20020794 Ver 1_Complete File_20020521

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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
_ ?a??do ?,??. _____
DWQ Project No.: __ 007,74-County:
Applicant: f d bC>T
Project Name: 5R__ i t 10 A _??E•e l ?-utws ___ __ _
Date of Issuance of 401 Water Quality Certification: ?'v?nG q?ZOOZ
Certificate of Completion
Upon completion of all work approved within the 401 Water Quality Certification or applicable Buffer
Rules, and any subsequent modifications, the applicant is required to return this certificate to the
401/Wetlands Unit, North Carolina Division of Water Quality, 1650 Mail Service Center, Raleigh, NC,
27699-1650. This form may be returned to DWQ by the applicant, the applicant's authorized agent, or the
project engineer. It is not necessary to send certificates from all of these.
Applicant's Certification
I, , hereby state that, to the best of my abilities, due care and
diligence was used in the observation of the construction such that the construction was observed to be built
within substantial compliance and intent of the 401 Water Quality Certification and Buffer Rules, the
approved plans and specifications, and other supporting materials.
Signature: Date:
Agent's Certification
I, P ?? 17L.OWWE , 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 ter, Is.
Signature: Date: 92.0,2¢05
N 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
K* AN
Division of Water Quality 1650 Mail Service Center Raleigh, NC 27699-1650
Wetlands/401 Unit: [phone]
Fax: [phone]
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June 4, 2002
Randolph County
DWQ Project No. 020794
SR 1118A (Bethel Lucas 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 impact 70
linear feet permanently and 35 linear feet temporarily of an unnamed tributary to Little River in order to
improve SR 1118A (Bethel Lucas Road) in Randolph County. The project must be constructed in
accordance with your application dated May 16, 2002 (received May 21, 2002). After reviewing your
application, we have decided that this fill is covered by General Water Quality Certification No. 3375,
corresponding to the U.S. Army Corps of Engineers Nationwide Permit Number 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 NCDWQ when all work included in the §401 Certification has been
William . Ross Jr., Secretary
North Carolina Department of Environment and Natural Resources
Alan W. Klimek, P.E. Director
Division of Water Quality
ITIM
NCDE(?
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/ncwetiands/
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,
. 'Klim, P.E.
Attachment
cc: Wilmington District Corps of Engineers
Richard Spencer, USACE Wilmington Field Office
NCDWQ Winston-Salem Regional Office
Central Files
File Copy

Office Use Only: Form Version October 2001
USACE Action ID No. DWQ No. 0 2 0 7 9 4
If any particular item is not applicable to this project, please enter "Not Applicable" or "N/A" rather than
leaving the space blank.
1. Processing FILE COPY
' -
1. Check all of the approval(s) requested for this project:
® Section 404 Permit
c>i, f,ti;OUi' ,
Section 10 Permit
® 401 Water Quality Certification
? Riparian or Watershed Buffer Rules
2. Nationwide, Regional or General Permit Number(s) Requested: Nationwide #14
3. If this notification is solely a courtesy copy because written approval for the 401 Certification
is not required, check here:
4. If payment into the North Carolina Wetlands Restoration Program (NCWRP) is proposed for
mitigation of impacts (see section VIII - Mitigation), check here:
II. Applicant Information
Owner/Applicant Information
Name: North Carolina Department of Transportation
Mailing Address: W. F. Rosser. P.E.. Division Engineer
North Carolina Department of Transportation. Division 8
P.O. Box 1067
Aberdeen. North Carolina 28315
Telephone Number: 910-944-2344 Fax Number: 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: tmcmanus a dot. state, nc.us
PAYMENT
-5- RECEIVED
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 1118A (Bethel Lucas Road)
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: Seagrove
Subdivision name (include phase/lot number):
Directions to site (include road numbers, landmarks, etc.): Take Highway 220 South from
Asheboro 6 miles. exit onto Highway 134 South for 8 miles. turn left on Bethel Lucas Road
(SR II18A)
5. Site coordinates, if available (UTM or Lat/Long): See Attached Sheet
(Note - If project is linear, such as a road or utility line, attach a sheet that separately lists the
coordinates for each crossing of a distinct waterbody.)
6. Describe the existing land use or condition of the site at the time of this application:
Unpaved Secondary road pipe crossing
7. Property size (acres): N/A Roadway
8. Nearest body of water (stream/river/sound/ocean/lake): Little River
9. River Basin: Yadkin River Basin
(Note - this must be one of North Carolina's seventeen designated major river basins. The
River Basin map is available at hhU://h2o enr state nc us/admi map /.)
-6-
10. Describe the purpose of the proposed work: _ Pipe replacement and upgrade in conjunction
with Secondary Road Improvement Project. Grade. drain. base pave and erosion control
on 1118A (Bethel Lucas Road) from SR 1175 to Highway 134.
11. List the type of equipment to be used to construct the project: Track hoe. dozer, pan.
back hoe. compactor. and motor grader.
12. Describe the land use in the vicinity of this project: Private homes and farms.
IV. Prior Project History
If jurisdictional determinations and/or permits have been requested and/or obtained for this
project (including all prior phases of the same subdivision) in the past, please explain. Include
the USACE Action ID Number, DWQ Project Number, application date, and date permits and
certifications were issued or withdrawn. Provide photocopies of previously issued permits,
certifications or other useful information. Describe previously approved wetland, stream and
buffer impacts, along with associated mitigation (where applicable). If this is a NCDOT project,
list and describe permits issued for prior segments of the same T.I.P. project, along with
construction schedules.
V. Future Project Plans
Are any future permit requests anticipated for this project? If so, describe the anticipated work,
and provide justification for the exclusion of this work from the current application:
N/A
VI. Proposed Impacts to Waters of the United States/Waters of the State
It is the applicant's (or agent's) responsibility to determine, delineate and map all impacts to
wetlands, open water, and stream channels associated with the project. The applicant must also
provide justification for these impacts in Section VII below. All proposed impacts, permanent
and temporary, must be listed herein, and must be clearly identifiable on an accompanying site
plan. All wetlands and waters, and all streams (intermittent and perennial) must be shown on a
delineation map, whether or not impacts are proposed to these systems. Wetland and stream
evaluation and delineation forms should be included as appropriate. Photographs may be
included at the applicant's discretion. If this proposed impact is strictly for wetland or stream
mitigation, list and describe the impact in Section VIII below. If additional space is needed for
listing or description, please attach a separate sheet.
-7-
1. Wetland Impacts
Wetland Impact
Site Number
(indicate on map)
Type of Impact* Area of
Impact
(acres) Located within
100-year Floodplain**
(yes/no) Distance to
Nearest Stream
(linear feet)
Type of Wetland***
None

' List each impact separately and identity temporary impacts. Impacts include, but are not limited to: mechanized clearing, grading, fill,
excavation, flooding, ditching/drainage, etc. For dams, separately list impacts due to both structure and flooding.
** 100-Year floodplains are identified through the Federal Emergency Management Agency's (FEMA) Flood Insurance Rate Maps
(FIRM), or FEMA-approved local floodplain maps. Maps are available through the FEMA Map Service Center at 1-800-358-9616, or
online at hn://www.fcma.ggv.
»r» List a wetland type that best describes wetland to be impacted (e.g., freshwater/saltwater marsh, forested wetland, beaver pond,
Carolina Bay, bog, etc.)
List the total acreage (estimated) of existing wetlands on the property:
Total area of wetland impact proposed:
2. Stream Impacts, including all intermittent and perennial streams
Stream Impact
Site Number
(indicate on map) Length of
Type of Impact* Impact
(linear feet)
Stream Name** Average Width
of Stream
Before Impact Perennial or
Intermittent?
(please specify)
1 Permanent Pipe ! 70' UT of Little River 4'-5' P
1 Temporary 35' UT of Little River

* List each impact separately and identify temporary impacts. Impacts include, but are not limited to: culverts and associated rip-rap,
dams (separately list impacts due to both structure and flooding), relocation (include linear feet before and after, and net loss/gain),
stabilization activities (cement wall, rip-rap, crib wall, gabions, etc.), excavation, 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
N ww.uses.gov. Several internet sites also allow direct download and printing of USGS maps (e.g., www.topozone.com,
www.maDQUCSt.com, etc.).
Cumulative impacts (linear distance in feet) to all streams on site: 105'
-8-
3. Open Water Impacts, including Lakes, Ponds, Estuaries, Sounds, Atlantic Ocean and any
other Water of the U.S.
Open Water Impact
Site Number
(indicate on map)
Type of Impact* Area of
Impact
(acres) Name of Waterbody
(if applicable) Type of Waterbody
(lake, pond, estuary, sound,
bay, ocean, etc.)
None

List eacn impact separatery anu iuennrv temporary impacts. impacts tnciuae, out are not nmitea to: tin, 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 F-] wetlands
Describe the method of construction (e.g., dam/embankment, excavation, installation of
draw-down valve or spillway, etc.): N/A
Proposed use or purpose of pond (e.g., livestock watering, irrigation, aesthetic, trout pond,
local stormwater requirement, etc.):
Size of watershed draining to pond: Expected pond surface area:
VII. Impact Justification (Avoidance and Minimization)
Specifically describe measures taken to avoid the proposed impacts. It may be useful to provide
information related to site constraints such as topography, building ordinances, accessibility, and
financial viability of the project. The applicant may attach drawings of alternative, lower-impact
site layouts, and explain why these design options were not feasible. Also discuss how impacts
were minimized once the desired site plan was developed. If applicable, discuss construction
techniques to be followed during construction to reduce impacts.
VIII. Mitigation
DWQ - In accordance with 15A NCAC 2H .0500, mitigation may be required by the NC
Division of Water Quality for projects involving greater than or equal to one acre of impacts to
freshwater wetlands or greater than or equal to 150 linear feet of total impacts to perennial
streams.
-9-
USACE - In accordance with the Final Notice of Issuance and Modification of Nationwide
Permits, published in the Federal Register on March 9, 2000, mitigation will be required when
necessary to ensure that adverse effects to the aquatic environment are minimal. Factors
including size and type of proposed impact and function and relative value of the impacted
aquatic resource will be considered in determining acceptability of appropriate and practicable
mitigation as proposed. Examples of mitigation that may be appropriate and practicable include,
but are not limited to: reducing the size of the project; establishing and maintaining wetland
and/or upland vegetated buffers to protect open waters such as streams; and replacing losses of
aquatic resource functions and values by creating, restoring, enhancing, or preserving similar
functions and values, preferable in the same watershed.
If mitigation is required for this project, a copy of the mitigation plan must be attached in order
for USACE or DWQ to consider the application complete for processing. Any application
lacking a required mitigation plan or NCWRP concurrence shall be placed on hold as
incomplete. An applicant may also choose to review the current guidelines for stream restoration
in DWQ's Draft Technical Guide for Stream Work in North Carolina, available at
http://h2o.enr.state.nc.us/ncwetlands/stn-nizide.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 hup://h2o.enr.state.nc.us/nip/index.litm. If
use of the NCWRP is proposed, please check the appropriate box on page three and provide
the following information:
Amount of stream mitigation requested (linear feet):
Amount of buffer mitigation requested (square feet):
Amount of Riparian wetland mitigation requested (acres):
Amount of Non-riparian wetland mitigation requested (acres):
Amount of Coastal wetland mitigation requested (acres):
- t0-
IX. Environmental Documentation (DWQ Only)
Does the project involve an expenditure of public funds or the use of public (federal/state/local)
land?
Yes ® No
If yes, does the project require preparation of an environmental document pursuant to the
requirements of the National or North Carolina Environmental Policy Act (NEPA/SEPA)?
Note: If you are not sure whether a NEPA/SEPA document is required, call the SEPA
coordinator at [phone] to review current thresholds for environmental documentation.
Yes F? No
If yes, has the document review been finalized by the State Clearinghouse? If so, please attach a
copy of the NEPA or SEPA final approval letter.
Yes F-] No
X. Proposed Impacts on Riparian and Watershed Buffers (DWQ Only)
It is the applicant's (or agent's) responsibility to determine, delineate and map all impacts to
required state and local buffers associated with the project. The applicant must also provide
justification for these impacts in Section VII above. All proposed impacts must be listed herein,
and must be clearly identifiable on the accompanying site plan. All buffers must be shown on a
map, whether or not impacts are proposed to the buffers. Correspondence from the DWQ
Regional Office may be included as appropriate. Photographs may also be included at the
applicant's discretion.
Will the project impact protected riparian buffers identified within 15A NCAC 2B .0233
(Neuse), 15A NCAC 2B .0259 (Tar-Pamlico), 15A NCAC 213 .0250 (Randleman Rules and
Water Supply Buffer Requirements), or other (please identify__ )?
Yes F? No [:] If you answered "yes", provide the following information:
Identify the square feet and acreage of impact to each zone of the riparian buffers. If buffer
mitigation is required calculate the required amount of mitigation by applying the buffer
multipliers.
Zone* Impact
(square feet) Multiplier Required
Mitigation
1 3
2 1.5
Total
- [.one t extenas out su ieet perpenaicwar from near bank of channel; Lone ? extends an
additional 20 feet from the edge of Zone 1.
If buffer mitigation is required, please discuss what type of mitigation is proposed (i.e., Donation
of Property, Conservation Easement, Riparian Buffer Restoration / Enhancement, Preservation or
Payment into the Riparian Buffer Restoration Fund). Please attach all appropriate information as
identified within 15A NCAC 2B .0242 or .0260.
XI. Stormwater (DWQ Only)
Describe impervious acreage (both existing and proposed) versus total acreage on the site.
Discuss stormwater controls proposed in order to protect surface waters and wetlands
downstream from the property.
Neither the current impervious cover (gravel road bed) nor the new proposed impervious cover
(asphalt pavement) will exceed 30% of the total site area. Erosion c omrol devices appropriate to
the site will be utilized on this project which may include silt fences. check clams and storrn
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 F-] 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).
5 1 ca
Applicant/Agent's Signature Date
(Agent's signature is valid only if an authorization letter from the applicant is provided.)
-12-
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FILE COPY
May 16, 2002
Mr. Rob Ridings
Division Of Water Quality
401 Wetlands Unit
1650 Mail Service Center
Raleigh, NC 217699-1650
Dear Mr. Ridings:
Subject: Randolph County - 1118A Bethel Lucas Road
0'0794
In an effort to obtain the permits needed for pipe replacement on SR 1118A 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 High Quality Waters or Outstanding Water Resources occurring
in the project area. We anticipate that these activities will be authorized under Nationwide Permit
Number 14.
This letter and a copy of the application materials will be submitted to N.C. Division of Water
Quality, U.S. Fish and Wildlife Service, and U.S. Army Corps. of Engineers for approval.
If you have any questions or comments, or need additional information, please contact our office
at [phone]. Thank you for your cooperation in this matter.
Sincerely,
all
Art C. King
Division Environmental Officer
cc: W. F. Rosser, PE
J. Picklesimer, PE
R. T. McManus, Jr.
Agent
File
P.O. BOX 1067, ABERDEEN, Noitni CAROUNA 28315
Pt conk: [phone] FAX [phone]

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STATE OF NORTH CAROLINA
DEPARTMENT OF TRANSPORTATION
MICHAEL F. EASLEY DIVISION OF HIGHWAYS LYNDo TIPPETT
GOvERNOR SECRETARY
May 16, 2002
Mr. Rob Riding
Division of Water Quality
?%SAY ? 2002
401 Wetlands Unit
1650 Mall Service Center ;+i `'i: r rlns VoU17
Raleigh, North Carolina 27699-1650 SECT !
Dear Mr. Ridings:
Enclosed is the permit application for the following project:
Description: SR 1118A - Randolph County
Work Order #: 6.572055T PAYME

TIP Number: NT
N/A
Fee Category: $200.00 RECEIVED
Please submit for automated payment.
Sincerely, (?- A`?n
C/ `
Art C. King
Division Environmental Officer
o zoZ?y
U.S. ARMY CORPS OF ENGINEERS
WILMINGTON DISTRICT
Action ID: 200200876 TIP No: State Project No: 6.572055T County: Randolph
GENERAL PERMIT (REGIONAL AND NATIONWIDE) VERIFICATION
Applicant: North Carolina Department of Transportation + l' ?? ?; ?W U
Address: W.F. Rosser, P.E., Division Engineer JUN 7?? '
North Carolina Department of Transportation
Division 8 j
P.O. Box 1067 4 WFTIANDS GROUP
Aberdeen, North Carolina 28315 ?U,',LITY SFCT_.
Telephone Number: [phone]
Size and Location of project (waterway, road name/number, town, etc.): 70 linear feet of 87-inch by 137-inch
CMPA culvert at centerline station 28+65 on SR 1118 in an unnamed tributary to Little River in Randolph County,
North Carolina.
Description,of Activity: To replace 40 linear feet of existing 42-inch CMP culvert with 70 linear feet of 87-inch by
137-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 permitlee may need to contact appropriate State
and local agencies before beginning work.
If there are any questions regarding this authorization or any of the conditions of the RGP or NWP, please contact
the Corps Regulatory Official specified below.
Date 12 June 2002
Corps Regulatory Official Richard K._Spence_r __ Telephone No. [phone]
Expiration Date of Verification-1-2 June 2005
Cl-: NCDOT, Art King (Division 8) /
NCDWQ, Cynthia Van Der Wiele?
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tit E R Y C 0 U N T Y M O O R E
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
10278-004)0
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
6810'2-1618
Ohio
Huntington District Engineer, ATTN:
CELRH-OR-F, 502 801 Street, Huntington,
WV 25701-2070
Oklahoma
Tulsa District Engineer, ATTN: CESWT-PE-
R, 1645 S. 101st East Ave, Tulsa, OK
74128-4609
Oregon
Portland District Engineer, 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, AT N: CENWO-
OP-R, 106 South 15th Street, Omaha, NF;
68102- 1618
Tennessee
Nashville District Engineer, ATTN: CELRN--
OP-F, P.O. Box 1070, Nashville, TN
37202-1070
Texas
Ft. Worth District Engineer, ATTN: CF:SIVF-
PER-R, P.O. Box 17300, Ft. Worth, TX
76102--0300
Clto h
Sacramento District Engineer, AT'[ N:
CESPK-CO-K, 1325 J Street, CA 95814--
2922
Vermont
New England District Engineer, A'1"I'N:
CENAE-R, 696 Virginia Road, Concord
MA 01742--2.7,, 1
Virginia
Norfolk District Engineer, ATTN: CENAO
OP-R, 803 Front Street, Norfolk, VA
23510- 1096
Washington
Seattle District Engineer, ATTN: CE:NWS--
OP-RG, P.O. Box 3755, Seattle, WA 98124-
2255
West Virginia
Huntington District Engineer, ATTN:
CELRII-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
55101-1638
WVOrning
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: CEPOI I-
EC-R, Building 230, Fort Shafter,
Honolulu, HI 96858-5440
Puerto Rico & Virgin Islands
Jacksonville District Engineer, ATTN:
CESAJ--CO-R, P.O. Box 4970, Jacksonville,
FL 32202-4412
Dated: January 4, 2002.
Approved:
Robert H. Griffin,
Brigadier General, U.S. Army, Director of Civil
Works.
Nationwide Permits, Conditions,
Further Information, and Definitions
A. Index of Nationwide Permits,
Conditions, Further Information, and
Definitions
Nationwide Permits
1. Aids to Navigation
2. Structures in Artificial Canals
3. Maintenance
4. Fish and Wildlife Harvesting,
Enhancement, and Attraction Devices and
Activities
5. Scientific Measurement Devices
6. Survev Activities
7. Outfdll Structures and ivtaintenance
8. Oil and Gas Structures
9. Structures in Fleeting and Anchorage
Areas
10. Mooring Buoys
11. T'enlporary Recreational Structures
12. Utility Line Activities
13. Bank Stabilization
14. Linear Transportation Projects
15. U.S. Coast Guard Approved Bridges
16. Return Water From Upland Contained
Disposal Areas
17. Hydropower Projects
18. Minor Discharges
19. Minor Dredging
20. Oil Spill Cleanup
21. Surface Coal Mining Activities
22. Removal of Vessels
23. Approved Categorical Exclusions
24. State Administered Section 404 Programs
25. Structural Discharges
26. [Reserved]
27. Stream and Wetland Restoration
Activities
28. Modifications of Existing Marinas
29. Single-family Housing
30. Moist Soil Management for Wildlife
31. Maintenance of Existing Flood Control
Facilities
32. Completed Enforcement Actions
33. Temporary Construction, Access and
Dcwatering
34. Cranberry Production Activities
35. Maintenance Dredging of Existing Basins
36. Boat Ranlps
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 (BNiPs)
Compensatory Mitigation
Creation
Enhancement
Ephemeral Stream
Farm Tract
Flood Fringe
Flooclway
Independent Utility
Intermittent Stream
Loss of Waters of the US
Non-tidal Wetland
Open Water
Perennial Stream
Permanent Above-grade Fill
Preservation
1"'estoration
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 clone primarily to obtain fill for any

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

placement of new or additional riprap to restoration activities. The discharge of
o
dredged or fill material and all related
Stream Channelization protect the structure, provided the work needed to restore the upland must
Tidal Wetland permittee notifies the District Engineer be part of a single and complete project.
Vegetated Duffer in accordance with General Condition This permit cannot be used in
Vegetated Shallows
Waterbody 13. The removal of sediment is limited
to the minimum necessar
to restore th conjunction with NWP 18 or NWP 19 to
d
y
e restore
amaged upland areas. This
B. Nationwide Permits waterway in the immediate vicinity of permit cannot be used to reclaim

1. Aids to Navigation. The placement the structure to the approximate
dimensions that existed wh
th historic lands lost, over an extended

of aids to navigation and Kegulatory
h
and
e
pro
ed en
e
structure was built, but cannot extend period, to normal erosion processes.
This permit does not authorize
bye
installed i
ccor
arp
v further than 200 feet in any direction
from the structure. The placement of ri maintenance dredging for the primary
f
t
requirements of the U.S. Coast Guard
(USCG) (See 33 CFR, chapter I p
rap must be the minimum necessary to purpose o
naviga
ion and beach
restoration. This permit does not
,
subchapter C part 66). (Section 10)
-
r protect the structure or to ensure the
safety of the structure
All excavated authorize new stream channelization or

2. Structures
in
Artificial Canals.
Structures constructed in artificial
.
materials must be deposited and
stream relocation projects. Any work
authorized by this permit must not
canals within principally residential
developments where the connection of retained in an upland area unless
otherwise specifically approved by the cause more than minimal degradation of
water quality, more than minimal
the canal to navigable water of the US
h District Engineer under separate
authorization
Any bank stabilizati changes to the flow characteristics of the
as been previously authorized (see 33
CFR 322.5(8)). (Section 10) .
on
measures not directly associated with stream, or increase flooding (See
General Conditions 9 and 21). (Sections
•3. Maintenance. Activities related to: the structure will require a separate 10 and 404)
(i) The repair, rehabilitation, or authorization from the District Engineer. Note: This 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 barvesting devices and activities such as
permit or the most recently authorized minor dredging to remove obstructions pound nets, crab traps, crab dredging,
modification. Minor deviations in the
' in a water of the US. (Uplands lost as eel pots, lobster traps, duck blinds, clam
structure
s configuration or filled area a result of a storm, flood, or other and oyster digging; and small fish
including those due to changes in discrete event can be replaced without attraction devices such as open water
materials, construction techniques, or a Section 404 permit provided the fish concentrators (sea kites, etc.). This
current construction codes or safety uplands are restored to their original NWP authorizes shellfish seeding
standards which are necessary to make pre-event location. This NWP is for the provided (his activity does not occur in
repair, rehabilitation, or replacement are activities in waters of the US associated wetlands or sites that support
permitted, provided the adverse with the replacement of the uplands.) submerged aquatic vegetation (including
environmental effects resulting from The permittee must notify the District sites where submerged aquatic
such repair, rehabilitation, or Engineer, in accordance with General vegetation is documented to exist
but
replacement are minimal. Currently Condition 13, within 12-months of the ,
may not be present in a given year.).
serviceable means useable as is or with date of the damage and the work must This NWP does not authorize artificial
some maintenance, but not so degraded commence, or be under contract to reefs or impoundments and semi-
as to essentially require reconstruction. commence, within two years of the date impoundments of waters of the US for
This NWP authorizes the repair, of the damage. The permittee should the culture or holding of motile species
rehabilitation, or replacement of those provide evidence, such as a recent such as lobster or the use of covered
structures or fills destroyed or damaged topographic survey or photographs, to oyster trays or clarn racks. (Sections 10
by storms, floods, fire or other discrete justify the extent of the proposed and 404)
events, provided the repair, restoration. The restoration of the , 5. Scientific illeasurernent Devices.
rehabilitation, or replacement is damaged areas cannot exceed the 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 that existed before the damage. The gages, tide gages, water recording
of their destruction or damage. In cases District Engineer retains the right to devices, water quality testing and
of catastrophic events, such as determine the extent of the pre-existing improvement devices and similar
hurricanes or tornadoes, this two-year conditions and the extent of any structures. Small weirs and flurries
limit may be waived by the District restoration work authorized by this constructed primarily to record water
Engineer, provided the permittee can permit. Minor dredging to remove quantity and velocity are also
demonstrate funding, contract, or other obstructions from the adjacent authorized provided the dischar
e is
similar delays.
(ii) Discharges of dredged or fill Waterbody is limited to 50 cubic yards
below the plane of the ordinary high g
limited to 25 cubic yards and further for
discharges of 10 to 25 cubic yards
material, including excavation, into all water mark, and is limited to the provided the permittee notifies the
waters of the US to remove accumulated
sediments and debris in the vicinity of, amount necessary to restore the pre-
existing bottom contours of the District Engineer in accordance with the
''Notification" General Condition

and within, existing structures (e.g.,
Waterbody. The dredging may not be .
(Sections 10 and 404)
i
Federal Register/Vol. 67, No. 10 / Tuesday, January 15, 2002/Notices 2079
' 6. Survey Activities. Survey activities
including core sampling, seismic
exploratory operations, plugging of
, c is inic shot holes and other
exploratory-type bore holes, soil survey,
sampling, and historic resources
surveys. Discharges and structures
associated with the recovery of historic:
resources are not authorized by this
NWP. Drilling and the discharge of
excavated material from test wells for
oil and gas exploration is not authorized
by this NWP; the plugging of such wells
is authorized. Fill placed for roads, pads
and other similar activities is not
authorized by this NWP. The MVP 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. Tire permittee notifies the District
Engineer in accordance with General
Condition 13;
b. The amount of excavated or
dredged material must be the minimum
necessary to restore the outfalls, intakes,
small impoundments, and canals to
original design capacities and design
configurations (i.e., depth and width);
c. The excavated or dredged material
is deposited and retained at an upland
site, unless otherwise approved by the
District Engineer under separate
authorization; and
d. Proper soil erosion and sediment
control measures are used to minimize
reentry of sediments into waters of the
US.
The construction of intake structures
is not authorized by this NMI, unless
they are directly associated with an
authorized outfall structure. For
maintenance excavation and dredging to
-remove accumulated sediments, the
notification must include information
regarding the original design capacities
and configurations of the facility and
e presence of special aquatic sites
e.g., vegetated shallows) in the vicinity
of the proposed work. (Sections 10 and
40.1)
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
DOf, Minerals Management Service
(MMS).'Suclr structures shall not be
placed within the limits of any
designated shipping safety fairway or,
traffic separation scheme, except
temporary anchors that comply with the
fairway regulations in 33 CFR 322.5(1).
(Where such limits have not been
designated, or where changes are
anticipated, District Engineers will
consider asserting discretionary
authority in accordance with 33 CFR
330.4(e) and will also review such
proposals to ensure they comply with
the provisions of the fairway regulations
in 33 CFR 322.5(1). Any Corps review
under this permit will be limited to the
effects on navigation and national
security in accordance with 33 Cl'R
.322.5(0). Such structures will not be
placed in established danger zones or
restricted areas as designated in 33 CFR
part 334: nor will such structures be
permitted in EPA or Corps designated
dredged material disposal areas.
(Section 10)
9. Structures in Fleeting and
Anchorage Areas. Structures, buoys,
floats and other devices placed within
anchorage or fleeting areas to facilitate
moorage of vessels where the USCG has
established such areas for that purpose.
(Section 10)
, 10. Mooring Buovs. Non-commercial,
single-boat, mooring buoys. (Section 10)
11. Temporary Recreational
Structures. Temporary buoys, markers,
small floating docks, and similar
structures placed for recreational use
during specific events such as water
skiing competitions and boat races or
seasonal use provided that such
structures are removed within 30 days
after use has been discontinued. At
Corps of Engineers reservoirs, the
reservoir manager must approve each
buoy or marker individually. (Section
10)
.12. Utility Line Activities. Activities
required for the construction,
maintenance and repair of utility lines
and associated facilities in waters of the.
US as follows:
(i) Utility lines: The construction,
maintenance, or repair of utility lines,
including outfall and intake structures
and the associated excavation, backfill,
or bedding for the utility lines, in all
waters of the CIS, provided there is nn
change in preconstruction contours. A
"utility line" is defined as any pipe or
pipeline for the transportation of ally
gaseous, liquid, liquescent, or slurry
substance, for any purpose, and any
cable, line, or wire for the transmission
for any purpose of electrical energy,
telephone, and telegraph messages, and
radio and television communication
(see Note 1, below). Material resulting
from trench excavation may be
temporarily sidecast (up to three
months) into waters of the US, provided
that the material is not placed in such
a manner that it is dispersed by currents
or other forces. The District Engineer
may extend the period of temporary side
casting not to exceed a total of 180 days,
where appropriate. In wetlands, the top
6" to 12" of the trench should normally
be backfilled'with topsoil from the
trench. Furthermore, the trench cannot
be constructed in such a manner as to
drain waters of the US (e.g., backfilling
with extensive gravel layers, creating a
french drain effect). For example, utility
line trenches can be backfilled with clay
blocks to ensure that the trench does not
drain the waters of the US through
which the utility line is installed. Any
exposed slopes and stream banks must
be stabilized immediately upon
completion of the utility line crossing of
each waterbody.
(ii) Utility line substations: The
construction, maintenance, or
expansion of a substation facility
associated with a power line or utility
line in non-tidal waters of the US,
excluding non-tidal wetlands adjacent
to tidal waters, provided the activity
does not result in the loss of greater than
1/2-acre of non-tidal waters of the US.
(iii) Foundations for overhead utility
line towers, poles, and anchors: The
construction or maintenance of
foundations for overhead utility line
towers, poles, and anchors in all waters
of the US, provided the foundations are
the minimum size necessary and
separate footings for each tower leg
(rather than a larger single pad) are used
where feasible.
(iv) Access roads: The construction of
access roads for the construction and
maintenance of utility lines, including
overhead power lines ancd utility lice
substations, in non-tidal waters of the
US, excluding non-tidal wetlands
adjacent to tidal waters, provided the
discharges (10 not cause the loss of
greater than 1/2-acre of non-tidal waters
of the US. Access roads shall be the
mininuun width necessary (see Note 2,
below). Access roads must be
constructed so that the Ie110th of the
road minimizes the adverse effects on
waters of the US and as near as possible
to preconstruction contours and
2080 Federal Register / Vol. 67, No. 10/Tuesday, January 15, 2002/Notices
elevations (e.g., at grade corduroy roads
or geotextile/gravel roads). Access roads
constructed above preconstruction
contours and elevations in waters of the
US must be properly bridged or
culverted to maintain surface flows.
The term "utility line" does not
include activities which drain a water of
the US, such as drainage tile, or french
drains; however, it does apply to pipes
conveying drainage from another area.
For the purposes of this NWP, the loss
of waters of the US includes the filled
area plus waters of the US that are
adversely affected by flooding,
excavation, or drainage as a result of the
project. Activities authorized by
paragraph (i) through (iv) may not
exceed a total of 1/2-acre loss of waters
of the US. Waters of the US temporarily
affected by filling, flooding, excavation,
or drainage, where the project area is
restored to preconstruction contours
and elevation, is not included in the
calculation of permanent loss of waters
of the US. This includes temporary
construction mats (e.g., timber, steel,
geotextile) used during construction and
removed upon completion of the work.
Where certain functions and values of
waters of the US are permanently
adversely affected, such as the
conversion of a forested wetland to a
herbaceous wetland in the permanently
maintained utility line right-of-way,
mitigation will be required to reduce the
adverse effects of the project to the
-minimal level.
Mechanized land clearing necessary
for the construction, maintenance, or
repair of utility lines arid the
construction, maintenance and
expansion of utility line substations,
foundations for overhead utility lines,
and access roads is authorized, provided
the cleared area is kept to the minimum
necessary and preconstruction contours
are maintained as near as possible, The
area of waters of the US that is filled,
excavated, or flooded must be limited to
the minimum necessary to construct the
utility line, substations, foundations,
and access roads. Excess material must
be removed to upland areas
immediately upon completion of
construction. This NW11 may authorize
utility lines in or affecting navigable
waters of the US even if there is no
associated discharge of dredged or fill
material (See 33 CFR part 322).
Notification: The pernrittee must
notify the District Engineer in
accordance with General Condition 13,
if any of the following criteria are met:
(a) Mechanized land clearing in a
forested wetland for the utility line
right-of-yvay;
(b) A Section 10 permit is required;
(c) The utility line in waters of the
US, excluding overhead lines, exceeds
500 feet;
(d) The utility lint; is placed within a
jurisdictional area (i.e., water of the US),
and it runs parallel to a stream bed that
is within that jurisdictional area;
(e) Discharges associated with the
construction of utility line substations
that result in the loss of greater than 1/io-
acre of waters of the US; or
(f) Petmanent access roads
constructed above grade in waters of the
US for a distance of more than 500 feet.
(g) Permanent access roads
constructed in waters of the US with
impervious materials. (Sections 10 and
404)
Note 1: Overhead utility lines constructed
over Section 10 waters and utility lines that
are routed in or under Section 10 waters
without a discharge of dredged or fill
material require a Section 10 permit; exeept
for pipes or pipelines used to transport
gaseous, liquid, liquescent, or slurry
substances over navigable waters of the US,
which are considered to be bridges, not
utility lines, acid may require a permit from
the USCG pursuant to section 9 of the Rivers
and Harbors Act of 1899. However, any
discharges of dredged or fill material
associated with such pipelines will require a
Corps permit under Section 404.
Note 2: Access roads used for both
construction and maintenance may be
authorized, provided they meet the terms and
conditions of this NWP. Access roads used
solely for construction of the utility line must
be removed upon completion of the work and
the area restored to preconstruction contours,
elevations, and wetland conditions.
Temporary access roads for construction may
be authorized by NWP 33.
Note 3: Where the proposed utility line is
constructed or installed in navigable waters
of the US (i.e., Section 10 waters), copies of
the PCN and NWP verification will be sent
by the Corps to the National Oceanic arid
Atmospheric Administration (NOAH),
National Ocean Service (NOS), for charting
t_he utility line to protect navigation.
•13. Bank Stabilization. Bank
stabilization activities necessary for
erosion prevention provided the activity
meets all of the following criteria:
a. No material is placed more than the
minimum needed for erosion protection;
b. The bank stabilization activity is
less than 500 feet in length;
c. The activity will not excoed an
average of one cubic yard per running
foot placed along the bank below the
plane of the ordinary high water mark
or the high title line;
d. No material is placed in any special
aquatic site, including wetlands;
e. No material is of the type, or is
placed in any location, or in any
manner, to impair surface water flow
into or out of any wetland area;
f. No material is placed in a manner
that will be eroded by normal or
expected high flows (properly anchored
trees and treetops may be used in low
energy areas); and,
g. The activity is part of a single aril
complete project.
Bank stabilization activities in excess
of 500 feet in length or greater than an
average of one cubic yard per running
foot may be authorized if the pernrittee
notifies the District Engineer in
accordance with the "Notification"
General Condition 13 and the District
Engineer determines the activity
complies with the other terms and
conditions of the NWP and the adverse
environmental effects are minimal both
individually and cumulatively. This
NWP may not be used for the
channelization of waters of the US.
(Sections 10 and 404)
114. LineorTronsportotion Projects.
Activities required for the construction,
expansion, modification, or
improvement of linear transportation
crossings (e.g., highways, railways,
trails, airport runways, and taxiways) in
waters of the US, including wetlands, if
the activity meets the following criteria:
a. This NWP is subject to the
following acreage limits:
(1) For linear transportation projects
in non-tidal waters, provided the
discharge does not cause the loss of
greater than 1/2-acre of waters of the US;
(2) For linear transportation projects
in tidal waters, provided the discharge
does not cause the loss of greater than
1/3-acre of waters of the US,
b. The permittee must notify the
District Engineer in accordance with
General Condition 13 if any of the
following criteria are met:
(1) The discharge causes the loss of
greater than 1/io-acre of waters of the US;
or
(2) There is a discharge in a special
aquatic site, including wetlands;
c. The notification must include a
compensatory mitigation proposal to
offset permanent losses of waters of the
US to ensure that those losses result
only in rnininral adverse effects to the
aquatic environment and a statement
describing how temporary losses will be
minimized to the maximum extent
practicable;
d. For dischnrges in special aquatic
sites, including wetlands, and stream
riffle and pool complexes, the
notification must include a delineation
of the affected special aquatic: sites;
e. The width of the fill is limited to
the minimum necessary for the crossing;
f. This permit does not atcthorizc
stream channolization, and the
authorized activities must not cause
more than minimal changes to the
hydraulic flow characteristics of the
stream, increase flooding, or cause more
Federal Register/Vol. 67, No. 10/Tuesday, January 15, 2002/Notices 2081
than minimal degradation of water
quality of any strearn (see General accordance with the ''Notification''
General Condition; or (b) hydropower navigable waters of the US (see 33 CFR
322.5(g)). (Sections 10 and 404)
Conditions 9 and 21);
g. This permit cannot be used to projects for which the FERC has granted 20. Oil Spill Cleanup, Activities

authorize non-linear features commonly an exemption from licensing pursuant
to section 408 of the Energy Security required for the containment and
cleanup of oil and hazardous substances
associated with transportation projects,
such as vehicle maintenance or stora
e Act of 1980 (16 U.S.C. 2705 and 2708)
d which are subject to the National Oil
g
buildings, parking lots, train stations, or an
section 30 of the Federal Power Act,
as amended; provided the perrnittce and I Iazardous Substances Pollution
Contingency Plan (40 CFR part 300)
aircraft hangars; and
h. The crossing is a sin
le and notifies the District Engineer in provided that the work is done in
g
complete project for crossing waters of
the US
Where a road
t (i
h accordance with the ''Notification''
General Condition. (Section 404) accordance with the Spill Control and
Countermeasure Plan required by 40
.
segmen
.e., t
e
shortest segment of a road with 18.1iWinor Discharges. Minor CUR 112.3 and any existing state

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

larger project) has multiple crossings of into all waters of the US if the activity Regional Response Team (if one exists

streams (several single and complete meets all of the following criteria: in the area) concurs with the proposed

projects) the Corps will consider a. The quantity of discharged material
and the volume of area excavated d
t containment and cleanup action.
(Sections 10 and 404)
whether it should use its discretionary
authority to require an Individual o no
exceed 25 cubic yards below the plane 21. Surface Coal t?fining Activities.

Permit. (Sections 10 and 404) of the ordinary high water mark or the Discharges of dredged or fill material

Note: Some discharges for the construction
of farm roads, forest roads, or temporary hig
gtr tide line;
b. The discharge, including any
° into waters of the US associated with

surface coal mining and reclamation

roads for moving mining equipment may be
excavated area, will not cause the loss operations provided the coal mining
o
eligible for an exemption from the need for of more than V,o-acre of a special activities are authorized by the DO[,
a Section 404 permit (see 33 CFK 323.4). aquatic site, including wetlands. For the Office of Surface Mining (OSM), or by
• 15. U.S. Coast Guard Approved purposes of this NWP, the acreage states with approved programs under
'
'
Bridges. Discharges of dredged or fill limitation includes the filled area and t
itle V of the Surface Mining Control
material incidental to the construction excavated area plus special aquatic sites and Reclamation Act
19
and
of bridges across navigable waters of the that are adversely affected by flooding e
provided the permittefies the
notifies
US, including cofferdams, abutments and special aquatic sites that are District Engineer in accordance with the
''
,
foundation seals, piers, and temporary drained so that they would no longer be Notification" General Condition. In

construction and access fills provided a water of the US as a result of the addition, to authorized by this nNWP,
i
the District En ngineer must dete

such discharges have been authorized
by the USCG as part of the bridge

project;
c. If the discharge, including any e
rm
ne
that the activity complies with the terms

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

are not included in this NWP and will
below the plane of the ordinary high s are
minimal both individually and
require an individual or regional
Section 404 permit. (Section 404) water mark or the high tide line or if the
discharge is in a special aquatic site cumulatively and must notify the

. 16. Return Water From Upland ,
including wetlands, the permittee project sponsor of this determination in
writing. The Corps
at the discretion of
Contained Disposal Areas. Return water notifies the District Engineer in ,
the District En
ineer
ma
i

from upland, contained dredged
accordance with the ''Notification" g
,
y requ
re a
bond to ensure success of the
material disposal area. The dredging
itself may require a Section 404 permit General Condition. For discharges in
special aquatic sites, including mitigation, if no other Federal or state

(33 CFR 323.2(d)), but will require a
wetlands, the notification must also agency has required one. For discharges
in special aquatic sites
includin

Section 10 permit if located in navigable
include a delineation of affected special ,
g
wetlands, and stream riffle and pool
waters of the US. The return water from aquatic sites, including wetlands (also complexes
the notification must also
a contained disposal area is
administratively.defined as a discharge see 33 CFR 330.1(e)); and
d. The discharge
includin
all ,
include a delineation of affected special

of dredged material by 33 CFR 323.2(d), ,
g
attendant features, both temporary aril aquatic sites, including wetlands. (also,
see 33 CFR 330
1(e))
even though the disposal itself occurs
on the upland and does not require a permanent, is part of a single and
complete project and is not placed for .
Mitigation: In determining the need
for as well as the level and type of
Section 404 permit. This N1VP satisfies the purpose of a stream diversion, mitigation, the District Engineer will
the technical requirement for a Section (Sections 10 and 404) ensure no more than minimal adverse
404 permit for the return water where 19. Minor Dredging. Dredging of no effects to the aquatic environment
the quality of the return water is more than 25 cubic yards below the occur. As such
District Engineers will
controlled by the state through the plane of the ordinary high water mark ,
determine on a case-by-case basis the
Section 401 certification procedures, or the mean high water mark from requirement for adequate mitigation to
(Section 404)
• 17. Hydropower Projects. Discharges navigable waters of the US (i.e., Section
10 waters) as part of a single and ensure the effects to aquatic systems are
minimal
In cases where OSM or the
of dredged or fill material associated
with (a) small hydropower projects at complete project. This NWP does not
authorize the dred
in
or de
d
ti .
state has required mitigation for the loss

existing reservoirs where the project,
which includes the fill
a
li
d b g
g
gra
a
on
through siltation of coral reefs, sites that of aquatic habitat, the Corps may
consider this in determining appropriate
,
re
cense
y
the Federal Energy Regulatory support submerged aquatic vegetation
(including sites where submerged mitigation under Section 404. (Sections
10 and 404)
Commission (FERC) under the Federal aquatic vegetation is documented to 22. Removal of Vessels. Temporary
Power Act of 1920, as amended; and has
a total generating capacity of not more exist, but may not be present in a given
year), anadromous fish spawning areas, structures or minor discharges of
dredged or fill material required for the
than 5000 k1V; and the permittee or wetlands, or the connection of canals removal of wrecked
abandoned
or
notifies the District Engineer in or other artificial waterways to ,
,
disabled vessels, or the removal of mail-
2082 Federal Register/Vol. 67, No. 10 /'T'uesday, January 15, 2002/Notices
made obstructions to navigation. '['his
NWP does not authorize the
l
f within the form prior to the discharge of bed and/or banks to restore or create
remova
o
vessels listed or determined eligible for concrete, sand, rock, etc. This NWP
does not authorize filled structural stream meanders; the backfilling of
artificial channels and draina
e dit
h

listing on the National Register of
Historic Places unless the District
members that would support buildings,
building pads
homes
house
ad g
c
es;
the removal of existing drainage

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

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

404) .
e
associated with the restoration of former mechanized land clearing to remove

23. Approved Categorical 1 xclusions.
waters, the enhancement of degraded non-native invasive, exotic or nusiancc
vegetation; and other related activitie

Activities undertaken, assisted,
authorized
regulated
funded
or
tidal aril non-tidal wetlands and
i
i s.
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 riparian areas, conversion of a stream to another
aquatic use
such as the creation of an
Federal agency or department where
that agency or de
artment has and the restoration and enhancement of
id ,
impoundment for waterfowl habitat.
p
determined, pursuant to the Council on non-t
al streams and non-tidal open
water areas as follows: This NWP does not authorize stream
channelization
This NtiVP d

Environmental Quality Regulation for
(a) The activity is conducted on: .
oes not
authorize the conversion of natural
Implementing the Procedural Provisions
of the National Environmental Policy (1) Non-Federal public lands and .
private lands
in accordance with the wetlands to another aquatic use, such as

Act (NEPA) (40 CFR part 1500 et seq.), ,
terms and conditions of a binding creation of waterfowl impoundments
where a forested wetland previously
that the activity, work, or discharge is wetland enhancement, restoration, or existed. However
this NWP authorizes
categorically excluded from creation agreement between the ,
the relocation of non-tidal waters

environmental documentation, because
landowner and the U.S. Fish and ,
including non-tidal wetlands
on the
it is included within a category of
actions which neither individually nor Wildlife Service (FWS) or the Natural
Resources Conservation Service (NRCS) ,
project site provided there are net gains
i
i

cumulatively have a significant effect on ,
the National Marine Fisheries Service, n aquat
c resource functions and
values. For example, this NWP may
the human environment, and the Office the National Ocean Service, or authorize the creation of an open water
of the Chief of Engineers (ATTN: CECW-
OR) has been furnished notice of the
'
' voluntary wetland restoration,
enhancement, and creation actions impoundment in a non-tidal emergent
wetland, provided the non-tidal
agency
s or department
s application for
the categorical exclusion and concurs documented by the NRCS pursuant to
NRCS re-ulation emergent wetland is replaced by

with that determination. Before s; or
(2) Reclaimed surface coal mine creating that wetland type on the project
site. This NWP does riot authorize the
approval for purposes of this NWP of
' lands, in accordance with a Surface relocation of tidal waters or the
any agency
s categorical exclusions, the
Chief of Engineers will solicit
ublic Mining Control and Reclamation Act
e
it i
d b
h conversion of tidal waters, including
p
comment. In addressing these p
rm
ssue
y t
e OSM or the
applicable state agency (the future tidal wetlands, to other aquatic uses,
such as the conversion of tidal wetlands
comments, the Chief of Engineers may reversion does not apply to streams or into open water impoundments.
require certain conditions for wetlands created, restored, or enhanced Reversion. For enhancement

authorization of an agency's categorical
exclusions under this NWP
(Sectio
as mitigation for the mining impacts, ,
restoration, and creation projects
.
ns
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 not authorize any future
discharge of dredged or fill material
Program. Any activity permitted by a
state administering its own Section 404 (3?Any other public, private or tribal
lands; associated with the reversion of the area
i

permit program pursuant to 33 U.S.C.
(b) Notification: For activities on any to
ts prior condition. In such cases a
separate permit would be required for
1344(g)-(I) is permitted pursuant to
section 10 of the Rivers and Harbors Act public or private land that are not
described by paragraphs (a)(1) or (a)(2) any reversion. For restoration,
enhancement, and creation projects
of 1899. Those activities that do not above, the permittee must notify the conducted under paragraphs (a)(1) and
involve a Section 404 state permit are District Engineer in accordance with (a)(2), this NWP also authorizes any
riot included in this NWP, but certain General Condition 13; and future discharge of dredged or fill
structures will be exempted by section
154 of Pub. L, 94-5£37, 90 Stat. 2917 (33
' (c) Planting of only native species
should occur on the site. material associated with the reversion of
the area to its documented prior
U.S.C. 591) (see 33 CF
R 322.3(a)(2)). Activities authorized by this NWP condition and use (i.e., prior to tire
(Section 10)
25. Structural Discharges. Discharges include, to the extent that a Corps
permit is required, but are not limited restoration, enhancement, or creation
activities). The reversion must occur
of material such as concrete, sand, rock, to: the removal of accumulated within five years after expiration of a
etc., into tightly sealed forms or cells
where the material will be used as a sediments; the installation, removal,
and maintenance of small water cont
l limited term wetland restoration or

structural member for standard pile ro
structures, dikes, and berms; the creation agreement or permit, even if the
discharge occurs after this NWT' expires.
supported structures, such as bridges, installation of current deflectors; the This NWP also authorizes the reversion
transmission line footings, and enhancement, restoration, or creation of of wetlands that were restored

walkways or for general navigation,
riffle and pool streams structure; the ,
enhanced, or created on prior-converted
such as mooring cells, including the placement of in-stream habitat cropland that has not been abandoned

excavation of bottom material from
structures; modifications of the stream ,
in accordance with a binding agreement
Federal Register / Vol. 67, No. 10 / Tuesday, January 15, 2002/Notices 2083
between the lanclowner and NRCS or
FVVS (even though the restoration,
enhancement, or creation activity did
not require a Section 404 permit). The
five-year reversion limit does not apply
to agreements without time limits
reached under paragraph (a)(1). The
prior condition will be documented in
the original agreement or permit, and
the determination of return to prior
conditions will be made by the Federal
agency or appropriate state agency
executing the agreement or permit.
Before any reversion activity the
permittee or the appropriate Federal or
state agency must notify the District
Engineer and include the
documentation of the prior condition.
Once an area has reverted to its prior
physical condition, it will be subject to
whatever the Corps Regulatory
requirements will be at that future date.
(Sections 10 and 404)
Note: Compensatory mitigation is not
required for activities authorized by this
NWP, provided the authorized work results
in a net increase in aquatic resource
functions and values in the project area. This
NWP can be used to authorize compensatory
mitigation projects, including mitigation
banks, provided the permittee notifies the
District Engineer in accordance with General
Condition 13, and the project includes
compensatory mitigation for impacts to
waters of the US caused by the authorized
work. However, this NWP does not authorize
the reversion of an area used for a
compensatory mitigation project to its prior
condition. NWP 27 can be used to authorize
impacts at a mitigation bank, but only in
circumstances where it has been approved
under the Interagency Federal Mitigation
Bank Guidelines.
28..Vlodificotions of Existing Marinas.
Reconfiguration of existing docking
facilities within art authorized marina
area. No dredging, additional slips, dock
spaces, or expansion of any kind within
waters of the US. is authorized by this
NWP. (Section 10)
29. Single-farnily Housing. Discharges
of dredged or fill material into non-tidal
waters of the US, including non-tidal
wetlands for the construction or
expansion of a single-family home and
attendant features (such as a garage,
driveway, storage shed, and/or septic
field) for an Individual Permittee
provided that the activity meets all of
the following criteria:
a. The discharge does not cause the
loss of more than Vi-acre of non-tidal
waters of the US, including non-tidal
wetlands;
b. The permittee notifies the District
Engineer in accordance with the
''Notification'' General Condition;
c. The permittee has taken all
practicable actions to minimize the on-
site and off-site impacts of the
cischarge. 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 Uso f 1/a- acre for the entire
subdivision;
e. A•n individual may use this NWP
only for a single-family home for a
personal residence;
f. This NWP may be used only once
per parcel;
g. This NWP may not be used in
conjunction with NWP 14 or NVVP 18,
for any parcel; and,
h. Sufficient vegetated buffers must be
maintained adjacent to all open water
bodies, streams, etc., to preclude water
quality degradation due to erosion and
sedimentation.
For the purposes of this NtiVP, the
acreage of loss of waters of the US
includes the filled area previously
permitted, the proposed filled area, and
any other waters of the US that are
adversely affected by flooding,
excavation, or drainage as a result of the
project. This NWP authorizes activities
only by individuals; for this purpose,
the term ''individual" refers to a natural
person and/or a married couple, but
does not include a corporation,
partnership, or similar entity. For the
purposes of this NWP, a parcel of land
is defined as "the entire contiguous
quantity of land in possession of,
recorded as property of, or owned (in
any form of ownership, including land
owned as a partner, corporation, joint
tenant, etc.) by the same individual
(and/or that individual's spouse), and
comprises not only the area of wetlands
sought to be filled, but also all land
contiguous to those wetlands, owned by
the individual (and/or that individual's
spouse) in any form of ownership."
(Sections 10 and 404)
30. Moist Soil Management for
Wildlife, Discharges of dredged or fill
material and maintenance activities that
are associated with moist soil
management for wildlife performed on
non-tidal Federally-owned or managed,
state-owned or managed property, and
local government agency-owned or
managed property, for the purpose of
continuing ongoing, site-specific,
wildlife management activities where
soil manipulation is used to manage
habitat and feeding areas for wildlife.
Such activities include, but are not
limited to: The repair, maintenance or
replacement of existing water control
structures; the repair or maintenance of
clikes; and plowing or discing to impede
succession, prepare seed beds, or
establish fire breaks. Sufficient
vegetated buffers must be maintained
adjacent to all open water bodies,
streams, etc., to preclude water quality
degradation due to erosion and
sedimentation. This NWP does not
authorize the construction of new dikes,
roads, water control structures, etc.
associated with the management areas.
This NWP does not authorize converting
wetlands to uplands, impoundments or
other open water bodies. (Section 404)
31. Maintenance of Existing Flood
Control Facilities. Discharge of dredge
or fill material resulting from activities
associated with the maintenance of
existing flood control facilities,
including debris basins, retention/
detention basins, and channels that
(i) were previously authorized by the
Corps by Individual Permit, General
Permit, by 33 CFR 330.3, or did not
require a permit at the time it was
constructed, or
(ii) were constructed by the Corps and
transferred to a non-Federal sponsor for
operation and maintenance. Activities
authorized by this NVVP are limited to
those resulting from maintenance
activities that are conducted within the
"maintenance baseline," as described in
the definition below. Activities
including the discharges of dredged or
fill materials, associated with
maintenance activities in flood control
facilities in any watercourse that has
previously been determined to be
within the maintenance baseline, are
authorized under this NWP. The NWP
does not authorize the removal of
sediment and associated vegetation from
the natural water courses except to the
extent that these have been included in
the maintenance baseline. All dredged
material must be placed in an upland
site or an authorized disposal site in
waters of the US, and proper siltation
controls must be used. (Activities of any
kind that result in only incidental
fallback, or only the cutting and
removing of vegetation above the
ground, e.g., mowing, rotary cutting,
and chainsawing, where the activity
neither substantially disturbs the root
system nor involves mechanized
pushing, dragging, or other similar
activities that redeposit excavated soil
material, cto not require a Section 404
permit in accordance with 33 CFR
323.2(d)(2)).
Notification: After the maintenance
baseline is established, and before any
maintenance work is conducted, the
permittee must notify the District
Engineer in accordance with the
"Notification" General Condition. The
notification may be for activity-specific
2084 Federal Register/Vol. 67, No. 10/Tuesday, January 1.5, 2002/Notices
maintenance or for maintenance of the
entire flood control facility by
suhrnitting a five year (or less)
maintenance plan.
Maintenance Baseline: The
maintenance baseline is a description of
the physical characteristics (e.g., depth,
width, length, location, configuration, or
design flood capacity, etc.) of a flood
control project within which
maintenance activities are normally
authorized by NVVP 31, subject to any
case-specific conditions required by the
District Engineer. The District Engineer
will approve the maintenance baseline
based on the approved or constructed
capacity of the flood control facility,
whichever is smaller, including any
areas where there are no constructed
channels, but which are part of the
facility. If no evidence of the
constructed capacity exist, the approved
constructed capacity will be used. The
prospective permittee will provide
documentation of the physical
characteristics of (he flood control
facility (which will normally consist of
as-built or approved drawings) and
documentation of the design capacities
of the flood control facility. The
documentation will also include BMPs
to ensure that the impacts to the aquatic
environment are minimal, especially in
maintenance areas where there are no
constructed channels. (The Corps may
request maintenance records in areas
where there has not been recent
maintenance.) Revocation or
modification of the final determination
of the maintenance baseline can only be
done in accordance with 33 CFR 330.5.
Except in emergencies as described
below, this NWP can not be used until
the District Engineer approves the
maintenance baseline and determines
the need for mitigation and any regional
or activity-specific conditions. Once
determined, the maintenance baseline
will remain valid for any subsequent
reissuance of this NWP. This permit
does not authorize maintenance of a
flood control facility that has been
ahandoned. A flood control facility will
be considered abandoned if it has
operated at a significantly reduced
capacity without needed maintenance
heius accomplished in a timely rnamier.
Milic-ation: The District Engineer will
determine any required mitigation one-
time only for impacts associated with
maintenance work at the same time that
the maintenance baseline is approved.
Such one-tune mitigation will be
required when necessary to ensure that
adverse environmental impacts are no
more than minimal, both individually
and cumulatively. Such mitigation will
only be required once for any specific
reach of a flood control project.
However, if one-time mitigation is
required for impacts associated with
rnaintenauce activities, the District
Engineer will not delay needed
maintenance, provided the District
Engineer and the permittee establish a
schedule for identification, approval,
development, construction and
completion of any such required
mitigation. Once the one-time
mitigation described above has been
completed, or a determination made
that mitigation is not required, no
further mitigation will be required for
maintenance activities within the
maintenance baseline. In determinins,
appropriate mitigation, the District
Engineer will give special consideration
to natural water courses that have been
included in the maintenance baseline
and require compensatory mitigation
and/or BMPs as appropriate.
Emergency Situotions: In emergency
situations, this NWP may be used to
authorize maintenance activities in
flood control facilities for which no
maintenance baseline has been
approved. Emergency situations are
those which would result in an
unacceptable hazard to life, a significant
loss of property, or an immediate,
unforeseen, and significant economic
hardship if action is not taken before a
maintenance baseline can be approved.
In such situations, the determination of
mitigation requirements, if any, may be
deferred until the emergency has been
resolved. Once the emergency has
ended, a maintenance baseline must be
established expeditiously, and
mitigation, including mitigation for
maintenance conducted during the
emergency, must be required as
appropriate. (Sections 10 and 404)
32. Completed Enforcement Actions.
Any structure, work or clischarge of
dredged or fill material, remaining in
place, or undertaken for mitigation,
restoration, or environmental benefit in
compliance with either:
(i) The terms of a final written Corps
non-judicial settlement agreement
resolving a violation of section 40.1 of
tine CWA and/or section 10 of the, Rivers
and Harbors Act of 1899; or the teens
of an EPA 309(a) order on consent
resolving a violation of section 404 of
the CWA, provided that:
a. The unauthorized activity affected
no more than 5 acres of non-tidal
wetlands or i acre of tidal wetlands;
b. The settlement agreement provides
for environmental benefits, to all equal
or greater degree, than the
environmental detriments caused by the
unauthorized activity that is authorized
by this NVVP; and
c. The District Engineer issues a
verification letter authorizing the
activity subject to the terms and
conditions of this MVP and the
settlement agreement, including a
specified completion date; or
(ii) The terms of a final Federal court
decision, consent decree, or settlement
agreement resulting from an
enforcement action brought by the U.S.
under section 404 of the CWA and/or
section 10 of the Rivers and Harbors Act
of 1899; or
(iii) The terms of a final court
decision, consent decree, settlement
agreement, or non-judicial settlement
agreement resulting from a natural
resource damage claim brought by a
trustee or trustees for natural resources
(as defined by the National Contingency
Plan at 40 CF'R subpart G) under section
311 of the Clean Water Act (CWA),
section 1b7 of the Comprehensive
Environmental Response, Compensation
and Liability Act (CERCI.A or
Superfund), section 312 of the National
Marine Sanctuaries Act (NMSA), section
1002 of the Oil Pollution Act of 1990
(OPA), or the Park System Resource
Protection Act at 16 U.S.C. '19jj, to the
extent that a Cot s permit is required.
For either (i), (iii) or (iii) above,
compliance is a condition of the MVP
itself. Any authorization under this
NWP is autornatically revoked if the
permittee does not comply with the
terms of this MVP or the terms of the
court decision, consent decree, or
judicial/non-judicial settlement
agreement or fails to complete the work
by the specified completion date. This
NWP does not apply to any activities
occurring after the date of the decision,
decree, or agreement that are not for the
purpose of mitigation, restoration, or
environmental benefit. Before reaching
any settlement agreement, the Corps
will ensure compliance with the
provisions of 33 CFR part 326 and 33
GFR 330.6 (d)(2) and (e). (Sections 10
and 404)
33. Temporary Construction, Access
and Uewaterinb. Temporary structures,
work and disc}rarges, including
cofferdams, necessary for construction
activities or access fills or dewatering of
construction sites; provided that the
associated primary activity is authorized
by the Corps of f:ngincers or the USCG,
Or for other construction activities not
subject to the Corps or USCG
regulations. Appropriate measures nrrrst
be. taken to maintain near normal
downstream flows and to nrinirnize
flooding. fill must be of materials, and
placed in a manner, that will not he
eroded by expected high flows. The use
of dredged material pray be allowed if
it is determined by the District Engineer
that it will not cause more than minimal
adverse effects oil aquatic resources.
Federal Register / Vol. 67, No. 10 / Tuesday, January 15, 2002/Notices 2f)R,
Temporary fill must he entirely removec
to upland areas, or dredged material
returned to its original location,
following completion of the
construction activity, and the affected
areas mist 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. Tile
notification must also include a
restoration plan of reasonable measures
to avoid and minimize adverse effects to
aquatic resources. 'T'ile District Engineer
will add Special Conditions, where
necessary, to ensure environmental
adverse effects is minimal. Such
conditions may include: limiting the
temporary work to tire minimum
necessary; requiring seasonal
restrictions; modifying the restoration
plan; and requiring alternative
construction methods (e.g. construction
mats in wetlands where practicable.).
(Sections 10 and 404)
34. Cranberry Production Activities.
Discharges of dredged or fill material for
dikes, berms, pumps, water control
structures or leveling of cranberry beds
associated with expansion,
enhancement, or modification activities
at existing cranberry production
operations provided that the activity
meets all of the following criteria:
a. The cumulative totay acreage of
disturbance per cranberry production
operation, including but not limited to,
filling, flooding, ditching, or clearing,
does not exceed 10 acres of waters of the
U.S., including wetlands;
b. The permittee notifies the District
Engineer in accordance with the
''Notification'' General Condition. The
notification must include a delineation
of affected special aquatic sites,
including wetlands; and,
c. The activity does not result in a net
loss of wetland acreage. This NWP does
not authorize any discharge of dredged
or fill material related to other cranberry
production activities such as
warehouses, processing facilities, or
parking areas. For the purposes of this
NWP, the cumulative total of 10 acres
will be measured over the period that
this NWP is valid. (Section 404)
35. Maintenance Dredging of Existing
Basins. Excavation and removal of
accumulated sediment for maintenance.
of existing marina basics, access
channels to marinas or boat slips, and
boat slips to previously authorized
dept}cs or controlling depths for ingress/
egress, whichever is less, provided the
I dredged material is disposed of at an
upland site, and proper siltation control
are used. (Section 10)
36. Boat Ramps. Activities required
for the construction of boat ramps
provided:
a. The discharge into waters of the
U.S. 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
chemiral pollution or is structurally
unstable is not authorized);
b. The boat ramp does not exceed 20
feet in width;
c. The base material is crushed stone,
gravel or other suitable material;
d. The excavation is limited to the
area necessary for site preparation and
all excavated material is removed to the
upland; and,
e. No material is placed in special
aquatic sites, including wetlands.
Another NWP, Regional General
Permit, or Individual Permit may
authorize dredging to provide access to
the boat ramp after obtaining a Section
10 if located in navigable waters of the
U.S. (Sections 10 and 404)
37. Emergency Watershed Protection
and Rehabilitation. Work done by or
funded by:
a. The NRCS which is a situation
requiring immediate action under its
emergency Watershed Protection
Program (7 CFR part 624); or
b. The USFS under its Burned-Area
Emergency Rehabilitation Handbook
(FSH 509.13); or
c, The DOI for wildland fire
management burned area emergency
stabilization and rehabilitation (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 Flozordotts and Toxic
GVoste. Specific activities required to
effect the containment, stabilization, or
removal of hazardous or toxic waste
materials that are performed, ordered, or
sponsored by a government agency with
established legal or regulatory authority
provided the permittee notifies the
District Engineer in accordance with the
"Notification" General Condition. For
discharges in special aquatic sites,
including wetlands, the notification
crust also include a delineation of
affected special aquatic: sites, including
wetlands. Court ordered remedial action
plans or related settlements are also
authorized by this NWP. This NWP does
not authorize the establishment of new
disposal sites or the expansion of
existing sites used for the disposal of
hazardous or toxic waste. Activities
s undertaken entirely on a
Comprehensive Environmental
Response, Compensation, and Liability
Act (CERCLA) site by authority of
CHRCI.A 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 ticlal 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,
storrnwater management facilities, and
recreation facilities such as
playgrounds, playing fields, and golf
courses (provided the golf course is an
integral part of the residential
development). The construction of new
ski areas or oil and gas wells is not
authorized by this NWP.
Residential developments include
multiple and single unit developments.
Examples of commercial developments
include retail stores, industrial facilities,
restaurants, business parks, and
shopping centers. Examples of
institutional developments include
schools, fire stations, government office
buildings, judicial buildings, public
works buildings, libraries, hospitals,
and places of worship. The activities
listed above are authorized, provided
the activities meet all of the following
criteria:
a. The discharge does not cause the
loss of greater than 1/2-acre of non-tidal
waters of the U.S., excluding non-tidal
wetlands adjacent to tidal waters;
b. The discharge does not cause the
loss of greater than 300 linear-feet of a
stream bed, unless for intermittent
stream beds this criterion is waived in
writing pursuant to a determination by
the District Engineer, as specified
below, that the project complies with all
ternis and conditions of this MVP and
that any adverse incpacts of the project
oil 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 niet:
(1) The discharge causes the loss of
greater than Iho-acre of nos-tidal waters
of the US, excluding non-tidal wetlands
adjacent to tidal waters; or
20£36 Federal Register/Vol. 67, No. 10/'I'uesda
y, January 15, 2002 / Notir.es
(2) The discharge causes the loss of
any open waters, including perennial or
intermittent streams, below the ordinary
hi-h water mark (see Note, below); or
?3) The discharge causes the loss of
greater than 300 linear feet of
intermittent stream bed. In such case, to
be authorized the District Engineer must
determine that the activity complies
with the other terms and conditions of
the NWP, determine adverse
environmental effects are minimal both
individually and cumulatively, and
waive the limitation on stream impacts
in writing before the permittee may
proceed;
d. For discharges in special aquatic
sites, including wetlands, the
notification must include a delineation
of affected special aquatic sites;
e. The discharge is part of a single and
complete project;
f. The permittee must avoid and
minimize discharges into waters of the
US at the project site to the maximum
extent practicable: The notification,
when required, must include a written
statement explaining how avoidance
and minimization of losses of waters of
the US were achieved on the project
site. Compensatory mitigation will
normally be required to offset the losses
of waters of the US. (See General
Condition 19.) The notification must
also include a compensatory mitigation
proposal for offsetting unavoidable
losses of waters of the US. If an
applicant asserts that the adverse effects
of the project are minimal without
mitigation, then the applicant may
submit justification explaining why
compensatory mitigation should not be
required for the District Engineer's
consideration;
g. When this NWP is used in
conjunction with any other NWP, any
combined total permanent loss of waters
of the US exceeding 1/1o-acre requires
that the permittee notify the District
Engineer in accordance with General
Condition 13;
h. Any work authorized by this MVP
must not cause more than minimal
degradation of water quality or more
than minimal changes to the flow
characteristics of any stream (see
General Conditions 9 and 21);
i. For discharges causing the loss of
1/,o-acre or less of waters of the US, the
permittee must submit a report, within
30 days of completion of the work, to
the District Engineer that contains the
following information: (1) The name,
address, and telephone number of the
permittee; (2) The location of the work;
(3) A description of the work; (4) The
type and acreage of the loss of waters of
the US (e.g., 1/1z-acre of emergent
wetlands); and (5) The type and acreage
of any compensatory mitigation used to
offset the loss of waters of the US (e.g.,
1/12-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, tr
the maximum extent practicable,
wetland or upland vegetated buffers
next to those open waters or streams
consistent with General Condition 19.
Deed restrictions, conservation
easements, protective covenants, or
other means of land conservation and
preservation are required to protect and
maintain the vegetated buffers
established on the project site.
Only residential, commercial, and
institutional activities with structures
on the foundation(s) or building pad(s),
as well as the attendant features, are
authorized by this NWP. The
compensatory mitigation proposal that
is required in paragraph (e) of this NWP
may be either conceptual or detailed.
The wetland or upland vegetated buffer
required in paragraph (i) of this NWP
will be determined on a case-by-case
basis by the District Engineer for
addressing water quality concerns. The
required wetland or upland vegetated
buffer is part of the overall
compensatory mitigation requirement
for this NWP. If the project site was
previously used for agricultural
purposes and the farm owner/operator
used NWP 40 to authorize activities in
waters of the US to increase production
or construct farm buildings, MVP 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
NM's 39 and 40 cannot exceed 1/2-acre,
see General Condition 15).
Subdivisions: For residential
subdivisions, the aggregate total loss of
waters of US authorized by NWP 39 can
not exceed 1/2-acre. This includes any
loss of waters associated with
development of individual subdivision
lots. (Sections 10 and 404)
Note: Areas where wetland vegetation is
not present should be determined by the
presence or absence of an ordinary high
water mark or bed and bank. Areas that are
waters of the US based on this criterion
would require a PCN although water is
infrequently present in the stream channel
(except for ephemeral waters, which do not
require PCNs).
40. Agricultural Activities. Discharges
of dredged or fill material into non-tidal
waters of the US, excluding non-tidal
wetlands adjacent to tidal waters, for
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
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/ -acre of non-tidal
wetlands on a farm tract;
(3) The permittee must have NRCS-
certified wetland delineation;
(4) The permittee must implement an
NRCS-approved compensatory
mitigation plan that fully offsets
wetland losses, if required; and
(5) The permittee must submit a
report, within 30 days of completion of
the authorized work, to the District
Engineer that contains the following
information: (a) The name, address, and
telephone number of the permittee; (b)
The location of the work; (c) A
description of the work; (d) The type
and acreage (or square feet) of the loss
of wetlands (e.g., 1/3-acre of emergent
wetlands); and (e) The type, acreage (or
square feet), and location of
compensatory mitigation (e.g. 1/3-acre of
emergent wetland on a farm tract;
credits purchased from a mitigation
bank); or
b. For discharges into non-tidal
wetlands to improve agricultural
production, the following criteria must
be met if the permittee is not a USDA
Program participant (or a USDA
Program participant for which the
proposed work does not qualify for
authorization under paragraph (a) of this
NWP):
(1) The discharge into non-tidal
wetlands does not result in the loss of
greater than 1/z-acre of non-tidal
wetlands oil 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 I/,()-
acre of non-tidal wetlands;
(3) The Notification trust 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 faun buildings, the discharge
does not cause the loss of greater than
1/2-acre of non-tidal wetlands that were
in agricultural production prior to
December 23, 1985. (i.e., farmed
wetlands) and the permittee must notify
the District Engineer in accordance with
General Condition 13; and
d. Any activity in other waters of the
US is limited to the relocation of
existing serviceable drainage ditches
constructed in non-tidal streams. This
NWP does not authorize the relocation
of greater than 300 linear-feet of existing
serviceable drainage ditches constructed
in non-tidal streams unless, for drainage
ditches constructed in intermittent non-
tidal streams, the District Engineer
waives this criterion in writing, and the
District Engineer has determined that
the project complies with all terms and
conditions of this NWP, and that any
adverse impacts of the project on the
aquatic environment are minimal, both
individually and cumulatively. For
impacts exceeding 300-linear feet of
impacts to existing serviceable ditches
constructed in intermittent non-tidal
streams, the permittee must notify the
District Engineer in accordance with the
"Notification'' General Condition 13;
and
e. The term ''farm tract" refers to a
parcel of land identified by the Farm
Service Agency. The Corps will identify
other waters of the US on the farm tract.
NRCS will determine if a proposed
agricultural activity meets the terms and
conditions of paragraph a. of this NVVP,
except as provided below. For those
activities that require notification, the
District Engineer will determine if a
proposed agricultural activity is
authorized by paragraphs b., c., and/or
d. of this NWP. USDA Program
participants, requesting authorization for
discharges of dredged or fill material
into waters of the US authorized by
paragraphs (c) or (d) of this NWP, in
addition to paragraph (a), must notify
the District Engineer in accordance with
General Condition 13 and the District
Engineer will determine if the entire
singIt! and complete project is
authorized by this NWT'. Discharges of
dredged or fill material into waters of
the US associated with completing
required compensatory mitigation arc
authorized by this NMI. However, total
impacts, including other authorized
impacts under this NMI, may not
exceed the 1/z acre limit of this NWP.
This MVP does not affect, or otherwise
regulate, discharges associated with
agricultural activities when the
discharge qualifies for an exemption
under section 404(f) of the CWA, even
though a categorical minimal effects
exemption, minimal effect exemption,
or mitigation exemption from NRCS
pursuant to the Food Security Act of
1985, as amended, may be required.
Activities authorized by paragraphs a.
through d. may not exceed a total of '/,-
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 MVP to
authorize activities in waters of the US
to increase agricultural production or
construct farm buildings, and the
current landowner wants to use NVVP 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/z-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 he
permanently sidecast into waters but
may be temporarily sidecast (up to three
months) into waters of the US, provided
the materi<l 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
sidecastinl; not to exceed a total of MO
days, 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
Glitches to their original dimensions and
configuration, which does not require a
Section 404 permit (see 33 CF'R
323A(a)(3)). This NWP does not
authorize the relocation of drainage
ditches constructed in waters of the US;
the location of the centerline of the
reshaped drainage ditch must be
approximately the same as the location
of the centerline of the original drainage
ditch. This 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 MVP and
that any adverse impacts of the project
on the aquatic environment are
minimal, both individually and
cumulatively;
c. The permittee notifies the District
Engineer in accordance with the
"Notification" General Condition 13 for
discharges exceeding 300 linear feet of
impact of intermittent stream beds. In
such cases, to be authorized the District
Engineer must determine that the
activity complies with the other terms
and conditions of the MVP, 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/,n-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 greater than '/z-acre of rion-tidal waters
term ''recreational facility'' is defined as of the US, excluding non-tidal wetla
d that are exempt from Section 404 permit

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

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

contours. For the purpose of this permit
the primary function of recreati
l ,
n
erm
ttent
, stream beds this criterion is waived in
iti extent practicable, arid the notification
must include a written statement to the
ona
facilities does not include the use of
t
h
l wr
ng pursuant to a determination by
the District Engineer, as specified District Engineer detailing compliance
with this condition (i
wh
e
the
rno
or ve
ic
es, buildings, or impervious below, that the project complies with all
surfaces. Examples of recreational terms and conditions of this NWP and .
.
y
discharge must occur in waters of the

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

campgrounds (excluding trailer parks).
This NWP may authorize the y
cumulatively;
c. For discharges causing the loss of ac
ity must comply with General
Condition 21 and be designed using
g
construction or expansion of golf greater than 300 linear feet of BMPs and watershed protection
techniques. Examples may include
courses and the expansion of ski areas,
provided the golf course or ski area does intermittent stream beds, the permittee
notifies the District En
ineer in forebays (deeper areas at the upstream

not substantially deviate from natural
landscape contours. Additionally, these g
accordance with the ''Notification"
General Condition 13
In such cases
t end of the stormwater management
facility that would be maintained

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

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

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

management, adequate stormwater
f
l
environmental effects are minimal both bioengineering methods incorporated
into the facility desi
n to benefit wate

management
aci
ities, vegetated buffers,
reduced fertilizer use, etc. The facility
individually and cumulatively, aril
waive this limitation in writin
before g
r
quality and minimize adverse effects to

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

management plan in accordance with
General Condition 9, such as a
d. The discharges of dredged or fill
material for the construction of new especially downstream of the facility,
that provide, to the maximum extent

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

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

results in no substantial adverse effects
to water quality. This NWP also
e. For discharges or excavation for the
construction of new stormwater n
e
n
accordance with an approved

authorizes the construction or
expansion of small support facilities,
management facilities or for the
maintenance of existina stormwater maintenance plan and will not exceed
the original contours of the facility as

such as maintenance and storage
buildings and stables that are directly
management fat ilities causing the loss
of greater than /,o-acre of non-tidal approved and constructed; and
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
Dischar
es of
NWP does not authorize other
buildings, such as hotels, restaurants, adjacent to tidal waters, provided the
permittee notifies the District Engineer .
g
dredged or fill material into:
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, arid
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 arid local crushed and broken stone) and
associated support activities;
43. Storm ivaterMono gement
Facilities. Discharges of dred
ed or fill requirements, if any such requirements
exist; (ii) Lower perennial streams,
g
material into non-tidal waters of the US,
l
(2) For discharges in special aquatic excluding wetlands adjacent to lower
perennial strearns
for aggregate minin

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

maintenance of stormwater management ,
notification must include a delineation perennial streams or adjacent wetlands
are not authorized by this NMI
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 wate or
(iii) Isolated waters and non-tidal
,
retention basins; the installation and rs
of the US. Maintenance in constructed wetlands adjacent to headwater streams,
for hard rock/mineral minin
activities
maintenance of water control structures,

outfall structures and emergency areas will not require mitigation
o
provided such maintenance is g
(i.e., extraction of metalliferous ores

spillways; and the maintenance
dred
in
of existin
t
accomplished in designated
i from subsurface locations) and
associated support activities, provided
g
g
g s
ormwater
management ponds/facilities and ma
ntenance areas and not within
compensatory mitigation areas (i.e., the discharge meets the following
criteria:
detention and retention basins,
provided the activity meets all of the District Engineers may designate non-
maintenance areas, normally at the a. T]ie mined area within waters of
the US, plus the acreage loss of waters
following criteria:
a. Theo
for the construction downstream end of the stormwater

management facilit
in
i
ti of the US resulting from support

of new stormwater management y,
ex
s
ng
stormwater management facilities). (No activities, cannot exceed 'h-acre;
b. The permittee must avoid and
facilities does riot cause the loss of mitigation will be required for activities minimize discharges into waters of the
Federal Register / Vol. 07, No. 10/Tuesday, January 15, 2002/Notices znRn
US at the project site to the maximum
extent practicable, and the notification
must include a written statement
detailing compliance with this
condition (i.e., why the discharge must
occur in waters of the US and why
additional minimization cannot be
achieved);
c. In addition to General Conditions
17 and 20, activities authorized by this
permit must not substantially alter the
sediment characteristics of areas of
concentrated shellfish beds or fish
spawning areas. Normally, the
mandated water quality management
plan should address these impacts;
d. The permittee must implement
necessary measures to prevent increases
in stream gradient and water velocities
and to prevent adverse effects (e.g., head
cutting, bank erosion) to upstream and
downstream channel conditions;
e. Activities authorized by this permit
must not result in adverse effects on the
course, capacity, or condition of
navigable waters of the US;
f. The permittee must use measures to
minimize downstream turbidity;
g. Wetland impacts must be
compensated through mitigation
approved by the Corps;
h. Beneficiation and mineral
processing for hard rock/mineral mining
activities may not occur within 200 feet
of the ordinary high water mark of any
open waterbody. Although the Corps
does not regulate discharges from these
activities, a CWA section 402 permit
may be required;
i. All activities authorized must
comply with General Conditions 9 and
21. Further, the District Engineer may
require modifications to the required
water quality management plan to
ensure that the authorized work results
in minimal adverse effects to water
quality;
j. Except for aggregate mining
activities in lower perennial streams, no
aggregate raining can occur within
strearn beds where the average annual
flow is greater than 1 cubic foot per
second or in waters of the US within
100 feet of the ordinary high water mark
of headwater stream segments where the
average annual flow of the stream is
greater than 1 cubic foot per second
(aggregate mrnrug can occur ur areas
immediately adjacent to the ordinary
high water mark of a stream where the
average annual flow is 1 cubic foot per
second or less);
k. Single and complete project The
discharge must be for a single and
complete project, including support
activities. Discharges of dredged or fill
material into waters of the US for
multiple mining activities on several
designated parcels of a singly: and
complete mining operation can be
authorized by this NWP provided the
1/2-acre limit is not exceeded; and
I. Notification: The permittee must
notify the District Engineer in
accordance with General Condition 13.
The notification must include: (1) A
description of waters of the US
adversely affected by the project; (2) A
written statement to the District
Engineer detailing compliance with
paragraph (b), above (i.e., why the
discharge must occur in waters of the
US and why additional minimization
cannot be achieved); (3) A description of
measures taken to ensure that the
proposed work complies with
paragraphs (c) through (f), above; and (4)
A reclamation plan (for aggregate
mining in isolated waters and non-tidal
wetlands adjacent to headwaters and
hard rock/mineral mining only).
This NWP does not authorize hard
rock/mineral mining, including placer
mining, in streams. No hard rock/
mineral mining can occur in waters of
the US within 100 feet of the ordinary
high water mark of headwater streams.
The term's "headwaters" and "isolated
waters" are defined at 33 CFR 330.2(4)
and (e), respectively. For the purposes
of this NW-P, the term "lower perennial
stream" is defined as follows: "A stream
in which the gradient is low and water
velocity is slow, there is no tidal
influence, some water flows throughout
the year, and the substrate consists
mainly of sand and mud." (Sections 10
and 404)
C. Nationwide Permit General
Conditions
The following General Conditions
must be followed in order for any
authorization by an MVP 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 cluring construction, and all
exposed soil and other fills, as well as
any work below the ordinary high water
mark or high tide line, must be
permanently stabilized at the earliest
practicable date. Permittees are
encouraged to perform work within
waters of the United States during
periods of low-flow or no-flow.
4. Aquotic Life Movements. No
activity may substantially disrupt the
necessary life-cycle movements of those
species of aquatic life indigenous to the
waterbody, including those species that
normally migrate through the area,
unless the activity's primary purpose is
to impound water. Culverts placed in
streams must be installed to maintain
low flow conditions.
5. Equipment. Heavy equipment
working in wetlands must be placed on
mats, or other measures must be taken
to minimize soil disturbance.
6. Regional and Case-Ely-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
managernent 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
aril 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 managenrent
measures that will ensure that the
authorized work does not result in more
than minimal degradation of water
quality (or the Corps determines that
compliance; with state or local
standards, where applicable, will ensure
no more than minimal adverse effect on
water quality). An important component
of water quality managenrent includes
storinw'ater management that minimizes
degradation of the downstream aquatic
system, including water quality (refer to
General Condition 21 for stormwater
2090 Federal Register/Vol. (37, No, 10 / Tuesday, January 15, 2002/ Notices
management requirements). Another
important component of water quality endspp.litml and http:1Avw v.nfrns,gov1 written notice from the District or
prot
res/esohome
htnrl res
ti
l

management is the establishment and _
.
pec
ve
y.
12
historic Pro
erti
N
i Division Engineer. Suhsequently, the
.
p
es.
o act
vity
maintenance of vegetated buffers next to which stay affect historic properties
o permittee's right to proceed under the
NWI' may be modified
sus
d
d

pen waters, including streams (refer to
General Condition 19 for vegetated
listed, or eligible for listing, in the
National Re
iste
f Hi
t
l ,
pen
e
, or
revoked only in accordance with the

buffer requirements for the NWYs). g
r o
s
oric P
aces is
authorized, until the District En
ineer procedure set forth in 33 CFR

This condition is only applicable to
t
h
h g
has complied with the provisions of 33 330.5(4)(2).
(b) Contents of Notification
Th

projec
s t
at
ave the potential to affect
water quality. While appropriate
CFR part 325, Appendix C. I'll(,
prospective perrnittee must notify the :
e
notification must be in writing and

measures must be taken, in most cases
District Engineer if the authorized include the following information:
it is not necessary to conduct detailed activity may affect any historic (1) Name, address and telephone
studies to identify such measures or to propetties listed, determined to be numbers of the prospective perrnittee;
require monitoring.
10. Coastal Zone Management. In eligible, or which the prospective
perrnittee has reason to believe may be (2) Location of the proposed project;
(3) Brief description of the proposed
certain states, an individual state coasta l eligible for listing on the National project; the project's purpose; direct and
zone management consistency
concurren
t b
b Register of Historic Places, and shall not
be
in the
ti
it
il indirect adverse environmental effects
the protect would cause; any other
g
ce mus
ac
v
e o
y unt
tained or waived
notified b the
(see Section 330.4(d)). District Engineer that the requirements NWY(s), Regional General Permit(s), or
11. Endangered Species. (a) No of the National Historic Preservation Ac t Individual Permit(s) used or intended to

activity is authorized under any NWP
have been satisfied and that the activity
b
be used to authorize any part of the

which is likely to jeopardize the
is authorized. Information on the
l
i
d proposed project or any related activity.
Sketches should be
rovid
d
h

continued existence of a threatened or
ocat
on an
existence of historic p
e
w
en

endangered species or a species
resources can be obtained from the State necessary to show that the activity
proposed for such desi
nation
as Historic Preservation Office and the complies with the terms of the NVVP
,
g
identified under the Federal Endangered National Register of Historic Places (see (Sketches usually clarify the project and

Species Act (ESA), or which will 33 CFR 330.4(8)). For activities that may when provided result in a quicker

destroy or adversely modify the critical
affect historic properties listed in, or decision.);
habitat of such species. Non-federal eligible for listing in, the National (4) For NWYs 7, 12, 14, 18, 2], 34, 38,

permittees shall notify the District Register of Historic Places, the 39, 41, 42, and 43, the PCN must also

Engineer if any listed species or
notification must state which historic include a delineation of affected s ecial
p
designated critical habitat might be property may be affected by the aquatic sites, including wetlands,
affected or is in the vicinity of the proposed work or include a vicinity vegetated shallows (e.g., submerged

project, or is located in the designated
g
map indicatin the location of the aquatic vegetation, seagrass beds), and

critical habitat and shall not begin work
historic property. riffle and pool complexes see paragraph
on the activity until notified by the
District Engineer that the re
uirement
D 13. Notification.
(a) Timing; where required by the 13(f));
(5) For NVVP 7 (Outfall Structures and
q
s
the ESA have been satisfied and that terms of the NVVP, the prospective Maintenance), the PCN must include

the activity is authorized. For activities permittee must notify the District information regarding the original

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

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

designated critical habitat
the The District Engineer must determine if maintenance dredging or excavation is
,
notification must include the name(s) of the notification is complete within 30 Proposed;

the endangered or threatened species days of the date of receipt and can (6) For NWP 14 (Linear
`

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

work or that utilize the designated necessary to make the PCN complete mast 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 perrnittee 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 NVVP 21 (Surface Coal Mining
'
(b) Authorization of an activity by a will not commence until all of the Activities), the PCN must include an

does not authorize the "take" of a requested information has been received Office of Surface Minin(OSM) or state-
0

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

clefinod under the ESA. In the absence prospective perrnittee shall not begin
th
ti
i
' To be authorized by this NWP, the
Di

of separate authorization (e.8., an ESA
Section 10 Permit, a Biological Opinion e ac
v
:
t?
(1) Uttti notified in writing by the
D strict Engineer must determine that

the activity complies with the terms and
o
with "incidental take" provisions, etc.) istrict Engineer that the activity may
proceed under the MVP with any conditions of the MVP and that the
adverse environmental effects are
frorn the USFVVS or the NMFS, both
lethal and non-lethal "takes" of special conditions imposed by the ntinintol both individually and

protected species are in violation of the District or Division Engineer; or
(2) If notified in writing by the District cumulatively and must notify the
project sponsor of this determination in
ESA. Information on the location of
threatened and endan
ered s
ecies
d or Division Engineer that an Individual writing;
g
p
an
their critical habitat can be obtained Permit is required; or
(3) Unless 45 days have passed from (8) For NWP 27 (Stream and Wetland
Restoration)
the PCN must i
l
d

directly from the offices of the USFVVS
and NMFS or their world
id
b
the District Engineer's receipt of the ,
nc
u
e
clocutnentation of the prior condition of
w
e we
pages at thttp://wtvtv.ftvs.0?ov/r9endspp/ complete notification and the
prospective
errnittee has not
i
d the site that will be reverted by the
p
rece
ve perrnittee;
Federal Register / Vol. 67, No. 10/Tuesday, lalrllarV 15. 2002 / Nnf irPC 9nn,
(9) For MVP 29 (Single-Family
Housing), the I'CN most also include:
(i) Any past use of this MVP by the
Individual Permittee and/or the
permittee's spouse;
(ii) A statement that the single-family
housing activity is for a personal
residence of the perrnittee;
(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(1));
(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
orpurchase has been executed;
(10) For MVP 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:
(i) Sufficient baseline information
identifying the approved channel
depths and configurations and existing
facilities. Minor deviations are
authorized, provided the approved flood
control protection or drainage is not
increased;
(ii) A delineation of any affected
special aquatic sites, including
wetlands; and,
(iii) Location of the dredged material
disposal site;
(11) For NVVP 33 (Temporary
Construction, Access, and Dewaterind,
the PCN must also include a restoration
plan of reasonable measures to avoid
and minimize adverse efforts to aquatic
resources;
(12) For NVVPs 39, 43 and 44, the PCN
trust 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 NVVP 30 and MVP 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
permit tee may proceed;
(14) For NVVP 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 rion-
tidal streams, the District Engineer
waives this criterion in writing, and the
District Engineer has determined that
the project complies with all terms and
conditions of this NWP, and that any
adverse impacts of the project on the
aquatic environment are minimal, both
individually and cumulatively;
(15) For NWP 43 (Stormwater
Management Facilities), the PCN must
include, for the construction of new
stormwater management facilities, a
maintenance plan (in accordance with
state and local requirements, if
applicable) and a compensatory
mitigation proposal to offset losses of
waters of the US. For discharges that
cause the loss of greater than 300 linear
feet of an intermittent stream bed, to be
authorized, the District Engineer must
determine that the activity complies
with the other terms and conditions of
the NWP, determine adverse
environmental effects are minimal both
individually and cumulatively, and
waive the limitation on stream impacts
in writing before the permittee may
proceed;
(16) For NVVP 44 (Mining Activities),
the PCN must include a description of
all waters of the US adversely affected
by the project, a description of measures
taken to minimize adverse effects to
waters of the US, a description of
measures taken to comply with the
criteria of the NVVP, and a reclamation
plan (for all aggregate mining activities
ill isolated waters and non-tidal
wetlands adjacent to headwaters and
any hard rock/mineral mining
activities);
(17) For activities that may adversely
affect Federally-listed endangered or
threatened species, the PCN must
include the name(s) of those endangered
or threatened species that may be
affected by the proposed work or utilize
the designated critical habitat that may
be affected by the proposed work; and
(18) For activities that may affect
historic properties listed in, or eligible
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
subunit 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 perrnittee 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 subunit a compensatory mitigation
proposal with the PCN, the proposal
may be either conceptual or detailed. If
the prospective permittee elects to
submit a compensatory mitigation plan
with the PCN, the District Eroigineer will
expeditiously review the proposed
compensatory mitigation plan. The
District Engineer roust review the plan
within 45 days of receiving a complete
I'CN and determine whether the
conceptual or specific proposed
mitigation would ensure no more than
nuininlal adverse effects on the aquatic
environment, If the net adverse effects
of the project on the aquatic
environment (after consideration of the
compensatory mitigation proposal) are
determined by the District Engineer to
2092 Federal Register/Vol. 67, No. 10/Tuesday, January 15, 2002/Notices
be minimal, the District Engineer will
provide a timely written response to the
applicant. The response will state that
the project can proceed under the terms
and conditions of the NWP.
If the District Engineer determines
that the adverse effects of the proposed
work are more than minimal, then the
District Engineer will notify the
applicant either: (1) That the project
does not qualify for authorization under
the NWP and instruct the applicant on
the procedures to seek authorization
under an Individual Permit; (2) that the
project is authorized under the NWP
subject to the applicant's submission of
a mitigation proposal that would reduce
the adverse effects on the aquatic
environment to the minimal level; or (3)
that the project is authorized under the
N'vVP with specific modifications or
conditions. Where the District Engineer
determines that mitigation is required to
ensure no more than minimal adverse
effects occur to the aquatic
environment, the activity will be
authorized within the 45-day PCN
period. The authorization will include
the necessary conceptual or specific
mitigation or a requirement that the
applicant submit a mitigation proposal
that would reduce the adverse effects on
the aquatic environment to the minimal
level. When conceptual mitigation is
included, or a mitigation plan is
required under item (2) above, no work
in waters of the US will occur until the
District Engineer has approved a
specific mitigation plan.
(e) Agency Coordination: The District
Engineer will consider any comments
from Federal and state agencies
concerning the proposed activity's
compliance with the terms and
conditions of the NWPs and the need for
mitigation to reduce the project's
adverse environmental effects to a
minimal level. ,
For activities requiring notification to
the District Engineer that result in the
loss of greater than 1/2-acre of waters of
the US, the District Engineer will
provide immediately (e.g., via facsimile
transmission, overnight mail, or other
expeditious manner) a copy to the
appropriate Federal or state offices
(USFWS, state natural resource or water
quality agency, EPA, State Historic
Preservation Officer (SHPO), and, if
appropriate, the NMFS). With the
exception of NWP 37, these agencies
will then have 10 calendar days from
the date the material is transmitted to
telephone or fax the District Engineer
notice that they intend to provide
substantive, site-specific comments. If
so contacted by an agency, the District
Engineer will wait an additional 15
calendar days before making a decision
on the notification. The District
Engineer will fully consider agency
comments received within the specified
time frame, but will provide no
response to the resource agency, except
as provided below. The District
Engineer will indicate in the
administrative record associated with
each notification that the resource
agencies' concerns were considered. As
required by section 305(b)(4)(B) of the
Magnuson-Stevens Fishery
Conservation and Management Act, the
District Engineer will provide a
response to NMFS within 30 days of
receipt of any Essential Fish Habitat
conservation recommendations.
Applicants are encouraged to provide
the Corps multiple copies of
notifications to expedite agency
notification.
(f) Wet/and Delineations: Wetland
delineations must be prepared in
accordance with the current method
required by the Corps (For NWP 29 see
paragraph (b)(9)(iii) for parcels less than
(1/.,-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 thin 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 maxinumr
acreage loss of waters of the LIS for the
total project cannot exceed 1/,-acre).
16. Water Supply Intakes. No activity,
including structures and work in
navigable waters of the US or discharges
of dredged or fill material, may occur in
the proximity of a public water supply
intake except where the activity is for
repair of the public: water supply intake
structures or adjacent bank stabilization.
17. Shellfish Beds. No activity,
including structures and work in
navigable waters of the US or discharges
of dredged or fill material, may occur in
areas of concentrated shellfish
populations, unless the activity is
directly related to a shellfish harvesting
activity authorized by NWP 4.
18. Suitable Material. No activity,
including structures and work in
navigable waters of the US or discharges
of dredged or fill material, may consist
of unsuitable material (e.g., trash,
debris, car bodies, asphalt, etc.) and
material used for construction or
discharged must be free from toxic
pollutants in toxic amounts (see section
307 of the CWA),
19. Mitigation. The District Engineer
will consider the factors discussed
below when determining the
acceptability of appropriate and
practicable mitigation necessary to
offset adverse effects on the aquatic
environment that are more than
minimal.
(a) The project must be designed and
constructed to avoid and minimize
adverse effects to waters of the US to the
maximum extent practicable at the
project site (i.e., on site).
(b) Mitigation in all its forms
(avoiding, rninirnizing, rectifying,
reducing or compensating) will be
required to the extent necessary to
ensure that the adverse effects to the
aquatic environment are minimal.
(c) Compensatory mitigation at a
minimum one-for-one ratio will be
required for all wetland impacts
requiring a PCN, unless the District
Engineer determines in writing that
some other form of mitigation would be
more environmentally appropriate and
provides a project-specific waiver of this
requirement. Consistent with National
policy, the District Engineer will
establish a preference for restoration of
wetlands as compensatory mitigation,
with preservation used only in
exceptional circumstances.
(d) Compensatory mitigation (i.e.,
replacement or substitution of aquatic
resources for those impacted) will not
be used to increase the acreage losses
allowed by the acreage limits of some of
the NWPs. For example, '/nacre of
wetlands cannot be created to change a
V1-acre loss of wetlands to a '/2-acre loss
associated with NWP 39 verification.
I lowever, 1/?.-acre of created wetlands
can be used to reduce the impacts of a
1/2-acre loss of wetlands to the mininnum
impact level in order to meet the
Federal Resister/Vol. 67, No. 10 / 1'uesday, January 15, 2002/Notices 2093
minimal impact requirement associated
with NWps.
(e To be practicable, the mitigation
must be available and capable of being
clone considering costs, existing
technology, and logistics in light of the
overall project purposes. Examples of
mitigation that may be appropriate and
practicable include, but are not lirnitecf
to: reducing the size of the project;
establishing and maintaining wetland or
upland vegetated buffers to protect open
waters such as streams; and replacing
losses of aquatic resource functions and
values by creating, restoring, enhancing,
or preserving similar functions and
values, preferably in the same
watershed.
(0 Compensatory mitigation plans for
projects in or near streams or other open
waters will normally include a
requirement for the establishment,
maintenance, and legal protection (e.g.,
easements, deed restrictions) of
vegetated buffers to open waters. In
many cases, vegetated buffers will be
the only compensatory mitigation
required. Vegetated buffers should
consist of native species. The width of
the vegetated buffers required will
address documented water quality or
aquatic habitat loss concerns. Normally,
the vegetated buffer will be 25 to 50 feet
wide on each side of the stream, but the
District Engineers may require slightly
wider vegetated buffers to address
documented water quality or habitat
loss concerns. Where both wetlands and
open waters exist on the project site, the
Corps will determine the appropriate
compensatory mitigation (e.g., stream
buffers or wetlands compensation)
based on what is best for the aquatic
environment on a watershed basis. In
cases where vegetated buffers are
determined to be the most appropriate
form of compensatory mitigation, the
District Engineer may waive or reduce
the requirement to provide wetland
compensatory mitigation for wetland
impacts.
(g) Compensatory mitigation
proposals submitted with the
"notification" may be either conceptual
or detailed. If conceptual plans are
approved under the verification, then
the Corps will condition the verification
to require detailed plans be submitted
and approved by the Corps prior to
construction of the authorized activity
in waters of the US.
(h) Permittees may propose the use of
mitigation banks, in-lieu fee
arrangements or separate activity-
specific compensatory mitigation. In all
cases that require compensatory
mitigation, the mitigation provisions
will specify the party responsible for
accomplishing and/or complying with
the mitigation plan.
20. Spawning Areas. Activities,
including structures and work in
navigable waters of the US or discharge
of dredged or fill material, in spawning
areas during spawning seasons roust be
avoided to the maximum extent
practicable. Activities that result in the
physical destruction (e.g., excavate, fill,
or smother downstream by substantial
turbidity) of an important spawning area
are not authorized.
21. Xfanagement of Water Flows. To
the maximum extent practicable, the
activity must be designed to maintain
preconstruction downstream flow
conditions (e.g., location, capacity, and
flow rates). Furthermore, the activity
must not permanently restrict or impede
the passage of normal or expected high
flows (unless the primary purpose of the
fill is to impound waters) and the
structure or discharge of dredged or fill
material must withstand expected high
flows. The activity must, to the
maximum extent practicable, provide
for retaining excess flows from the site,
provide for maintaining surface flow
rates from the site similar to
preconstruction conditions, and provide
for not increasing water flows from the
project site, relocating water, or
redirecting water flow beyond
preconstruction conditions. Stream
channelizing will be reduced to the
minimal amount necessary, and the
activity must, to the maximum extent
practicable, reduce adverse effects such
as flooding or erosion downstrearn and
upstream of the project site, unless the
activity is part of a larger system
designed to manage water flows. In most
cases, it will not be a requirement to
conduct detailed studies and monitoring
of water flow.
This condition is only applicable to
projects that have the potential to affect
waterflows. While appropriate measures
must be taken, it is not necessary to
conduct detailed studies to identify
such measures or require monitoring to
ensure their effectiveness. Normally, the
Corps will defer to state and local
authorities regarding management of
water flow.
22. Adverse Effects From
Impoundments. If the activity creates an
impoundment of water, adverse effects
to the aquatic system due to the
acceleration of the passage of water,
and/or the restricting its flow shall be
ininknized to the maximum extent
practicable. This includes structures
and work in navigable waters of the US,
or discharges of dredged or fill material.
2.3. Glrate? fore/ Breeding Areas.
Activities, including structures and
work in navigable waters of the US or
discharges of dredged or fill material,
into breeding areas for migratory
waterfowl must be avoided to the
maximum extent practicable.
s 24. Removal of 7'ernpororyFills. ,any
temporary fills must be removed in their
entirety and the affected areas returned
to their preexisting elevation.
25. Designated Critical ReSa L(rCe
Waters. Critical resource waters include,
NOAA-designated marine sanctuaries,
a National Estuarine Research Reserves,
National Wild and Scenic Rivers,
critical habitat for Federally listed
threatened and endangered species,
coral reefs, state natural heritage sites,
and outstanding national resource
waters or other waters officially
designated by a state as having
particular environmental or ecological
significance and identified by the
District Engineer after notice and
opportunity for public comment. The
District Engineer may also designate
additional critical resource waters after
notice and opportunity for comment.
(a) Except as noted below, discharges
of dredged or fill material into waters of
the US are not authorized by NWPs 7,
12, 14, 16, 17, 21, 29, 31, 35, 39, 40, 42,
43, and 44 for any activity within, or
directly affecting, critical resource
waters, including wetlands adjacent to
such waters. Discharges of dredged or
fill materials into waters of the US may
be authorized by the above NWPs in
National Wild and Scenic Rivers if the
activity complies with General
Condition 7. Further, such discharges
may be authorized in designated critical
habitat for Federally listed threatened or
endangered species if the activity
complies with General Condition 11 and
the USF'WS or the NMFS has concurred
in a determination of compliance with
this condition.
(b) For NWPs 3, 8, 10, 13, 15, 18, 19,
22, 23, 25, 27, 28, 30, 33, 34, 36, 37, and
38, notification is required in
accordance with General Condition 13,
for any activity proposed in the
designated critical resource waters
including wetlands adjacent to those
waters. The District Engineer may
authorize activities under these NWPs
only after it is determined that the
impacts to the critical resource waters
will be no more than minimal.
2G. Fills Within 100-YeorF'loodplains.
For purposes of this General Condition,
100-year floadplains will be identified
through the existing Federal Emergency
Management Agency's (FF.MA) Flood
Insurance Rate Maps or FEMA-approved
local floodplain maps.
(a) Discharges in Floodplain; Belotr
Neodcvaters. Discharges of dredged or
fill material into waters of the US within
the mapped 100-year floodplain, below
2094 Federal Register / Vol. 67, No. 10 / "Tuesday, January 15, 2002/Notices
headwaters (i.e. five cfs), resulting in
permanent above-grade fills, are not
authorized by NWPs 39, 40, 42, 43, and
44.
(b) Discharges in h'loodtvav; Above
lleachvoters. Discharges of dredged or
fill material into waters of the US within
the FEiMA or locally mapped floodway,
resulting in permanent above-grade fills
are not authorized by NW-Ps 39, 40, 42,
aril 44.
(c) The permittee must comply with
any applicable FEMA-approved state or
local floodplain management
requirements.
27. Construction Period. For activities
that have not been verified by the Corps
and the project was commenced or
under contract to commence by the
expiration date of the NWP (or
modification or revocation date), the
work must be completed within 12-
months after such date (including anv
modification that affects the project).
For activities that have been verified
and the project was commenced or
under contract to commence within the
verification period, the work must be
completed by the date determined by
the Corps.
For projects that have been verified by
the Corps, an extension of a Corps
approved completion date maybe
requested. This request must be
submitted at least one month before the
previously approved completion date.
D. Further Information
1. District Engineers have authority to
determine if an activity complies with
the terms and conditions of an NWP.
2. NWPs do not obviate the need to
obtain other Federal, state, or local
permits, approvals, or authorizations
required by law.
3. NWPs do not grant any property
rights or exclusive privileges,
4. NWPs do not authorize any injury
to the property or rights of others.
5. NWPs do not authorize interference
with any existing or proposed Federal
project.
E. Definitions
Best Management Practices (BMPs):
BMPs are policies, practices,
procedures, or structures implemented
to mitigate the adverse environmental
effects on surface water quality resulting
from development. BMPs are
categorized as structural or non-
structural, A BMP policy may affect the
limits on a development,
Compensatory Mitigation: For
purposes of Section 10/404,
compensatory mitigation is the
restoration, creation, enhancement, or in
exceptional circurnstances, 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
u wetland or other aquatic resource where,
one did not formerly exist.
L'nhancernent: Activities conducted it
existing wetlands or other aquatic
resources that increase one or more
aquatic' functions.
Ephemeral Stream: An ephemeral
stream has flowing water only during
and for it 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,farrn.
Flood Fringe: That portion of the 100-
year floodplain outside of the floodway
(often referred to as "floodway fringe").
Floodwoy: The area regulated by
Federal, state, or local requirements to
provide for the discharge of the base
flood so the cumulative increase in
water surface elevation is no more than
a designated amount (not to exceed one
foot as set by the National Flood
Insurance Program) within the 100-year
flood lain.
Independent Utility: A test to
determine what constitutes a single and
complete project in the Corps regulatory
program. A project is considered to have
independent utility if it would be
constructed absent the construction of
other projects in the project area.
Portions of a multi-phase project that
depend upon other phases of the project
do not have independent utility. Phases
of a project that would be constructed
even if the other phases were not built
can be considered as separate single and
complete projects with independent
utility.
Intermittent Stream: An intermittent
stream has flowing water during certain
times of the year, when groundwater
provides water for stream flow. During
dry periods, intermittent streams may
not have flowing water. Runoff from
rainfall is a supplemental source of
water for stream flow.
Loss of Waters of the CIS: Waters of
the US that include the filled area and
other waters that are permanently
adversely affected by flooding,
excavation, or drainage because of the
regulated activity. Permanent adverse
effects include permanent above-grade,
at-grade, or below-grade fills that change
an aquatic area to dry land, increase the
bottom elevation of a waterbody, or
change the rise of a waterbody.
acreage of loss of waters of the US is the
threshold measurement of the impact to
existing waters for determining whether
a project may qualify for an NWP; it is
not a net threshold that is calculated
after considering compensatory
mitigation that may be used to offset
' losses of aquatic functions and values.
The loss of stream bed includes the
linear feet of stream bed that is filled or
excavated. Waters of the US temporarily
filled, flooded, excavated, or drained,
but restored to preconstruction contours
and elevations after construction, are
not included in the measurement of loss
of waters of the US. Impacts to
ephemeral waters are only not included
in the acreage or linear foot
measurements of loss of waters of the
US or loss of stream bed, for the purpose
of determining compliance with the
threshold limits of the NWI's.
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-trade 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, arid a finer substrate
characterize pools.
Single and Complete Project: The
term "single and complete project" is
defined at 33 CFR,330.2(i) as the total
project proposed or accomplished by
one owner/developer or partnership or
other association of owners/developers
(see definition of independent utility).
For linear projects, the "single and
complete project'' (i.e., a single and
complete crossing) will apply to each
crossing of a separate water of the US
(i.e., a single waterbody) at that location.
An exception is for linear projects
crossing a single waterbody several
times at separate and distant locations:
each crossing is considered a single and
complete project. However, individual
channels in a braided stream or river, or
individual arras 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 degadation, and
flooding and mitigating the adverse
effects of changes in land use on the
aquatic environment.
Stormwater Management Facilities:
Stormwater management facilities are
those facilities, including but not
limited to, Stormwater retention and
detention ponds and BMPs, which
retain water for a period of time to
control runoff and/or improve the
quality (i.e., by reducing the
concentration of nutrients, sediments,
hazardous substances and other
pollutants) of stormwater runoff.
Stream Bed: The substrate of the
stream channel between the ordinary
high water marks. The substrate may be
bedrock or inorganic particles that range
in size from clay to boulders. Wetlands
contiguous to the stream bed, but
outside of the ordinary high water
marks, are not considered part of the
stream bed.
Stream Chonnelizotion: The
manipulation of a stream channel to
increase the rate of water flow through
the stream channel. Manipulation may
include deepening, widening,
straightening, armoring, or other
activities that change the stream cross-
section or other aspects of stream
channel geometry to increase the rate of
water flow through the stream channel.
A channelized stream remains a water
of the US, despite the modifications to
increase the rate of water flow.
Tidal Wetland: A tidal wetland is a
wetland (i.e., water of the US) that is
inundated by tidal waters. The
definitions of a wetland and tidal waters
can be found at 33 CFR 328.3(b) and 33
CFR 328.3(f), respectively. Tidal waters
rise and fall in a predictable and
measurable rhythm or cycle due to the
gravitational pulls of the moon and sun.
Tidal waters end where the rise and fall
of the water surface can no longer be
practically measured in a predictable
rhythm due to masking by other waters,
wind, or other effects. Tidal wetlands
are located channelward of the high tide
line (i.e., spring high tide line) and are
inundated by tidal waters two tirnes per
lunar month, during spring high tides.
Vegetated Buffer: A vegetated upland
or wetland area next to rivers, streams,
lakes, or other open waters which
separates the open water from
developed areas, including agricultural
land. Vegetated buffers provide a variety
of aquatic habitat functions and values
(e.g., aquatic habitat for fish and other
aquatic organisms, moderation of water
temperature changes, and detritus for
aquatic food webs) and help improve or
maintain local water quality. A
vegetated buffer can be established by
maintaining an existing vegetated area
or planting native trees, shrubs, and
herbaceous plants on land next to open-
waters. Mowed lawns are not
considered vegetated buffers because
they provide little or no aquatic habitat
functions and values. The establishment
and maintenance of vegetated buffers is
a method of compensatory mitigation
that can be used in conjunction with the
restoration, creation, enhancement, or
preservation of aquatic habitats to
ensure that activities authorized by
NWPs result in minimal adverse effects
to the aquatic environment. (See
General Condition 19.)
Vegetated Shallows: Vegetated
shallows are special aquatic sites under
the 404(b)(1) Guidelines. They are areas
that are permanently inundated and
under normal circumstances have
rooted aquatic vegetation, such as
seagrasses in marine and estuarine
systems and a variety of vascular rooted
plants in freshwater systems.
Waterbody: A waterbody is any area
that in a normal year has water flowing
or standing above ground to the extent
that evidence of an ordinary high water
mark is established. Wetlands
contiguous to the Waterbody are
considered part of the waterbody.
(FR Doc. 02-539 Filed 1-14-02; 8:45 am
BILLING CODE 3710-92-P
6692 Federal Register/ Vol. 67, No. 30 / Wednesday, February 13, 2002 /Notices.
ADDRESSES). The holding of such
hearing is at the discretion of the
Assistant Administrator for Fisheries,
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
(Eretmochelys irrmbricata)
Endangered Kemp's ridley turtle
(lepidochelys kemppii)
Endangered leatherback turtle
(Derrnochelys coriacea)
Threatened loggerhead turtle (Caretta
coretta)
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 anll
BILLING CODE 3514-22-S
DEPARTMENT OF DEFENSE
Department of the Army, Corps of
Engineers
Issuance of Nationwide Permits;
Notice; Correction
AGENCY: Army Corps of Engineers, DoD.
ACTION: Final notice; correction.
SUMMARY: This document contains
corrections to the final notice of
issuance of Nationwide Permits (NWT's)
which was published in the Federal
Register on Tuesday, January 15, 2002
(67 FR 2020-2095).
ADDRESSES: IIQCISACI?, A`ITN: CECW-
OR, 441 "G" Street, NW., Washington,
DC 20314-1000.
FOR FURTHER INFORMATION CONTACT: Mr.
David Olson, at [phone], Mr.
Kirk Stark, at [phone] or Ms.
Leesa Beal at [phone] or access
the U.S. Army Corps of Engineers
Regulatory Home Page at: http://
www,usace.army.mil/inet/functions/
cw/cecwo/reg/.
SUPPLEMENTARY INFORMATION: In the
SUMMARY section on page 2020, the third
and fourth sentences are corrected to
read: "All NWPs except NWPs 3, 7, 12,
14, 27, 39, 40, 41, 42, 43, and 44 expire
on February 11, 2002. Existing NWPs 3,
7, 12, 14, 27, 39, 40, 41, 42, 43, and 44
expire on March 18, 2002." In the last
sentence of the SUMMARY section, the
expiration date is corrected as "March
18, 2007", instead of "March 19, 2007".
On page 2020, in second sentence of
the DATES section, the expiration date is
corrected as "March 18, 2007", instead
of "March 19, 2007". Therefore, the
NWPs published in the January 15,
2002; Federal Register will expire on
March 18, 2007, five years from their
effective date of March 18, 2002.
On page 2020, in the fifth paragraph
of the Back-ground 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 "Gran dfutherProvision
for Expiring NWPs at 33 G'FR 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 uncler contract to commence by
March 18, 2002, will have until March
18, 2003, to complete the activity."
On page 2020, in the "Cleun Water
ActSeclion401 Water Quality
Certification (IVQC) and Coastal "Lone
Management Act (CZMA) Consistency
Agreement" section, the date in the fifth
sentence is corrected as "February 11,
2002", instead of "February 11, 2001
On page 2023, third column, last
sentence, the number 29 is replaced
with the number 19, because this
sentence refers to General Condition 19.
On page 2024, first column, in the
fourth sentence of the last paragraph the
phrase "less than" is replaced by
"greater than" because the 30 day
completeness review period for NWP
pre-construction notifications is greater
than the 15 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 C011-111111, the
year cited in the third sentence of the
second paragraph is the year 2000, not
1996.
On page 2058, third column, in the
second sentence of the second complete
paragraph the word "intermittent" is
inserted before the phrase "stream bed"
because the waiver for filling or
excavating greater than 300 linear feet of
stream beds can apply only to
intermittent stream beds.
On page 2072, third column, last
sentence, the number 19 is inserted after
the term "General Condition" since this
sentence refers to General Condition 19.
On page 2076, second column, the
street address for the Walla Walla
District Engineer is corrected to read
"201 N. Third Avenue".
On page 2080, second column, third
paragraph from the top of the column
(in the "Notification" section of NWP
12), the word "or" at the end of
paragraph (e) is deleted and the period
at the end of the fourth paragraph
(paragraph (f)) is replaced with "; or".
On page 2080, second column,
paragraph (a) of NWP 13 is corrected to
read: "No material is placed in excess of
the minimum needed for erosion
protection;" The change was not
intended and we are correcting this
paragraph by reinstating the original
text as it appeared in the version of
NWP 13 published in the December 13,
1996, Federal Register (61 FR 65915).
On page 2080, third coluaut, the word
"or" is inserted at the end of paragraph
(a)(1) of NWP 14, Linear Transportation
Projects. Paragraph (a) of NWP 14 is
corrected to read: "a. This NWP is
subject to the following acreage limits:
(1) For linear transportation projects in
non-tidal waters, provided the discharge
does not cause the loss of greater than
V,acre of waters of the US; or (2) For
linear transportation projects in tidal
waters, provided the discharge does not
cause the loss of greater than 1A-acre of
waters of the US."
On page 2085, second column, the
last sentence of NWP 35 is corrected to
read as follows: "Dreclging to provide
Federal Register/ Vol. 67, No. 30 /Wednesday, February 13, 2002 /Notices 6693
access to the boat ramp may be,
authorized by another NWP, regional
general permit, or individual permit
pursuant to section 10 if located in
navigable waters of the United States.
* * - The change was not intended
and we are correcting this paragraph by
reinstating the original text as it
appeared in the version of NWP 36
published in the December 13, 1996,
Federal Register (61 FR 65919).
On page 2086, in the second full
paragraph of the second column,
"paragraph (e)" in the second sentence
is replaced with "paragraph (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
121390).
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 Vto acre of ephemeral waters
would require PCNs under paragraph
(c)(1), above)." The addition to the Note
was intended to clarify that under
paragraph (c)(2) only the loss of
ephemeral open waters were not
included in the requirement for a pre-
construction notification (PCN).
However, under paragraph (c)(1) all
ephemeral waters of the United States
are included in the measurement for the
'/to acre PCN requirement. The
correction is needed because the
statement ill 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. Resideittiol. Contmorcial, and
Institutional Ucveloploullts. Discharges
of dredged or fill material into nou-tidal
waters of the U.S., excluding non-tidal
wetlands adjacent to tidal waters, for the
construction or expansion of residential,
commercial, and institutional building
foundations and building pads and
attendant features that are necessary for
the use and maintenance of the
structures. Attendant features may
include, but are not limited to, roads,
parking lots, garages, yards, utility lines,
stormwater management facilities, and
recreation facilities such as
playgrounds, playing fields, and golf
courses (provided the golf course is an
integral part of the residential
development). The construction of new
ski areas or oil and gas wells is not
authorized by this NWP.
Residential developments include
multiple and single unit developments.
Examples of commercial developments
include retail stores, industrial facilities,
restaurants, business parks, and
shopping centers. Examples of
institutional developments include
schools, fire stations, government office
buildings, judicial buildings, public
works buildings, libraries, hospitals,
and places of worship. The activities
listed above are authorized, provided
the activities meet all of the following
criteria:
a. The discharge does not cause the
loss of greater than V, 2-acre of non-tidal
waters of the U.S., excluding non-tidal
wetlands adjacent to tidal waters;
1,. The discharge does not cause the
loss of greater than 300 linear-feet of a
stream bed, unless for intermittent
stream beds this criterion is waived in
writing pursuant to a determination by
the District Engineer, as specified
below, that the project complies with all
terms and conditions of this NWP and
that any adverse impacts of the project
on the aquatic environment are
minimal, both individually and
cumulatively;
c. The permittee must notify the
District Engineer in accordance with
General Condition 13, if any of the
following criteria are met:
(1) The discharge causes the loss of
greater than'/,o-acre of non-tidal waters
of the US, excluding non-tidal wetlands
adjacent to tidal waters; or
(2) The discharge causes the loss of
any open waters, including perennial or
intermittent streams, below the ordinary
hi h water mark (see Note, below); or
The discharge causes the loss of
greater than 300 linear feet of
intermittent stream bed. In such case, to
be authorized the District Engineer most
determine that the activity complies
with the other terns and conditions of
the NWP, determine adverse
environmental effects are utinitnal hoth
individually and cumulatively, and
waive the limitation on stream impacts
in writing before the permittee may
proceed;
d. For discharges in special aquatic
sites, iucluding wetlands, the
notification must include a delineation
of affected special aquatic sites;
c. The discharge is part of a single and
complete project;
I. The permittee must avoid and
minimize discharges into waters of the
CIS at the project site to the maximum
extent practicable. The notification,
when required, must include a written
statement explaining how avoidance
and minimization of losses of waters of
the US were achieved on the project
site. Compensatory mitigation will
normally be required to offset the losses
of waters of the US. (See General
Condition 19.) The notification must
also include a compensatory mitigation
proposal for offsetting unavoidable
losses of waters of the US. If an
applicant asserts that the adverse effects
of the project are minimal without
mitigation, then the applicant may
submit justification explaining why
compensatory mitigation should not be
required for.the District Engineer's
consideration;
g. When this NWP is used in
conjunction with any other NWP, any
combined total permanent loss of waters
of the US exceeding'/,o-acre requires
that the permittee notify the District
Engineer in accordance with General
Condition 13;
h. Any work authorized by this NWP
must not cause more than minimal
degradation of water quality or more
than minimal changes to the flow
characteristics of any stream (see
General Conditions 9 and 21);
i. For discharges causing the loss of
V,o-acre or less of waters of the US, the
permittee must submit a report, within
30 clays of completion of the work, to
the District Engineer that contains the
following information: (1) The name,
address, and telephone number of the
permittee; (2) The location of the work;
(3) A description of the work; (4) The
type and acreage of the loss of waters of
the US (e.g., 1/2-acre of emergent
wetlands); and (5) The type and acreage
of any compensatory mitigation used to
offset the loss of waters of the US (e.g.,
V2-acre of emergent wetlands created
on-site);
j. If there are any open waters or
streams within the project area, the
permittee will establish and maintain, to
the maximum extent practicable,
wetland or upland vegetated buffers
next to those open waters or streams
consistent with General Condition 19.
Deed restrictions, conservation
easements, protective covenants, or
other means of land conservation and
preservation are required to protect and
maintain the vegetated buffers
established on the project site.
Oldy residential, commercial, and
institutional activities with structures
on the foundation(s) or building pad(s),
as well as the attendant features, are
authorized by this NWP. The
6694 Federal Register/Vol. 67, No. 30 /Wednesday, February 13, 2002 /Notices.
compensatory mitigation proposal that
is required in paragraph (f) of this NWP
may be either conceptual or detailed.
The wetland or upland vegetated buffer
required in paragraph (j) of this NWP
will be determined on a case-by-case
basis by the District Engineer for
addressing water quality concerns. The
required wetland or upland vegetated
buffer is part of the overall
compensatory mitigation requirement
for this NWP. If the project site was
previously used for agricultural
purposes and the farm owner/operator
used NWP 40 to authorize activities in
waters of the United States to increase
production or construct farm buildings,
NWP 39 cannot be used by the
developer to authorize additional
activities in waters of the United States
on the project site in excess of the
acreage limit for NWP 39 (i.e., the
combined acreage loss authorized under
NWPs 39 and 40 cannot exceed 1/2 acre).
Subdivisions: For residential
subdivisions, the aggregate total loss of
waters of US authorized by NWP 39 can
riot exceed 1/z-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 1/1e acre of ephemeral waters
would require PCNs under paragraph (c)(1),
above).
On page 2088, in the sixth sentence of
the first paragraph in the first column,
the phrase "an adequate water quality
management plan" is replaced with the
phrase "adequate water quality
management measures" to reflect the
modified language in General Condition
9. This sentence is corrected to read
"The facility must have adequate water
quality management measures in
accordance with General Condition 9,
such as a stormwater management
facility, to ensure that the recreational
facility results in no substantial adverse
effects to water quality."
On page 2089, first column, the
second sentence of paragraph (c) of
NWP 44 is corrected to read "Normally,
the water quality management measures
required by General Condition 9 should
address these impacts;". In addition, the
second sentence of paragraph (i) of NWP
44 is corrected to read "Further the
District Engineer may require water
quality management measures to ensure
the authorized work results in minimal
adverse effects to water quality;" These
corrections are necessary to reflect the
modified language in General Condition
9.
On page 2089, third column, the text
of General Condition 6 is corrected to
read: "The activity must comply with
any regional conditions that may have
been added by the Division Engineer
(see 33 CFR 330.4(e)) and with any case
specific conditions added by the Corps
or by the state or tribe in its Section 401
Water Quality Certification and Coastal
Zone Management Act consistency
determination." The change to General
Condition 6 that was published in the
January 15, 2002, Federal Register was
not intended and we are correcting this
sentence by reinstating the original text
as it existed in the March 9, 2000,
NWPs.
On page 2090, first column, the word
"Section" in the parenthetical at the end
of General Condition 10 is replaced with
"33 CFR" so that the parenthetical reads
"(see 33 CFR 330.4(d))".
On page 2090, at the top of the second
column, the second Internet URL is
replaced with "* * * http://
www.nmfs.noaa.gov/protres/overview/
es.litml * * " because t_e Internet
address for the National Marine
Fisheries Service home page for
endangered species has been changed.
On page 2090, third column, in
paragraph (b)(4) of General Condition
13, NWP 40 should be added to the list
of NWPs that require submission of
delineations of special aquatic sites with
pre-construction notifications.
Therefore, paragraph (b)(4) of General
Condition 13 is corrected to read "For
NWPs 7, 12, 14, 18, 21, 34, 38, 39, 40,
41, 42, and 43, the PCN must also
include a delineation of affected special
aquatic sites, including wetlands,
vegetated shallows (e.g., submerged
aquatic vegetation, seagrass beds), and
riffle and pool complexes (see paragraph
13(0);"
On page 2090, third column, in
paragraph (b)(6) of General Condition
13, the word "Projects" replaces the
word "Crossings", because the title of
NWP 14 is''LinearTransportation
Projects".
On page 2090, third colunnr, in
paragraph (b)(8) of General Condition
13, the word "Activities" is inserted
after the word "Restoration" because the
title of NWP 27 is "Stream and Wetland
Restoration Activities".
On page 2091, first column, in
paragraph (b)(10) of General Condition
13, the word "projects" is replaced with
the word "Facilities" because the title of
NWP 31 is "Maintenance of Existing
Flood Control Facilities".
On page 2094, third column, we are
correcting the definition of "Loss of
Waters of the US" by deleting the last
sentence and inserting the following
sentence after the fourth sentence of this
definition: "Impacts to ephemeral
streams are not included in the linear
foot measurement of loss of stream bed
for the purpose of determining
compliance with the linear foot limits of
NWPs 39, 40, 42, and 43."
Due to the number of corrections
made to the definition of "Loss of
Waters of the US", we are providing the
text of this definition in its entirety,
with the corrections described above:
Loss of Waters of the US: Waters of
the US that include the filled area and
other waters that are permanently
adversely affected by flooding,
excavation, or drainage because of the
regulated activity. Permanent adverse
effects include permanent above-grade,
at-grade, or below-grade fills that change
an aquatic area to dry land, increase the
bottom elevation of a waterbody, or
change the use of a waterbody, The
acreage of loss of waters of the US is the
threshold measurement of the impact to
existing waters for determining whether
a project may qualify for an NWP; it is
not a net threshold that is calculated
after considering compensatory
mitigation that may be used to offset
losses of aquatic functions and values.
The loss of stream bed includes the
linear feet of stream bed that is filled or
excavated. Impacts to ephemeral
streams are not included in the linear
foot measurement of loss of stream bed
for the purpose of determining
compliance with the linear foot limits of
NWPs 39, 40, 42, and 43. Waters of the
US temporarily filled, flooded,
excavated, or drained, but restored to
preconstruction contours and elevations
after construction, are not included in
the measurement of loss of waters of the
Lis.
In the January 15, 2002, Federal
Register, it was stated that the definition
was being revised (to clarify that
ephemeral waters and streams are not
included in the acreage or linear
thresholds for NWPs) to comport with
language in the preamble of the March
9, 2000 Federal Register notice.
However, the language in the preamble
of the March 9, 2000 Federal Register
notice (65 FR 12881, third column) does
not support this revision. Rather, the
referenced preamble states, "During our
review of the comments received in
response to the July 21, 1999, Federal
Register notice, we found an error in the
proposed definition of the term, "loss of
waters of the United States." In the
fourth sentence of the draft definition,
we stated that the loss of stream bed
Federal Register/ Vol. 67, No. 30/Wednesday, February 13, 2002 /Notices 6695
includes the linear feet of perennial or
intermittent stream bed that is filled or
excavated. This statement is inaccurate
because ephemeral stream bed that is
filled or excavated can also be
considered a loss of waters of the United
States. However, the 300 linear foot
limit for stream beds filled or excavated
does not apply to ephemeral streams.
We have modified this sentence to
define the loss of stream bed as the
linear feet of stream bed that is filled or
excavated." Thus, the modification of
this definition was intended to clarify
that activities that involve filling or
excavating ephemeral streams are not
included in the linear foot limits for
filling or excavating stream beds in
NWPs 39, 40, 42, and 43. However, it
was not intended to exempt ephemeral
waters or streams from calculations of
impacted acreages to determine PCN or
maximum acreage requirements ill
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
inKWPs 39, 40, 42, and 43 for filling
and excavating stream beds would only
apply to intermittent and perennial
streams, not to ephemeral streams.
In the January 15, 2002, Federal
Register notice (67 FR 2074-2075) we
erroneously stated that both the acreage
and linear limits of the NWPs do not
apply to ephemeral waters. This was
never intended to be adopted as policy
for the NWPs or the Corps regulatory
program. A previously stated, in the first
column of page 2075 of the January 15,
2002, Federal Register notice, we refer
to page 12881 of the March 9, 2000,
Federal Register notice, which only
discusses the 300 linear foot limit, not
the acreage limits of the NWPs. Our
intent is to continue to apply acreage
limits of NWPs to activities that result
in the permanent loss of ephemeral
waters, but the linear foot limits of the
NWPs (i.e., NWPs 39, 40, 42, and 4-3) for
filling or excavating stream beds would
not apply to activities that involve
filling or excavating ephemeral streams.
The last sentence of the definition of
"Loss of Waters of the US" as published
in the January 15, 2002, Federal
Register notice does not comport with
remainder of this NWP package.
Therefore, we are correcting this
definition as described above.
We believe that correcting the text of
NWP 39 and the definition of "Loss of
Waters of the US" through the
publication of this correction notice is
appropriate. Nevertheless, in order to
give all interested parties further
opportunity to comment on this matter,
we intend to publish a Federal Register
notice to solicit public comments on
those two corrections. If we determine
that any other matter relating to the final
NWPs requires correction or
clarification, but that matter was not
adequately dealt with in this correction
notice, we will address that additional
matter in the forthcoming Federal
Register notice, as well. We expect to
publish that Federal Register notice
within a few weeks.
Dated: February 7, 2002.
Lawrence A. Lang,
Assistant Chief, Operations Division,
Directorate of Civil Works.
[FR Doc. 02-3555 Filed 2-12-02; 8:45 am)
BILLING CODE 3710-92-P
DEPARTMENT OF DEFENSE
Uniformed Services University of the
Health Sciences
Sunshine Act Meeting
AGENCY HOLDING THE MEETING:
Uniformed Services University of the
Health Sciences.
TIME AND DATE: 8:00 a.m. to 4:00 p.m.,
February 5, 2002.
PLACE: Uniformed Services University
of the Health Sciences, Board of Regents
Conference Room (D3001), 4301 Jones
Bridge Road, Bethesda, MD 20814-4799.
STATUS: Open-under "Government in
the Sunshine Act" (5 U.S.C. 552b(e)(3)).
MATTERS TO BE CONSIDERED:
8:30 a.m. Meeting Board of Regents
(1) Approval of Minutes-November 14,
2001
(2) Faculty Matters
(3) Department Reports
(4) Financial Report
(5) Report-President, USUIIS
(6) Report-Dean, School of Medicine
(7) Report-Dean, Graduate School of
Nursing
(8) Comments-Chairman, Board of
Regents
(9) New Business
CONTACT PERSON FOR MORE INFORMATION:
Mr. Bobby D. Anderson, Executive
Secretary, Board of Regents, (301) 295-
3116.
Dated: February 8, 2002.
Linda Bynum,
OSO Federal Register Liaison Officer,
Doportrnent of Defense.
[FR Doc. 02-3683 Filed 2-11-02; 3:32 pin]
BILLING CODE 500$-08-M
DEPARTMENT OF EDUCATION
Submission for OMB Review;
Comment Request
AGENCY: Department of Education.
SUMMARY: The Leader, Regulatory
Information Management Group, Office
of the Chief Information Officer invites
comments on the submission for OMB
review as required by the Paperwork
Reduction Act of 1995.
DATES: Interested persons are invited to
submit comments on or before March
15, 2002.
ADDRESSES: Written comments should
be addressed to the Office of
Information and Regulatory Affairs,
Attention: Lauren Wittenberg, Desk
Officer, Department of Education, Office
of Management and Budget, 725 17th
Street, NW., Room 10202, New
Executive Office Building, Washington,
DC 20503 or should be electronically
mailed to the internet address
Lauren-Wittenberg rr onib.eop.gov.
SUPPLEMENTARY INFORMATION: Section
3506 of the Paperwork Reduction Act of
1995 (44 U.S.C. Chapter 35) requires
that the Office of Management and
Budget (OMB) provide interested
Federal agencies and the public an early
opportunity to comment on information
collection requests. OMB may amend or
waive the requirement for public
consultation to the extent that public
participation in the approval process
would defeat the purpose of the
information collection, violate State or
Federal law, or substantially interfere
with any agency's ability to perform its
statutory obligations. The Leader,
Regulatory Information Management
Group, Office of the Chief Information
Officer, publishes that notice containing
proposed information collection
requests prior to submission of these
requests to OMB. Each proposed
information collection, grouped by
office, contains the following: (1) Type
of review requested, e.g. new, revision,
extension, existing or reinstatement; (2)
Title; (3) Summary of the collection; (4)
Description of the need for, and
proposed use of, the information; (5)
Respondents and frequency of
collection; and (6) Reporting and/or
Recordkeeping burden. OMB invites
public comment.