20081579 Ver 1_USACE Comments_20090716

DEPARTMENT OF THE ARMY
WILMINGTON DISTRICT, CORPS OF ENGINEERS
P.O. BOX 1890
WILMINGTON. NORTH CAROLINA 28402-1890
REPLY TO
ATTENTION OF. O '
CESAW-RG (1145b)
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8 July 2009
MEMORANDUM FOR Garrison Commander, Attn: Gregory G. Bean, Director of Public
Works, Fort Bragg, North Carolina 28310
SUBJECT: Action ID SAW 2008-00067, Fort Bragg/Ammunition Supply Point/108t'ADA.
1. Reference: Application for Nationwide Permit Verification, 15 June 2009, Gregory G.
Bean, Director of Public Works, Fort Bragg.
2. On 19 June 2009, a Pre-construction Notification (PCN) was received for nationwide
permit verification on the above-referenced project. After review of the submitted PCN, I find
the notification to be complete, and I have evaluated the proposed work for possible
authorization under Nationwide Permit (NWP) # 14.
3. Road Crossing # 1 is located at an unnamed tributary to Bones Creek and Road Crossing
#2 is located within the headwaters wetland adjacent to another unnamed tributary to Bones
Creek at the existing Pope Ammunition Supply Point in Cumberland County, North Carolina.
4. The following is a description of the authorized work and activities:
a. Road Crossing #1 - requires the widening of the existing perimeter road footprint as
shown on the submitted plans. The existing culvert will be extended 57 feet on the west side and 30
feet on the east side of the roadway. A ten foot construction strip will be mechanically cleared at the
base of the fill slope on both sides of the perimeter road. Utility lines will be located under the
constructed road fill. Total impacts to jurisdictional areas resulting from this crossing will be 87
linear feet of warm water stream channel and 0.11 acre of bottomland hardwood wetland impact.
b. Road Crossing 42 - requires the construction of a segmented block retaining wall for
the widening of the existing perimeter road and the mechanical clearing of a ten foot construction
strip at the base of the segmented block retaining wall. Utility lines will be located under the
constructed road fill. Total impacts to jurisdictional areas resulting from this crossing will be 0.01
acre of bottomland hardwood wetland impact.
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CESAW-RG (1145b)
SUBJECT: Action ID SAW 2008-00067, Fort Bragg/Ammunition Supply Point/108t" ADA.
5. Your work, as described above, is hereby authorized by Department of the Army
Nationwide Permit Number 14 (Enclosure 1) provided the completed work is not altered, is
maintained, and additional work has not been started without proper authorization. Any
violation of the Nationwide Permit General Conditions or the following special conditions or
deviation from your submitted plans may subject you to a stop work order, a restoration order
and/or appropriate legal action.
6. This verification will remain valid until the expiration date identified below unless the
nationwide authorization is modified, suspended or revoked. If, prior to the expiration date
identified below, the nationwide permit authorization is reissued and/or modified, this
verification will remain valid until the expiration date identified below, provided it complies with
all requirements of the modified nationwide permit. If the nationwide permit 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 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.
7. The following are the Nationwide Permit Special Conditions:
a. The applicant shall notify the Wilmington Regulatory Office that construction has
commenced on the authorized work.
b. All areas that have been previously disturbed that are outside of the authorized
work shall be restored to the original grade and stabilized with a Fort Bragg DPW approved
ground cover (Straw or Tack). The restored area will be seeded with an approved Fort Bragg
DPW wetland seed mix.
C. Sediment and erosion control measures shall be in place and maintained during
construction in the authorized work areas.
d. All stream work shall be conducted in the dry. Stream flow will be either pumped
around or diverted by use of diversion structures. De-watering of the construction area shall be
accomplished by use of silt bags or settling basins located in upland areas. All connections and
hose lines shall be inspected for proper coupling fit and leaks before the commencement of the
daily work. Used silt bags shall be changed out in accordance with manufacture's specifications
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CESAW-RG (1145b)
SUBJECT: Action ID SAW 2008-00067, Fort Bragg/Ammunition Supply Point/108" ADA.
and not allowed to overcharge and release sediment to the surface waters and/or wetlands. All
temporary structures shall be removed in their entirety at the completion of work. If sandbags
are used, they shall be placed and removed by hand to avoid rupturing the bags during placement
or removal.
e. Compensatory mitigation for the unavoidable impacts to 0.12 acres of Bottomland
hardwood forested riparian wetlands and 87 linear feet of warm water stream channel associated
with the proposed project shall be mitigated by Fort Bragg with payment to the North Carolina
Ecosystem Enhancement Program (NCEEP) in the amount determined by the NCEEP, sufficient
to perform the restoration of 87 linear feet of warm water stream and 0.24 acres of riparian
wetlands in the Cape Fear River Basin, Cataloging Unit 03030004. Construction within
jurisdictional areas on the property shall begin only after the permittee has made full payment to
the NCEEP and provided a copy of the payment documentation to the Corps, and the NCEEP
has provided written confirmation to the Corps that it agrees to accept responsibility for the
mitigation work required, in compliance with the MOU between the North Carolina Department
of Environment and Natural Resources and the United States Army Corps of Engineers,
Wilmington District, dated November 4, 1998.
f. The permittee shall comply with the conditions specified in the water quality
certification issued by the North Carolina Division of Water Quality and additional conditions
indentified in their letter dated 25 June 2009.
g. Upon completion of the authorized work, sign the compliance certification
(Enclosure 2) and return to the Wilmington Regulatory Office.
h. Failure to institute and carry out the details of the special conditions above and all
nationwide permit general and regional conditions will result in a directive to cease all ongoing
and permitted work within waters of the United States, including wetlands, associated with the
permitted project, or such other remedies and/or fines as the U.S. Army Corps of Engineers
District Commander or his authorized representatives may seek.
8. This Department of the Army verification does not relieve you of the responsibility to
obtain any other required Federal, State or local approvals/permits.
9. This verification will remain valid until 8 July 2012.
-3-
CESAW-RG (1145b)
SUBJECT: Action ID SAW 2008-00067, Fort Bragg/Ammunition Supply Point/108`' ADA.
10. If you have any questions regarding this authorization or any of the conditions of the
NWP, please contact me at [phone].
,r
Encls RICHARD K. SPEN R
Military Projects Regulatory Project Manager
CF:
Mr. Ken Averitte
Division of Water Quality
North Carolina Department of Environment, and Natural Resources
225 Green Street, Suite 714
Fayetteville, North Carolina 28301-5043
Mr. Ian McMillan
Division of Water Quality
North Carolina Department of Environment, and Natural Resources
2321 Crabtree Boulevard, Suite 250
Raleigh, North Carolina 27609-2260
Ms. Kelly Williams
North Carolina Ecosystem Enhancement Program
In-Lieu Fee Program Coordinator
1652 Mail Service Center
Raleigh, NC 27699-1652
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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 19, 2007
Linear Transportation Projects. Activities required for the construction, expansion,
modification, or improvement of linear transportation projects (e.g., roads, highways, railways,
trails, airport runways, and taxiways) in waters of the United States. For linear transportation
projects in non-tidal waters, the discharge cannot cause the loss of greater than 1/2-acre of waters
of the United States. For linear transportation projects in tidal waters, the discharge cannot cause
the loss of greater than 1/3-acre of waters of the United States. Any stream channel modification,
including bank stabilization, is limited to the minimum necessary to construct or protect the
linear transportation project; such modifications must be in the immediate vicinity of the project.
This NWP also authorizes temporary structures, fills, and work necessary to construct the
linear transportation project. Appropriate measures must be taken to maintain normal
downstream flows and minimize flooding to the maximum extent practicable, when temporary
structures, work, and discharges, including cofferdams, are necessary for construction activities,
access fills, or dewatering of construction sites. Temporary fills must consist of materials, and be
placed in a manner, that will not be eroded by expected high flows. Temporary fills must be
removed in their entirety and the affected areas returned to pre-construction elevations. The areas
affected by temporary fills must be revegetated, as appropriate.
This NWP 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.
Notification: The permittee must submit a pre-construction notification to the district
engineer prior to commencing the activity if. (1) the loss of waters of the United States exceeds
1/10 acre; or (2) there is a discharge in a special aquatic site, including wetlands. (See general
condition 27.) (Sections 10 and 404)
Note: Some discharges for the construction of farm roads or forest roads, or temporary
roads for moving mining equipment, may qualify for an exemption under Section 404(f) of the
Clean Water Act (see 33 CFR 323.4).
ENCL 1
NATIONWIDE PERMIT CONDITIONS
The-following General Conditions must be followed in order for any authorization by a NWP to
be valid:
1. Navigation. (a) No activity may cause more than a minimal adverse effect on
navigation.
(b) Any safety lights and signals prescribed by the U.S. Coast Guard, through regulations
or otherwise, must be installed and maintained at the permittee's expense on authorized facilities
in navigable waters of the United States.
(c) The permittee understands and agrees that, if future operations by the United States
require the removal, relocation, or other alteration, of the structure or work herein authorized, or
if, in the opinion of the Secretary of the Army or his authorized representative, said structure or
work shall cause unreasonable obstruction to the free navigation of the navigable waters, the
permittee will be required, upon due notice from the Corps of Engineers, to remove, relocate, or
alter the structural work or obstructions caused thereby, without expense to the United States. No
claim shall be made against the United States on account of any such removal or alteration.
2. 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.
3. Spawning Areas. Activities in spawning areas during spawning seasons must be
avoided to the maximum extent practicable. Activities that result in the physical destruction (e.g.,
through excavation, fill, or downstream smothering by substantial turbidity) of an important
spawning area are not authorized.
4. Migratory Bird Breeding Areas. Activities in waters of the United States that serve as
breeding areas for migratory birds must be avoided to the maximum extent practicable.
5. Shellfish Beds. No activity may occur in areas of concentrated shellfish populations,
unless the activity is directly related to a shellfish harvesting activity authorized by NWPs 4 and
48.
6. Suitable Material. No activity may use unsuitable material (e.g., trash, debris, car
bodies, asphalt, etc.). Material used for construction or discharged must be free from toxic
pollutants in toxic amounts (see Section 307 of the Clean Water Act).
7. Water Supply Intakes. No activity may occur in the proximity of a public water supply
intake, except where the activity is for the repair or improvement of public water supply intake
structures or adjacent bank stabilization.
8. Adverse Effects From Impoundments. If the activity creates an impoundment of water,
adverse effects to the aquatic system due to accelerating the passage of water, and/or restricting
its flow must be minimized to the maximum extent practicable.
9. Management of Water Flows. To the maximum extent practicable, the pre-construction
course, condition, capacity, and location of open waters must be maintained for each activity,
including stream channelization and storm water management activities, except as provided
below. The activity must be constructed to withstand expected high flows. The activity must not
restrict or impede the passage of normal or high flows, unless the primary purpose of the activity
is to impound water or manage high flows. The activity may alter the pre-construction course;
condition, capacity, and location of open waters if it benefits the aquatic environment (e.g.,
stream restoration or relocation activities).
10. Fills Within 100-Year Floodplains. The activity must comply with applicable FEMA-
approved state or local floodplain management requirements.
11. Equipment. Heavy equipment working in wetlands or mudflats must be placed on
mats, or other measures must be taken to minimize soil disturbance.
12. 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.
13. Removal of Temporary Fills. Temporary fills must be removed in their entirety and
the affected areas returned to pre-construction elevations. The affected areas must be
revegetated, as appropriate.
14. Proper Maintenance. Any authorized structure or fill shall be properly maintained,
including maintenance to ensure public safety.
15. 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).
16. 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.
17. 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. No activity is authorized
under any NWP which "may affect" a listed species or critical habitat, unless Section 7
consultation addressing the effects of the proposed activity has been completed.
(b) Federal agencies should follow their own procedures for complying with the
requirements of the ESA. Federal permittees must provide the district engineer with the
appropriate documentation to demonstrate compliance with those requirements.
(c) 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 if the project is
located in 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 might affect Federally-listed endangered or threatened species or
designated critical habitat, the pre-construction 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. The district engineer will
determine whether the proposed activity "may affect" or will have "no effect" to listed species
and designated critical habitat and will notify the non-Federal applicant of the Corps'
determination within 45 days of receipt of a complete pre-construction notification. In cases
where the non-Federal applicant has identified listed species or critical habitat that might be
affected or is in the vicinity of the project, and has so notified the Corps, the applicant shall not
begin work until the Corps has provided notification the proposed activities will have "no effect"
on listed species or critical habitat, or until Section 7 consultation has been completed.
(d) 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.
(e) 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
U.S. FWS 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 U.S. FWS and NMFS or their world wide
Web pages at http://www.fws.gov/ and http://www.noaa.gov/fisheries.html respectively.
18. Historic Properties.
(a) In cases where the district engineer determines that the activity may affect properties
listed, or eligible for listing, in the National Register of Historic Places, the activity is not
authorized, until the requirements of Section 106 of the National Historic Preservation Act
(NHPA) have been satisfied.
(b) Federal permittees should follow their own procedures for complying with the
requirements of Section 106 of the National Historic Preservation Act. Federal permittees must
provide the district engineer with the appropriate documentation to demonstrate compliance with
those requirements.
(c) Non-federal permittees must submit a pre-construction notification to the district
engineer if the authorized activity may have the potential to cause effects to any historic
properties listed, determined to be eligible for listing on, or potentially eligible for listing on the
National Register of Historic Places, including previously unidentified properties. For such
activities, the pre-construction notification must state which historic properties may be affected
by the proposed work or include a vicinity map indicating the location of the historic properties
or the potential for the presence of historic properties. Assistance regarding information on the
location of or potential for the presence of historic resources can be sought from the State
Historic Preservation Officer or Tribal Historic Preservation Officer, as appropriate, and the
National Register of Historic Places (see 33 CFR 330.4(8)). The district engineer shall make a
reasonable and good faith effort to carry out appropriate identification efforts, which may include
background research, consultation, oral history interviews, sample field investigation, and field
survey. Based on the information submitted and these efforts, the district engineer shall
determine whether the proposed activity has the potential to cause an effect on the historic
properties. Where the non-Federal applicant has identified historic properties which the activity
may have the potential to cause effects and so notified the Corps, the non-Federal applicant shall
not begin the activity until notified by the district engineer either that the activity has no potential
to cause effects or that consultation under Section 106 of the NHPA has been completed.
(d) The district engineer will notify the prospective permittee within 45 days of receipt
of a complete pre-construction notification whether NHPA Section 106 consultation is required.
Section 106 consultation is not required when the Corps determines that the activity does not
have the potential to cause effects on historic properties (see 36 CFR 800.3(a)). If NHPA section
106 consultation is required and will occur, the district engineer will notify the non-Federal
applicant that he or she cannot begin work until Section 106 consultation is completed.
(e) Prospective permittees should be aware that section 110k of the NHPA (16 U.S.C.
470h-2(k)) prevents the Corps from granting a permit or other assistance to an applicant who,
with intent to avoid the requirements of Section 106 of the NHPA, has intentionally significantly
adversely affected a historic property to which the permit would relate, or having legal power to
prevent it, allowed such significant adverse effect to occur, unless the Corps, after consultation
with the Advisory Council on Historic Preservation (ACHP), determines that circumstances
justify granting such assistance despite the adverse effect created or permitted by the applicant.
If circumstances justify granting the assistance, the Corps is required to notify the ACHP and
provide documentation specifying the circumstances, explaining the degree of damage to the
integrity of any historic properties affected, and proposed mitigation. This documentation must
include any views obtained from the applicant, SHPO/THPO, appropriate Indian tribes if the
undertaking occurs on or affects historic properties on tribal lands or affects properties of interest
to those tribes, and other parties known to have a legitimate interest in the impacts to the
permitted activity on historic properties.
19. Designated Critical Resource Waters. Critical resource waters include, NOAA-
designated marine sanctuaries, National Estuarine Research Reserves, 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) Discharges of dredged or fill material into waters of the United States are not
authorized by NWPs 7, 12, 14, 16, 17, 21, 29, 31, 35, 39, 40, 42, 43, 44, 49, and 50 for any
activity within, or directly affecting, critical resource waters, including wetlands adjacent to such
waters.
(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 27, 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.
20. Mitigation. The district engineer will consider the following factors when
determining appropriate and practicable mitigation necessary to ensure that adverse effects on
the aquatic environment are minimal:
(a) The activity must be designed and constructed to avoid and minimize adverse effects,
both temporary and permanent, to waters of the United States 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 losses that exceed 1/10 acre and require pre-construction notification, 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. For
wetland losses of 1/10 acre or less that require pre-construction notification, the district engineer
may determine on a case-by-case basis that compensatory mitigation is required to ensure that
the activity results in minimal adverse effects on the aquatic environment. Since the likelihood of
success is greater and the impacts to potentially valuable uplands are reduced, wetland
restoration should be the first compensatory mitigation option considered.
(d) For losses of streams or other open waters that require pre-construction notification,
the district engineer may require compensatory mitigation, such as stream restoration, to ensure
that the activity results in minimal adverse effects on the aquatic environment.
(e) Compensatory mitigation will not be used to increase the acreage losses allowed by
the acreage limits of the NWPs. For example, if an NWP has an acreage limit of 1/2 acre, it
cannot be used to authorize any project resulting in the loss of greater than 1/2 acre of waters of
the United States, even if compensatory mitigation is provided that replaces or restores some of
the lost waters. However, compensatory mitigation can and should be used, as necessary, to
ensure that a project already meeting the established acreage limits also satisfies the minimal
impact requirement associated with the NWPs.
(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., conservation easements) of riparian areas next to open waters. In some cases, riparian areas
may be the only compensatory mitigation required. Riparian areas should consist of native
species. The width of the required riparian area will address documented water quality or aquatic
habitat loss concerns. Normally, the riparian area will be 25 to 50 feet wide on each side of the
stream, but the district engineer may require slightly wider riparian areas to address documented
water quality or habitat loss concerns. Where both wetlands and open waters exist on the project
site, the district engineer will determine the appropriate compensatory mitigation (e.g., riparian
areas and/or wetlands compensation) based on what is best for the aquatic environment on a
watershed basis. In cases where riparian areas 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 losses.
(g) Permittees may propose the use of mitigation banks, in-lieu fee arrangements or
separate activity-specific compensatory mitigation. In all cases, the mitigation provisions will
specify the party responsible for accomplishing and/or complying with the mitigation plan.
(h) Where certain functions and services of waters of the United States are permanently
adversely affected, such as the conversion of a forested or scrub-shrub wetland to a herbaceous
wetland in a permanently maintained utility line right-of-way, mitigation may be required to
reduce the adverse effects of the project to the minimal level.
21. Water Quality. Where States and authorized Tribes, or EPA where applicable, have
not previously certified compliance of an NWP with CWA Section 401, individual 401 Water
Quality Certification must be obtained or waived (see 33 CFR 330.4(c)). The district engineer or
State or Tribe may require additional water quality management measures to ensure that the
authorized activity does not result in more than minimal degradation of water quality.
22. Coastal Zone Management. In coastal states where an NWP has not previously
received a state coastal zone management consistency concurrence, an individual state coastal
zone management consistency concurrence must be obtained, or a presumption of concurrence
must occur (see 33 CFR 330.4(d)). The district engineer or a State may require additional
measures to ensure that the authorized activity is consistent with state coastal zone management
requirements.
23. 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, Indian Tribe, or U.S. EPA in its
section 401 Water Quality Certification, or by the state in its Coastal Zone Management Act
consistency determination.
24. 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 United States
authorized by the NWPs does not exceed the acreage limit of the NWP with the highest specified
acreage limit. For example, 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 United States for the total project cannot exceed 1/3-acre.
25. Transfer of Nationwide Permit Verifications. If the permittee sells the property
associated with a nationwide permit verification, the permittee may transfer the nationwide
permit verification to the new owner by submitting a letter to the appropriate Corps district office
to validate the transfer. A copy of the nationwide permit verification must be attached to the
letter, and the letter must contain the following statement and signature:
"When the structures or work authorized by this nationwide permit are still in existence at the
time the property is transferred, the terms and conditions of this nationwide permit, including any
special conditions, will continue to be binding on the new owner(s) of the property. To validate
the transfer of this nationwide permit and the associated liabilities associated with compliance
with its terms and conditions, have the transferee sign and date below."
(Transferee)
(Date)
26. Compliance Certification. Each permittee who received an NWP verification from the
Corps must submit a signed certification regarding the completed work and any required
mitigation. The certification form must be forwarded by the Corps with the NWP verification
letter and will include:
(a) A statement that the authorized work was done in accordance with the NWP
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.
27. Pre-Construction Notification. (a) Timing. Where required by the terms of the NWP,
the prospective permittee must notify the district engineer by submitting a pre-construction
notification (PCN) as early as possible. The district engineer must determine if the PCN is
complete within 30 calendar days of the date of receipt and, as a general rule, will 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 PCN 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 until either:
(1) He or she is 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) Forty-five calendar days have passed from the district engineer's receipt of the
complete PCN and the prospective permittee has not received written notice from the district or
division engineer. However, if the permittee was required to notify the Corps pursuant to general
condition 17 that listed species or critical habitat might affected or in the vicinity of the project,
or to notify the Corps pursuant to general condition 18 that the activity may have the potential to
cause effects to historic properties, the permittee cannot begin the activity until receiving written
notification from the Corps that is "no effect" on listed species or "no potential to cause effects"
on historic properties, or that any consultation required under Section 7 of the Endangered
Species Act (see 33 CFR 330.4(f)) and/or Section 106 of the National Historic Preservation (see
33 CFR 330.4(g)) is completed. Also, work cannot begin under NWPs 21, 49, or 50 until the
permittee has received written approval from the Corps. If the proposed activity requires a
written waiver to exceed specified limits of an NWP, the permittee cannot begin the activity until
the district engineer issues the waiver. If the district or division engineer notifies the permittee in
writing that an individual permit is required within 45 calendar days of receipt of a complete
PCN, the permittee cannot begin the activity until an individual permit has been obtained.
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 Pre-Construction Notification: The PCN must be in writing and include
the following information:
(1) Name, address and telephone numbers of the prospective permittee;
(2) Location of the proposed project;
(3) A 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. The description should be sufficiently detailed to allow
the district engineer to determine that the adverse effects of the project will be minimal and to
determine the need for compensatory mitigation. 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) The PCN must include a delineation of special aquatic sites and other waters of the
United States on the project site. Wetland delineations must be prepared in accordance with the
current method required by the Corps. The permittee may ask the Corps to delineate the special
aquatic sites and other waters of the United States, but there may be a delay if the Corps does the
delineation, especially if the project site is large or contains many waters of the United States.
Furthermore, the 45 day period will not start until the delineation has been submitted to or
completed by the Corps, where appropriate;
(5) If the proposed activity will result in the loss of greater than 1/10 acre of wetlands and
a PCN is required, the prospective permittee must submit a statement describing how the
mitigation requirement will be satisfied. As an alternative, the prospective permittee may submit
a conceptual or detailed mitigation plan.
(6) If any listed species or designated critical habitat might be affected or is in the vicinity
of the project, or if the project is located in designated critical habitat, for non-Federal applicants
the PCN must include the name(s) of those endangered or threatened species that might be
affected by the proposed work or utilize the designated critical habitat that may be affected by
the proposed work. Federal applicants must provide documentation demonstrating compliance
with the Endangered Species Act; and
(7) For an activity that may affect a historic property listed on, determined to be eligible
for listing on, or potentially eligible for listing on, the National Register of Historic Places, for
non-Federal applicants 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. Federal
applicants must provide documentation demonstrating compliance with Section 106 of the
National Historic Preservation Act.
(c) Form of Pre-Construction Notification: The standard individual permit application
form (Form ENG 4345) may be used, but the completed application form must clearly indicate
that it is a PCN and must include all of the information required in paragraphs (b)(1) through (7)
of this general condition. A letter containing the required information may also be used.
(d) Agency Coordination: (1) 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.
(2) For all NWP 48 activities requiring pre-construction notification and for other NWP
activities requiring pre-construction notification to the district engineer that result in the loss of
greater than 1/2-acre of waters of the United States, the district engineer will immediately
provide (e.g., via facsimile transmission, overnight mail, or other expeditious manner) a copy of
the PCN to the appropriate Federal or state offices (U.S. FWS, state natural resource or water
quality agency, EPA, State Historic Preservation Officer (SHPO) or Tribal Historic Preservation
Office (THPO), 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 pre-construction 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 pre-construction notification that the resource
agencies' concerns were considered. For NWP 37, the emergency watershed protection and
rehabilitation activity may proceed immediately in cases where there is an unacceptable hazard
to life or a significant loss of property or economic hardship will occur. The district engineer will
consider any comments received to decide whether the NWP 37 authorization should be
modified, suspended, or revoked in accordance with the procedures at 33 CFR 330.5.
(3) In cases of where the prospective permittee is not a Federal agency, the district
engineer will provide a response to NMFS within 30 calendar days of receipt of any Essential
Fish Habitat conservation recommendations, as required by Section 305(b)(4)(B) of the
Magnuson-Stevens Fishery Conservation and Management Act.
(4) Applicants are encouraged to provide the Corps multiple copies of pre-construction
notifications to expedite agency coordination.
(5) For NWP 48 activities that require reporting, the district engineer will provide a copy
of each report within 10 calendar days of receipt to the appropriate regional office of the NMFS.
(e) 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. If the proposed activity requires a PCN and will result in a loss of greater than
1/10 acre of wetlands, the prospective permittee should submit a mitigation proposal with the
PCN. Applicants may also propose compensatory mitigation for projects with smaller impacts.
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. The compensatory mitigation proposal
may be either conceptual or detailed. 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 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 calendar days of receiving a complete PCN and
determine whether the 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 plan 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 plan that would reduce the adverse effects on the aquatic environment to the
minimal level. When mitigation is required, no work in waters of the United States may occur
until the district engineer has approved a specific mitigation plan.
28. Single and Complete Project. The activity must be a single and complete project. The
same NWP cannot be used more than once for the same single and complete project.
FURTHER INFORMATION
1. District Engineers have authority to determine if an activity complies with the terms
and conditions of an NWP.
2. NWPs do not obviate the need to obtain other federal, state, or local permits,
approvals, or authorizations required by law.
3. NWPs do not grant any property rights or exclusive privileges.
4. NWPs do not authorize any injury to the property or rights of others.
5. NWPs do not authorize interference with any existing or proposed Federal project.
DEFINITIONS
Best mana eg_ment practices (BMPs): Policies, practices, procedures, or structures
implemented to mitigate the adverse environmental effects on surface water quality resulting
from development. BMPs are categorized as structural or non-structural.
Compensatory mitigation: The restoration, establishment (creation), enhancement, or
preservation of aquatic resources for the purpose of compensating for unavoidable adverse
impacts which remain after all appropriate and practicable avoidance and minimization has been
achieved.
Currently serviceable: Useable as is or with some maintenance, but not so degraded as to
essentially require reconstruction.
Discharge: The term "discharge" means any discharge of dredged or fill material.
Enhancement: The manipulation of the physical, chemical, or biological characteristics of
an aquatic resource to heighten, intensify, or improve a specific aquatic resource function(s).
Enhancement results in the gain of selected aquatic resource function(s), but may also lead to a
decline in other aquatic resource function(s). Enhancement does not result in a gain in aquatic
resource area.
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. Runoff from rainfall
is the primary source of water for stream flow.
Establishment (creation): The manipulation of the physical, chemical, or biological
characteristics present to develop an aquatic resource that did not previously exist at an upland
site. Establishment results in a gain in aquatic resource area.
Historic Property: Any prehistoric or historic district, site (including archaeological
site), building, structure, or other object included in, or eligible for inclusion in, the National
Register of Historic Places maintained by the Secretary of the Interior. This term includes
artifacts, records, and remains that are related to and located within such properties. The term
includes properties of traditional religious and cultural importance to an Indian tribe or Native
Hawaiian organization and that meet the National Register criteria (36 CFR part 60).
Independent utility: A test to determine what constitutes a single and complete project in
the Corps regulatory program. A project is considered to have independent utility if it would be
constructed absent the construction of other projects in the project area. Portions of a multi-phase
project that depend upon other phases of the project do not have independent utility. Phases of a
project that would be constructed even if the other phases were not built can be considered as
separate single and complete projects with independent utility.
Intermittent stream: An intermittent stream has flowing water during certain times of the
year, when groundwater provides water for stream flow. During dry periods, intermittent streams
may not have flowing water. Runoff from rainfall is a supplemental source of water for stream
flow.
Loss of waters of the United States: Waters of the United States that are permanently
adversely affected by filling, flooding, excavation, or drainage because of the regulated activity.
Permanent adverse effects include permanent discharges of dredged or fill material 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 United States is a threshold measurement of the
impact to jurisdictional waters for determining whether a project may qualify for an NWP; it is
not a net threshold that is calculated after considering compensatory mitigation that may be used
to offset losses of aquatic functions and services. The loss of stream bed includes the linear feet
of stream bed that is filled or excavated. Waters of the United States temporarily filled, flooded,
excavated, or drained, but restored to pre-construction contours and elevations after construction,
are not included in the measurement of loss of waters of the United States. Impacts resulting
from activities eligible for exemptions under Section 404(f) of the Clean Water Act are not
considered when calculating the loss of waters of the United States.
Non-tidal wetland: A non-tidal wetland is a wetland that is not subject to the ebb and
flow of tidal waters. The definition of a wetland can be found at 33 CFR 328.3(b). Non-tidal
wetlands contiguous to tidal waters are located landward of the high tide line (i.e., spring high
tide line).
Open water: For purposes of the NWPs, an open water is any area that in a year with
normal patterns of precipitation has water flowing or standing above ground to the extent that an
ordinary high water mark can be determined. 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. Examples of "open waters" include rivers, streams, lakes, and ponds.
Ordinary High Water Mark. An ordinary high water mark is a line on the shore
established by the fluctuations of water and indicated by physical characteristics, or by other
appropriate means that consider the characteristics of the surrounding areas (see 33 CFR
328.3(e)).
Perennial stream: A perennial stream has flowing water year-round during a typical year.
The water table is located above the stream bed for most of the year. Groundwater is the primary
source of water for stream flow. Runoff from rainfall is a supplemental source of water for
stream flow.
Practicable: Available and capable of being done after taking into consideration cost,
existing technology, and logistics in light of overall project purposes.
Pre-construction noti rcation: A request submitted by the project proponent to the Corps
for confirmation that a particular activity is authorized by nationwide permit. The request may be
a permit application, letter, or similar document that includes information about the proposed
work and its anticipated environmental effects. Pre-construction notification may be required by
the terms and conditions of a nationwide permit, or by regional conditions. A pre-construction
notification may be voluntarily submitted in cases where pre-construction notification is not
required and the project proponent wants confirmation that the activity is authorized by
nationwide permit.
Preservation: The removal of a threat to, or preventing the decline of, aquatic resources
by an action in or near those aquatic resources. This term includes activities commonly
associated with the protection and maintenance of aquatic resources through the implementation
of appropriate legal and physical mechanisms. Preservation does not result in a gain of aquatic
resource area or functions.
Re-establishment: The manipulation of the physical, chemical, or biological
characteristics of a site with the goal of returning natural/historic functions to a former aquatic
resource. Re-establishment results in rebuilding a former aquatic resource and results in a gain in
aquatic resource area.
Rehabilitation: The manipulation of the physical, chemical, or biological characteristics
of a site with the goal of repairing natural/historic functions to a degraded aquatic resource.
Rehabilitation results in a gain in aquatic resource function, but does not result in a gain in
aquatic resource area.
Restoration: The manipulation of the physical, chemical, or biological characteristics of a
site with the goal of returning natural/historic functions to a former or degraded aquatic resource.
For the purpose of tracking net gains in aquatic resource area, restoration is divided into two
categories: re-establishment and rehabilitation.
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.
Riparian areas: Riparian areas are lands adjacent to streams, lakes, and estuarine-marine
shorelines. Riparian areas are transitional between terrestrial and aquatic ecosystems, through
which surface and subsurface hydrology connects waterbodies with their adjacent uplands.
Riparian areas provide a variety of ecological functions and services and help improve or
maintain local water quality. (See general condition 20.)
Shellfish seeding: The placement of shellfish seed and/or suitable substrate to increase
shellfish production. Shellfish seed consists of immature individual shellfish or individual
shellfish attached to shells or shell fragments (i.e., spat on shell). Suitable substrate may consist
of shellfish shells, shell fragments, or other appropriate materials placed into waters for shellfish
habitat.
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. A single and complete project must have
independent utility (see definition). For linear projects, a "single and complete project" is all
crossings of a single water of the United States (i.e., a single waterbody) at a specific location.
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, and crossings of such features cannot be considered separately.
Stormwater management: Stormwater management is the mechanism for controlling
stormwater runoff for the purposes of reducing downstream erosion, water quality degradation,
and flooding and mitigating the adverse effects of changes in land use on the aquatic
environment.
Stormwater management facilities: Stormwater management facilities are those facilities,
including but not limited to, stormwater retention and detention ponds and best management
practices, which retain water for a period of time to control runoff and/or improve the quality
(i.e., by reducing the concentration of nutrients, sediments, hazardous substances and other
pollutants) of stormwater runoff.
Stream bed: The substrate of the stream channel between the ordinary high water marks.
The substrate may be bedrock or inorganic particles that range in size from clay to boulders.
Wetlands contiguous to the stream bed, but outside of the ordinary high water marks, are not
considered part of the stream bed.
Stream channelization: The manipulation of a stream's course, condition, capacity, or
location that causes more than minimal interruption of normal stream processes. A channelized
stream remains a water of the United States.
Structure: An object that is arranged in a definite pattern of organization. Examples of
structures include, without limitation, any pier, boat dock, boat ramp, wharf, dolphin, weir,
boom, breakwater, bulkhead, revetment, riprap, jetty, artificial island, artificial reef, permanent
mooring structure, power transmission line, permanently moored floating vessel, piling, aid to
navigation, or any other manmade obstacle or obstruction.
Tidal wetland: A tidal wetland is a wetland (i.e., water of the United States) 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 3283(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, which is defined at 33 CFR 328.3(d).
Vegetated shallows: Vegetated shallows are special aquatic sites under the 404(b)(1)
Guidelines. They are areas that are permanently inundated and under normal circumstances have
rooted aquatic vegetation, such as seagrasses in marine and estuarine systems and a variety of
vascular rooted plants in freshwater systems.
Waterbody: For purposes of the NWPs, a waterbody is a jurisdictional water of the
United States that, during a year with normal patterns of precipitation, has water flowing or
standing above ground to the extent that an ordinary high water mark (OHWM) or other
indicators of jurisdiction can be determined, as well as any wetland area (see 33 CFR 328.3(b)).
If a jurisdictional wetland is adjacent--meaning bordering, contiguous, or neighboring--to a
jurisdictional waterbody displaying an OHWM or other indicators of jurisdiction, that waterbody
and its adjacent wetlands are considered together as a single aquatic unit (see 33 CFR
328.4(c)(2)). Examples of "waterbodies" include streams, rivers, lakes, ponds, and wetlands.
REGIONAL CONDITIONS FOR NATIONWIDE PERMITS IN THE WILMINGTON
DISTRICT
1. Excluded Waters
The Corps has identified waters that will be excluded from the use of all NWP's during certain timeframes. These
waters are:
1.1. Anadromous Fish Spawning Areas
Waters of the United States identified by either the North Carolina Division of Marine Fisheries (NCDMF) or the
North Carolina Wildlife Resources Commission (NCWRC) as anadromous fish spawning areas are excluded during
the period between February 15 and June 30, without prior written approval from NCDMF or NCWRC and the
Corps.
1.2. Trout Waters Moratorium
Waters of the United States in the twenty-five designated trout counties of North Carolina are excluded during the
period between October 15 and April 15 without prior written approval from the NCWRC. (see Section I. b. 7. for a
list of the twenty-five trout counties).
1.3. Sturgeon Spawning Areas
Waters of the United States designated as sturgeon spawning areas are excluded during the period between February
1 and June 30, without prior written approval from the National Marine Fisheries Service (NMFS).
2. Waters Requiring Additional Notification
The Corps has identified waters that will be subject to additional notification requirements for activities authorized
by all NWP's. These waters are:
2.1. Western NC Counties that Drain to Designated Critical Habitat
Waters of the U.S. that requires a Pre-Construction Notification pursuant to General Condition 27 (PCN) and
located in the sixteen counties listed below, applicants must provide a copy of the PCN to the US Fish and Wildlife
Service, 160 Zillicoa Street, Asheville, North Carolina 28805. This PCN must be sent concurrently to the US Fish
and Wildlife Service and the Corps Asheville Regulatory Field Office. Please see General Condition 17 for specific
notification requirements related to Federally Endangered Species and the following website for information on the
location of designated critical habitat.
Counties with tributaries that drain to designated critical habitat that require notification to the Asheville US Fish
and Wildlife Service: Avery, Cherokee, Forsyth, Graham, Haywood, Henderson, Jackson, Macon Mecklenburg,
Mitchell, Stokes, Surry, Swain, Transylvania, Union and Yancey.
Website and office addresses for Endangered Species Act Information:
The Wilmington District has developed the following website for applicants which provide guidelines on how to
review linked websites and maps in order to fulfill NWP general condition 17 requirements.
http://www.saw.usace.army.miI/wet]ands/ESA
Applicants who do not have internet access may contact the appropriate US Fish and Wildlife Service offices or the
US Army Corps of Engineers office listed below.
US Fish and Wildlife Service
Asheville Field Office
160 Zillicoa Street
Asheville, NC 28801
Telephone: [phone]
Asheville US Fish and Wildlife Service Office counties: All
counties west of and including Anson, Stanly, Davidson, Forsyth and Stokes Counties
US Fish and Wildlife Service
Raleigh Field Office
Post Office Box 33726
Raleigh, NC 27636-3726
Telephone: [phone]
Raleigh US Fish and Wildlife Service Office counties: all counties east of and including Richmond, Montgomery,
Randolph, Guilford, and Rockingham Counties.
2.2. Special Designation Waters
Prior to the use of any NWP in any of the following North Carolina identified waters and contiguous wetlands,
applicants must comply with Nationwide Permit General Condition 27 (PCN). The North Carolina waters and
contiguous wetlands that require additional notification requirements are:
"Outstanding Resource Waters" (ORW) and "High Quality Waters" (HQW) (as designated by the North Carolina
Environmental Management Commission), or
"Inland Primary Nursery Areas" (IPNA) (as designated by the North Carolina Wildlife Resources Commission), or
"Contiguous Wetlands" (as defined by the North Carolina Environmental Management Commission), or "Primary
Nursery Areas" (PNA) (as designated by the North Carolina Marine Fisheries Commission).
2.3. Coastal Area Management Act (CAMA) Areas of Environmental Concern
Non-Federal applicants for any NWP in a designated "Area of Environmental Concern" (AEC) in the twenty (20)
counties of Eastern North Carolina covered by the North Carolina Coastal Area Management Act (CAMA), must
also obtain the required CAMA permit. Construction activities for non-Federal projects 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).
2. 4. Barrier Islands
Prior to the use of any NWP on a barrier island of North Carolina, applicants must comply with Nationwide Permit
General Condition 27 (PCN).
2.5. Mountain or Piedmont Bogs
Prior to the use of any NWP in a "Mountain or Piedmont Bog" of North Carolina, applicants shall comply with
Nationwide Permit General Condition 27 (PCN).
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 Bogs Piedmont Bogs
Swam Forest-Bo Complex Upland depression Swam Forest
Swamp Forest-Bog Complex (Spruce
Subtype)
Southern Appalachian Bog (Northern
Subtype)
Southern Appalachian Bog (Southern
Subtype)
Southern Appalachian Fen
2.6. Animal Waste Facilities
Prior to use of any NWP for construction of animal waste facilities in waters of the US, including wetlands,
applicants shall comply with Nationwide Permit General Condition 27 (PCN).
2.7. Trout Waters
Prior to any discharge of dredge or fill material into streams or waterbodies within the twenty-five (25) designated
trout counties of North Carolina, the applicant shall comply with Nationwide Permit General Condition 27 (PCN).
The applicant shall also provide a copy of the notification to the appropriate NCWRC office to facilitate the
determination of any potential impacts to designated Trout Waters. Notification to the Corps of Engineers will
include a statement with the name of the NCWRC biologist contacted, the date of the notification, the location of
work, a delineation of wetlands, a discussion of alternatives to working in the mountain trout waters, why
alternatives were not selected, and a plan to provide compensatory mitigation for all unavoidable adverse impacts to
mountain trout waters.
NCWRC and NC Trout Counties
Mr. Ron Linville
Western Piedmont Region Coordinator Alle hany Caldwell Watauga
3855 Idlewild Road Ashe Mitchell Wilkes
Kernersville, NC 27284-9180 Avery Stokes
Telephone: [phone] Burke Surry
Mr. Dave McHenry
Mountain Region Coordinator Buncombe Henderson Polk
20830 Great Smoky Mtn. Expressway Cherokee Jackson Rutherford
Waynesville, NC 28786 Clay Macon Swain
Telephone: [phone] Graham Madison Transylvania
Fax: [phone] Haywood McDowell Yancey
3. List of Corps Regional Conditions for All Nationwide Permits
The following conditions apply to all Nationwide Permits in the Wilmington District:
3.1. Limitation of Loss of Perennial Stream Bed
NWPs may not be used for activities that may result in the loss or degradation of greater than 300 total linear feet of
perennial streams. The NWPs may not be used for activities that may result in the loss or degradation of greater
than 300 total linear feet of ephemeral and intermittent streams that exhibit important aquatic function(s)* Loss of
stream includes the linear feet of stream bed that is filled, excavated, or flooded by the proposed activity. The
District Commander can waive the 300 linear foot limit for ephemeral and intermittent streams on a case-by-case
basis if he determines that the proposed activity will result in minimal individual and cumulative adverse impacts to
the aquatic environment. Waivers for the loss of ephemeral and intermittent streams must be in writing. This
waiver only applies to the 300 linear feet threshold for NWPs. Mitigation may still be required for impacts to
ephemeral and intermittent streams, on a case-by-case basis, depending on the impacts to the aquatic environment of
the proposed project. [*Note: The Corps uses the Stream Quality Assessment Worksheet, located with Permit
Information on the Regulatory Program Web Site, to aid in the determination of aquatic function within the
intermittent stream channel.]
3.2. Mitigation for Loss of Stream Bed Exceeding 150 Feet.
For any NWP that results in a loss of more than 150 linear feet of perennial and/or ephemeral/intermittent stream,
the applicant shall provide a mitigation proposal to compensate for the loss of aquatic function associated with the
proposed activity. For stream losses less than 150 linear feet, that require a PCN, the District Commander may
determine, on a case-by-case basis that compensatory mitigation is required to ensure that the activity results in
minimal adverse effect on the aquatic environment.
3.3. Pre-construction Notification for Loss of Streambed Exceeding 150 Feet.
Prior to use of any NWP for any activity which impacts more than 150 total linear feet of perennial stream or
ephemeral/ intermittent stream, the applicant must comply with Nationwide Permit General Condition 27 (PCN).
This applies to NWPs that do not have specific notification requirements. If a NWP has specific notification
requirements, the requirements of the NWP should be followed.
3.4. Restriction on Use of Live Concrete
For all NWPs 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.
3.5. Requirements for Using Riprap for Bank Stabilization
For all NWPs that allow for the use of riprap material for bank stabilization, the following measures shall be
applied:
3.5.1. Filter cloth must be placed underneath the riprap as an additional requirement of its use in North Carolina
waters.
3.5.2. The placement of riprap shall be limited to the areas depicted on submitted work plan drawings.
3.5.3. The riprap material shall be clean and free from loose dirt or any pollutant except in trace quantities that
would not have an adverse environmental effect.
3.5.4. It shall be of a size sufficient to prevent its movement from the authorized alignment by natural forces under
normal conditions.
3.5.5. The riprap material shall consist of clean rock or masonry material such as, but not limited to, granite, marl,
or broken concrete.
3.5.6. A waiver from the 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
greater adverse impacts to the aquatic environment.
3.6. Safe Passage Requirements for Culvert Placement
For all NWPs that involve the construction/installation of culverts, measures will be included in the
construction/installation that will promote the safe passage of fish and other aquatic organisms. 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 in connection with the construction activity. The width, height, and
gradient of a proposed opening should be such as to pass the average historical low flow and spring flow without
adversely altering flow velocity. Spring flow should be determined from gage data, if available. In the absence of
such data, bankfull flow can be used as a comparable level.
In the twenty (20) counties of North Carolina designated as coastal counties by the Coastal Area Management Act
(CAMA): All pipe and culvert bottoms shall be buried at least one foot below normal bed elevation when they are
placed within the Public Trust Area of Environmental Concern (AEC) and/or the Estuarine Waters AEC as
designated by CAMA, and/or all streams appearing as blue lines on United States Geological Survey (USGS) quad
sheets.
Roadway
Culvert buried
Approach Fill Ban7:fiill below stzeambed
to appropriate
depth (if required) .
Stream
Bottom
In all other counties: Culverts greater than 48 inches in diameter will be buried at least one foot below the bed of the
stream. Culverts 48 inches in diameter or less shall be buried or placed on the stream bed as practicable and
appropriate to maintain aquatic passage, and every effort shall be made to maintain the existing channel slope. The
bottom of the culvert must be placed at a depth below the natural stream bottom to provide for passage during
drought or low flow conditions.
Destabilizing the channel and head cutting upstream should be considered in the placement of the culvert.
A waiver from the depth specifications in this condition may be requested in writing. The waiver will be issued if it
can be demonstrated that the proposal would result in the least impacts to the aquatic environment.
All counties: Culverts placed in wetlands do not have to be buried.
3.7. Notification to NCDENR Shellfish Sanitation Section
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 from the disposal area and cause a temporary shellfish closure to be made. Such notification
shall also be provided to the appropriate Corps of Engineers Regulatory Field Office. Any disposal of sand to the
ocean 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 may be used. If beach disposal were to occur at
times other than stated above or if sand from a closed shell fishing area is to be used, a swimming advisory shall be
posted, and a press release shall be issued.
3.8. Preservation of Submerged Aquatic Vegetation
Adverse impacts to Submerged Aquatic Vegetation (SAV) are not authorized by any NWP within any of the twenty
coastal counties defined by North Carolina's Coastal Area Management Act of 1974 (CAMA).
4. Additional Regional Conditions Applicable to Specific Nationwide Permits
The following regional conditions are required for NWP #7 - Outfall Structures and Maintenance:
4.1. Placement Requirements for Intake Structures
The applicant must employ the best available means when using any associated intake structure, including
determining its site, design, and technology (e.g., screening) in order to minimize entrainment or impingement of
fish and other aquatic life.
4.2. Limitation on Ocean Outfall Structures
This NWP cannot be used to authorize any ocean outfall structures unless the Corps receives written verification that
the proposed project is consistent with the North Carolina Coastal Management Program or has received a CAMA
permit.
NC DIVISION OF WATER OUALITY - GENERAL CERTIFICATION CONDITIONS
For the most recent General Certification conditions, call the NC Division of Water Quality, Wetlands/401
Certification Unit at [phone] or access the following website:
http://h2o.enr.state.nc.us/ncwetlands/certs.litmI
NC DIVISION OF COASTAL MANAGEMENT - STATE CONSISTENCY
In a letter dated May 7, 2007, the North Carolina Division of Coastal Management found this NWP consistent with
the North Carolina Coastal Zone Management Program. Updates on CAMA Consistency for NC can be found on
the NC DCM web site at:
http://dcm2.enr.state.nc.us/Permits/consist.htm
EASTERN BAND OF THE CHEROKEE INDIANS TRIBAL WATER QUALITY
CERTIFICATIONS
In a letter dated May 8, 2007, US EPA, on behalf of the Eastern Band of Cherokee Indians, provided Tribal General
Conditions for Nationwide Permits on Cherokee Indian Reservation. These Tribal General Conditions are located
on the Corps website at:
http://www.saw.usace.army. m i l/W ETLAN DS/N W P2007/EBCI-certs. htm I
Citations:
2007 Nationwide Permits Public Notice for Final Issue Date: March 15, 2007
Correction Notice for Nationwide Permits, Federal Register / Vol. 72, No. 88 / Tuesday, May 8, 2007 / Notices
p.26082
2007 SAW Regional Conditions - Authorized June 1, 2007
This and other information can be found on the Corps web site at:
http://www.saw.usace.armv.miI/WETLANDS/N WP2007/nationwide-permits.htniI
Action ID Number: SAW 2008-00067
County: Cumberland
Permittee: US Army, Fort Bragg, Garrison Commander
Date Verification Issued: 8 July 2009
Project Manager: Richard K. Spencer
Upon completion of the activity authorized by this permit and any mitigation required by
the permit, sign this certification and return it to the following address:
US ARMY CORPS OF ENGINEERS
WILMINGTON DISTRICT
WILMINGTON REGULATORY FIELD OFFICE
69 DARLINGTON AVENUE
WILMINGTON, NORTH CAROLINA 28403-1343
Please note that your permitted activity is subject to a compliance inspection by a U. S.
Army Corps of Engineers representative. If you fail to comply with this permit you are
subject to permit suspension, modification, or revocation.
I hereby certify that the work authorized by the above referenced permit has been
completed in accordance with the terms and condition of the said permit, and required
mitigation was completed in accordance with the permit conditions.
Signature of Permittee
Date
ENCL 2