20041961 Ver 1_Complete File_20050321

06 J
U.S. ARMY CORPS OF ENGINEERS
WILMINGTON DISTRICT
Action ID: 200500324 TIP No: MA08003R State Project No: 36969
GENERAL PERMIT (REGIONAL AND NATIONWIDE)
Applicant: North Carolina Department of Transportation
Address: Timothy Johnson, P.E., Division Engineer
North Carolina Department of Transportation
Division 8
P.O. Box 1067
Aberdeen, North Carolina 28315
Telephone Number: [phone]

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VERIFIA' IC
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Size and Location of project (waterway, road name/number, town, etc.): 104 linear feet of triple cell 8-foot by
5-foot concrete box culvert in Big Branch Creek at centerline station 57+99 on SR 1674 in Scotland County, North
Carolina.
.Description of Activity: To replace 77 linear, feet of existing triple 54-inch RCP culvert with 104 linear feet of triple
cell 8-foot by 5-foot concrete box culvert. The stream will be diverted with the installation of a temporary diversion
cofferdam structure and will be phased by diverting flow from one cell to another during construction. The roadway
will remain open to traffic by phasing construction and limiting traffic to two lanes at a time during construction.
Applicable Law: X Section 404 (Clean Water Act, 33 U.S.C. 1344)
Section 10 (River and Harbor Act of 1899)
Authorization: 14&33 Nationwide Permit Number
Regional General Permit Number
Your work is authorized by this Regional General (RGP) or Nationwide (NWT) 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]
Please read and carefiilly comply with the attached conditions of the RGP or NWP. Any violation of the conditions of
the RGP or NWP referenced above may subject the permittee to a stop work order, a restoration order, and/or
appropriate legal action.
This Department of the Army RGP or NWP verification does not relieve the permittee of the responsibility to obtain
any other required Federal, State, or local approvals/permits. The permittee may need to contact appropriate State and
local agencies before beginning work.
This verification will remain valid until 8 March 2007 unless the nationwide authorization is modified, reissued or
revoked. If, prior to 8 March 2007 the nationwide permit authorization is reissued and/or modified, this verification
will remain valid until 8 March 2007, provided it complies with all modifications. If the nationwide pernrit
authorization expires or is suspended, revoked, or is modified, such that the activity would no longer comply with the
terms and conditions of the nationwide permit, activities which have commenced (i.e., are under construction) or are
under contract to commence in reliance upon the nationwide permit, will remain authorized provided the activity is
1
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Action ID: 200500324 TIP No: NIA08003R State Project No: 36969 County: Scotland
GENERAL PERMIT (REGIONAL AND NATIONWIDE) VERIFICATION
completed within twelve months of the date of the nationwide permit's expiration, modification or revocation, unless
discretionary authority has been exercised on a case-by-case basis to modify, suspend or revoke the authorization.
If there are any questions regarding this authorization or any of the conditions of the RGP or NWT, please contact the
Corps Regulatory Official specified below.
Date 1 March 2005
Corps Regulatory Official Richard K. Spencer Telephone No. (910 251-4172
CF: Art King, NCDOT Div 8
Ken Averitte, NCDWQ? /
Beth Barnes, NCDWQI/
William Gilmore, EEP
2
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Action ID: 200500324 TIP No: MA08003R State Project No: 36969 County: Scotland
GENERAL PERMIT (REGIONAL AND NATIONWIDE) VERIFICATION
SPECIAL CONDITIONS
1. Compensatory mitigation for the unavoidable impacts to 27 linear feet of stream associated with the
proposed project shall be mitigated by NCDOT by providing 54 linear feet of restoration equivalent warm
water stream channel in the Lumber River basin (Hydrologic Cataloging Unit 03040204).
2. All temporary fill is to be placed on filter fabric and removed from the waterway in its entirety upon
completion of the construction.
3. Clearing in wetlands shall be done by hand. Mechanical clearing is not authorized by this permit.
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NATIONWIDE PERMIT 14
DEPARTMENT OF THE ARMY
CORPS OF ENGINEERS
FINAL NOTICE OF ISSUANCE AND MODIFICATION OF NATIONWIDE PERMITS
FEDERAL REGISTER
AUTHORIZED MARCH 18, 2002
Linear Transportation Projects. Activities required for the construction, expansion,
modification, or improvement of linear transportation crossings (e.g., highways, railways, trails,
and airport runways and taxiways) in waters of the United States, including wetlands, if the
activity meets the following criteria:
1. This nationwide permit is subject to the following acreage and linear limits:
a. 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 United States; or
b. 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 United States.
2. The permittee must notify the District Engineer in accordance with General Condition 13 if
any of the following criteria are met:
a. The discharge causes the loss of greater than \1/10\ acre of waters of the United States;
or
b. 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 United States to ensure that those losses result only in minimal adverse
effects to the aquatic environment and a statement describing how temporary losses of waters
will be minimized to the maximum extent practicable;
d. For discharges in special aquatic sites, including wetlands and stream riffle and pool
complexes, the notification must include a delineation of the affected special aquatic sites;
e. The width of the fill is limited to the minimum necessary for the crossing;
f. This permit does not authorize stream channelization, and the authorized activities must
not cause more than minimal changes to the hydraulic flow characteristics of the stream, increase
flooding, or cause more than minimal degradation of water quality of any stream (see General
Conditions 9 and 21);
g. This permit cannot be used to authorize non-linear features commonly associated with
transportation projects, such as vehicle maintenance or storage buildings, parking lots, train
stations, or aircraft hangars; and
h. The crossing is a single and complete project for crossing a water of the United States.
Where a road segment (i.e., the shortest segment of a road with independent utility that is part of
a larger project) has multiple crossings of streams (several single and complete projects) the
Corps will consider whether it should use its discretionary authority to require an individual
permit. (Sections 10 and 404)
Note: Some discharges for the construction of farm roads, forest roads, or temporary roads for
moving mining equipment may be eligible for an exemption from the need for a Section 404
permit (see 33 CFR 323.4).
2
NATIONWIDE PERMIT GENERAL CONDITIONS
The following General Conditions must be followed in order for any authorization by a
NWP to be valid:
1. Navigation. No activity may cause more than a minimal adverse effect on navigation.
2. Proper Maintenance. Any structure or fill authorized shall be properly maintained,
including maintenance to ensure public safety.
3. Soil Erosion and Sediment Controls. Appropriate soil erosion and sediment controls
must be used and maintained in effective operating condition during construction, and all
exposed soil and other fills, as well as any work below the ordinary high water mark or high tide
line, must be permanently stabilized at the earliest practicable date. Permittees are encouraged to
perform work within waters of the United States during periods of low-flow or no-flow.
4. Aquatic Life Movements. No activity may substantially disrupt the necessary life-cycle
movements of those species of aquatic life indigenous to the waterbody, including those species
that normally migrate through the area, unless the activity's primary purpose is to impound
water. Culverts placed in streams must be installed to maintain low flow conditions.
5. Equipment. Heavy equipment working in wetlands must be placed on mats, or other
measures must be taken to minimize soil disturbance.
6. Regional and Case-By-Case Conditions. The activity must comply with any regional
conditions that may have been added by the Division Engineer (see 33 CFR 330.4(e)) 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.
7. Wild and Scenic Rivers. No activity may occur in a component of the National Wild and
Scenic River System; or in a river officially designated by Congress as a'study river" for
possible inclusion in the system, while the river is in an official study status; unless the
appropriate Federal agency, with direct management responsibility for such river, has
determined in writing that the proposed activity will not adversely affect the Wild and Scenic
River designation, or study status. Information on Wild and Scenic Rivers may be obtained from
the appropriate Federal land management agency in the area (e.g., National Park Service, U.S.
Forest Service, Bureau of Land Management, U.S. Fish and Wildlife Service).
8. Tribal Rights. No activity or its operation may impair reserved tribal rights, including,
but not limited to, reserved water rights and treaty fishing and hunting rights.
9. Water Quality.
a. In certain states and tribal lands an individual 401 Water Quality Certification must be
obtained or waived (See 33 CFR 330.4(c)).
b. For NWPs 12, 14, 17, 18, 32, 39, 40, 42, 43, and 44, where the state or tribal 401
certification (either generically or individually) does not require or approve water quality
management measures, the permittee must provide water quality management measures that will
ensure that the authorized work does not result in more than minimal degradation of water
quality (or the Corps determines that compliance with state or local standards, where applicable,
will ensure no more than minimal adverse effect on water quality). An important component of
water quality management includes stormwater management that minimizes degradation of the
downstream aquatic system, including water quality (refer to General Condition 21 for
stormwater management requirements). Another important component of water quality
management is the establishment and maintenance of vegetated buffers next to open waters,
including streams (refer to General Condition 19 for vegetated buffer requirements for the
NWPs).
This condition is only applicable to projects that have the potential to affect water quality.
While appropriate measures must be taken, in most cases it is not necessary to conduct detailed
studies to identify such measures or to require monitoring.
10. Coastal Zone Management. In certain states, an individual state coastal zone
management consistency concurrence must be obtained or waived (see 33 CFR 330.4(d)).
11. Endangered Species.
a. No activity is authorized under any NWP which is likely to jeopardize the continued
existence of a threatened or endangered species or a species proposed for such designation, as
identified under the Federal Endangered Species Act (ESA), or which will destroy or adversely
modify the critical habitat of such species. Non-federal permittees shall notify the District
Engineer if any listed species or designated critical habitat might be affected or is in the vicinity
of the project, or is located in the designated critical habitat and shall not begin work on the
activity until notified by the District Engineer that the requirements of the ESA have been
satisfied and that the activity is authorized. For activities that may affect Federally-listed
endangered or threatened species or designated critical habitat, the notification must include the
name(s) of the endangered or threatened species that may be affected by the proposed work or
that utilize the designated critical habitat that may be affected by the proposed work. As a result
of formal or informal consultation with the FWS or NMFS the District Engineer may add
species-specific regional endangered species conditions to the NWPs.
b. Authorization of an activity by a NWT does not authorize the "take" of a threatened
or endangered species as defined under the ESA. In the absence of separate authorization (e.g.,
an ESA Section 10 Permit, a Biological Opinion with "incidental take" provisions, etc.) from the
USFWS or the NMFS, both lethal and non-lethal "takes" of protected species are in violation of
the ESA. Information on the location of threatened and endangered species and their critical
habitat can be obtained directly from the offices of the USFWS and NMFS or their World Wide
Web pages at http://www.fws.gov/r9endspp/endspp.html and http://www.nfins.noaa.gov/prot
res/overview/es.html respectively.
4

12. Historic Properties. No activity that may affect historic properties listed, or eligible for
listing, in the National Register of Historic Places is authorized, until the District Engineer has
complied with the provisions of 33 CFR part 325, Appendix C. The prospective permittee must
notify the District Engineer if the authorized activity may affect any historic properties listed,
determined to be eligible, or which the prospective permittee has reason to believe may be
eligible for listing on the National Register of Historic Places, and shall not begin the activity
until notified by the District Engineer that the requirements of the National Historic Preservation
Act have been satisfied and that the activity is authorized. Information on the location and
existence of historic resources can be obtained from the State Historic Preservation Office and
the National Register of Historic Places (see 33 CFR 330.4(g)). For activities that may affect
historic properties listed in, or eligible for listing in, the National Register of Historic Places, the
notification must state which historic property may be affected by the proposed work or include
a vicinity map indicating the location of the historic property.
13. Notification.
a. Timing; where required by the terms of the NWP, the prospective permittee must
notify the District Engineer with a preconstruction notification (PCN) as early as possible. The
District Engineer must determine if the notification is complete within 30 days of the date of
receipt and can request additional information necessary to make the PCN complete only once.
However, if the prospective permittee does not provide all of the requested information, then the
District Engineer will notify the prospective permittee that the notification is still incomplete and
the PCN review process will not commence until all of the requested information has been
received by the District Engineer. The prospective permittee shall not begin the activity:
1. Until notified in writing by the District Engineer that the activity may proceed
under the NWP with any special conditions imposed by the District or Division Engineer; or
2. If notified in writing by the District or Division Engineer that an Individual
Permit is required; or
3. Unless 45 days have passed from the District Engineer's receipt of the complete
notification and the prospective permittee has not received written notice from the District or
Division Engineer. Subsequently, the permittee's right to proceed under the NWP may be
modified, suspended, or revoked only in accordance with the procedure set forth in 33 CFR
330.5(d)(2).
b. Contents of Notification: The notification must be in writing and include the
following information:
1. Name, address and telephone numbers of the prospective permittee;
2. Location of the proposed project;
5
3. Brief description of the proposed project; the project's purpose; direct and
indirect adverse environmental effects the project would cause; any other NWP(s), Regional
General Permit(s), or Individual Permit(s) used or intended to be used to authorize any part
of the proposed project or any related activity. Sketches should be provided when necessary to
show that the activity complies with the terms of the NWP (Sketches usually clarify the project
and when provided result in a quicker decision.);
4. For NWTs 7, 12, 14, 18, 21, 34, 38, 39, 40, 41, 42, and 43, the PCN
must also include a delineation of affected special aquatic sites, including wetlands, vegetated
shallows (e.g., submerged aquatic vegetation, seagrass beds), and riffle and pool complexes (see
paragraph 13(f));
5. For NWP 7 (Cutfall Structures and Maintenance), the PCN must include
information regarding the original design capacities and configurations of those areas of the
facility where maintenance dredging or excavation is proposed;
6. For NWP 14 (Linear Transportation Projects), the PCN must include a
compensatory mitigation proposal to offset permanent losses of waters of the US and a statement
describing how temporary losses of waters of the US will be minimized to the maximum extent
practicable;
7. For NWP 21 (Surface Coal Mining Activities), the PCN must include an Office
of Surface Mining (OSM) or state-approved mitigation plan, if applicable. To be authorized by
this NWT, the District Engineer must determine that the activity complies with the terms and
conditions of the NWP and that the adverse environmental effects are minimal both individually
and cumulatively and must notify the project sponsor of this determination in writing;
8. For NWT 27 (Stream and Wetland Restoration Activities), the PCN must include
documentation of the prior condition of the site that will be reverted by the permittee;
9. For NWP 29 (Single-Family Housing), the PCN must also include:
i. Any past use of this NWP by the Individual Permittee and/or the permittee's
spouse;
ii. A statement that the single-family housing activity is for a personal residence
of the permittee;
iii. A description of the entire parcel, including its size, and a delineation of
wetlands. For the purpose of this NWP, parcels of land measuring \1/4\-acre or less will not
require a formal on-site delineation. However, the applicant shall provide an indication of where
the wetlands are and the amount of wetlands that exists on the property. For parcels greater than
\1/4\-acre in size, formal wetland delineation must be prepared in accordance with the current
method required by the Corps. (See paragraph 13(f));
6
r
iv. A written description of all land (including, if available, legal descriptions)
owned by the prospective permittee and/or the prospective permittee's spouse, within a one mile
radius of the parcel, in any form of ownership (including any land owned as a partner,
corporation, joint tenant, co-tenant, or as a tenant-by-the-entirety) and any land on which a
purchase and sale agreement or other contract for sale or purchase has been executed;
10. For NWP 31 (Maintenance of Existing Flood Control Facilities), 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 NWP 33 (Temporary Construction, Access, and Dewatering), the PCN must
also include a restoration plan of reasonable measures to avoid and minimize adverse effects to
aquatic resources;
12. For NWPs 39, 43 and 44, the PCN must also include a written statement to the
District Engineer explaining how avoidance and minimization for losses of waters of the US
were achieved on the project site;
13. For NWP 39 and NWP 42, the PCN must include a compensatory mitigation
proposal to offset losses of waters of the US or justification explaining why compensatory
mitigation should not be required. For discharges that cause the loss of greater than 300 linear
feet of an intermittent stream bed, to be authorized, the 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;
14. For NWP 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 nontidal 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 NWT, 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
7

with state and local requirements, if applicable) and a compensatory mitigation proposal to offset
losses of waters of the US. For discharges that cause the loss of greater than 300 linear feet of an
intermittent stream bed, to be authorized, the District Engineer must determine that the activity
complies with the other terms and conditions of the NWP, determine adverse environmental
effects are minimal both individually and cumulatively, and waive the limitation on stream
impacts in writing before the permittee may proceed;
16. For NWP 44 (Mining Activities), the PCN must include a description of all
waters of the US adversely affected by the project, a description of measures taken to minimize
adverse effects to waters of the US, a description of measures taken to comply with the criteria
of the NWT, and a reclamation plan (for all aggregate mining activities in isolated waters and
non-tidal wetlands adjacent to headwaters and any hard rock/mineral mining activities);
17. For activities that may adversely affect Federally-listed endangered or
threatened species, the PCN must include the name(s) of those endangered or threatened species
that may be affected by the proposed work or utilize the designated critical habitat that may be
affected by the proposed work; and
18. For activities that may affect historic properties listed in, or eligible for listing
in, the National Register of Historic Places, the PCN must state which historic property may be
affected by the proposed work or include a vicinity map indicating the location of the historic
property.
c. Form of Notification: The standard Individual Permit application form (Form ENG
4345) may be used as the notification but must clearly indicate that it is a PCN and must include
all of the information required in (b) (1)-(18) of General Condition 13. A letter containing the
requisite information may also be used.
d. District Engineer's Decision: In reviewing the PCN for the proposed activity, the
District Engineer will determine whether the activity authorized by the NWP will result in more
than minimal individual or cumulative adverse environmental effects or may be contrary to the
public interest. The prospective permittee may submit a proposed mitigation plan with the PCN
to expedite the process. The District Engineer will consider any proposed compensatory
mitigation the applicant has included in the proposal in determining whether the net adverse
environmental effects to the aquatic environment of the proposed work are minimal. If the
District Engineer determines that the activity complies with the terms and conditions of the NWT
and that the adverse effects on the aquatic environment are minimal, after considering mitigation,
the District Engineer will notify the permittee and include any conditions the District Engineer
deems necessary. The District Engineer must approve any compensatory mitigation proposal
before the permittee commences work. If the prospective permittee is required to submit a
compensatory mitigation proposal with the PCN, the proposal may be either conceptual or
detailed. If the prospective permittee elects to submit a compensatory mitigation plan with the
PCN, the District Engineer will expeditiously review the proposed compensatory mitigation
plan. The District Engineer must review the plan within 45 days of receiving a complete PCN
and determine whether the conceptual or specific proposed mitigation would ensure no more
AAF
than minimal adverse effects on the aquatic environment. If the net adverse effects of the project
on the aquatic environment (after consideration of the compensatory mitigation proposal) are
determined by the District Engineer to 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 NWT subject to the applicant's submission
of a mitigation proposal that would reduce the adverse effects on the aquatic environment to the
minimal level; or
3. that the project is authorized under the NWP with specific modifications or
conditions. Where the District Engineer determines that mitigation is required to ensure no more
than minimal adverse effects occur to the aquatic environment, the activity will be authorized
within the 45-day PCN period. The authorization will include the necessary conceptual or
specific mitigation or a requirement that the applicant submit a mitigation proposal that would
reduce the adverse effects on the aquatic environment to the minimal level. When conceptual
mitigation is included, or a mitigation plan is required under item (2) above, no work in waters
of the US will occur until the District Engineer has approved a specific mitigation plan.
e. Agency Coordination: The District Engineer will consider any comments from
Federal and state agencies concerning the proposed activity's compliance with the terms and
conditions of the NWPs and the need for mitigation to reduce the project's adverse
environmental effects to a minimal level.
For activities requiring notification to the District Engineer that result in the loss of greater
than \1/2\-acre of waters of the US, the District Engineer will provide immediately (e.g., via
facsimile transmission, overnight mail, or other expeditious manner) a copy to the appropriate
Federal or state offices (USFWS, state natural resource or water quality agency, EPA, State
Historic Preservation Officer (SHPO), and, if appropriate, the NMFS). With the exception of
NWP 37, these agencies will then have 10 calendar days from the date the material is transmitted
to telephone or fax the District Engineer notice that they intend to provide substantive,
site-specific comments. If so contacted by an agency, the District Engineer will wait an
additional 15 calendar days before making a decision on the notification. The District Engineer
will fully consider agency comments received within the specified time frame, but will provide
no response to the resource agency, except as provided below. The District Engineer will
indicate in the administrative record associated with each notification that the resource agencies'
concerns were considered. As required by section 305(b)(4)(B) of the Magnuson-Stevens
Fishery Conservation and Management Act, the District Engineer will provide a response to
NMFS within 30 days of receipt of any Essential Fish Habitat conservation recommendations.
Applicants are encouraged to provide the Corps multiple copies of notifications to expedite
agency notification.
f. Wetland Delineations: Wetland delineations must be prepared in accordance with the
current method required by the Corps (For NWP 29 see paragraph (b)(9)(iii) for parcels less than
(\1/4\-acre in size). The permittee may ask the Corps to delineate the special aquatic site. There
may be some delay if the Corps does the delineation. Furthermore, the 45-day period will not
start until the wetland delineation has been completed and submitted to the Corps, where
appropriate.
14. Compliance Certification. Every permittee who has received NWP verification from the
Corps will submit a signed certification regarding the completed work and any required
mitigation. The certification will be forwarded by the Corps with the authorization letter and will
include:
a. A statement that the authorized work was done in accordance with the Corps
authorization, including any general or specific conditions;
b. A statement that any required mitigation was completed in accordance with the
permit conditions; and
c. The signature of the permittee certifying the completion of the work and mitigation.
15. Use of Multiple Nationwide Permits. The use of more than one NWP for a single and
complete project is prohibited, except when the acreage loss of waters of the US authorized by
the NWPs does not exceed the acreage limit of the NWP with the highest specified acreage limit
(e.g. if a road crossing over tidal waters is constructed under NWP 14, with associated bank
stabilization authorized by NWP 13, the maximum acreage loss of waters of the US for the total
project cannot exceed \ 1/3\-acre) .
16. 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).
10
19. Mitigation. The District Engineer will consider the factors discussed below when
determining the acceptability of appropriate and practicable mitigation necessary to offset
adverse effects on the aquatic environment that are more than minimal.
a. The project must be designed and constructed to avoid and minimize adverse effects
to waters of the US to the maximum extent practicable at the project site (i.e., on site).
b. Mitigation in all its forms (avoiding, minimizing, rectifying, reducing or
compensating) will be required to the extent necessary to ensure that the adverse effects to the
aquatic environment are minimal.
c. Compensatory mitigation at a minimum one-for-one ratio will be required for all
wetland impacts requiring a PCN, unless the District Engineer determines in writing that some
other form of mitigation would be more environmentally appropriate and provides a
project-specific waiver of this requirement. Consistent with National policy, the District
Engineer will establish a preference for restoration of wetlands as compensatory mitigation, with
preservation used only in exceptional circumstances.
d. Compensatory mitigation (i.e., replacement or substitution of aquatic resources for
those impacted) will not be used to increase the acreage losses allowed by the acreage limits of
some of the NWPs. For example, \1/4\-acre of wetlands cannot be created to change a,\3/4\acre
loss of wetlands to a \1/2\-acre loss associated with NWP 39 verification. However, \1/2\-acre of
created wetlands can be used to reduce the impacts of a \1/2\-acre loss of wetlands to the
minimum impact level in order to meet the minimal impact requirement associated with NWPs.
e. To be practicable, the mitigation must be available and capable of being done
considering costs, existing technology, and logistics in light of the overall project purposes.
Examples of mitigation that may be appropriate and practicable include, but are not limited to:
reducing the size of the project; establishing and maintaining wetland or upland vegetated
buffers to protect open waters such as streams; and replacing losses of aquatic resource functions
and values by creating, restoring, enhancing, or preserving similar functions and values,
preferably in the same watershed.
f. Compensatory mitigation plans for projects in or near streams or other open waters
will normally include a requirement for the establishment, maintenance, and legal protection
(e.g., easements, deed restrictions) of vegetated buffers to open waters. In many cases, vegetated
buffers will be the only compensatory mitigation required. Vegetated buffers should consist of
native species. The width of the vegetated buffers required will address documented water
quality or aquatic habitat loss concerns. Normally, the vegetated buffer will be 25 to 50 feet
wide on each side of the stream, but the District Engineers may require slightly wider vegetated
buffers to address documented water quality or habitat loss concerns. Where both wetlands and
open waters exist on the project site, the Corps will determine the appropriate compensatory
mitigation (e.g., stream buffers or wetlands compensation) based on what is best for the aquatic
environment or, 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
11
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 discharges of dredged or fill material, in spawning areas during spawning seasons must be
avoided to the maximum extent practicable. Activities that result in the physical destruction
(e.g., excavate, fill, or smother downstream by substantial turbidity) of an important spawning
area are not authorized.
21. Management of Water Flows. To the maximum extent practicable, the activity must be
designed to maintain preconstruction downstream flow conditions (e.g., location, capacity, and
flow rates). Furthermore, the activity must not permanently restrict or impede the passage of
normal or expected high flows (unless the primary purpose of the fill is to impound waters) and
the structure or discharge of dredged or fill material must withstand expected high flows. The
activity must, to the maximum extent practicable, provide for retaining excess flows from the
site, provide for maintaining surface flow rates from the site similar to preconstruction
conditions, and provide for not increasing water flows from the project site, relocating water, or
redirecting water flow beyond preconstruction conditions. Stream channelizing will be reduced
to the minimal amount necessary, and the activity must, to the maximum extent practicable,
reduce adverse effects such as flooding or erosion downstream and upstream of the project site,
unless the activity is part of a larger system designed to manage water flows. In most cases, it
will not be a requirement to conduct detailed studies and monitoring of water flow.
This condition is only applicable to projects that have the potential to affect waterflows.
While appropriate measures must be taken, it is not necessary to conduct detailed studies to
identify such measures or require monitoring to ensure their effectiveness. Normally, the Corps
will defer to state and local authorities regarding management of water flow.
22. Adverse Effects From Impoundments. If the activity creates an impoundment of water,
adverse effects to the aquatic system due to the acceleration of the passage of water, and/or the
restricting its flow shall be minimized to the maximum extent practicable. This includes
structures and work in navigable waters of the US, or discharges of dredged or fill material.
23. Waterfowl Breeding Areas. Activities, including structures and work in navigable
waters of the US or discharges of dredged or fill material, into breeding areas for migratory
waterfowl must be avoided to the maximum extent practicable.
12
24. Removal of Temporary Fills. Any temporary fills must be removed in their entirety and
the affected areas returned to their preexisting elevation.
25. Designated Critical Resource Waters. Critical resource waters include,
NOAA-designated marine sanctuaries, National Estuarine Research Reserves, National Wild and
Scenic Rivers, critical habitat for Federally listed threatened and endangered species, coral reefs,
state natural heritage sites, and outstanding national resource waters or other waters officially
designated by a state as having particular environmental or ecological significance and identified
by the District 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
USFWS or the NMFS has concurred in a determination of compliance with this condition.
b. For NWPs 3, 8, 10, 13, 15, 18, 19, 22, 23, 25, 27, 28, 30, 33, 34, 36, 37, and 38,
notification is required in accordance with General Condition 13, for any activity proposed in the
designated critical resource waters including wetlands adjacent to those waters. The District
Engineer may authorize activities under these NWPs only after it is determined that the impacts
to the critical resource waters will be no more than minimal.
26. Fills Within 100-Year Floodplains. For purposes of this General Condition, 100-year
floodplains will be identified through the existing Federal Emergency Management Agency's
(FEMA) Flood Insurance Rate Maps or FEMA-approved local floodplain maps.
a. Discharges in Floodplain; Below Headwaters. Discharges of dredged or fill material
into waters of the US within the mapped 100year floodplain, below headwaters (i.e. five cfs),
resulting in permanent above-grade fills, are not authorized by NWPs 39, 40, 42, 43, and 44.
b. Discharges in Floodway; Above Headwaters. Discharges of dredged or fill material
into waters of the US within the FEMA or locally mapped floodway, resulting in permanent
above-grade fills, are not authorized by NWPs 39, 40, 42, and 44.
c. The permittee must comply with any applicable FEMA-approved state or local
floodplain management requirements.
27. Construction Period. For activities that have not been verified by the Corps and the
project was commenced or under contract to commence by the expiration date of the NWP (or
modification or revocation date), the work must be completed within 12-months after such date
13
(including any modification that affects the project).
For activities that have been verified and the project was commenced or under contract to
commence within the verification period, the work must be completed by the date determined by
the Corps.
For projects that have been verified by the Corps, an extension of a Corps approved
completion date maybe requested. This request must be submitted at least one month before the
previously approved completion date.
FURTHER INFORMATION
1. District Engineers have authority to determine if an activity complies with the terms and
conditions of a NWT.
2. NWPs do not obviate the need to obtain other Federal, State, or local permits, approvals, or
authorizations required by law.
3. NWPs do not grant any property rights or exclusive privileges.
4. NWPs do not authorize any injury to the property or rights of others.
5. NWPs do not authorize interference with any existing or proposed Federal project.
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 nonstructural. A BMP policy may
affect the limits on a development.
Compensatory Mitigation: For purposes of Section 10/404, compensatory mitigation is the
restoration, creation, enhancement, or in exceptional circumstances, preservation of wetlands
and/or other aquatic resources for the purpose of compensating for unavoidable adverse impacts,
which remain, after all appropriate and practicable avoidance and minimization has been
achieved.
Creation: The establishment of a wetland or other aquatic resource where one did not formerly
exist.
Enhancement: Activities conducted in existing wetlands or other aquatic resources that increase
one or more aquatic functions.
Ephemeral Stream: An ephemeral stream has flowing water only during and for a short duration
after, precipitation events in a typical year. Ephemeral stream beds are located above the water
14
table year-round. Groundwater is not a source of water for the stream. Runnoff from rainfall is
the primary source of water for stream flow.
Farm Tract: A unit of contiguous land under one ownership that is operated as a farm or part of
a farm.
Flood Fringe: That portion of the 100-year floodplain outside of the floodway (often referred to
as "floodway fringe").
Floodway: The area regulated by Federal, state, or local requirements to provide for the
discharge of the base flood so the cumulative increase in water surface elevation is no more than
a designated amount (not to exceed one foot as set by the National Flood Insurance Program)
within the 100-year floodplain.
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 o waters o 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
a NWT; it is not a net threshold that is calculated after considering compensatory mitigation that
may be used to offset losses of aquatic functions and values. The loss of stream bed includes the
linear feet of stream bed that is filled or excavated. Waters of the US temporarily filled, flooded,
excavated, or drained, but restored to preconstruction contours and elevations after construction,
are not included in the measurement of loss of waters of the US. Impacts to ephemeral waters
are only not included in the acreage or linear foot measurements of loss of waters of the US or
loss of stream bed, for the purpose of determining compliance with the threshold limits of the
NWPs.
Non-tidal Wetland: 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
15
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 the most of the year. Groundwater is the primary
source of water for stream flow. Runoff from rainfall is a supplemental source of water for
stream flow.
Permanent Above-grade Fill: A discharge of dredged or fill material into waters of the US,
including wetlands, that results in a substantial increase in ground elevation and permanently
converts part or all of the waterbody to dry land. Structural fills authorized by NWPs 3, 25, 36,
etc. are not included.
Preservation: The protection of ecologically important wetlands or other aquatic resources in
perpetuity through the implementation of appropriate legal and physical mechanisms.
Preservation may include protection of upland areas adjacent to wetlands as necessary to ensure
protection and/or enhancement of the overall aquatic ecosystem.
Restoration: Re-establishment of wetland and/or other aquatic resource characteristics and
function(s) at a site where they have ceased to exist, or exist in a substantially degraded state.
Riffle and Pool Complex: Riffle and pool complexes are special aquatic sites under the
404(b)(1) Guidelines. Riffle and pool complexes sometimes characterize steep gradient sections
of streams. Such stream sections are recognizable by their hydraulic characteristics. The rapid
movement of water over a course substrate in riffles results in a rough flow, a turbulent surface
and high dissolved oxygen levels in the water. Pools are deeper areas associated with riffles. A
slower stream velocity, a streaming flow, a smooth surface, and a finer substrate characterize
pools.
Single and Complete Project: The term "single and complete project" is defined at 33 CFR
330.2(i) as the total project proposed or accomplished by one owner/developer or partnership or
other association of owners/developers (see definition of independent utility). For linear
projects, the "single and complete project" (i.e., a single and complete crossing) will apply to
each crossing of a separate water of the US (i.e., a single waterbody) at that location. An
exception is for linear projects crossing a single waterbody several times at separate and distant
locations; each crossing is considered a single and complete project. However, individual
channels in a braided stream or river, or individual arms of a large, irregularly shaped wetland or
lake, etc., are not separate waterbodies.
Stormwater Mana ment: Stormwater management is the mechanism for controlling stormwater
runoff for the purposes of reducing downstream erosion, water quality degradation, and flooding
and mitigating the adverse effects of changes in land use on the aquatic environment.
Stormwater Management Facilities: Stormwater management facilities are those facilities,
including but not limited to, stormwater retention and detention ponds and BMPs, which retain
water for a period of time to control runoff and/or improve the quality (i.e., by reducing the
16
concentration of nutrients, sediments, hazardous substances and other pollutants) of stormwater
runoff.
Stream Channelization: The manipulation of a stream channel to increase the rate of water flow
through the stream channel. Manipulation may include deepening, widening, straightening,
armoring, or other activities that change the stream cross-section or other aspects of stream
channel geometry to increase the rate of water flow through the stream channel. A channelized
stream remains a water of the US, despite the modifications to increase the rate of water flow.
Tidal Wetland: A tidal wetland is a wetland (i.e., water of the US) that is inundated by tidal
waters. The definitions of a wetland and tidal waters can be found at 33 CFR 328.3(b) and 33
CFR 328.3(f), respectively. Tidal waters rise and fall in a predictable and measurable rhythm or
cycle due to the gravitational pulls of the moon and sun. Tidal waters end where the rise and fall
of the water surface can no longer be practically measured in a predictable rhythm due to
masking by other waters, wind, or other effects. Tidal wetlands are located channelward of the
high tide line (i.e., spring high tide line) and are inundated by tidal waters two times per lunar
month, during spring high tides.
Vegetated Buffer: A vegetated upland or wetland area next to rivers, streams, lakes, or other
open waters, which separates the open water from developed areas, including agricultural land.
Vegetated buffers provide a variety of aquatic habitat functions and values (e.g., aquatic habitat
for fish and other aquatic organisms, moderation of water temperature changes, and detritus for
aquatic food webs) and help improve or maintain local water quality. A vegetated buffer can be
established by maintaining an existing vegetated area or planting native trees, shrubs, and
herbaceous plants on land next to openwaters. 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 I 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.
Waterbo X: 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.
FINAL REGIONAL CONDITIONS FOR NATIONWIDE PERMITS IN THE
WILMINGTON DISTRICT
1. Waters Excluded from NWP or Subject to Additional Notification Requirements:
17
a. The Corps identified waters that will be excluded from use of this NWP. These waters are:
1. Discharges into Waters of the United States designated by either the North Carolina
Division of Marine Fisheries (NCDMF) or the North Carolina Wildlife Resources Commission
(NCWRC) as anadromous fish spawning area are prohibited during the period between February
15 and June 30, without prior written approval from NCDMF or NCWRC and the Corps.
2. Discharges into Waters of the United States designated as sturgeon spawning areas are
prohibited during the period between February 1 and June 30, without prior written approval
from the National Marine Fisheries Service (NMFS).
b. The Corps identified waters that will be subject to additional notification requirements for
activities authorized by this NWT. These waters are:
1. Prior to the use of any NWP in any of the following North Carolina designated waters,
applicants must comply with Nationwide Permit General Condition 13. In addition, the
applicant must furnish a written statement of compliance with all of the conditions of the
applicable Nationwide Permit. The North Carolina designated waters that require additional
notification requirements are "Outstanding Resource Waters" (ORW) and "High Quality
Waters" (HQW) (as defined by the North Carolina Division of Water Quality), or "Inland
Primary Nursery Areas" (IPNA) (as defined by the North Carolina Wildlife Resources
Commission), or contiguous wetlands (as defined by the North Carolina Division of Water
Quality), or "Primary Nursery Areas" (PNA) (as defined by the North Carolina Division of
Marine Fisheries).
2. Applicants for any NWP in a designated "Area of Environmental Concern" (AEC) in the
twenty (20) coastal counties of Eastern North Carolina covered by the North Carolina Coastal
Area Management Act (CAMA), must also obtain the required CAMA permit. Construction
activities may not commence until a copy of the approved CAMA permit is furnished to the
appropriate Wilmington District Regulatory Field Office (Wilmington Field Office - P.O. Box
1890, Wilmington, NC 28402 or Washington Field Office - P.O. Box 1000, Washington, NC
27889) for authorization to begin work.
3. Prior to the use of any NWP on a Barrier Island of North Carolina, applicants must
comply with Nationwide Permit General Condition 13. In addition, the applicant shall furnish a
written statement of compliance with all of the conditions listed of the applicable Nationwide
Permit.
4. Prior to the use of any NWP in a "Mountain or Piedmont Bog" of North Carolina,
applicants shall comply with Nationwide Permit General Condition 13. In addition, the
applicant shall furnish a written statement of compliance with all of the conditions listed of the
applicable NWP.
18
Note: The following wetland community types identified in the N.C. Natural Heritage Program
document, "Classification of Natural communities of North Carolina (Michael P. Schafale and
Alan S. Weakley, 1990), are subject to this regional condition.
Mountain Boas Piedmont Boas
Swamp Forest-Bog Complex Upland Depression Swamp Forest
Swamp Forest-Bog Complex (Spruce Subtype)
Southern Appalachian Bog (Northern Subtype)
Southern Appalachian Bog (Southern Subtype)
Southern Appalachian Fen
5. Prior to the use of any NWP in Mountain Trout Waters within twenty-five (25)
designated counties of North Carolina, applicants shall comply with Nationwide General
Condition 13. In addition, the applicant shall furnish a written statement of compliance with all
of the conditions listed of the applicable NWP. Notification will include a letter of comments
and recommendations from the North Carolina Wildlife Resources Commission (NCWRC), the
location of work, a delineation of wetlands, a discussion of alternatives to working in the
Mountain Trout Waters, why other alternatives were not selected, and a plan to provide
compensatory mitigation for all unavoidable adverse impacts to the Mountain Trout Waters. To
facilitate coordination with the NCWRC, the proponent may provide a copy of the notification to
the NCWRC concurrent with the notification to the District Engineer. The NCWRC will
respond both to the proponent and directly to the Corps of Engineers.
The twenty-five (25) designated counties are:
Alleghany Ashe Avery Yancey
Buncombe Burke Caldwell Wilkes
Cherokee Clay Graham Swain
Haywood Henderson Jackson Surry
Macon Madison McDowell Stokes
Mitchell Polk Rutherford
Transylvania Watauga
6. Applicants shall notify the NCDENR Shellfish Sanitation Section prior to dredging in or
removing sediment from an area closed to shell fishing where the effluent may be released to an
area open for shell fishing or swimming in order to avoid contamination of the disposal area and
allow a temporary shellfish closure to be made. Any disposal of sand to the beach should occur
between November 1 and April 30 when recreational usage is low. Only clean sand should be
used and no dredged sand from closed shell fishing areas. If beach disposal was to occur at
times other than stated above or if sand from a closed shell fishing area is to be used, a swim
advisory shall be posted and a press release shall be made. NCDENR Shellfish Sanitation
Section must be notified before commencing this activity.
19
2. List of Final Corps Regional Modifications and Conditions for All Nationwide Permits
a. Individual or multiple NWPs may not be used for activities that result in the cumulative
loss or degradation of greater than 300 total linear feet of perennial streambed or intermittent
streambed that exhibits important aquatic function(s).
b. Prior to the use of any NWP (except 13, 27, and 39) for any activity that has more than a
total of 150 total linear feet of perennial streambed impacts or intermittent streambed impacts (if
the intermittent stream has important aquatic function), the applicant must comply with
Nationwide Permit General Condition 13. In addition, the applicant shall furnish a written
statement of compliance with all of the conditions listed of the applicable NWP. Compensatory
mitigation is typically required for any impact that requires such notification. [Note: The Corps
uses the Intermittent Channel Evaluation Form, located with Permit Information on the
Regulatory Program Web Site, to aid in the determination of the intermittent channel stream
status. Also, NWPs 13, 27 and 39 have specific reporting requirements.]
c. For all Nationwide Permits which allow the use of concrete as a building material,
measures will be taken to prevent live or fresh concrete, including bags of uncured concrete,
from coming into contact with waters of the state until the concrete has hardened.
d. For all Nationwide Permits that allow for the use of riprap material for bank
stabilization, filter cloth must be placed underneath the riprap as an additional requirement of its
use in North Carolina waters.
e. For all NWPs that involve the construction of culverts, measures will be included
in the construction that will promote the safe passage of fish and other aquatic organisms.
All culverts in the 20 CAMA coastal counties must be buried to a depth of one foot below the
L below streambed
Stream depth
Bottom
bed of the stream or wetland. For all culvert construction activities, the dimension, pattern, and
profile of the stream, (above and below a pipe or culvert), should not be modified by widening
the stream channel or by reducing the depth of the stream. Culvert inverts will be buried at least
one foot below the bed of the stream for culverts greater than 48 inches in diameter. For culverts
48 inches in diameter or smaller, culverts must be buried below the bed of the stream to a depth
equal to or greater than 20 percent of the diameter of the culvert. Bottomless arch culverts will
satisfy this condition. A waiver from the depth specifications in this Regional Condition may be
requested in writing. The waiver will only be issued if it can be demonstrated that the impacts of
complying with this Regional Condition would result in more adverse impacts to the aquatic
environment.
Roadway
Approach Fill Bankfull
Culvert buried
to appropriate
20
3. Additional Regional Conditions Applicable to this Specific Nationwide Permit.
a. Natural channel design must be applied to the maximum extent practicable for
stream relocations. The N.C. Wildlife Resources Commission and the N.C. Division of Water
Quality provides Guidelines that are available to assist in the planning and design.
b. Bank-full flows (or less) shall be accommodated through maintenance of the
Approach Fill
Roadway
Culvert buried
Bankflffi
- - - • below streambed
to appropriate
Baf&/ Stream depth
Blockage Bottom
existing bank-full channel cross sectional area. Additional culverts at such crossings shall be
allowed only to receive flows exceeding bank-full.
c. Flows exceeding bank-full shall be accommodated by installing culverts at the
floodplain elevation where adjacent floodplain is available.
d. NWT 14 cannot be used for private projects located in tidal waters or tidal wetlands.
e. The activities associated with NWP 14 require a pre-construction notification if they
will result in the loss of greater than 150 total linear feet of perennial streambed or intermittent
stream that exhibits important aquatic function(s).
Approach Fill
Roadway
000
Floodplain
Elevation
NORTH CAROLINA DIVISION OF WATER QUALITY
GENERAL CERTIFICATION CONDITIONS
GC3375
1. Enumerating and Reporting of Impacts:
, a. Streams - Impacts to streams as determined by the Division of Water Quality shall be
measured as length of the centerline of the normal flow channel. Permanent and/or temporary
21
stream impacts shall be enumerated on the entire project for all impacts regardless of which 404
Nationwide Permits are used. Stream relocations and streambed and/or bank hardening are
considered to be permanent stream impacts. Any activity that results in a loss of use of stream
functions including but not limited to filling, relocating, flooding, dredging and complete
shading shall be considered stream impacts. Enumeration of impacts to streams shall include
streams enclosed by bottomless culverts, bottomless arches or other spanning structures when a
404 Permit is used anywhere in a project unless the entire structure (including construction
impacts) spans the entire bed and both banks of the stream, is only used for a road, driveway or
path crossing, and is not mitered to follow the stream pattern. Impacts for dam footprints and
flooding will count toward the threshold for stream impacts, but flooding upstream of the dam
will not (as long as no filling, excavation, relocation or other modification of the existing stream
dimension, pattern or profile occurs) count towards mitigation.
b. Wetlands - Impacts to wetlands as determined by the Division of Water Quality shall be
measured as area. Permanent and/or temporary wetland impacts shall be enumerated on the
entire project for all impacts regardless of which 404 Nationwide Permits are used. Any activity
that results in a loss of use of wetland functions including but not limited to filling, draining, and
flooding shall be considered wetland impacts. Enumeration of impacts to wetlands shall include
activities that change the hydrology of a wetland when a 404 Permit is used anywhere in a
project.
c. Lakes and Ponds - Lake and Pond Impacts Enumeration- Impacts to waters other than
streams and wetlands as determined by the Division of Water Quality shall be measured as area.
Permanent and/or temporary water impacts shall be enumerated on the entire project for all
impacts proposed regardless of which 404 Nationwide Permits are used. Any activity that results
in a loss of use of aquatic functions including but not limited to filling and dredging shall be
considered waters impacts;
2. Proposed fill or substantial modification of wetlands or waters (including streams) under this
General Certification requires application to and prior written concurrence from the Division of
Water Quality;
3. Impacts to any stream length in the Neuse, Tar-Pamlico or Randleman River Basins (or any
other major river basins with Riparian Area Protection Rules [Buffer Rules] in effect at the time
of application) requires written concurrence for this Certification from DWQ in accordance with
15A NCAC 213.0200. Activities listed as "exempt" from these rules do not need to apply for
written concurrence under this Certification. New development activities located in the protected
50-foot wide riparian areas (whether jurisdictional wetlands or not) within the Neuse and Tar-
Pamlico River Basins shall be limited to "uses" identified within and constructed in accordance
with 15A NCAC 2B .0200. All new development shall be located, designed, constructed, and
maintained to have minimal disturbance to protect water quality to the maximum extent
practicable through the use of best management practices;
4. Additional site-specific stormwater management requirements may be added to this
Certification at DWQ's discretion on a case-by-case basis for projects that have or are anticipated
22
to have impervious cover of greater than 30 percent. Site-specific stormwater management shall
be designed to remove 85% TSS according to the latest version of DWQ's Stormwater Best
Management Practices manual at a minimum. Additionally, in watersheds within one mile and
draining to 303(d) listed waters, as well as watersheds that are classified as nutrient sensitive
waters (NSW), water supply waters (WS), trout waters (Tr), high quality waters (HQW), and
outstanding resource waters (ORW), the Division shall require that extended detention wetlands,
bio-retention areas, and ponds followed by forested filter strips (designed according to latest
version of the NC DENR Stormwater Best Management Practices Manual) be constructed as part
of the stormwater management plan when a site-specific stormwater management plan is
required. Alternative designs may be requested by the applicant and will be reviewed on a case-
by-case basis by the Division of Water Quality. Approval of stormwater management plans by
the Division of Water Quality's other existing state stormwater programs including appropriate
local programs are sufficient to satisfy this Condition as long as the stormwater management
plans meet or exceed the design requirements specified in this condition. This condition applies
unless more stringent requirements are in effect from other state water quality programs.
a. Unless specified otherwise in the approval letter, the final, written stormwater
management plan shall be approved in writing by the Division of Water Quality's Wetlands Unit
before the impacts specified in this Certification occur.
b. The facilities must be designed to treat the runoff from the entire project, unless otherwise
explicitly approved by the Division of Water Quality.
c. Also, before any permanent building or other structure is occupied at the subject site, the
facilities (as approved by the Wetlands Unit) shall be constructed and operational, and the
stormwater management plan (as approved by the Wetlands Unit) shall be implemented.
d. The structural stormwater practices as approved by the Wetlands Unit as well as drainage
patterns must be maintained in perpetuity.
e. No changes to the structural stormwater practices shall be made without written
authorization from the Division of Water Quality.
5. Compensatory stream mitigation shall be required at a 1:1 ratio for all perennial and
intermittent stream impacts equal to or exceeding 150 feet and that require application to DWQ
in watersheds classified as ORW, HQW, Tr, WS-I and WS-II;
6. In accordance with North Carolina General Statute Section 143-215.3D(e), any application
for a 401 Water Quality Certification must include the appropriate fee. If a project also requires
a CAMA Permit, one payment to both agencies shall be submitted and will be the higher of the
two fees;
7. In accordance with 15A NCAC 2H.0506 (h) compensatory mitigation may be required for
impacts to 150 linear feet or more of streams and/or one acre or more of wetlands. For linear
public transportation projects, impacts equal to or exceeding 150 feet per stream may require
23
r
mitigation. In addition, buffer mitigation may be required for any project with Buffer Rules in
effect at the time of application for buffer impacts resulting from activities classified as
"allowable with mitigation" within the "Table of Uses" section of the Buffer Rules or require a
variance under the Buffer Rules. A determination of buffer, wetland and stream mitigation
requirements shall be made for any Certification for this Nationwide Permit. The most current
design and monitoring protocols from DWQ shall be followed and written plans submitted for
DWQ approval as required in those protocols. When compensatory mitigation is required for a
project, the mitigation plans must be approved by DWQ in writing before the impacts approved
by the Certification occur, unless otherwise specified in the approval letter. The mitigation plan
must be implemented and/or constructed before any permanent building or structure on site is
occupied. In the case of public road projects, the mitigation plan must be implemented before the
road is opened to the traveling public. Projects may also be implemented once payment is made
to a private mitigation bank or other in-lieu fee program, as specified in the written concurrence
of 401 Certification for a project. Please note that if a stream relocation is conducted as a stream
restoration as defined in The Internal Technical Guide for Stream Work in North Carolina, April
2001, the restored length can be used as compensatory mitigation for the impacts resulting from
the relocation;
8. For any project involving re-alignment of streams, a stream relocation plan must be included
with the 401 application for written DWQ approval. Relocated stream designs should include the
same dimensions, patterns and profiles as the existing channel, to the maximum extent practical.
The new channel should be constructed in the dry and water shall not be turned into the new
channel until the banks are stabilized. Vegetation used for bank stabilization shall be limited to
native woody species, and should include establishment of a 30 foot wide wooded and an
adjacent 20 foot wide vegetated buffer on both sides of the relocated channel to the maximum
extent practical. A transitional phase incorporating coir fiber and seedling establishment is
allowable. Also, riprap may be allowed if it is necessary to maintain the physical integrity of the
stream, but the applicant must provide written justification and any calculations used to
determine the extent of riprap coverage requested. If suitable stream mitigation is not practical
on-site, then stream impact will need to be mitigated elsewhere;
9. Placement of culverts and other structures in waters, streams, and wetlands must be placed
below the elevation of the streambed to allow low flow passage of water and aquatic life unless
it can be shown to DWQ that providing passage would be impractical. Design and placement of
culverts including open bottom or bottomless arch culverts and other structures including
temporary erosion control measures shall not be conducted in a manner that may result in
aggradation, degradation or significant changes in hydrology of wetlands or stream beds or
banks, adjacent to or upstream and down stream of the above structures. The applicant is
required to provide evidence that the equilibrium shall be maintained if requested to do so in
writing by DWQ. Additionally, when roadways, causeways or other fill projects are constructed
across FEMA-designated floodways or wetlands, openings such as culverts or bridges must be
provided to maintain the natural hydrology of the system as well as prevent constriction of the
floodway that may result in aggradation, degradation or significant changes in hydrology of
streams or wetlands;
24
10. That appropriate sediment and erosion control practices which equal or exceed those
outlined in the most recent version of the "North Carolina Sediment and Erosion Control
Planning and Design Manual" or the "North Carolina Surface Mining Manual" whichever is
more appropriate (available from the Division of Land Resources (DLR) in the DENR Regional
or Central Offices) shall be in full compliance with all specifications governing the proper
design, installation and operation and maintenance of such Best Management Practices in order
to assure compliance with the appropriate turbidity water quality standard;
11. All sediment and erosion control measures placed in wetlands and waters shall be removed
and the original grade restored within two months after the Division of Land Resources has
released the project;
12. That additional site-specific conditions may be added to projects proposed under this
Certification in order to ensure compliance with all applicable water quality and effluent
standards;
13. Measures shall be taken to prevent live or fresh concrete from coming into contact with
waters of the state until the concrete has hardened;
14. If an environmental document is required, this Certification is not valid until a Finding of
No Significant Impact (FONSI) or Record of Decision (ROD) is issued by the State
Clearinghouse;
15. If this Certification is used to access building sites, all lots owned by the applicant must be
buildable without additional fill beyond that explicitly allowed under other General
Certifications. For road construction purposes, this Certification shall only be utilized from
natural high ground to natural high ground;
16. When written concurrence is required, the applicant is required to use the most recent
version of the Certification of Completion form to notify DWQ when all work included in the
401 Certification has been completed;
17. Concurrence from DWQ that this Certification applies to an individual project shall expire
three years from the date of the cover letter from DWQ or on the same day as the expiration date
of the corresponding Nationwide Permit 14, whichever is sooner.
NORTH CAROLINA DIVISION OF COASTAL MANAGEMENT
STATE CONSISTENCY
Consistent.
Citations:
2002 Nationwide Permits - Federal Register Notice 15 Jan 2002
2002 Nationwide Permits Corrections - Federal Register Notice 13 Feb 2002
2002 Regional Conditions - Authorized 17 May 2002
25
NATIONWIDE PERMIT 33
DEPARTMENT OF THE ARMY
CORPS OF ENGINEERS
FINAL NOTICE OF ISSUANCE AND MODIFICATION OF NATIONWIDE PERMITS
FEDERAL REGISTER
AUTHORIZED MARCH 18, 2002
Temporary Construction, Access and Dewatering: Temporary structures, work and
discharges, including cofferdams, necessary for construction activities or access fills or
dewatering of construction sites; provided that the associated primary activity is authorized by
the Corps of Engineers or the U.S. Coast Guard (USCG), or for other construction activities not
subject to the Corps or USCG regulations. Appropriate measures must be taken to maintain near
normal downstream flows and to minimize flooding. Fill must be of materials, and placed in a
manner, that will not be eroded by expected high flows. The use of dredged material may be
allowed if it is determined by the District Engineer that it will not cause more than minimal
adverse effects on aquatic resources. Temporary fill must be entirely removed to upland areas, or
dredged material returned to its original location, following completion of the construction
activity, and the affected areas must be restored to the pre-project conditions. Cofferdams cannot
be used to dewater wetlands or other aquatic areas so as to change their use. Structures left in
place after cofferdams are removed require a section 10 permit if located in navigable waters of
the United States. (See 33 CFR part 322). The permittee must notify the District Engineer in
accordance with the "Notification" general condition. The notification must also include a
restoration plan of reasonable measures to avoid and minimize adverse effects to aquatic
resources. The District Engineer will add special conditions, where necessary, to ensure
environmental adverse effects is minimal. Such conditions may include: Limiting the temporary
work to the minimum necessary; requiring seasonal restrictions; modifying the restoration plan;
and requiring alternative construction methods (e.g., construction mats in wetlands where
practicable.). (Sections 10 and 404)
NATIONWIDE PERMIT GENERAL CONDITIONS
The following General Conditions must be followed in order for any authorization by a
NWP to be valid:
1. Navigation. No activity may cause more than a minimal adverse effect on navigation.
2. Proper Maintenance. Any structure or fill authorized shall be properly maintained,
including maintenance to ensure public safety.
3. Soil Erosion and Sediment Controls. Appropriate soil erosion and sediment controls
must be used and maintained in effective operating condition during construction, and all
exposed soil and other fills, as well as any work below the ordinary high water mark or high tide
line, must be permanently stabilized at the earliest practicable date. Permittees are encouraged to
perform work within waters of the United States during periods of low-flow or no-flow.
4. Aquatic Life Movements. No activity may substantially disrupt the necessary life-cycle
movements of those species of aquatic life indigenous to the waterbody, including those species
that normally migrate through the area, unless the activity's primary purpose is to impound
water. Culverts placed in streams must be installed to maintain low flow conditions.
5. Equipment. Heavy equipment working in wetlands must be placed on mats, or other
measures must be taken to minimize soil disturbance.
6. Regional and Case-By-Case Conditions. The activity must comply with any regional
conditions that may have been added by the Division Engineer (see 33 CFR 330.4(e)) 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.
7. Wild and Scenic Rivers. No activity may occur in a component of the National Wild and
Scenic River System; or in a river officially designated by Congress as a'study river" for
possible inclusion in the system, while the river is in an official study status; unless the
appropriate Federal agency, with direct management responsibility for such river, has
determined in writing that the proposed activity will not adversely affect the Wild and Scenic
River designation, or study status. Information on Wild and Scenic Rivers may be obtained from
the appropriate Federal land management agency in the area (e.g., National Park Service, U.S.
Forest Service, Bureau of Land Management, U.S. Fish and Wildlife Service).
8. Tribal Rights. No activity or its operation may impair reserved tribal rights, including,
but not limited to, reserved water rights and treaty fishing and hunting rights.
9. Water Quality.
2
a. In certain states and tribal lands an individual 401 Water Quality Certification must be
obtained or waived (See 33 CFR 330.4(c)).
b. For NWPs 12, 14, 17, 18, 32, 39, 40, 42, 43, and 44, where the state or tribal 401
certification (either generically or individually) does not require or approve water quality
management measures, the permittee must provide water quality management measures that will
ensure that the authorized work does not result in more than minimal degradation of water
quality (or the Corps determines that compliance with state or local standards, where applicable,
will ensure no more than minimal adverse effect on water quality). An important component of
water quality management includes stormwater management that minimizes degradation of the
downstream aquatic system, including water quality (refer to General Condition 21 for
stormwater management requirements). Another important component of water quality
management is the establishment and maintenance of vegetated buffers next to open waters,
including streams (refer to General Condition 19 for vegetated buffer requirements for the
NWPs).
This condition is only applicable to projects that have the potential to affect water quality.
While appropriate measures must be taken, in most cases it is not necessary to conduct detailed
studies to identify such measures or to require monitoring.
10. Coastal Zone Management. In certain states, an individual state coastal zone
management consistency concurrence must be obtained or waived (see 33 CFR 330.4(d)).
11. Endangered Species.
a. No activity is authorized under any NWP which is likely to jeopardize the continued
existence of a threatened or endangered species or a species proposed for such designation, as
identified under the Federal Endangered Species Act (ESA), or which will destroy or adversely
modify the critical habitat of such species. Non-federal permittees shall notify the District
Engineer if any listed species or designated critical habitat might be affected or is in the vicinity
of the project, or is located in the designated critical habitat and shall not begin work on the
activity until notified by the District Engineer that the requirements of the ESA have been
satisfied and that the activity is authorized. For activities that may affect Federally-listed
endangered or threatened species or designated critical habitat, the notification must include the
name(s) of the endangered or threatened species that may be affected by the proposed work or
that utilize the designated critical habitat that may be affected by the proposed work. As a result
of formal or informal consultation with the FWS or NMFS the District Engineer may add
species-specific regional endangered species conditions to the NWPs.
b. Authorization of an activity by a NWP does not authorize the "take" of a threatened
or endangered species as defined under the ESA. In the absence of separate authorization (e.g.,
an ESA Section 10 Permit, a Biological Opinion with "incidental take" provisions, etc.) from the
USFWS or the NMFS, both lethal and non-lethal "takes" of protected species are in violation of
the ESA. Information on the location of threatened and endangered species and their critical
habitat can be obtained directly from the offices of the USFWS and NMFS or their World Wide
3
Web pages at http://www.fws.gov/r9endspp/endspp.html and http://www.nfins.noaa.gov/prot
res/overview/es.html respectively.
12. Historic Properties. No activity that may affect historic properties listed, or eligible for
listing, in the National Register of Historic Places is authorized, until the District Engineer has
complied with the provisions of 33 CFR part 325, Appendix C. The prospective permittee must
notify the District Engineer if the authorized activity may affect any historic properties listed,
determined to be eligible, or which the prospective permittee has reason to believe may be
eligible for listing on the National Register of Historic Places, and shall not begin the activity
until notified by the District Engineer that the requirements of the National Historic Preservation
Act have been satisfied and that the activity is authorized. Information on the location and
existence of historic resources can be obtained from the State Historic Preservation Office and
the National Register of Historic Places (see 33 CFR 330.4(g)). For activities that may affect
historic properties listed in, or eligible for listing in, the National Register of Historic Places, the
notification must state which historic property may be affected by the proposed work or include
a vicinity map indicating the location of the historic property.
13. Notification.
a. Timing; where required by the terms of the NWP, the prospective permittee must
notify the District Engineer with a preconstruction notification (PCN) as early as possible. The
District Engineer must determine if the notification is complete within 30 days of the date of
receipt and can request additional information necessary to make the PCN complete only once.
However, if the prospective permittee does not provide all of the requested information, then the
District Engineer will notify the prospective permittee that the notification is still incomplete and
the PCN review process will not commence until all of the requested information has been
received by the District Engineer. The prospective permittee shall not begin the activity:
1. Until notified in writing by the District Engineer that the activity may proceed
under the NWP with any special conditions imposed by the District or Division Engineer; or
2. If notified in writing by the District or Division Engineer that an Individual
Permit is required; or
3. Unless 45 days have passed from the District Engineer's receipt of the complete
notification and the prospective permittee has not received written notice from the District or
Division Engineer. Subsequently, the permittee's right to proceed under the NWP may be
modified, suspended, or revoked only in accordance with the procedure set forth in 33 CFR
330.5(d)(2).
b. Contents of Notification: The notification must be in writing and include the
following information:
1. Name, address and telephone numbers of the prospective permittee;
4
2. Location of the proposed project;
3. Brief description of the proposed project; the project's purpose; direct and
indirect adverse environmental effects the project would cause; any other NWP(s), Regional
General Permit(s), or Individual Permit(s) used or intended to be used to authorize any part
of the proposed project or any related activity. Sketches should be provided when necessary to
show that the activity complies with the terms of the NWP (Sketches usually clarify the project
and when provided result in a quicker decision.);
4. For NWPs 7, 12, 14, 18, 21, 34, 38, 39, 40, 41, 42, and 43, the PCN
must also include a delineation of affected special aquatic sites, including wetlands, vegetated
shallows (e.g., submerged aquatic vegetation, seagrass beds), and riffle and pool complexes (see
paragraph 13(f));
5. For NWP 7 (Cutfall Structures and Maintenance), the PCN must include
information regarding the original design capacities and configurations of those areas of the
facility where maintenance dredging or excavation is proposed;
6. For NWP 14 (Linear Transportation Projects), the PCN must include a
compensatory mitigation proposal to offset permanent losses of waters of the US and a statement
describing how temporary losses of waters of the US will be minimized to the maximum extent
practicable;
7. For NWT 21 (Surface Coal Mining Activities), the PCN must include an Office
of Surface Mining (OSM) or state-approved mitigation plan, if applicable. To be authorized by
this NWT, the District Engineer must determine that the activity complies with the terms and
conditions of the NWP and that the adverse environmental effects are minimal both individually
and cumulatively and must notify the project sponsor of this determination in writing;
8. For NWP 27 (Stream and Wetland Restoration Activities), the PCN must include
documentation of the prior condition of the site that will be reverted by the permittee;
9. For NWP 29 (Single-Family Housing), the PCN must also include:
i. Any past use of this NWP by the Individual Permittee and/or the permittee's
spouse;
ii. A statement that the single-family housing activity is for a personal residence
of the permittee;
iii. A description of the entire parcel, including its size, and a delineation of
wetlands. For the purpose of this NWP, parcels of land measuring \1/4\-acre or less will not
require a formal on-site delineation. However, the applicant shall provide an indication of where
the wetlands are and the amount of wetlands that exists on the property. For parcels greater than
\1/4\-acre in size, formal wetland delineation must be prepared in accordance with the current
5
method required by the Corps. (See paragraph 13(f));
iv. A written description of all land (including, if available, legal descriptions)
owned by the prospective permittee and/or the prospective permittee's spouse, within a one mile
radius of the parcel, in any form of ownership (including any land owned as a partner,
corporation, joint tenant, co-tenant, or as a tenant-by-the-entirety) and any land on which a
purchase and sale agreement or other contract for sale or purchase has been executed;
10. For NWP 31 (Maintenance of Existing Flood Control Facilities), 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 NWP 33 (Temporary Construction, Access, and Dewatering), the PCN must
also include a restoration plan of reasonable measures to avoid and minimize adverse effects to
aquatic resources;
12. For NWPs 39, 43 and 44, the PCN must also include a written statement to the
District Engineer explaining how avoidance and minimization for losses of waters of the US
were achieved on the project site;
13. For NWP 39 and NWP 42, the PCN must include a compensatory mitigation
proposal to offset losses of waters of the US or justification explaining why compensatory
mitigation should not be required. For discharges that cause the loss of greater than 300 linear
feet of an intermittent stream bed, to be authorized, the 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;
14. For NWP 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 nontidal 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 NWT 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 NWT, determine adverse environmental
effects are minimal both individually and cumulatively, and waive the limitation on stream
impacts in writing before the permittee may proceed;
16. For NWP 44 (Mining Activities), the PCN must include a description of all
waters of the US adversely affected by the project, a description of measures taken to minimize
adverse effects to waters of the US, a description of measures taken to comply with the criteria
of the NWP, and a reclamation plan (for all aggregate mining activities in isolated waters and
non-tidal wetlands adjacent to headwaters and any hard rock/mineral mining activities);
17. For activities that may adversely affect Federally-listed endangered or
threatened species, the PCN must include the name(s) of those endangered or threatened species
that may be affected by the proposed work or utilize the designated critical habitat that may be
affected by the proposed work; and
18. For activities that may affect historic properties listed in, or eligible for listing
in, the National Register of Historic Places, the PCN must state which historic property may be
affected by the proposed work or include a vicinity map indicating the location of the historic
property.
c. Form of Notification: The standard Individual Permit application form (Form ENG
4345) may be used as the notification but must clearly indicate that it is a PCN and must include
all of the information required in (b) (1)-(18) of General Condition 13. A letter containing the
requisite information may also be used.
d. District Engineer's Decision: In reviewing the PCN for the proposed activity, the
District Engineer will determine whether the activity authorized by the NWP will result in more
than minimal individual or cumulative adverse environmental effects or may be contrary to the
public interest. The prospective permittee may submit a proposed mitigation plan with the PCN
to expedite the process. The District Engineer will consider any proposed compensatory
mitigation the applicant has included in the proposal in determining whether the net adverse
environmental effects to the aquatic environment of the proposed work are minimal. If the
District Engineer determines that the activity complies with the terms and conditions of the NWP
and that the adverse effects on the aquatic environment are minimal, after considering mitigation,
the District Engineer will notify the permittee and include any conditions the District Engineer
deems necessary. The District Engineer must approve any compensatory mitigation proposal
before the permittee commences work. If the prospective permittee is required to submit a
compensatory mitigation proposal with the PCN, the proposal may be either conceptual or
detailed. If the prospective permittee elects to submit a compensatory mitigation plan with the
PCN, the District Engineer will expeditiously review the proposed compensatory mitigation
7
plan. The District Engineer must review the plan within 45 days of receiving a complete PCN
and determine whether the conceptual or specific proposed mitigation would ensure no more
than minimal adverse effects on the aquatic environment. If the net adverse effects of the project
on the aquatic environment (after consideration of the compensatory mitigation proposal) are
determined by the District Engineer to be minimal, the District Engineer will provide a timely
written response to the applicant. The response will state that the project can proceed under the
terms and conditions of the NWP.
If the District Engineer determines that the adverse effects of the proposed work are more
than minimal, then the District Engineer will notify the applicant either:
1. That the project does not qualify for authorization under the NWP and instruct
the applicant on the procedures to seek authorization under an Individual Permit;
2. that the project is authorized under the NWP subject to the applicant's submission
of a mitigation proposal that would reduce the adverse effects on the aquatic environment to the
minimal level; or
3. that the project is authorized under the NWP with specific modifications or
conditions. Where the District Engineer determines that mitigation is required to ensure no more
than minimal adverse effects occur to the aquatic environment, the activity will be authorized
within the 45-day PCN period. The authorization will include the necessary conceptual or
specific mitigation or a requirement that the applicant submit a mitigation proposal that would
reduce the adverse effects on the aquatic environment to the minimal level. When conceptual
mitigation is included, or a mitigation plan is required under item (2) above, no work in waters
of the US will occur until the District Engineer has approved a specific mitigation 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
8
Fishery Conservation and Management Act, the District Engineer will provide a response to
NMFS within 30 days of receipt of any Essential Fish Habitat conservation recommendations.
Applicants are encouraged to provide the Corps multiple copies of notifications to expedite
agency notification.
f. Wetland Delineations: Wetland delineations must be prepared in accordance with the
current method required by the Corps (For NWP 29 see paragraph (b)(9)(iii) for parcels less than
(\1/4\-acre in size). The permittee may ask the Corps to delineate the special aquatic site. There
may be some delay if the Corps does the delineation. Furthermore, the 45-day period will not
start until the wetland delineation has been completed and submitted to the Corps, where
appropriate.
14. Compliance Certification. Every permittee who has received NWP verification from the
Corps will submit a signed certification regarding the completed work and any required
mitigation. The certification will be forwarded by the Corps with the authorization letter and will
include:
a. A statement that the authorized work was done in accordance with the Corps
authorization, including any general or specific conditions;
b. A statement that any required mitigation was completed in accordance with the
permit conditions; and
c. The signature of the permittee certifying the completion of the work and mitigation.
15. Use of Multiple Nationwide Permits. The use of more than one NWP for a single and
complete project is prohibited, except when the acreage loss of waters of the US authorized by
the NWPs does not exceed the acreage limit of the NWP with the highest specified acreage limit
(e.g. if a road crossing over tidal waters is constructed under NWP 14, with associated bank
stabilization authorized by NWP 13, the maximum acreage loss of waters of the US for the total
project cannot exceed \ 1/3\-acre) .
16. Water Supply Intakes. No activity, including structures and work in navigable waters of
the US or discharges of dredged or fill material, may occur in the proximity of a public water
supply intake except where the activity is for repair of the public water supply intake structures
or adjacent bank stabilization.
17. Shellfish Beds. No activity, including structures and work in 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
9
from toxic pollutants in toxic amounts (see section 307 of the CWA).
19. Mitigation. The District Engineer will consider the factors discussed below when
determining the acceptability of appropriate and practicable mitigation necessary to offset
adverse effects on the aquatic environment that are more than minimal.
a. The project must be designed and constructed to avoid and minimize adverse effects
to waters of the US to the maximum extent practicable at the project site (i.e., on site).
b. Mitigation in all its forms (avoiding, minimizing, rectifying, reducing or
compensating) will be required to the extent necessary to ensure that the adverse effects to the
aquatic environment are minimal.
c. Compensatory mitigation at a minimum one-for-one ratio will be required for all
wetland impacts requiring a PCN, unless the District Engineer determines in writing that some
other form of mitigation would be more environmentally appropriate and provides a
project-specific waiver of this requirement. Consistent with National policy, the District
Engineer will establish a preference for restoration of wetlands as compensatory mitigation, with
preservation used only in exceptional circumstances.
d. Compensatory mitigation (i.e., replacement or substitution of aquatic resources for
those impacted) will not be used to increase the acreage losses allowed by the acreage limits of
some of the NWPs. For example, \1 /4\-acre of wetlands cannot be created to change a,\3/4\acre
loss of wetlands to a \1/2\-acre loss associated with NWP 39 verification. However, \1/2\-acre of
created wetlands can be used to reduce the impacts of a \1/2\-acre loss of wetlands to the
minimum impact level in order to meet the minimal impact requirement associated with NWPs.
e. To be practicable, the mitigation must be available and capable of being done
considering costs, existing technology, and logistics in light of the overall project purposes.
Examples of mitigation that may be appropriate and practicable include, but are not limited to:
reducing the size of the project; establishing and maintaining wetland or upland vegetated
buffers to protect open waters such as streams; and replacing losses of aquatic resource functions
and values by creating, restoring, enhancing, or preserving similar functions and values,
preferably in the same watershed.
f. Compensatory mitigation plans for projects in or near streams or other open waters
will normally include a requirement for the establishment, maintenance, and legal protection
(e.g., easements, deed restrictions) of vegetated buffers to open waters. In many cases, vegetated
buffers will be the only compensatory mitigation required. Vegetated buffers should consist of
native species. The width of the vegetated buffers required will address documented water
quality or aquatic habitat loss concerns. Normally, the vegetated buffer will be 25 to 50 feet
wide on each side of the stream, but the District Engineers may require slightly wider vegetated
buffers to address documented water quality or habitat loss concerns. Where both wetlands and
open waters exist on the project site, the Corps will determine the appropriate compensatory
mitigation (e.g., stream buffers or wetlands compensation) based on what is best for the aquatic
10
environment or, 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 discharges of dredged or fill material, in spawning areas during spawning seasons must be
avoided to the maximum extent practicable. Activities that result in the physical destruction
(e.g., excavate, fill, or smother downstream by substantial turbidity) of an important spawning
area are not authorized.
21. Management of Water Flows. To the maximum extent practicable, the activity must be
designed to maintain preconstruction downstream flow conditions (e.g., location, capacity, and
flow rates). Furthermore, the activity must not permanently restrict or impede the passage of
normal or expected high flows (unless the primary purpose of the fill is to impound waters) and
the structure or discharge of dredged or fill material must withstand expected high flows. The
activity must, to the maximum extent practicable, provide for retaining excess flows from the
site, provide for maintaining surface flow rates from the site similar to preconstruction
conditions, and provide for not increasing water flows from the project site, relocating water, or
redirecting water flow beyond preconstruction conditions. Stream channelizing will be reduced
to the minimal amount necessary, and the activity must, to the maximum extent practicable,
reduce adverse effects such as flooding or erosion downstream and upstream of the project site,
unless the activity is part of a larger system designed to manage water flows. In most cases, it
will not be a requirement to conduct detailed studies and monitoring of water flow.
This condition is only applicable to projects that have the potential to affect waterflows.
While appropriate measures must be taken, it is not necessary to conduct detailed studies to
identify such measures or require monitoring to ensure their effectiveness. Normally, the Corps
will defer to state and local authorities regarding management of water flow.
22. Adverse Effects From Impoundments. If the activity creates an impoundment of water,
adverse effects to the aquatic system due to the acceleration of the passage of water, and/or the
restricting its flow shall be minimized to the maximum extent practicable. This includes
structures and work in navigable waters of the US, or discharges of dredged or fill material.
23. Waterfowl Breeding Areas. Activities, including structures and work in navigable
11

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.
24. Removal of Temporary Fills. Any temporary fills must be removed in their entirety and
the affected areas returned to their preexisting elevation.
25. Designated Critical Resource Waters. Critical resource waters include,
NOAA-designated marine sanctuaries, National Estuarine Research Reserves, National Wild and
Scenic Rivers, critical habitat for Federally listed threatened and endangered species, coral reefs,
state natural heritage sites, and outstanding national resource waters or other waters officially
designated by a state as having particular environmental or ecological significance and identified
by the District 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
USFWS or the NMFS has concurred in a determination of compliance with this condition.
b. For NWPs 3, 8, 10, 13, 15, 18, 19, 22, 23, 25, 27, 28, 30, 33, 34, 36, 37, and 38,
notification is required in accordance with General Condition 13, for any activity proposed in the
designated critical resource waters including wetlands adjacent to those waters. The District
Engineer may authorize activities under these NWPs only after it is determined that the impacts
to the critical resource waters will be no more than minimal.
26. Fills Within 100-Year Floodplains. For purposes of this General Condition, 100-year
floodplains will be identified through the existing Federal Emergency Management Agency's
(FEMA) Flood Insurance Rate Maps or FEMA-approved local floodplain maps.
a. Discharges in Floodplain; Below Headwaters. Discharges of dredged or fill material
into waters of the US within the mapped 100year floodplain, below headwaters (i.e. five cfs),
resulting in permanent above-grade fills, are not authorized by NWPs 39, 40, 42, 43, and 44.
b. Discharges in Floodway; Above Headwaters. Discharges of dredged or fill material
into waters of the US within the FEMA or locally mapped floodway, resulting in permanent
above-grade fills, are not authorized by NWPs 39, 40, 42, and 44.
c. The permittee must comply with any applicable FEMA-approved state or local
floodplain management requirements.
27. Construction Period. For activities that have not been verified by the Corps and the
12
project was commenced or under contract to commence by the expiration date of the NWP (or
modification or revocation date), the work must be completed within 12-months after such date
(including any modification that affects the project).
For activities that have been verified and the project was commenced or under contract to
commence within the verification period, the work must be completed by the date determined by
the Corps.
For projects that have been verified by the Corps, an extension of a Corps approved
completion date maybe requested. This request must be submitted at least one month before the
previously approved completion date.
FURTHER INFORMATION
1. District Engineers have authority to determine if an activity complies with the terms and
conditions of a 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.
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 nonstructural. A BMP policy may
affect the limits on a development.
Compensatory Mitigation: For purposes of Section 10/404, compensatory mitigation is the
restoration, creation, enhancement, or in exceptional circumstances, preservation of wetlands
and/or other aquatic resources for the purpose of compensating for unavoidable adverse impacts,
which remain, after all appropriate and practicable avoidance and minimization has been
achieved.
Creation: The establishment of a wetland or other aquatic resource where one did not formerly
exist.
Enhancement: Activities conducted in existing wetlands or other aquatic resources that increase
13
one or more aquatic functions.
Ephemeral Stream: An ephemeral stream has flowing water only during and for a short duration
after, precipitation events in a typical year. Ephemeral stream beds are located above the water
table year-round. Groundwater is not a source of water for the stream. Runnoff from rainfall is
the primary source of water for stream flow.
Farm Tract: A unit of contiguous land under one ownership that is operated as a farm or part of
a farm.
Flood Fringe: That portion of the 100-year floodplain outside of the floodway (often referred to
as "floodway fringe").
Floodway: The area regulated by Federal, state, or local requirements to provide for the
discharge of the base flood so the cumulative increase in water surface elevation is no more than
a designated amount (not to exceed one foot as set by the National Flood Insurance Program)
within the 100-year floodplain.
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 o waters o 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
a NWT; it is not a net threshold that is calculated after considering compensatory mitigation that
may be used to offset losses of aquatic functions and values. The loss of stream bed includes the
linear feet of stream bed that is filled or excavated. Waters of the US temporarily filled, flooded,
excavated, or drained, but restored to preconstruction contours and elevations after construction,
are not included in the measurement of loss of waters of the US. Impacts to ephemeral waters
are only not included in the acreage or linear foot measurements of loss of waters of the US or
loss of stream bed, for the purpose of determining compliance with the threshold limits of the
NWPs.
Non-tidal Wetland: An area that, during a year with normal patterns of precipitation has
14
ti
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 the most of the year. Groundwater is the primary
source of water for stream flow. Runoff from rainfall is a supplemental source of water for
stream flow.
Permanent Above-grade Fill: A discharge of dredged or fill material into waters of the US,
including wetlands, that results in a substantial increase in ground elevation and permanently
converts part or all of the waterbody to dry land. Structural fills authorized by NWPs 3, 25, 36,
etc. are not included.
Preservation: The protection of ecologically important wetlands or other aquatic resources in
perpetuity through the implementation of appropriate legal and physical mechanisms.
Preservation may include protection of upland areas adjacent to wetlands as necessary to ensure
protection and/or enhancement of the overall aquatic ecosystem.
Restoration: Re-establishment of wetland and/or other aquatic resource characteristics and
function(s) at a site where they have ceased to exist, or exist in a substantially degraded state.
Riffle and Pool Complex: Riffle and pool complexes are special aquatic sites under the
404(b)(1) Guidelines. Riffle and pool complexes sometimes characterize steep gradient sections
of streams. Such stream sections are recognizable by their hydraulic characteristics. The rapid
movement of water over a course substrate in riffles results in a rough flow, a turbulent surface
and high dissolved oxygen levels in the water. Pools are deeper areas associated with riffles. A
slower stream velocity, a streaming flow, a smooth surface, and a finer substrate characterize
pools.
Single and Complete Proms: The term "single and complete project" is defined at 33 CFR
330.2(i) as the total project proposed or accomplished by one owner/developer or partnership or
other association of owners/developers (see definition of independent utility). For linear
projects, the "single and complete project" (i.e., a single and complete crossing) will apply to
each crossing of a separate water of the US (i.e., a single waterbody) at that location. An
exception is for linear projects crossing a single waterbody several times at separate and distant
locations; each crossing is considered a single and complete project. However, individual
channels in a braided stream or river, or individual arms of a large, irregularly shaped wetland or
lake, etc., are not separate waterbodies.
Stormwater Mana-aement: Stormwater management is the mechanism for controlling stormwater
runoff for the purposes of reducing downstream erosion, water quality degradation, and flooding
and mitigating the adverse effects of changes in land use on the aquatic environment.
15
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 Channelization: The manipulation of a stream channel to increase the rate of water flow
through the stream channel. Manipulation may include deepening, widening, straightening,
armoring, or other activities that change the stream cross-section or other aspects of stream
channel geometry to increase the rate of water flow through the stream channel. A channelized
stream remains a water of the US, despite the modifications to increase the rate of water flow.
Tidal Wetland: A tidal wetland is a wetland (i.e., water of the US) that is inundated by tidal
waters. The definitions of a wetland and tidal waters can be found at 33 CFR 328.3(b) and 33
CFR 328.3(f), respectively. Tidal waters rise and fall in a predictable and measurable rhythm or
cycle due to the gravitational pulls of the moon and sun. Tidal waters end where the rise and fall
of the water surface can no longer be practically measured in a predictable rhythm due to
masking by other waters, wind, or other effects. Tidal wetlands are located channelward of the
high tide line (i.e., spring high tide line) and are inundated by tidal waters two times per lunar
month, during spring high tides.
Vegetated Buffer: A vegetated upland or wetland area next to rivers, streams, lakes, or other
open waters, which separates the open water from developed areas, including agricultural land.
Vegetated buffers provide a variety of aquatic habitat functions and values (e.g., aquatic habitat
for fish and other aquatic organisms, moderation of water temperature changes, and detritus for
aquatic food webs) and help improve or maintain local water quality. A vegetated buffer can be
established by maintaining an existing vegetated area or planting native trees, shrubs, and
herbaceous plants on land next to openwaters. 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 I 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.
Waterbo y: 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.
16
FINAL REGIONAL CONDITIONS FOR NATIONWIDE PERMITS IN THE
WILMINGTON DISTRICT
1. Waters Excluded from NWP or Subject to Additional Notification Requirements:
a. The Corps identified waters that will be excluded from use of this NWP. These waters are:
1. Discharges into Waters of the United States designated by either the North Carolina
Division of Marine Fisheries (NCDMF) or the North Carolina Wildlife Resources Commission
(NCWRC) as anadromous fish spawning area are prohibited during the period between February
15 and June 30, without prior written approval from NCDMF or NCWRC and the Corps.
2. Discharges into Waters of the United States designated as sturgeon spawning areas are
prohibited during the period between February 1 and June 30, without prior written approval
from the National Marine Fisheries Service (NMFS).
b. The Corps identified waters that will be subject to additional notification requirements for
activities authorized by this NWT. These waters are:
1. Prior to the use of any NWP in any of the following North Carolina designated waters,
applicants must comply with Nationwide Permit General Condition 13. In addition, the
applicant must furnish a written statement of compliance with all of the conditions of the
applicable Nationwide Permit. The North Carolina designated waters that require additional
notification requirements are "Outstanding Resource Waters" (ORW) and "High Quality
Waters" (HQW) (as defined by the North Carolina Division of Water Quality), or "Inland
Primary Nursery Areas" (IPNA) (as defined by the North Carolina Wildlife Resources
Commission), or contiguous wetlands (as defined by the North Carolina Division of Water
Quality), or "Primary Nursery Areas" (PNA) (as defined by the North Carolina Division of
Marine Fisheries).
2. Applicants for any NWP in a designated "Area of Environmental Concern" (AEC) in
the twenty (20) coastal counties of Eastern North Carolina covered by the North Carolina
Coastal Area Management Act (CAMA), must also obtain the required CAMA permit.
Construction activities may not commence until a copy of the approved CAMA permit is
furnished to the appropriate Wilmington District Regulatory Field Office (Wilmington Field
Office - P.O. Box 1890, Wilmington, NC 28402 or Washington Field Office - P.O. Box 1000,
Washington, NC 27889) for authorization to begin work.
3. Prior to the use of any NWP on a Barrier Island of North Carolina, applicants must
comply with Nationwide Permit General Condition 13. In addition, the applicant shall furnish a
written statement of compliance with all of the conditions listed of the applicable Nationwide
Permit.
17
4. Prior to the use of any NWT in a "Mountain or Piedmont Bog" of North Carolina,
applicants shall comply with Nationwide Permit General Condition 13. In addition, the
applicant shall furnish a written statement of compliance with all of the conditions listed of the
applicable NWP.
Note: The following wetland community types identified in the N.C. Natural Heritage Program
document, "Classification of Natural communities of North Carolina (Michael P. Schafale and
Alan S. Weakley, 1990), are subject to this regional condition.
Mountain Boas Piedmont Bogs
Swamp Forest-Bog Complex Upland Depression Swamp Forest
Swamp Forest-Bog Complex (Spruce Subtype)
Southern Appalachian Bog (Northern Subtype)
Southern Appalachian Bog (Southern Subtype)
Southern Appalachian Fen
5. Prior to the use of any NWT in Mountain Trout Waters within twenty-five (25)
designated counties of North Carolina, applicants shall comply with Nationwide General
Condition 13. In addition, the applicant shall furnish a written statement of compliance with all
of the conditions listed of the applicable NWP. Notification will include a letter of comments
and recommendations from the North Carolina Wildlife Resources Commission (NCWRC), the
location of work, a delineation of wetlands, a discussion of alternatives to working in the
Mountain Trout Waters, why other alternatives were not selected, and a plan to provide
compensatory mitigation for all unavoidable adverse impacts to the Mountain Trout Waters. To
facilitate coordination with the NCWRC, the proponent may provide a copy of the notification to
the NCWRC concurrent with the notification to the District Engineer. The NCWRC will
respond both to the proponent and directly to the Corps of Engineers.
The twenty-five (25) designated counties are:
Alleghany Ashe Avery Yancey
Buncombe Burke Caldwell Wilkes
Cherokee Clay Graham Swain
Haywood Henderson Jackson Surry
Macon Madison McDowell Stokes
Mitchell Polk Rutherford
Transylvania Watauga
6. Applicants shall notify the NCDENR Shellfish Sanitation Section prior to dredging in
or removing sediment from an area closed to shell fishing where the effluent may be released to
an area open for shell fishing or swimming in order to avoid contamination of the disposal area
and allow a temporary shellfish closure to be made. Any disposal of sand to the beach should
occur between November 1 and April 30 when recreational usage is low. Only clean sand
should be used and no dredged sand from closed shell fishing areas. If beach disposal was to
occur at times other than stated above or if sand from a closed shell fishing area is to be used, a
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swim advisory shall be posted and a press release shall be made. NCDENR Shellfish Sanitation
Section must be notified before commencing this activity.
2. List of Final Corps Regional Modifications and Conditions for All Nationwide Permits
a. Individual or multiple NWPs may not be used for activities that result in the cumulative
loss or degradation of greater than 300 total linear feet of perennial streambed or intermittent
streambed that exhibits important aquatic function(s).
b. Prior to the use of any NWP (except 13, 27, and 39) for any activity that has more than a
total of 150 total linear feet of perennial streambed impacts or intermittent streambed impacts (if
the intermittent stream has important aquatic function), the applicant must comply with
Nationwide Permit General Condition 13. In addition, the applicant shall furnish a written
statement of compliance with all of the conditions listed of the applicable NWT. Compensatory
mitigation is typically required for any impact that requires such notification. [Note: The Corps
uses the Intermittent Channel Evaluation Form, located with Permit Information on the
Regulatory Program Web Site, to aid in the determination of the intermittent channel stream
status. Also, NWPs 13, 27 and 39 have specific reporting requirements.]
c. For all Nationwide Permits which allow the use of concrete as a building material,
measures will be taken to prevent live or fresh concrete, including bags of uncured concrete,
from coming into contact with waters of the state until the concrete has hardened.
d. For all Nationwide Permits that allow for the use of riprap material for bank
stabilization, filter cloth must be placed underneath the riprap as an additional requirement of its
use in North Carolina waters.
e. For all NWPs that involve the construction of culverts, measures will be included in the
construction that will promote the safe passage of fish and other aquatic organisms.
All culverts in the 20 CAMA coastal counties must be buried to a depth of one foot below the
Stream depth
Bottom
bed of the stream or wetland. For all culvert construction activities, the dimension, pattern, and
profile of the stream, (above and below a pipe or culvert), should not be modified by widening
the stream channel or by reducing the depth of the stream. Culvert inverts will be buried at least
one foot below the bed of the stream for culverts greater than 48 inches in diameter. For culverts
48 inches in diameter or smaller, culverts must be buried below the bed of the stream to a depth
equal to or greater than 20 percent of the diameter of the culvert. Bottomless arch culverts will
satisfy this condition. A waiver from the depth specifications in this Regional Condition may be
requested in writing. The waiver will only be issued if it can be demonstrated that the impacts of
complying with this Regional Condition would result in more adverse impacts to the aquatic
Roadway
Approach Fill Bankfull
Culvert buried
below streambed
to appropriate
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A. F,
environment.
3. Additional Regional Conditions Applicable to this Specific Nationwide Permit.
The required restoration plan must include a timetable for restoration activities.
NORTH CAROLINA DIVISION OF WATER QUALITY
GENERAL CERTIFICATION CONDITIONS
GC3366
1. These activities do not require written concurrence from the Division of Water Quality as
long as they comply with all conditions of this General Certification. If any condition in this
Certification cannot be met, application to and written concurrence from DWQ are required.
Also, Condition No. 2 is applicable to all streams in basins with riparian area protection rules;
2. Impacts to any stream length in the Neuse, Tar-Pamlico and Randleman River Basins (or any
other major river basins with Riparian Area Protection Rules [Buffer Rules] in effect at the time
of application) requires written concurrence from DWQ in accordance with 15A NCAC
2B.0200. Activities listed as "exempt" from these rules do not need to apply for written
concurrence under this Certification. New development activities located in the protected 50-foot
wide riparian areas (whether jurisdictional wetlands or not) within the Neuse, Tar-Pamlico,
Randleman and Catawba River Basins shall be limited to "uses" identified within and
constructed in accordance with 15A NCAC 2B .0200. All new development shall be located,
designed, constructed, and maintained to have minimal disturbance to protect water quality to
the maximum extent practicable through the use of best management practices;
3. Appropriate sediment and erosion control practices which equal or exceed those outlined in
the most recent version of the "North Carolina Sediment and Erosion Control Planning and
Design Manual" or the "North Carolina Surface Mining Manual" whichever is more appropriate
(available from the Division of Land Resources (DLR) in the DENR Regional or Central
Offices) shall be in full compliance with all specifications governing the proper design,
installation and operation and maintenance of such Best Management Practices in order to
assure compliance with the appropriate turbidity water quality standard;
4. All sediment and erosion control measures placed in wetlands or waters shall be removed and
the original grade restored within two months after the Division of Land Resources has released
the project;
5. If an environmental document is required, this Certification is not valid until a Finding of No
Significant Impact (FONSI) or Record of Decision (ROD) is issued by the State Clearinghouse;
6. Placement of culverts and other structures in waters, streams, and wetlands must be placed
below the elevation of the streambed to allow low flow passage of water and aquatic life unless
it can be shown to DWQ that providing passage would be impractical. Design and placement of
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culverts including open bottom or bottomless arch culverts and other structures including
temporary erosion control measures shall not be conducted in a manner that may result in
aggradation, degradation or significant changes in hydrology of wetlands or stream beds or
banks, adjacent to or upstream and down stream of the above structures. The applicant is
required to provide evidence that the equilibrium shall be maintained if requested in writing by
DWQ. Additionally, when roadways, causeways or other fill projects are constructed across
FEMA-designated floodways or wetlands, openings such as culverts or bridges must be provided
to maintain the natural hydrology of the system as well as prevent constriction of the floodway
that may result in aggradation, degradation or significant changes in hydrology of streams
or wetlands;
7. Measures shall be taken to prevent live or fresh concrete from coming into contact with
waters of the state until the concrete has hardened;
8. All temporary fill shall be removed to the original grade after construction is complete and
the site shall be stabilized to prevent erosion;
9. Pipes shall be installed under the road or causeway in all streams to carry at least the 25 year
storm event as outlined in the most recent edition of the "North Carolina Sediment and Erosion
Control Planning and Design Manual" or the "North Carolina Surface Mining Manual" so as not
to restrict stream flow during use of this Certification;
10. In accordance with North Carolina General Statute Section 143-215.3D(e), any request for
written concurrence for a 401 Water Quality Certification must include the appropriate fee. If a
project also requires a CAMA Permit, one payment to both agencies shall be submitted and will
be the higher of the two fees;
11. Additional site-specific conditions may be added to projects for which written concurrence
is required or requested under this Certification in order to ensure compliance with all applicable
water quality and effluent standards;
12. Concurrence from DWQ that this Certification applies to an individual project shall expire
three years from the date of the cover letter from DWQ or on the same day as the expiration date
of these corresponding Nationwide and Regional General Permits, whichever is sooner;
13. When written concurrence is required, the applicant is required to use the most recent
version of the Certification of Completion form to notify DWQ when all work included in the
401 Certification has been completed.
NORTH CAROLINA DIVISION OF COASTAL MANAGEMENT
STATE CONSISTENCY
Consistent.
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Citations:
2002 Nationwide Permits - Federal Register Notice 15 Jan 2002
2002 Nationwide Permits Corrections - Federal Register Notice 13 Feb 2002
2002 Regional Conditions - Authorized 17 May 2002
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