cumulatively, and waive this limitation
in writing before the permittee may
proceed;
d. For discharges causing the loss of
greater than 1/ro-acre of non-tidal waters
of the US, the permittee notifies the
District Engineer in accordance with
General Condition 13;
e. For discharges in special aquatic
sites, including wetlands, the
notification must include a delineation
of affected special aquatic sites;
f. The discharge is part of a single and
complete project; and
g. Compensatory mitigation will
normally be required to offset the losses
of waters of the US. The notification
must also include a compensatory
mitigation proposal to offset authorized
losses of waters of the US.

2088 Federal Register/Vol. 67, No. 10/Tuesday, January 15, 2002/Notices
For the purposes of this NWP, the
term ''recreational facility'' is defined as greater than '/,-acre of non-tidal waters
of the US
excludin
non-tidal w
tl
d that are exempt from Section 404 permit

a recreational activity that is integrated
into the natural landscape and does not ,
g
e
an
s
adJJacent to tidal waters,
t?. The discharge does not c
th requirements);
Y. 'rho permittee must avoid aril

substantially change preconstruction ause
e
loss of greater than 300 linear-feet of a minimize discharges into waters of the
US at the project site to the maximum
grades or deviate from natural landscape
contours. For the purpose of this permit stream bed, unless for intermittent
stream beds this criterion is wai
d i extent practicable, and the notification
,
the primary function of recreational
facilities does not include the use of ve
n
writing pursuant to a determination by
the District En
ineer
as s
ecifi
d must include a written statement to the
District Engineer detailing compliance

motor vehicles, buildings, or impervious
surfaces. Examples of recreational ,
p
e
g
below, that the project complies with all
terms and conditions of this NWP and with this condition (i.e. why the
discharge must occur in waters of the

facilities that may be authorized by this
that any adverse impacts of the project US and why additional minimization
cannot be achieved);
NWP include hiking trails, bike paths,
horse paths, nature centers, and on the aquatic environment are
minimal, both individuall
and g. The stormwater management
f
ili

campgrounds (excluding trailer parks). y
cumulatively; ac
ty must comply with General
Condition 21 and be desi
ned usin

This NWP may authorize the
c. For discharges causing the loss of g
g
BMPs and watershed protection
construction or expansion of golf
courses and the expansion of ski areas, greater than 300 linear feet of
intermittent stream beds
the permittee techniques. Examples may include
f

provided the golf course or ski area does ,
notifies the District Engineer in orebays (deeper areas at the upstream
end of the stormwater mana
ement
not substantially deviate from natural
landscape contours. Additionally
these accordance with the "Notification"
General Condition 13
In such cases
to g
facility that would be maintained
,
activities are designed to minimize .
,
be authorized the District Engineer must through excavation), vegetated buffers,
and siting considerations to mini
i

adverse effects to waters of the US and
i
determine that the activity complies m
ze
adverse effects to aquatic resources

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

management facilities, vegetated buffers,
reduced fertilizer use, etc. The facility
individually and cumulatively, and
waive this limitation in writing before into the facility design to benefit water
quality and minimize adverse effects to

must have an adequate water quality
l
the permittee may proceed;
d aquatic resources frorrr storm flows,
especially downstream of the facilit

management p
an in accordance with
General Condition 9, such as a
. The discharges of dredged or fill
material for the construction of new y,
that provide, to the maximurn extent

stormwater management facility, to
stormwater management facilities in practicable, for long term aquatic

ensure that the recreational facility
perennial streams is not authorized; resource protection and enhancement;
h. Maintenance excavation will b
i

results in no substantial adverse effects
e. For discharges or excavation for the e
n
accordance with an approved
to water quality. This NWP also
authorizes the construction or construction of new stormwater
management facilities or for the maintenance plan and will not exceed

expansion of small support facilities,
maintenance of existing stormwater the original contours of the facility as
approved and constructed; and
such as maintenance and storage
buildings and stables that are directly management fal ilities causing the loss
of greater than ho-acre of non-tidal i. The discharge is part of a single and

related to the recreational activity. This
waters, excluding non-tidal wetlands complete project. (Section 404)
44. Mining Activities. Discharges of
NWP does not authorize other
buildings, such as hotels, restaurants, adjacent to tidal waters, provided the
permittee notifies the District Engineer dredged or fill material into:
W Isolated waters; streams where the
etc. The construction or expansion of
playing fields (e.g., baseball
soccer
or in accordance with the "Notification"
General Condition 13
In addition
th annual average flow is 1 cubic foot per
,
,
football fields), basketball and tennis .
,
e
notification must include: second or less, and non-tidal wetlands
adjacent to headwater streams
for
courts, racetracks, stadiums, arenas, and
the construction of new ski areas are not (1) A maintenance plan. The
maintenance plan should be in ,
aggregate mining (i.e., sand, gravel, and

authorized by this NWP. (Section 404)
accordance with state and local crushed and broken stone) and
associated support activities;
43, Stormwater Management
Facilities. Dischar
es of dred
ed or fill requirements, if any such requirements
exist; (ii) Lower perennial streams,
g
g
material into non-tidal waters of the US,
(2) For discharges in special aquatic excluding wetlands adjacent to lower
perennial strearns, for aggregate mining
excluding non-ticlal wetlands adjacent
to tidal waters, for the construction and sites, including wetlands and
submerged aquatic vegetation
the activities (support activities in lower

maintenance of stormwater management ,
notification must include a delineation perennial streams or adjacent wetlands
are not authorized by this NWF'); and/
facilities, including activities for the of affected areas; and

excavation of stormwater ponds/
facilities, detention basins
and
(3) A compensatory mitigation
proposal that offsets the loss of water or
(iii) Isolated waters and non-tidal
,
retention basins; the installation and s
of the US. Maintenance in constructed wetlands adjacent to headwater streams,
for hard rock/mineral mining activities
maintenance of water control structures,
outfall structures and emergency areas will not require mitigation
provided such maintenance is (i.e., extraction of metalliferous ores

spillways; and the maintenance
accomplished in designated from subsurface locations) and
associated support activities
provided
dredging of existing stormwater maintenance areas and not within ,
the discharge meets the following
management ponds/facilities and
detention and retention basins, compensatory mitigation areas (i.e.,
District Engineers may designate non- criteria:
a. The mined area within waters of
provided the activity meets all of the
f
ll
i maintenance areas, normally at the the US, plus the acreage loss of waters
o
ow
ng criteria:
a. The discharge for the construction downstream end of the stormwater
management facility
in existin of the US resultin from support
i
i
i
'

of new stormwater management
facilities does not caus
th
l
f ,
g
stormwater management facilities). (No act
v
t
es, cannot exceed
/ -acre;
b. The permittee must avoid and
e
e
oss o mitigation will be required for activities minimize discharges into waters of the
Federal Register / Vol. 67, No. 10 / Tuesday, January 15, 2002/Notices
20II9
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 nrttst
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
downstrearn channel conditions;
e. Activities authorized by this permit
must not result in adverse effects on the
course, capacity, or condition of
navigable waters of the US;
f. The permittee must use measures to
minimize downstream turbidity;
g. Wetland impacts must be
compensated through mitigation
approved by the Corps;
h. Beneficiation and mineral
processing for hard rock/mineral raining
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 t)ran 1 cubic foot per second
(ag,rcoate nrinin- can occur in areas
immediately adjacent to the ordinary
high water mark of a stream where the
average annual flow is 1 cubic foot per
second or less);
k. Single and complete project: The
discharge mast be for a single and
complete project, including support
activities. Discharges of dredged or fill
material into waters of tine US for
"nultiple "lining activities on several
designated parcels of a single and
complete mining operation can be
authorized by this NWP provided the
1/?-acre limit is not exceeded; and
1. Notification: The permittee must
notify the District Engineer in
accordance with General Condition 13.
The notification must include: (1) A
description of waters of the US
adversely affected by the project; (2) A
written statement to the District
Engineer detailing compliance with
paragraph (h), above (i.e., why the
discharge must occur in waters of the
LIS and why additional minimization
cannot be achieved); (3) A description of
measures taken to ensure that the
proposed work complies with
paragraphs (c) through (0, above; and (4)
A reclamation plan (for aggregate
mining in isolated waters and non-tidal
wetlands adjacent to headwaters and
hard rock/mineral minim only).
This NWP does not authorize hard
rock/mineral mining, including placer
mining, ill 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 anv
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 F,rosion and Sediment
Controls. Appropriate soil erosion and
sediment controls must be used and
maintained in effective operating
condition during construction, and all
exposed sail and other fills, as well as
any work below the ordinary high water
mark or high tide line, mast be
permanently stabilized at the earliest
practicable date. Permittees are
encouraged to perform work within
waters of the United States during
periods of low-flow or no-flow.
4. Aquatic Life Movements. No
activity may substantially disrupt the
necessary life-cycle movements of those
species of aquatic life indigenous to the
waterbody, including those species that
normally migrate through the area,
uuless the activity's primary purpose is
to impound water. Culverts placed in
streams must he 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-ay-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
rnanagernent responsibility for such
river, has determined in writing that the
proposed activity will not adversely
affect the Wild and Scenic River
designation, or study status. Information
on Wild and Scenic Rivers may be
obtained from the appropriate Federal
land management agency in the area
(e.g., National Park Service, U.S. Forest
Service, Bureau of Land Management,
U.S. Fish and Wildlife Service).
8. Tribal Rights. No activity or its
operation may impair reserved tribal
rights, including, but not limited to,
reserved water rights and treaty fishing
and hunting rights.
9. Water Quality. (a) In certain states
and tribal lands an individual 401 Water
Quality Certification must be obtained
or waived (See 33 CFR 330.4(c)).
(b) For NWPs 12, 14, 17, 18, 32, 39,
40, 42, 43, and 44, where the state or
tribal 401 certification (either
generically or individually) does not
require or approve water quality
management measures, the permittee
must provide water quality management
measures that will ensure that the
authorized work clouts 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
stornrwater nranagernent that minimizes
degradation of the downstream aquatic
system, including water quality (refer to
General Condition 21 for stornrwater
2090 Federal Register/Vol. 67, No. 10/Tuesday, January 15, 2002/Notices
management requirements). Another
important component of water quality endspp.html and http://rvcvtv.nftns.govl
prot
res/esohorne.html res
ectivel written notice from the District or
Di
i
i
E

management is the establishment and
i _
p
y.
12. Historic Properties. No activity v
s
on
ngineer, Subsequently, the
permittee's right to proceed under the
ma
ntenance of vegetated buffers next to which may affect historic properties
open waters, including streams (refer to listed, or eligible for listin
in the MVP may he modified, suspended, or

General Condition 19 for vegetated
buffer requirements for the NWPs), g,
National Register of Historic Places is
authorized
until the District En
inee revoked only in accordance with the
procedure set forth in 33 CFR

This condition is only applicable to ,
g
r
has complied with the provisions of 33 330.5(d)(2).
(b) Contents of Notification: The
projects that have the potential to affect
water qualit
While a
ro
ri
t CFR part 325, Appendix C. The
ros
ectiv
i notification must be in writing and
y.
pp
p
a
e
measures must be taken, in most cases p
p
e perm
ttee must notify the
District Engineer if the authorized include the following information:

it is not necessary to conduct detailed
t
di
d
activity may affect any historic
e (1) Name, address and telephone
numbers of the prospective
ermittee

s
u
es to i
entify such measures or to
require monitoring,
prop
tties listed, determined to be
eligible, or which the prospective p
;
(2) Location of the proposed project;

10. Coastal Zone Management. In
permittee has reason to believe may be
l (3) Brief description of the proposed
project; the project's pur
ose; direct a
d
certain states, an individual state coastal
zone management consistency e
igible for listing on the National
Register of Historic Places, and shall not p
n
indirect adverse environmental effects

concurrence must be obtained or waived
begin the activity until notified by the
Di the project would cause; any other
NWp(s), Regional General Permit(s)
or
(see Section 330.4(4)).
11. Endangered Species
(a) No strict Engineer that the requirements
of the National Historic Preservation Act ,
Individual Permit(s) used or intended to
.
activity is authorized under any NWP
which is likely to jeopardize the
have been satisfied and that the activity
is authorized. Information on the be used to authorize any part of the
proposed project or any related activity.

continued existence of a threatened or
location and existence of historic Sketches should be provided when

endangered species or a species

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

complies with the terms of the N?VP
,
identified under the Federal Endangered
National Register of Historic Places (see
33 CFR 3 (Sketches usually clarify the project and

when provided result in a
uicker
Species Act (ESA), or which will
destroy or adversely modify the critical 30.4(8)), For activities that ma
y
affect historic properties listed in, or q
decision.);
habitat of such species. Non-federal eligible for listing in, the National (4) For NWPs 7, 12, 14, 18, 21, 34, 38,

permittees shall notify the District
Engineer if any listed species or Register of Historic Places, the
notification must state which historic 39, 41, 42, and 43, the PCN must also
include a delineation of affected 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 ve etated shallows e.
g ( g•, submerged

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

historic pro
ert aquatic vegetation, seagrass beds), and
riffle and ool com lexes see aragra h
P P (see p
p
cr
t
ca
abitat and shall not begin work
on the activity until notified by the p
y.
13. Notification. 13
o
(0);
District Engineer that the requirements (a) Tinning; 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
that may affect Federally-listed permittee must notify the District
Engineer with a preconstruction information regarding the original
design capacities and configurations of

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

desi
nated critical habitat
the e District Engineer must determine if ma
ntenance dredging or excavation is
,
g
notification must include the name(s) of the notification is complete within 30
days of the date of receipt and can Proposed;
(6) For NWP 14 (Linear
the endangered or threatened species
that may be affected by the proposed request additional information Transportation Crossings), the PCN

work or that utilize the designated necessary to make the PCN complete must include a compensatory mitigation

critical habitat that may be affected by only once. However, if the prospective proposal to offset permanent losses of

the proposed work. As a result of formal permittee does not provide all of the waters of the US and a statement

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

or NMFS the District Engineer may add Engineer will notify the prospective waters of the US will be minimized to

species-specific regional endangered permittee that the notification is still the maximum extent practicable;

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

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

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

defined under the ESA. In the absence prospective permittee shall riot begin
the activity: To be authorized by this NWP, the
District Engineer must determine that
of separate authorization (e.g., an ESA
Section 10 Permit, a Biological Opinion
"
" (1) Until notified in writing by the
District Engineer that the activity may the activity complies with the terms and
conditions of the NWP and that the
with
incidental take
provisions, etc.)
from the USMS or the NMFS
both proceed under the MVP with any adverse environmental effects are
,
lethal and non-lethal "takes" of special conditions imposed by the minimal both individually and

protected species are in violation of the District or Division Engineer; or
(2) If notified in writing by the District cumulatively and mast notify the
project sponsor of this determination in
ESA. Information on the location of
threatened arid endangered s
ecies and or Division Engineer that an Individual
P
i writing;
p
their critical habitat can be obtained erm
t is required; or
(3) Unless 45 days have passed from (8) For NWP 27 (Stream and Wetland
Restoration)
the PCN must include
directly from the offices of the USFWS
and NMFS or their wo
ld
id
b the District Engineer's receipt of the ,
documentation of the prior condition of
r
w
e we
pages at http://rvivrv.frvs.gov/r9endspp/ complete notification and the
prospective permittee has not received the site that will be reverted by the
permittee;
Federal Register/Vol. 67, No. 10/Tuesday, January 15, 2002 / Notices gnn-r
(9) For NWP 29 (Single-Family
Housing), the PCN must also include:
(i) Any past use of this NWP by the
Individual Periniltee and/or the
permittee's spouse;
(ii) A statement that the single-family
housing activity is for a personal
residence of the permittee;
(iii) A description of the entire parcel,
including its size, and a delineation of
wetlands. For the purpose of this NWP,
parcels of land measuring 1/4-acre or less
will not require a formal on-site
delineation. However, the applicant
shall provide an indication of where the
wetlands are and the amount of
wetlands that exists on the property. For
parcels greater than 1/4-acre in size,
formal wetland delineation must be
prepared in accordance with the current
method required by the Corps. (See
paragraph 13(0);
(iv) A written description of all land
(including, if available, legal
descriptions) owned by the prospective
permittee and/or the prospective
permittee's spouse, within a one mile
radius of the parcel, in any form of
ownership (including any land owned
as a partner, corporation, joint tenant,
co-tenant, or as a tenant-by-the-entirety)
and any land on which a purchase and
sale agreement or other contract for sale
or ppurchase has been executed;
(10) For NWP 31 (Maintenance of
Existing Flood Control Projects), the
prospective permittee must either notify
the District Engineer with a PCN prior
to each maintenance activity or submit
a five year (or less) maintenance plan.
In addition, the PCN must include all of
the following:
W Sufficient baseline information
identifying the approved channel
depths and configurations and existing
facilities. Minor deviations are
authorized, provided the approved flood
control protection or drainage is not
increased;
(ii) A delineation of any affected
special aquatic sites, including
wetlands; and,
(iii) I.ocation of the, dredged material
disposal site;
(11) For NkVP 33 (Temporary
Construction, Access, and Dewatering),
the PCN must also include a restoration
plan of reasonable measures to avoid
and minimize adverse effects to aquatic
resources;
(12) For NWT's 39, 43 and 44, the PCN
crust also include a written statement to
the District Engineer explaining how
avoidance and minimization for losses
of waters of the US were achieved on
the project site;
(13) For NkVP 39 arid NWl' 42, the
PCN must include a compensatory
mitigation proposal to offset losses of
waters of the US or justification
explaining why compensatory
mitigation should not be required. For
discharges that cause the loss of greater
than 300 linear feet of an intermittent
stream bed, to be authorized, the Distric
Engineer must determine that the
activity complies with the other terms
and conditions of the NWP, determine
adverse environmental effects are
minimal both individually and
s cumulatively, and waive the limitation
on stream impacts in writing before the
permittee may proceed;
(14) For NW11 40 (Agricultural
Activities), the PCN must include a
compensatory mitigation proposal to
offset losses of waters of the US. This
NWP does not authorize the relocation
of greater than 300 linear-feet of existing
serviceable drainage ditches constructed
in non-tidal streams unless, for drainage
ditches constructed in intermittent non-
tidal streams, the District Engineer
waives this criterion in writing, and the
District Engineer has determined that
the project complies with all terms and
conditions of this NWP, and that any
adverse impacts of the project on the
aquatic environment are minimal, botli
individually and cumulatively;
(15) For NWI' 43 (Stornrwater
Management Facilities), the PCN must
include, for the construction of new
stormwater management facilities, a
maintenance plan (in accordance with
state and local requirements, if
applicable) acid a compensatory
mitigation proposal to offset losses of
waters of the LIS. For discharges that
cause the loss of greater than 300 linear
feet of an intermittent stream bed, to be
authorized, the District Engineer crust
determine that the activity complies
with the other terms and conditions of
the NWP, determine adverse
environmental effects are minimal both
individually and cumulatively, arid
waive the limitation on stream impacts
in writing before the permittee may
proceed;
(16) For NWP 44 (Mining Activities),
the PCN must include a description of
all waters of the US adversely affected
by the project, a description of measures
taken to minimize adverse effects to
waters of the IIS, a description of
measures taken to comply with the
criteria of the NWP, and a reclamation
plan (for all aggregate mining activities
it' isolated waters arid non-tidal
wetlands adjacent to headwaters and
any hard rock/mineral raining
activities);
07) For activities that may adversely
affect Federally-listed endangered or
threatened species, the PCN trust
include the name(s) of those endangered
or threatened species that may he
affected by the proposed work or utilize
the designated critical habitat that may
be affected by the proposed work; and
(18) For activities that may affect
historic properties listed in, or eligible
t for listing in, the National Register of
Historic Places, the PCN must state
which historic property may be affected
by the proposed work or include a
vicinity map indicating the location of
the historic property.
(c) Form of Notification: The standard
Individual Permit application form
(Form ENG 4345) may be used as the
notification but must clearly indicate
that it is a PCN and must include all of
the information required in (b) (1)-(18)
of General Condition 13. A letter
containing the requisite information
may also be used.
(d) District Engineer's Decision: In
reviewing the PCN for the proposed
activity, the District Engineer will
determine whether the activity
authorized by the NWP will result in
more than minimal individual or
cumulative adverse environmental
effects or may be contrary to the public
interest. The prospective permittee may
submit a proposed mitigation plan with
the PCN to expedite the process. The
District Engineer will consider any
proposed compensatory mitigation the
applicant has included in the proposal
in determining whether the net adverse
environmental effects to the aquatic
environment of the proposed work are
minimal. If the District Engineer
determines that the activity complies
with the terms and conditions of the
NWP and that the adverse effects on the
aquatic environment are minimal, after
considering mitigation, the District
Engineer will notify the permittee and
include any conditions the District
Engineer deems necessary. The District
Engineer must approve any
compensatory mitigation proposal
before the permittee commences work.
If the prospective permittee is required
to submit a compensatory mitigation
proposal with the PCN, the proposal
ucay be either conceptual or detailed. If
the prospective permittee elects to
submit a compensatory mitigation plan
with the PCN, the District Engineer %vill
expeditiously review the proposed
compensatory mitigation plan. The
District Engineer must review the plan
within 45 clays of receiving a complete
PCN and determine whether the
conceptual or specific proposed
mitigation would ensure no more than
minimal adverse effects on the aquatic
environment. If the net adverse effects
of the project on the aquatic:
environment (after consideration of the
compensatory mitigation proposal) are
determined by the District Engineer to
2092 Federal Register / Vol. 67, No. 10 /Tuesclay, January 15, 2002/Notices
be minimal, the District Engineer will
provide a timely written response to the
applicant. The response will state that
the project can proceed under the terms
and conditions of the NWP.
If the District Engineer determines
that the adverse effects of the proposed
work are more than minimal, then the
District Engineer will notify the
applicant either: (1) That the project
does not qualify for authorization tinder
the NWP and instruct the applicant on
the procedures to seek authorization
under an Individual Permit; (2) that the
project is authorized under the NWP
subject to the applicant's submission of
a mitigation proposal that would reduce
the adverse effects on the aquatic
environment to the minimal level; or (3)
that the project is authorized under the
NWP with specific modifications or
conditions. Where the District Engineer
determines that mitigation is required to
ensure no more than minimal adverse
effects occur to the aquatic
environment, the activity will be
authorized within the 45-day PCN
period. The authorization will include
the necessary conceptual or specific
mitigation or a requirement that the
applicant submit a mitigation proposal
that would reduce the adverse effects on
the aquatic environment to the minimal
level. When conceptual mitigation is
included, or a mitigation plan is
required under item (2) above, no work
in waters of the US will occur until the
District Engineer has approved a
specific mitigation plan,
(e) Agency Coordination: The District
Engineer will consider any comments
from Federal and state agencies
concerning the proposed activity's
compliance with the terms and
conditions of the NWPs and the need for
mitigation to reduce the project's
adverse environmental effects to a
minimal level. ,
For activities requiring notification to
the District Engineer that result in the
loss of greater than 1/2-acre of waters of
the US, the District Engineer will
provide immediately (e.g., via facsimile
transmission, overnight mail, or other
expeditious manner) a copy to the
appropriate Federal or state offices
(USFWS, state natural resource or water
quality agency, EPA, State Historic
Preservation Officer (SHPO), and, if
appropriate, the NMF'S). With the
exception of NWP 37, these agencies
will then have 10 calendar days front
the date the material is transmitted to
telephone or fax the District Engineer
notice that they intend to provide
substantive, site-specific comments. If
so contacted by an agency, the District
Engineer will wait an additional 15
calendar days before making a decision
on the notification. The District
Engineer will fully consider agency
comments received within the specified
time frame, but will provide no
response to the resource agency, except
as provided below. The District
Engineer will indicate in the
administrative record associated with
each notification that the resource
agencies' concerns were considered. As
required by section 305(b)(4)(B) of the
Magnuson-Stevens Fishery
Conservation and Management Act, the
District Engineer will provide a
response to NMF'S within 30 days of
receipt of any Essential Fish Habitat
conservation recommendations.
Applicants are encouraged to provide
the Corps multiple copies of
notifications to expedite agency
notification.
(f) Wetland Delineations: Wetland
delineations must be prepared in
accordance with the current method
required by the Corps (For NWP 29 see
paragraph (b)(9)(iii) for parcels less than
('/3-acre in size). The permittee may ask
the Corps to delineate the special
aquatic site. There may be some delay
if the Corps does the delineation.
Furthermore, the 45-day period will not
start until the wetland delineation has
been completed and submitted to the
Corps, where appropriate.
14. Compliance Certification. Every
permittee who has received NWP
verification from the Corps will submit
a signed certification regarding the
completed work and any required
mitigation. The certification will be
forwarded by the Corps with the
authorization letter and will include:
(a) A statement that the authorized
work was done in accordance with the
Corps authorization, including any
general or specific conditions;
(b) A statement that any required
mitigation was completed in accordance
with the permit conditions; and
(c) The signature of the permittee
certifying the completion of the work
and mitigation.
15. Use of Multiple Nationwide
Permits. The use of more than one NWP
for a single and complete project is
prohibited, except when the acreage loss
of waters of the US authorized by the
NWPs does not exceed the acreage limit
of the NWP with the highest specified
acreage limit (e.g, if a road crossing over
tidal waters is constructed under NWP
14, with associated bank stabilization
authorized by NWP 13, the maximum
acreage loss of waters of the US for the
total project cannot exceed 1h-acre).
16. Water Supply Intakes. No activity,
including structures and work in
navigable waters of the US or discharges
of dredged or fill material, may occur in
the proximity of a public water supply
intake except where the activity is for
repair of the public water supply intake
structures or adjacent bank stabilization.
17. Shellfish Beds. No activity,
including structures and work in
navigable waters of the US or discharges
of dredged or fill material, may occur in
areas of concentrated shellfish
populations, unless the activity is
directly related to a shellfish harvesting
activity authorized by NWP 4.
16. Suitable Material. No activity,
including structures and work in
navigable waters of the US or discharges
of dredged or fill material, may consist
of unsuitable material (e.g., trash,
debris, car bodies, asphalt, etc.) and
material used for construction or
discharged must be free front toxic
pollutants in toxic amounts (see section
307 of the CWA).
19. Mitigation. The District Engineer
will consider the factors discussed
below when determining the
acceptability of appropriate and
practicable mitigation necessary to
offset adverse effects on the aquatic
environment that are more than
minimal.
(a) The project must be designed and
constructed to avoid and minimize
adverse effects to waters of the US to the
maximum extent practicable at the
project site (i.e., on site).
(b) Mitigation in all its forms
(avoiding, minimizing, rectifying,
reducing or compensating) will be
required to the extent necessary to
ensure that the adverse effects to the
aquatic environment are minimal.
(c) Compensatory mitigation at a
minimum one-for-one ratio will be
required for all wetland impacts
requiring a PCN, unless the District
Engineer determines in writing that
spnte other form of mitigation would be
more environmentally appropriate and
provides a project-specific waiver of this
requirement. Consistent with National
policy, the District Engineer will
establish a preference for restoration of
wetlands as compensatory mitigation,
with preservation used only in
exceptional circumstances.
(d) Compensatory mitigation (i.e.,
replacement or substitution of aquatic
resources for those impacted) will not
be used to increase the acreage losses
allowed by the acreage limits of some of
the NWPs. For example, 1/1-acre of
wetlands cannot be created to change a
3/1-acre loss of wetlands to a 1/2-acre loss
associated with NWP 39 verification.
However, 1/2.-acre of created wetlands
can be used to reduce the impacts of a
1/7-acre loss of wetlands to the minimum
impact level in order to rneet the
Federal Register / Vol. 67, No. 10/Tuesday, January 15, 2002/Notices 2093
minimal impact requirement associated
with NWP accomplishing and/or complying with discharges of dredged or fill material,
s.
(e) To be practicable, the mitigation the mitigation plan.
20. Spawning Areas. Activities, into breeding areas for migratory
waterfowl must be avoided to the
must be available and capable of being
done considering costs, existing including structures and work in maximum extent practicable.
navigable waters of the US or discharges 24. Removal of Ternporory Fills, Any
technology, and logistics in light of the of dredged or fill material, in spawning temporary fills must be removed in their
overall project purposes. Examples of areas during spawning seasons must be 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 ,
NOAA-designated marine sanctuaries

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

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

losses of aquatic resource functions and
21. Management of 6Voter Flows. To ,
critical habitat for Federally listed
values by creating, restoring, enhancing, the maximum extent practicable, the threatened and endangered species,
or preserving similar functions and activity must be designed to maintain coral reefs, state natural heritage sites

values, preferably in the same
preconstruction downstream flow ,
and outstanding national resource
watershed. conditions (e.g., location, capacity, and waters or other waters officially
(f) Compensatory mitigation plans for flow rates). Furthermore, the activity designated by a state as having
projects in or near streams or other open must not permanently restrict or impede
h particular environmental or ecological
waters will normally include a t
e passage of normal or expected high significance and identified by the
requirement for the establishment, flows (unless the primary purpose of the District Engineer after notice and
maintenance, and legal protection (e.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. Tile 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 flaws from the site, of dredged or fill material into waters of
consist of native species. The width of provide for maintaining surface flow the US are not authorized by NWPs 7,
the vegetated buffers required will rates from the site similar to 12, 14, 16, 17, 21, 29, 31, 35, 39, 40, 42,
address documented water quality or preconstruction conditions, and provide 43, and 44 for any activity within, or
aquatic habitat loss concerns. Normally for not increasing water flows from the directly affecting, critical resource
,
the vegetated buffer will be 25 to 50 feet
wide on each side of the stream, but the Project site, relocating water, or
redirecting water flow beyond waters, including wetlands adjacent to
such waters. Discharges of dredged or
ightly
equire D
c
r
r nditions. Stream
m
i fill materials
may
ider
veo
etated buffers
to addres char
elizing
will 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 activity must, to the maximum extent activity complies with General
open waters exist on the project site, the
Corps will determine the appropriate as flo edblo 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
designed to mana
e w
t
fl
I endangered species if the activity

based on what is best for the aquatic g
a
er
ows.
n most complies with General Condition 11 and

environment on a watershed basis. In
cases where vegetated buffers are cases, it will not be a requirement to
conduct detailed studies and monitorino the USF'WS or the NMFS has Concurred
in a determination of con liance with
p
determined to be the most appropriate

form of compensatory mitigation
the of water flow,
This condition is only applicable to this condition.
(h) For NW-Ps 3, 8, 10, 13, 15, 18, 19,
,
District Engineer may waive or reduce
the requirement to provide wetland projects that have the potential to affect
waterflows. While appropriate measures 22, 23, 25, 27, 28, 30, 33, 34, 36, 37, and
38, notification is required in

compensatory mitigation for wetland
im
a
t must be taken, it is not necessary to
conduct detailed studies to identify accordance with General Condition 13,
for any activity proposed in the
p
c
s.
(g) Compensatory mitigation such measures or require monitoring to designated critical resource waters

p
roposals submitted with the ensure their effectiveness. Normally, the

Corps will defer to state and l
l including wetlands adjacent to those
11
notification" may be either conceptual
or detailed. If conceptual plans are oca
authorities regarding management of waters. The District Engineer may
authorize activities under these NWPs

approved under the verification, then
the Corp; will condition the verificati water flow.
22. Adverse Effects From only after it is determined that the
impacts to the critical resource waters
on
to require detailed plans be submitted
and approved by the Corps prior to inlpoLill dnlents. If the activity creates an
impoundment of water, adverse effects
h will be no more than minimal.
26. Fills Within 100-Yeur Floodploins.

construction of the authorized activity to t
e aquatic system due to the
acceleration of the passage of water, For purposes of tluis General Condition,
100-year floodplains will he identified
in waters of the US,
(h) Perniittees may propose the use of and/or the restricting its flow shall be
i
i
i through the existing Federal Emergency

mitigation banks, in-lieu fee m
n
m
zed to the maximum extent
practicable. This includes structures Management Agency's (FEMA) Flood
Insurance Rate Maps or FEMA-approved
arrangements or separate activity-
specific compensatory mitigation. In all and work in navigable waters of the US,
or discharges of dredged or fill material. local floodplain maps,
(a) Discharges in F•loodplairl; Belol?•
cases that require compensatory 23. Wateifolll Breeding Areos. Headwaters. Discharges of dred
ed of
RlltlgatlOR, the mitigation prOVlS10nS
will specify the party responsible for Activities, 1RCILLdIR0 g Structures and
work in navi
able waters of th
US g
fill material into waters of the US WIthIR
h
g
e
or t
e mapped 100-year floodplain, below
2094 Federal Register/Vol. 67, No. 10/Tuesday, January 15, 2002 / Notices
headwaters (i.e. five cfs), resulting in
permanent above-grade fills, are not
authorized by NWPs 39, 40, 42, 43, and
44.
(b) Discharges in Moodwav; Above
11vadwaters. Discharges of dredged or
fill material into waters of the US within
the FEMA or locally mapped floodway,
resulting in permanent above-grade fills,
are not authorized by NWPs 39, 40, 42,
and 44.
(c) The permittee must comply with
any applicable FEMA-approved state or
local floodplain management
requirements.
27. Construction Period. For activities
that have not been verified by the Corps
and the project was commenced or
under contract to commence by the
expiration date of the NWP (or
modification or revocation date), the
work must be completed within 12-
months after such date (including any
modification that affects the project).
For activities that have been verified
and the project whs commenced or
under contract to commence within the
verification period, the work must be
completed by the date determined by
the Corps.
For projects that have been verified by
the Corps, an extension of a Corps
approved completion date maybe
requested. This request must be
submitted at least one month before the
previously approved completion date.
D. Further Information
1. District Engineers have authority to
determine if an activity complies with
the terms and conditions of an NWP.
2. NWPs do not obviate the need to
obtain other Federal, state, or local
permits, approvals, or authorizations
required by law.
3. N4VPs do not grant any property
rights or exclusive privileges.
4. NWPs do not authorize any injury
to the property or rights of others.
5. NWPs do not authorize interference
with any existing or proposed Federal
project.
E. Definitions
Best Management Practices (BMPs):
BMPs are policies, practices,
procedures, or structures implemented
to mitigate the adverse environmental
effects on surface water quality resulting
from development. BMPs are
categorized as structural or non-
structural. A BMP policy may affect the
limits on a development.
Cornpensatory Mitigation: For
purposes of Section 10/404,
compensatory mitigation is the
restoration, creation, enhancement, or in
exceptional circumstances, preservation
of wetlands and/or other aquatic
resources for the purpose of
compensating for unavoidable adverse
impacts which remain after all
appropriate and practicable avoidance
and minimization has been achieved.
Creation: The establishment of a
wetland or other aquatic resource where
one did not formerly exist.
Enhancement: Activities conducted in
existing wetlands or other aquatic
resources that increase one or more
aquatic'functions.
Eplw merol Stream: An ephemeral
stream has flowing water only during
and for a short duration after,
precipitation events in a typical year.
Ephemeral stream beds are located
above the water table year-round.
Groundwater is not a source of water for
the stream. Runoff from rainfall is the
primary source of water for stream flow.
Farm Tract: A unit of contiguous land
under one ownership that is operated as
a farm or part of a farm.
Flood Fringe: That portion of the 100-
year floodplain outside of the floodway
(often referred to as 'floodway fringe'').
Floodway: The area regulated by
Federal, state, or local requirements to
provide for the discharge of the base
flood so the cumulative increase in
water surface elevation is no more than
a designated amount (not to exceed one
foot as set by the National Flood
Insurance Program) within the 100-year
flood lain.
Independent Utility: A test to
determine what constitutes a single and
complete project in the Corps regulatory
program. A project is considered to have
independent utility if it would be
constructed absent the construction of
other projects in the project area.
Portions of a multi-phase project that
depend upon other phases of the project
do not have independent utility. Phases
of a project that would be constructed
even if the other phases were not built
can be considered as separate single and
complete projects with independent
utility.
Intermittent Stream: An intermittent
stream has flowing water during certain
times of the year, when groundwater
provides water for stream flow. During
dry periods, intermittent streams may
not have flowing water. Runoff from
rainfall is a supplemental source of
water for stream flow.
Loss of Waters of the US: Waters of
the US that include the filled area and
other waters that are permanently
adversely affected by flooding,
excavation, or drainage because of the
regulated activity. Permanent adverse
effects include permanent above-grade,
at-grade, or below-grade fills chat 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 N1V1'; it is
not a net threshold that is calculated
after considering compensatory
mitigation that may be used to offset
losses of aquatic functions and values.
The loss of stream bed includes the
linear feet of stream bed that is filled or
excavated. Waters of the US temporarily
filled, flooded, excavated, or chained,
but restored to preconstruction contours
and elevations after construction, are
not included in the measurement of loss
of waters of the US. Impacts to
ephemeral waters are only not included
in the acreage or linear foot
measurements of loss of waters of the
US or loss of stream bed, for the purpose
of determining compliance with the
threshold limits of the NWPs.
Non-tidal Wetland: A non-tidal
wetland is a wetland (i.e., a water of the
US) that is not subject to the ebb and
flow of tidal waters. The definition of a
wetland can be found at 33 CFR
328.3(b). Non-tidal wetlands contiguous
to tidal waters are located landward of
the high tide line (i.e., spring high tide
line).
Open Water: An area that, during a
year with normal patterns of
precipitation, has standing or flowing
water for sufficient duration to establish
an ordinary high water mark. Aquatic
vegetation within the area of standing or
flowing water is either non-emergent,
sparse, or absent. Vegetated shallows are
considered to be open waters. The term
"open water" includes rivers, streams,
lakes, and ponds. For the purposes of
the NWPs, this term does not include
ephemeral waters.
Perennial Stream: A perennial stream
has flowing water year-round during a
typical year. The water table is located
above the stream bed for most of the
year. Groundwater is the primary source
of water for stream flow. Runoff from
rainfall is a supplemental source of
water for stream flow.
Permanent Above-grade Fill: A
discharge of dredged or fill material into
waters of the US, including wetlands,
that results in a substantial increase in
ground elevation and permanently
converts part or all of the waterbody to
dry land. Structural fills authorized by
NWPs 3, 25, 36, etc. are not included.
Preservation: The protection of
ecologically important wetlands or other
aquatic resources in perpetuity through
the implementation of appropriate legal
and physical mechanisms. Preservation
may include protection of upland areas
adjacent to wetlands as necessary to
Federal Register/Vol. 67, No. 10/Tuesday, January 15, 2002/Notices 2095
ensure protection and/or enhancement
of the overall aquatic ecosystem.
Restoration: Re-establishment of
wetland and/or other aquatic resource
characteristics and function(s) at a site
where they have ceased to exist, or exist
in a substantially degraded state.
Riffle and Pool Complex: Riffle and
pool complexes are special aquatic sites
under the 404(b)(1) Guidelines. Riffle
and pool complexes sometimes
characterize steep gradient sections of
streams. Such stream sections are
recognizable by their hydraulic
characteristics. The rapid movement of
water over a course substrate in riffles
results in a rough flow, a turbulent
surface, and high dissolved oxygen
levels in the water. Pools are deeper
areas associated with riffles. A slower
stream velocity, a streaming flow, a
smooth surface, and a fitter 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.
Stormwater Management: Stormwater
management is the mechanism for
controlling stormwater runoff for the
purposes of reducing downstream
erosion, water quality degradation, and
flooding and mitigating the adverse
effects of changes in land use on the
aquatic environment.
Stormwater Monogerent Facilities:
Stormwater management facilities are
those facilities, including but not
limited to, storrnwater retention and
detention ponds and BMPs, which
retain water for a period of time to.
control runoff and/or improve the
quality (i.e., by reducing the
concentration of nutrients, sediments,
hazardous substances and other
pollutants) of stormwater runoff.
Stream Red: The substrate of the
stream channel between the ordinary
high water marks. The substrate may be
bedrock or inorganic particles that rane
in size from clay to boulders. Wetlands'
contiguous to the stream bed, but
outside of the ordinary high water
marks, are not considered part of the
stream bed.
Stream Channelization: The
manipulation of a stream channel to
increase the rate of water flow through
the stream channel. Manipulation may
include deepening, widening,
straightening, armoring, or other
activities that change the stream cross-
section or other aspects of stream
channel geometry to increase the rate of
water flow through the stream channel.
A chamielized stream remains a water
of the US, despite the modifications to
increase the rate of water flow.
Tidal Wetland: A tidal wetland is a
wetland (i.e., water of the US) that is
inundated by tidal waters. The
definitions of a wetland and tidal waters
can be found at 33 CFR 328.3(b) and 33
CFR 328.3(0, respectively. Tidal waters
rise and fall in a predictable and
measurable rhythm or cycle due to the
gravitational pulls of the moon and sun.
Tidal waters end where the rise and fall
of the water surface can no longer be
practically measured in a predictable
rhythm due to masking by other waters,
wind, or other effects. Tidal wetlands
are located channelward of the high tide
line (i.e., spring high tide line) and are
inundated by tidal waters two times per
lunar month, during spring high tides.
Vegetated Buffer: A vegetated upland
or wetland area next to rivers, streams,
lakes, or other open waters which
separates the open water from
developed areas, including agricultural
land. Vegetated buffers provide a variety
of aquatic habitat functions and values
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 anti
13ILLING 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,
NOAH. All statements and opinions
contained in the permit action
summaries are those of the applicant
and do not necessarily reflect the views
of NMFS.
Species Covered in This Notice
The following species are covered in
this notice:
Sea turtles
Threatened and endangered green
turtle (Chelonia mydas)
Endangered hawksbill turtle
(E'retrnochelys imbricata)
Endangered Kemp's ridley turtle
(Lepidochelys kempii)
Endangered leatherback turtle
(Derrnochelys corincea)
Threatened loggerhead turtle (Caretta
Caretta)
Application 1361
The applicant,is applying for a 5-year
permit to trawl for turtles, as needed, at
dredge and other construction/
destruction sites to remove the turtles to
a safe location. The turtles will be
captured, tagged, measured and released
offshore away from the dredging
activities. The applicant expects to
capture and relocate 95 green, 11
hawksbill, 160 loggerhead, 14 Kemp's
ridley and 4 leatherback turtles on the
Atlantic coast and 105 green, 17
hawksbill, 160 loggerhead, 50 Kemp 's
ridley and 11 leatherback turtles on the
Gulf coast.
Dated: February 7, 2002.
Jill Lewandowski,
Acting Chief, Permits, Conservation, and
Education Division, Office of Protected
Resources, National Marine Fisheries Service.
[FR Doc. 02-3522 Filed 2-12-02; 8:45 am)
BILLING CODE 3510.22-S
FOR FURTHER INFORMATION CONTACT: Mr.
David Olson, at (703) 428--7570, 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.mil/inet/functions/
cw/cecwo/reg/.
SUPPLEMENTARY INFORMATION: In the
SUMMARY section on page 2020, the third
and fourth sentences are corrected to
read: "All NWPs except NWPs 3, 7, 12,
14, 27, 39, 40, 41, 42, 43, and 44 expire
on February 11, 2002. Existing NWPs 3,
7, 12, 14, 27, 39, 40, 41, 42, 43, and 44
expire on March 18, 2002." In the last
sentence of the SUMMARY section, the
expiration date is corrected as "March
18, 2007", instead of "March 19, 2007'
On page 2020, in second sentence of
the DATES section, the expiration date is
corrected as "March 18, 2007", instead
of "March 19, 2007". Therefore, the
NWPs published in the January 15,
2002; Federal Register will expire on
March 18, 2007, five years from their
effective date of March 18, 2002.
On page 2020, in the fifth paragraph
of the Background section, the third and
fourth sentences are corrected to read:
"All NWPs except NWPs 3, 7, 12, 14,
27, 39, 40, 41, 42, 43, and 44 expire on
February 11, 2002. Existing NWPs 3, 7,
12, 14, 27, 39, 40, 41, 42, 43, and 44
expire on March 18, 2002." The
expiration date in the last sentence of
this paragraph is corrected as "March
18, 2007", instead of "March 19, 2007".
On page 2020, the paragraph in the
section entitled "Grandfather Provision
for Expiring NWPs at 33 CFR 330.6" is
corrected to read: "Activities authorized
by the current NWPs issued on
December 13, 1996, (except NWPs 3, 7,
12, 14, 27, 39, 40, 41, 42, 43, and 44),
that have commenced or are under
contract to commence by February 11,
2002, will have until February 11, 2003,
to complete the activity. Activities
authorized by NWPs 3, 7, 12, 14, 27, 39,
40, 41, 42, 43, and 44, that were issued
on March 9, 2000, that are commenced
or under contract to commence by
March 18, 2002, will have until March
18, 2003, to complete the activity."
On page 2020, in the "Clean Water
Act Section 401 Water Quality
Certification (WQCJ and Coastal Zone
Management Act (CZMA) Consistency
Agreement" section, the date in the fifth
sentence is corrected as "February 11,
2002", instead of "February 11, 2001".
On page 2023, third column, last
sentence, the number 29 is replaced
with the number 19, because this
sentence refers to General Condition 19.
On page 2024, first column, in the
fourth sentence of the last paragraph tho
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).
Ott 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-ticlal waters, provided the discharge
does not cause the loss of greater than
'/.-acre of waters of the US; or (2) For
linear transportation projects in tidal
waters, provided the discharge does not
cause the Joss 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
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: IIQUSACE, ATTN: CECW-
OR, 441 "G" Street, NW., Washington,
DC 20314-1000.
Federal Register / Vol. 67, No, 30 / Wednesday, February 13, 2002 /Notices 6693
access to the boat ramp may be
authorized by another MVP, 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 tine second column,
"paragraph (e)" in the second sentence
is replaced with "paragraph (0" and
"paragraph (i)" in the third sentence is
replaced with "paragraph (j)" to
accurately cite the previous paragraphs
of NWP 39. The last two sentences of
the paragraph before the subdivision
paragraph were incorrectly divided into
two sentences from the original single
sentence and identified as being related
to General Condition 15. This change
was not intended and we are correcting
this paragraph by reinstating the
original last sentence as it exists in the
March 9, 2000, text of NWP 39 (65 FR
12890).
On page 2086, middle column, the
parenthetical statement at the end of the
Note at the end of NWP 39 is corrected
to read "* * * (except for ephemeral
waters, which do not require PCNs
under paragraph (c)(2), above; however,
activities that result in the loss of greater
than Vi o acre of ephemeral waters
would require PCNs under paragraph
(c)(1), above)." The addition to the Note
was intended to clarify that under
paragraph (c)(2) only the loss of
ephemeral open waters were not
included in the requirement for a pre-
construction notification (PCN).
However, uuncler paragraph (c)(1) all
ephemeral waters of the United States
are included in the measurement for the
Vco 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
fnstitutionol Ucvelopmcnts. Discharges
of dredged or fill material into non-tidal
waters of the U.S., excluding non-ticlal
wetlands adjacent to tidal waters, for the
construction or expansion of residential,
commercial, and institutional building
foundations and building pads and
attendant features that are necessary for
the use and maintenance of the
structures. Attendant features may
include, but are not limited to, roads,
parking lots, garages, yards, utility lines,
stormwater management facilities, and
recreation facilities such as
playgrounds, playing fields, and golf
courses (provided the golf course is an
integral part of the residential
development). The construction of new
ski areas or oil and gas wells is not
authorized b this NWP.
Residential developments include
multiple and single unit developments.
Examples of commercial developments
include retail stores, industrial facilities,
restaurants, business parks, and
shopping centers. Examples of
institutional developments include
schools, fire stations, government office
buildings, judicial buildings, public
works buildings, libraries, hospitals,
and places of worship. The activities
listed above are authorized, provided
the activities meet all of the following
criteria:
a. The discharge does not cause the
loss of greater than V,2-acre of non-tidal
waters of the U.S., excluding non-tidal
wetlands adjacent to tidal waters;
b. The discharge sloes not cause the
loss of greater than 300 linear-feet of a
stream bed, unless for intermittent
stream beds this criterion is waived in
writing pursuant to a determination by
the District Engineer, as specified
below, that the project complies with all
terms and conditions of this MVP and
that any adverse impacts of the project
on the aquatic environment are
minimal, both individually and
cumulatively;
c. The perrnittee must notify tine
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 Vco-acre of non-tidal waters
of the US, excluding non-tidal wetlands
adjacent to tidal waters; or
(2) The discharge causes the loss of
any open waters, including perennial or
intermittent streams, below the ordinary
hi"h water mark (see Note, below); or
6) The discharge causes the loss of
greater than 300 linear feet of
intermittent stream bed. In such case, to
be authorized the District Engineer must
determine that the activity complies
with the other terms and conditions of
the NWP, determine adverse
environmental effects are minimal both
individually and cumulatively, and
wilive the limitation on stream impacts
in writin. before tine perrnittee nlay
proceed;
d. For discharges in special aquatic
sites, including wetlands, the
notification must include a delineation
of affected special aquatic: sites;
u. The discharge is part of a single and
complete project;
C The perrnittee must avoid and
minimize discharges into waters of the
US at the project site to the maximum
extent practicable, The notification,
when required, must include a written
statement explaining how avoidance
and minimization of losses of waters of
the US were achieved on the project
site. Compensatory mitigation will
normally be required to offset the losses
of waters of the US. (See General
Condition 19.) The notification must
also include a compensatory mitigation
proposal for offsetting unavoidable
losses of waters of the US. If an
applicant asserts that the adverse effects
of the project are minimal without
mitigation, then the applicant may
submit justification explaining why
compensatory mitigation should not be
required for,the District Engineer's
consideration;
g. When this NWP is used in
conjunction with any other NWP, any
combined total permanent loss of waters
of the US exceeding IAo-acre requires
that the permittee notify the District
engineer in accordance with General
Condition 13;
It, Any work authorized by this NWP
must not cause more than minimal
degradation of water quality or more
than minimal changes to the flow
characteristics of any stream (see
General Conditions 9 and 21);
i. For discharges causing the loss of
V,o-acre or less of waters of the US, the
perrnittee 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
perrnittee; (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 (P.g„
V2-acre of emergent wetlands created
on-site);
j. If there are any open waters or
streams within the project area, the
perrnittee 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.
Decd restrictions, conservation
easements, protective covenants, or
other means of land conservation and
preservation are required to protect and
maintain the vegetated buffers
established on the project site.
Only residential, commercial, and
institutional activities with structures
on the foundation(s) or building pad(s),
as well as the attendant features, are
authorized by this NWP. The
6694 Federal Register/Vol. 67, No. 30/Wednesday, February 13, 2002/Notices
compensatory mitigation proposal that
is required in paragraph (f) of this NWP
may be either conceptual or detailed.
The wetland or upland vegetated buffer
required in paragraph (j) of this NWP
will be determined on a case-by-case
basis by the District Engineer for
addressing water quality concerns. The
required wetland or upland vegetated
buffer is part of the overall
compensatory mitigation requirement
for this NWP. If the project site was
previously used for agricultural
purposes and the farm owner/operator
used NWP 40 to authorize activities in
waters of the United States to increase
production or construct farm buildings,
NWP 39 cannot be used by the
developer to authorize additional
activities in waters of the United States
oil tine project site in excess of the
acreage limit for NWP 39 (i.e., the
combined acreage loss authorized under
NWPs 39 and 40 cannot exceed 1/2 acre).
Subdivisions: For residential
subdivisions, the aggregate total loss of
waters of US authorized by NWP 39 can
not exceed 1/2-acre. This includes any
loss of waters associated with
development of individual subdivision
lots. (Sections 10 and 404)
Note: Areas where wetland vegetation is
not present should he 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 1/lo 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
"Tile 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.
Oil page 2089, third column, the text
of General Condition 6 is corrected to
read: "The activity must comply with
any regional conditions that may have
been added by the Division Engineer
(see 33 CFR 330.4(e)) and with any case
specific conditions added by the Corps
or by the state or tribe in its Section 401
Water Quality Certification and Coastal
Zone Management Act consistency
determination." The change to General
Condition 6 that was published in the
January 15, 2002, Federal Register was
not intended and we are correcting this
sentence by reinstating the original text
as it existed in the March 9, 2000,
NWPs.
On page 2090, first column, the word
"Section" in the parenthetical at the end
of General Condition 10 is replaced with
"33 CFR" so that the parenthetical reacts
"(see 33 CFR 330.4(d))".
On page 2090, at the top of the second
column, the second Internet URL is
replaced with "* * * http://
W1YVv.ninfs.noaa.gov/Prot - reslovervie wl
es.fhtml * * *" because the Internet
address for the National Marine
Fisheries Service home page for
endangered species has been changed.
On page 2090, third column, in
paragraph (b)(4) of General Condition
13, NWP 40 should be added to the list
of NWPs that require submission of
delineations of special aquatic sites with
pre-construction notifications.
Therefore, paragraph (b)(4) of General
Condition 13 is corrected to read "For
NWPs 7, 12, 14, 18, 21, 34, 38, 39, 40,
41, 42, and 43, the PCN must also
include a delineation of affected special
aquatic sites, including wetlands,
vegetated shallows (e.g., submerged
aquatic vegetation, seagrass beds), and
riffle and pool complexes (see paragraph
13(f));"
On page 2090, third column, in
paragraph (h)(6) of General Condition
13, the word "Projects" replaces the
word "Crossings", because the title of
NWP 14 is "Linear Transportation
Projects".
On page 2090, third column, in
paragraph (b)(8) of General Condition
13, the word "Activities" is inserted
after the word "Restoration" because the
title of NWP 27 is "Stream and Wetland
Restoration Activities
Orr 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 11 .
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
tine 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.
IIowever, 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 art 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 ephonreral stream bed that is
filled or excavated can also be
considered a loss of waters of the United
States. However, the 300 linear foot
limit for stream beds filled or excavated
does not apply to ephemeral streams.
We have modified this sentence to
define the loss of stream bed as the
linear feet of stream bed that is filled or
excavated." Thus, the modification of
this definition was intended to clarify
that activities that involve filling or
excavating ephemeral streams are not
included in the linear foot limits for
filling or excavating stream beds in
NWPs 39, 40, 42, and 43. However, it
was not intended to exempt ephemeral
waters or streams from calculations of
impacted acreages to determine PCN or
maximum acreage requirements in
accordance with NWPs 39, 40, 42, and
43.
In the August 9, 2001, Federal
Register notice (66 FR 42099) we
proposed to modify the definition of
''Loss of Waters of the US" by adding
the sentence "* * * The loss of stream
bed includes the linear feet of perennial
stream or intermittent stream that is
filled or excavated * * * The
proposed change was in response to a
commitment to clearly state in the text
of the NWPs (which includes the
definitions) that the 300 linear foot limit
in NWPs 39, 40, 42, and 43 for filling
and excavating stream beds would only
apply to intermittent and perennial
streams, not to ephemeral streams.
In the January 15, 2002, Federal
Register notice (67 FR 2074-2075) we
erroneously stated that both the acreage
and linear limits of the NWPs do not
apply to ephemeral waters. This was
never intended to be adopted as policy
for the NWPs or the Corps regulatory
program. A previously stated, in the first
column of page 2075 of the January 15,
2002, Federal Register notice, we refer
to page 12881 of the March 9, 2000,
Federal Register notice, which only
discusses the 300 linear foot limit, not
the acreage limits of the NWPs. Our
intent is to continue to apply acreage
limits of NWPs to activities that result
in the permanent loss of ephemeral
waters, but the linear foot limits of the.
NWI's (Lc., NWPs 39, 40, 42, and 43) for
filling or excavating streanr beds would
not apply to activities that involve
filling or excavating ephemeral streams.
The last sentence of the definition of
"Loss of Wators of the US" as published
in the January 15, 2002, Federal
Register notice does not comport with
remainder of this NWI' package.
Therefore, we are correcting this
definition as described above.
We believe that correcting the text of
NWP 39 and the definition of "Loss of
Waters of the US" through the
publication of this correction notice is
appropriate. Nevertheless, in order to
give all interested parties further
opportunity to comment on this matter,
we intend to publish a Federal Register
notice to solicit public comments on
those two corrections. If we determine
that Rny other matter relating to the final
NWPs requires correction or
clarification, but that matter was not
adequately dealt with in this correction
notice, we will address that additional
matter in the forthcoming Federal
Register notice, as well. We expect to
publish that Federal Register notice
within a few weeks.
Dated: February 7, 2002.
Lawrence A. I.ang,
Assistant Chief, Operations Division,
Directorate of Civil IVorks.
[FR Doc. 02-3555 Filed 2-12-02; 8:45 aml
BILLING CODE 3710-92-P
DEPARTMENT OF DEFENSE
Uniformed Services University of the
Health Sciences
Sunshine Act Meeting
AGENCY HOLDING THE MEETING:
Uniformed Services University of the
Health Sciences.
TIME AND DATE: 8:00 a.m. to 4:00 p.m.,
February 5, 2002,
PLACE: Uniformed Services University
of the Health Sciences, Board of Regents
Conference Room (D3001), 4301 Jones
Bridge Road, Bethesda, MD 20814-4799.
STATUS: Open-under "Government in
the Sunshine Act" (5 U.S.C. 552b(e)(3)).
MATTERS TO BE CONSIDERED:
8:30 a.m. Meeting Boarcl of Regents
(1) Approval of Minutes---November 14,
2001
(2) Faculty Matters
(3) Department Reports
(4) Financial Report
(5) Report---President, USUI IS
(6) Report--Dean, Schout of Mudiciuc
(7) Report--Dean, Graduate School of
Nursing
(8) Colnin alts-Chairman, Board of'
Regents
(9) New Business
CONTACT PERSON FOR MORE INFORMATION:
Mr. Bobby 1). Anderson, Executive
Secretary, Board of Regents, (301) 295-
3116.
Dated: February 8, 2002.
Linda Bynum,
OSD Federal Register Liaison Officer,
Deportment of nefensr..
f FR Doc. 02-3683 Filed 2-11-02; 3:32 purl
BILLING CODE 5004-08-M
DEPARTMENT OF EDUCATION
Submission for OMB Review;
Comment Request
AGENCY: Department of Education.
SUMMARY: The Leader, Regulatory
Information Management Croup, Office
of the Chief Information Officer invites
comments on the submission for OMB
review as required by the Paperwork
Reduction Act of 1995.
DATES: Interested persons are invited to
submit comments on or before March
15, 2002.
ADDRESSES: Written comments should
be addressed to the Office of
Information and Regulatory Affairs,
Attention: Lauren Wittenberg, Desk
Officer, Department of Education, Office
of Management and Budget, 725 17th
Street, NW., Room 10202, New
Executive Office Building, Washington,
DC 20503 or should be electronically
mailed to the internet address
Lauren - [e-mail].
SUPPLEMENTARY INFORMATION: Section
3506 of the Paperwork Reduction Act of
1995 (44 U.S.C. Chapter 35) requires
that the Office of Management and
Budget (OMB) provide interested
Federal agencies and the public an early
opportunity to comment on information
collection requests. OMB may amend or
waive the requirement for public
consultation to the extent that public
participation in the approval process
would defeat the purpose of the
information collection, violate State or
Federal law, or substantially interfere
with any agency's ability to perform its
statutory obligations.'I'he Leader,
Regulatory Information Management
Croup, Office of the Chief Information
Officer, publishes that notice containing
proposed infnrniation collection
requests prior to submission of these
ruquests to OMB. Each proposed
information collection, grouped by
office, contains the followitrg: (1) Type
of review requested, e.g. new, revision,
extension, existing or reinstatement; (2)
Title; (3) Summary of the collection; (4)
Description of the need for, and
proposed use of, the information; (5)
Respondents and frequency of
collection; and (6) Reporting and/or
Recordkeeping burden. OMB invites
public comment.