NWW-2025-00021__BLM__Boat_Ramp_Replacement__Snake_River_-_Non-reporting_Response_EML_0001.pdf

From: Cordtz, Jake W CIV USARMY CENWW (USA) To: Tarter, James A Subject: NWW-2025-00021, BLM, Boat Ramp Replacement, Snake River Date: Wednesday, January 29, 2025 12:42:00 PM Attachments: image001.png image002.png NWP13_Permit Conditions.pdf NWP03_Permit Conditions.pdf

Mr. Tarter, On January 7, 2025, the U.S. Army Corps of Engineers (Corps), Walla Walla District Regulatory Division received your request to review the Cove Recreation Site Boat Ramp Replacement and Shoreline Stabilization.

The proposed work consists of removal of the existing 30’ x 70’ concrete boat ramp, placement of 6 “ diameter crushed aggregate, the construction of a new 30’ x 45’ boat ramp, and the placement of rip rap. This project is necessary to facilitate the repair and replacement of the existing previously authorized boat ramp as well as stabilizing the surrounding bank. Based on the information provided, the proposal appears to qualify for Department of the Army Nationwide Permit 3: Maintenance and the Nationwide Permit 13: Bank Stabilization.

Preliminary review of the project in accordance with Section 404 of the Clean Water Act indicates that the work proposed would result in the discharge of 44 cubic yards of dredged or fill material below the OHWM of potentially jurisdictional waters. Therefore, the activity, as proposed, qualifies the project for the non-reporting tier of activities described in NWP 3 and NWP13. However, if you change or alter the design or scope of the proposed work further review may be required.

The proposed project is located within Section 2, Township 5 South, Range 4 East near latitude 42.937373° N., longitude -115.952038° W., near Bruneau, Owyhee County, Idaho. Please refer to File Number NWW-2025-00021 in all future correspondence with our office regarding this project.

Again, this email is to inform you that your project appears to meet the requirements for NWP 3 and NWP 13 permit eligibility (attached). It is your responsibility to ensure that the work proposed will meet all applicable terms and conditions of this permit (i.e. general, regional, and CWA Section 401 Certification). I have also attached the Water Quality Certification provided by the Idaho Department of Environmental Quality associated with the 2021 Nationwide Permits; these terms and conditions will also need to be abided by.

If you have any questions, or if after reviewing the terms and conditions you believe your proposed project requires specific written authorization from our agency, please feel free to contact me. Please retain this email for your records.

Respectfully, mailto:Jacob.W.Cordtz@usace.army.mil mailto:jtarter@blm.gov

NATIONWIDE PERMIT 13

Bank Stabilization:

Bank stabilization activities necessary for erosion control or prevention, such as vegetative stabilization, bioengineering, sills, rip rap, revetment, gabion baskets, stream barbs, and bulkheads, or combinations of bank stabilization techniques, provided the activity meets all of the following criteria:

(a) No material is placed in excess of the minimum needed for erosion protection;

(b) The activity is no more than 500 feet in length along the bank, unless the district engineer waives this criterion by making a written determination concluding that the discharge of dredged or fill material will result in no more than minimal adverse environmental effects (an exception is for bulkheads – the district engineer cannot issue a waiver for a bulkhead that is greater than 1,000 feet in length along the bank);

(c) The activity will not exceed an average of one cubic yard per running foot, as measured along the length of the treated bank, below the plane of the ordinary high water mark or the high tide line, unless the district engineer waives this criterion by making a written determination concluding that the discharge of dredged or fill material will result in no more than minimal adverse environmental effects;

(d) The activity does not involve discharges of dredged or fill material into special aquatic sites, unless the district engineer waives this criterion by making a written determination concluding that the discharge of dredged or fill material will result in no more than minimal adverse environmental effects;

(e) No material is of a type, or is placed in any location, or in any manner, that will impair surface water flow into or out of any waters of the United States;

(f) No material is placed in a manner that will be eroded by normal or expected high flows (properly anchored native trees and treetops may be used in low energy areas);

(g) Native plants appropriate for current site conditions, including salinity, must be used for bioengineering or vegetative bank stabilization;

(h) The activity is not a stream channelization activity; and

(i) The activity must be properly maintained, which may require repairing it after severe storms or erosion events. This NWP authorizes those maintenance and repair activities if they require authorization.

This NWP also authorizes temporary structures, fills, and work, including the use of temporary mats, necessary to construct the bank stabilization activity. Appropriate measures must be taken to maintain normal downstream flows and minimize flooding to the maximum extent practicable, when temporary structures, work, and discharges of dredged or fill material, 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.

After construction, 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.

Notification: The permittee must submit a pre-construction notification to the district engineer prior to commencing the activity if the bank stabilization activity: (1) involves discharges of dredged or fill material into special aquatic sites; or (2) is in excess of 500 feet in length; or (3) will involve the discharge of dredged or fill material of greater than an average of one cubic yard per running foot as measured along the length of the treated bank, below the plane of the ordinary high-water mark or the high tide line. (See general condition 32.) (Authorities: Sections 10 and 404)

Note: In coastal waters and the Great Lakes, living shorelines may be an appropriate option for bank stabilization and may be authorized by NWP 54.

WATER QUALITY CERTIFICATION, NWP 13:

Agency responsible for administration of water quality, based on project location is listed below. If DENIED, then an Individual Water Quality Certification or Waiver of Certification is required, prior to the commencement of any work activities and/or issuance of a DA verification, authorization and/or permit.

State of Idaho: PARTIALLY DENIED: activities requiring a Pre-Construction Notification (PCN) for NWP 13 are not certified.

Coeur d’Alene Tribal Lands: DENIED

Shoshone-Bannock Tribal Lands: DENIED

U.S. Environmental Protection Agency for all other Tribal Lands: PARTIALLY DENIED: activities are denied when:

• The entire scope of the project is greater than 300 linear feet; or

• The project includes hard armoring approaches; or

• The project is in marine waters and has not completed the assessments set forth in the Marine Shoreline Design Guidelines (for projects proposed on tribal lands or lands of exclusive federal jurisdiction in Washington State) or

• The project involves permanent fill in wetlands that are waters of the U.S.

2021/2022 Nationwide Permits

Regional Conditions Walla Walla District Regulatory Division (State of Idaho)

January 13, 2021

The following Nationwide Permit (NWP) regional conditions are required in the state of Idaho and apply to all 2021/2022 NWPs1. Regional conditions are established by individual Corps Districts to ensure projects result in no more than minimal adverse impacts to the aquatic environment and to address local resources concerns. This document also includes regional additions to the NWP General Conditions, notification procedures pertaining to certain NWP’s, and regional additions to the definitions.

REGIONAL CONDITIONS

A. Watersheds Requiring Pre-Construction Notification, Specific to Anadromous Fish

This Regional Condition applies to all 2021/2022 NWPs.

• Pre-construction notification (PCN) will be required for the above listed nationwide permits in the geographic area as shown on Figure 1: Watersheds Requiring Pre-

Construction Notification, dated January 6, 2021.

B. Vegetation Preservation and Replanting

• To avoid impacts to aquatic habitat and to reduce sedimentation and erosion, permittee shall avoid and minimize the removal of vegetation in waters of the U.S.

to the maximum extent practicable. Areas subject to temporary vegetation removal in waters of the U.S. during construction shall be replanted with appropriate native2 species by the end of the first growing season, unless conditioned otherwise.

Permittee shall avoid introducing or spreading noxious or invasive plants3.

• Replanted vegetation that does not survive the first growing season shall be replanted before the end of the next growing season. Re-plantings shall continue to occur until desired vegetation densities are achieved. Re-vegetation densities should be based on reference conditions.

1 For the list of 2021/2022 Nationwide Permits please see: https://www.nww.usace.army.mil/Business-With-Us/Regulatory- Division/Nationwide-Permits/ 2 Idaho Department of Transportation, Native Plants for Idaho Roadside Restoration and Revegetation Programs:

https://itd.idaho.gov/wp-content/uploads/2016/06/RP171Roadside_Revegetation.pdf 3 U.S. Department of Agriculture, Natural Resource Conservation Service Plant Database of introduced, invasive, and noxious plants for Idaho: https://plants.usda.gov/java/noxious?rptType=State&statefips=16.

https://www.nww.usace.army.mil/Business-With-Us/Regulatory-Division/Nationwide-Permits/ https://www.nww.usace.army.mil/Business-With-Us/Regulatory-Division/Nationwide-Permits/ https://itd.idaho.gov/wp-content/uploads/2016/06/RP171Roadside_Revegetation.pdf https://plants.usda.gov/java/noxious?rptType=State&statefips=16

C. De-watering & Re-watering (as applicable)

• Cofferdams shall be constructed of non-erosive material such as concrete jersey barriers, bulk bags, water bladders, sheet pile, and other similar non-erosive devices.

Cofferdams may not be constructed by using mechanized equipment to push streambed material through flowing water.

• Diversion channels constructed to bypass flow around the construction site shall be lined with plastic, large rock, pipe or otherwise protected from erosion prior to releasing flows into or through the diversion channel.

• Water removed from within the coffered area shall be pumped to a sediment basin or otherwise treated to remove suspended sediments prior to its return to the waterway.

• To prevent unwanted passage of state or federally-protected fish, if present, from the coffered area, Water pipe intakes shall be screened with openings measuring < 3/32 inch to prevent entrainment of fish trapped in the coffered area.

• Should fish be present within the coffered areas contact your local Idaho Department of Fish and Game (IDFG) office prior to performing fish removal or salvage. Fish shall be collected by electrofishing, seining or dip net, or otherwise removed and returned to the waterway upstream of the project area. If electrofishing is used, the National Marine Fisheries Service (NMFS) guidelines for electrofishing should be followed4, unless conditioned otherwise.

• Stream channels that have been dewatered during project construction shall be re-watered slowly to avoid lateral and vertical erosion of the de-watered channel, prevent damage to recently reclaimed work areas and/or damage to permitted work.

• Temporary stockpiles in waters of the United States shall be removed in their entirety so as not to form a berm or levee parallel to the stream that could confine flows or restrict overbank flow to the floodplain.

D. In-Water Structures and Complexes

• PCN notification in accordance with General Condition 32 is required for all non-federal applicants with activities involving gabion baskets placed below the ordinary high water mark.

• Stream meanders, riffle and pool complexes, pool stream structures, rock/log barbs, rock J-hooks, drop structures, sills, engineered log jams or similar structures/features when used shall be site specifically designed by an appropriate professional with experience in hydrology or fluvial geomorphology.

4 Guidelines for Electrofishing Waters Containing Salmonids Listed Under the Endangered Species Act (June 2000) http://www.westcoast fisheries.noaa.gov/publications/reference_documents/esa_refs/section4d/electro2000.pdf http://environment.transportation.org/pdf/programs/ph17%20esa%20final.pdfhttp:/www.westcoast/

E. Temporary Sidecasting

• Materials from exploratory trenching and installation of utility lines may be temporarily side cast into a de-watered coffered area for up to 30 days but not within flowing waters. Material from exploratory trenching and installation of utility lines in wetlands may be temporarily side cast for up to 30 days.

F. Suitability of Sediments for Open Water Disposal and us as Fill

• Sampling for determination of suitability of sediments for open water disposal or for use as fill, must comply with the Sediment Evaluation Framework for the Pacific Northwest (SEF)5.

G. Avoidance and Minimization

• In addition to information required under General Condition 32(b), the applicant shall include information about previous discharges of fill material into waters of the United States within the project area. This is only for non-federal applicants where a PCN is required.

• Discharges of dredged or fill material into waters of the U.S., including wetlands, to meet set back requirements are not authorized under NWP.

H. Erosion Control

• Erosion control blanket or fabric used in or adjacent to waters of the U.S. shall be comprised of biodegradable material, to ensure decomposition and reduced risk to fish, wildlife and public safety, unless conditioned otherwise. If the applicant proposes to use materials other than as indicated above they must demonstrate how the use of such materials will not cause harm to fish, wildlife and public safety.

I. Reporting Requirement for Federal Permittees

• Federal Agencies with projects that require compensatory mitigation for loss of waters of the U.S. and who propose to purchase credits from an approved wetland and/or stream mitigation bank must provide proof of purchase within 30 days of when the credits were purchased. Purchase of credits from an approved mitigation bank must be IAW the Mitigation Banking Instrument of Record.

5 Northwest Regional Sediment Evaluation Team (RSET) 2016. Sediment Evaluation Framework for the Pacific Northwest.

Prepared by the RSET Agencies, July 2016, 160 pp plus appendices. http://nwd.usace.army.mil/Missions/Civil- Works/Navigation/RSET/SEF http://nwd.usace.army.mil/Missions/Civil-Works/Navigation/RSET/SEF http://nwd.usace.army.mil/Missions/Civil-Works/Navigation/RSET/SEF

REGIONAL ADDITIONS TO THE GENERAL CONDITIONS

General Condition 4. Migratory Bird Breeding Areas. Regional Addition: For additional information please contact the US Fish and Wildlife Service at the following field office locations: State Office (Boise) at (208) 387-5243; Northern Idaho Field Office (Spokane) at

(509) 891-6839; or the Eastern Idaho Field Office (Chubbuck) at (208) 237-6975.

https://www.fws.gov/idaho/promo.cfm?id= 177175802

General Condition 6. Suitable Material. Regional Addition: Erosion control blanket or fabric used in or adjacent to waters of the U.S. shall be comprised of biodegradable material, to ensure decomposition and reduced risk to fish, wildlife and public safety, unless conditioned otherwise. If the applicant proposes to use materials other than as indicated above they must demonstrate how the use of such materials will not cause harm to fish, wildlife and public safety.

General Condition 9. Management of Water Flows. Regional Addition: To obtain information on State of Idaho definition of high water refer to Idaho Department of Water Resources (IDAPA 37.03.07. Rule 62.03.04.a). For culverts or bridges located in a community qualifying for the national flood insurance program, the minimum size culvert shall accommodate the 100-year flood design flow frequency (IDAPA 37.03.07. Rule 62.03.04.c).

General Condition 12. Soil Erosion and Sediment Controls. Regional Addition: For additional information refer to the Idaho Department of Environmental Quality Catalog of Stormwater Best Management Practices for Idaho Cities and Counties, available online at: https://www.deq.idaho.gov/public-information/laws-guidance-and-orders/guidance/.

General Condition 18. Endangered Species. Regional Addition: For additional information on ESA listed species in north Idaho please contact the US Fish and Wildlife Service (USFWS) Northern Idaho Field Office (Spokane) at (509) 893-8009, for all other counties in Idaho contact the USFWS State Office (Boise) at (208) 378-5388.

General Condition 20. Historic Properties. Regional Addition: Property is generally considered “historic” if it is at least 50 years old, and is not limited to buildings. For additional information on the potential for cultural resources in proximity to the project site, contact the Idaho State Historic Preservation Office at (208) 334-3847 located in Boise, Idaho.

https://www.fws.gov/idaho/promo.cfm?id=%20177175802 https://www.deq.idaho.gov/public-information/laws-guidance-and-orders/guidance/ https://www.deq.idaho.gov/public-information/laws-guidance-and-orders/guidance/

NOTIFICATION PROCEDURES BY THE CORPS FOR CERTAIN

NATIONWIDE PERMITS

Waivers: For nationwide permits with a waiver provision, District coordination with Idaho Department of Environmental Quality (IDEQ) and Environmental Protection Agency (tribal lands) will be conducted prior to the District Engineer making a waiver determination to ensure the proposed activity is in compliance with Section 401 Water Quality Standards.

Select Waters and Wetlands: The Corps will coordinate with the Idaho Department of Fish and Game (IDFG) for activities in the following waters and wetlands that require notification and are authorized by NWP:

• Waters: Waters: Anadromous waters as shown on Figure 1: Watersheds Requiring Pre-Construction Notification, dated January 6, 2021; Henry’s Fork of the Snake River and its tributaries; South Fork Snake River and its tributaries; Big Lost River and its tributaries upstream of the US 93 crossing; Beaver, Camas, and Medicine Lodge Creeks; Snake River; Blackfoot River above Blackfoot Reservoir; Portneuf River; Bear River; Boise River including South Fork, North Fork and Middle Fork;

Payette River including South Fork, North Fork and Middle Fork; Coeur d’Alene River, including the North Fork; St. Joe River; Priest River; Kootenai River; Big Wood River; and Silver Creek and its tributaries.

• Wetlands identified in Idaho Department of Fish and Game, Wetland Conservation Strategy as Class I, Class II and Reference Habitat Sites6.

• Wetlands identified in the Idaho Wetland Conservation Prioritization Plan-20127.

NWP 27-Aquatic Habitat Restoration, Establishment, and Enhancement Activities

Prior to verification, the Corps will coordinate the project with the Idaho Department of Fish and Game for activities in perennial, fish bearing streams.

6 Idaho Department of Fish and Game (IDFG) Wetland Conservation Strategies have been developed for the Henrys Fork Basin, Northern Idaho, Big Wood River, Southeast Idaho, East-Central Idaho and Spokane River Basin, Middle and Western Snake River and tributaries, and the Upper Snake River–Portneuf Drainage, Weiser River Basin, and West Central Mountain Valleys and adjacent wetlands. Closed basins of Beaver-Camas Creeks, Medicine Lodge Creek, Palouse River and lower Clearwater River sub-basins, Middle Fork and South Fork Clearwater Basins and Camas Prairie in northern Idaho. Refer to the internet site at: http://fishandgame.idaho.gov/content/page/wetlands-publications-idaho-natural-heritage-program#reports 7 Murphy, C., J. Miller and A. Schmidt. 2012. https://parksandrecreation.idaho.gov/sites/default/files/uploads/ documents/SCORTP/Update/Apdx%20.%20Wetlands%Priority%Plan%20(Part %20I)%Compressed1.pdf http://fishandgame.idaho.gov/content/page/wetlands-publications-idaho-natural-heritage-program%23reports http://fishandgame.idaho.gov/content/page/wetlands-publications-idaho-natural-heritage-program%23reports https://parksandrecreation.idaho.gov/sites/default/files/uploads/%20documents/SCORTP/Update/Apdx%20.%20Wetlands%25Priority%25Plan%20(Part%20%20I)%25Compressed1.pdf https://parksandrecreation.idaho.gov/sites/default/files/uploads/%20documents/SCORTP/Update/Apdx%20.%20Wetlands%25Priority%25Plan%20(Part%20%20I)%25Compressed1.pdf

Figure 1

2021 Nationwide Permit General Conditions

Note: To qualify for NWP authorization, the prospective permittee must comply with the following general conditions, as applicable, in addition to any regional or case-specific conditions imposed by the division engineer or district engineer. Prospective permittees should contact the appropriate Corps district office to determine if regional conditions have been imposed on an NWP. Prospective permittees should also contact the appropriate Corps district office to determine the status of Clean Water Act Section 401 water quality certification and/or Coastal Zone Management Act consistency for an NWP. Every person who may wish to obtain permit authorization under one or more NWPs, or who is currently relying on an existing or prior permit authorization under one or more NWPs, has been and is on notice that all of the provisions of 33 CFR 330.1 through 330.6 apply to every NWP authorization. Note especially 33 CFR 330.5 relating to the modification, suspension, or revocation of any NWP authorization.

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 or her 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. All permanent and temporary crossings of waterbodies shall be suitably culverted, bridged, or otherwise designed and constructed to maintain low flows to sustain the movement of those aquatic species. If a bottomless culvert cannot be used, then the crossing should be designed and constructed to minimize adverse effects to aquatic life movements.

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, or is a shellfish seeding or habitat restoration activity authorized by NWP 27.

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, storm water management activities, and temporary and permanent road crossings, 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, or during low tides.

13. Removal of Temporary Structures and Fills Temporary structures must be removed, to the maximum extent practicable, after their use has been discontinued. 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 and compliance with applicable NWP general conditions, as well as any activity-specific conditions added by the district engineer to an NWP authorization.

15. 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.

16. Wild and Scenic Rivers

(a) No NWP 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.

(b) If a proposed NWP activity will 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, the permittee must submit a pre-construction notification (see general condition 32). The district engineer will coordinate the PCN with the Federal agency with direct management responsibility for that river.

Permittees shall not begin the NWP activity until notified by the district engineer that the Federal agency with direct management responsibility for that river has determined in writing that the proposed NWP activity will not adversely affect the Wild and Scenic River designation or study status.

(c) Information on Wild and Scenic Rivers may be obtained from the appropriate Federal land management agency responsible for the designated Wild and Scenic River or study river (e.g., National Park Service, U.S.

Forest Service, Bureau of Land Management, U.S. Fish and Wildlife Service).

Information on these rivers is also available at:

http://www.rivers.gov/.

17. 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.

18. Endangered Species

(a) No activity is authorized under any NWP which is likely to directly or indirectly 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 directly or indirectly destroy or adversely modify designated critical habitat or critical habitat proposed for such designation. No activity is authorized under any NWP which “may affect” a listed species or critical habitat, unless ESA section 7 consultation addressing the consequences of the proposed activity on listed species or critical habitat has been completed. See 50 CFR

402.02 for the definition of “effects of the action” for the purposes of ESA section 7 consultation, as well as 50 CFR 402.17, which provides further explanation under ESA section 7 regarding “activities that are reasonably certain to occur” and “consequences caused by the proposed action.”

(b) Federal agencies should follow their own procedures for complying with the requirements of the ESA (see 33 CFR 330.4(f)(1)). If pre-construction notification is required for the proposed activity, the Federal permittee must provide the district engineer with the appropriate documentation to demonstrate compliance with those requirements.

The district engineer will verify that the appropriate documentation has been submitted. If the appropriate documentation has not been submitted, additional ESA section 7 consultation may be necessary for the activity and the respective federal agency would be responsible for fulfilling its obligation under section 7 of the ESA.

(c) Non-federal permittees must submit a pre-construction notification to the district engineer if any listed species (or species proposed for listing) or designated critical habitat (or critical habitat proposed such designation) might be affected or is in the vicinity of the activity, or if the activity is located in designated critical habitat or critical habitat proposed for such designation, 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 species proposed for listing) or designated critical habitat (or critical habitat proposed for such designation), the pre-construction notification must include the name(s) of the endangered or threatened species (or species proposed for listing) that might be affected by the proposed activity or that utilize the designated critical habitat (or critical habitat proposed for such designation) that might be http://www.rivers.gov/ affected by the proposed activity. 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. For activities where the non-Federal applicant has identified listed species (or species proposed for listing) or designated critical habitat (or critical habitat proposed for such designation) that might be affected or is in the vicinity of the activity, and has so notified the Corps, the applicant shall not begin work until the Corps has provided notification that the proposed activity will have “no effect” on listed species (or species proposed for listing or designated critical habitat (or critical habitat proposed for such designation), or until ESA section 7 consultation or conference has been completed. If the non- Federal applicant has not heard back from the Corps within 45 days, the applicant must still wait for notification from the Corps.

(d) As a result of formal or informal consultation or conference with the FWS or NMFS the district engineer may add species-specific permit conditions to the NWPs.

(e) Authorization of an activity by an 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 FWS or the NMFS, the Endangered Species Act prohibits any person subject to the jurisdiction of the United States to take a listed species, where "take" means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. The word “harm” in the definition of “take'' means an act which actually kills or injures wildlife. Such an act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering.

(f) If the non-federal permittee has a valid ESA section 10(a)(1)(B) incidental take permit with an approved Habitat Conservation Plan for a project or a group of projects that includes the proposed NWP activity, the non-federal applicant should provide a copy of that ESA section 10(a)(1)(B) permit with the PCN required by paragraph (c) of this general condition. The district engineer will coordinate with the agency that issued the ESA section 10(a)(1)(B) permit to determine whether the proposed NWP activity and the associated incidental take were considered in the internal ESA section 7 consultation conducted for the ESA section 10(a)(1)(B) permit. If that coordination results in concurrence from the agency that the proposed NWP activity and the associated incidental take were considered in the internal ESA section 7 consultation for the ESA section 10(a)(1)(B) permit, the district engineer does not need to conduct a separate ESA section 7 consultation for the proposed NWP activity. The district engineer will notify the non-federal applicant within 45 days of receipt of a complete pre-construction notification whether the ESA section 10(a)(1)(B) permit covers the proposed NWP activity or whether additional ESA section 7 consultation is required.

(g) Information on the location of threatened and endangered species and their critical habitat can be obtained directly from the offices of the FWS and NMFS or their world wide web pages at http://www.fws.gov/ or http://www.fws.gov/ipac and http://www.nmfs.noaa.gov/ pr/species/esa/ respectively.

19. Migratory Birds and Bald and Golden Eagles The permittee is responsible for ensuring that an action authorized by an NWP complies with the Migratory Bird Treaty Act and the Bald and Golden Eagle Protection Act. The permittee is responsible for contacting the appropriate local office of the U.S. Fish and Wildlife Service to determine what measures, if any, are necessary or appropriate to reduce adverse effects to migratory birds or eagles, including whether "incidental take" permits are necessary and available under the Migratory Bird Treaty Act or Bald and Golden Eagle Protection Act for a particular activity.

20. Historic Properties

(a) No activity is authorized under any NWP which may have the potential to cause effects to properties listed, or eligible for listing, in the National Register of Historic Places 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 (see 33 CFR 330.4(g)(1)). If pre-construction notification is required for the proposed NWP activity, the Federal permittee must provide the district engineer with the appropriate documentation to demonstrate compliance with those requirements.

The district engineer will verify that the appropriate documentation has been submitted. If the appropriate documentation is not submitted, then additional consultation under section 106 may be necessary. The respective federal agency is responsible for fulfilling its obligation to comply with section 106.

(c) Non-federal permittees must submit a pre-construction notification to the district engineer if the NWP activity might have the potential to cause effects to any historic properties listed on, 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 might have the potential to be affected by the proposed NWP activity 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 properties can be sought from the State Historic Preservation Officer, Tribal Historic Preservation Officer, or designated tribal representative, as appropriate, and the National Register of Historic Places (see 33 CFR 330.4(g)).

When reviewing pre-construction notifications, district engineers will comply with the current procedures for addressing the requirements of section 106 of the National Historic Preservation Act. The district engineer shall make a reasonable and good faith effort to carry out appropriate identification efforts commensurate with potential impacts, which may include background research, consultation, oral history interviews, sample field investigation, and/or field survey. Based on the information submitted in the PCN and these identification efforts, the district engineer shall determine whether the proposed NWP activity has the potential to cause effects on the historic properties.

Section 106 consultation is not required when the district engineer determines that the activity does not have the potential to cause effects on historic properties (see 36 CFR 800.3(a)).

http://www.fws.gov/ http://www.fws.gov/ipac http://www.nmfs.noaa.gov/

Section 106 consultation is required when the district engineer determines that the activity has the potential to cause effects on historic properties. The district engineer will conduct consultation with consulting parties identified under 36 CFR 800.2(c) when he or she makes any of the following effect determinations for the purposes of section 106 of the NHPA: no historic properties affected, no adverse effect, or adverse effect.

(d) Where the non-Federal applicant has identified historic properties on which the proposed NWP activity might have the potential to cause effects and has 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 to historic properties or that NHPA section 106 consultation has been completed. For non-federal permittees, 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. If NHPA section 106 consultation is required, the district engineer will notify the non-Federal applicant that he or she cannot begin the activity until section 106 consultation is completed. If the non-Federal applicant has not heard back from the Corps within 45 days, the applicant must still wait for notification from the Corps.

(e) Prospective permittees should be aware that section 110k of the NHPA (54 U.S.C.

306113) 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, 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.

21. Discovery of Previously Unknown Remains and Artifacts Permittees that discover any previously unknown historic, cultural or archeological remains and artifacts while accomplishing the activity authorized by an NWP, they must immediately notify the district engineer of what they have found, and to the maximum extent practicable, avoid construction activities that may affect the remains and artifacts until the required coordination has been completed. The district engineer will initiate the Federal, Tribal, and state coordination required to determine if the items or remains warrant a recovery effort or if the site is eligible for listing in the National Register of Historic Places.

22. Designated Critical Resource Waters Critical resource waters include, NOAA-managed marine sanctuaries and marine monuments, and National Estuarine Research Reserves. The district engineer may designate, after notice and opportunity for public comment, additional waters officially designated by a state as having particular environmental or ecological significance, such as outstanding national resource waters or state natural heritage sites. The district engineer may also designate additional critical resource waters after notice and opportunity for public 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, 50, 51, 52, 57 and 58 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, 38, and 54, notification is required in accordance with general condition 32, for any activity proposed by permittees in the designated critical resource waters including wetlands adjacent to those waters. The district engineer may authorize activities under these NWPs only after she or he determines that the impacts to the critical resource waters will be no more than minimal.

23. Mitigation The district engineer will consider the following factors when determining appropriate and practicable mitigation necessary to ensure that the individual and cumulative adverse environmental effects are no more than 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 for resource losses) will be required to the extent necessary to ensure that the individual and cumulative adverse more than 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 either some other form of mitigation would be more environmentally appropriate or the adverse environmental effects of the proposed activity are no more than minimal, and provides an activity-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 only minimal adverse environmental effects.

(d) Compensatory mitigation at a minimum one-for-one ratio will be required for all losses of stream bed that exceed 3/100-acre and require pre-construction notification, unless the district engineer determines in writing that either some other form of mitigation would be more environmentally appropriate or the adverse environmental effects of the proposed activity are no more than minimal, and provides an activity-specific waiver of this requirement.

This compensatory mitigation requirement may be satisfied through the restoration or enhancement of riparian areas next to streams in accordance with paragraph (e) of this general condition. For losses of stream bed of 3/100-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 only minimal adverse environmental effects. Compensatory mitigation for losses of streams should be provided, if practicable, through stream rehabilitation, enhancement, or preservation, since streams are difficult-to-replace resources (see 33 CFR 332.3(e)(3)).

(e) Compensatory mitigation plans for NWP activities in or near streams or other open waters will normally include a requirement for the restoration or enhancement, maintenance, and legal protection (e.g., conservation easements) of riparian areas next to open waters. In some cases, the restoration or maintenance/protection of riparian areas may be the only compensatory mitigation required. If restoring riparian areas involves planting vegetation, only native species should be planted. 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. If it is not possible to restore or maintain/protect a riparian area on both sides of a stream, or if the waterbody is a lake or coastal waters, then restoring or maintaining/protecting a riparian area along a single bank or shoreline may be sufficient. 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 minimization or compensatory mitigation, the district engineer may waive or reduce the requirement to provide wetland compensatory mitigation for wetland losses.

(f) Compensatory mitigation projects provided to offset losses of aquatic resources must comply with the applicable provisions of 33 CFR part 332.

(1) The prospective permittee is responsible for proposing an appropriate compensatory mitigation option if compensatory mitigation is necessary to ensure that the activity results in no more than minimal adverse environmental effects. For the NWPs, the preferred mechanism for providing compensatory mitigation is mitigation bank credits or in-lieu fee program credits (see 33 CFR 332.3(b)(2) and (3)).

However, if an appropriate number and type of mitigation bank or in-lieu credits are not available at the time the PCN is submitted to the district engineer, the district engineer may approve the use of permittee-responsible mitigation.

(2) The amount of compensatory mitigation required by the district engineer must be sufficient to ensure that the authorized activity results in no more than minimal individual and cumulative adverse environmental effects (see 33 CFR 330.1(e)(3)). (See also 33 CFR 332.3(f).)

(3) Since the likelihood of success is greater and the impacts to potentially valuable uplands are reduced, aquatic resource restoration should be the first compensatory mitigation option considered for permittee-responsible mitigation.

(4) If permittee-responsible mitigation is the proposed option, the prospective permittee is responsible for submitting a mitigation plan.

A conceptual or detailed mitigation plan may be used by the district engineer to make the decision on the NWP verification request, but a final mitigation plan that addresses the applicable requirements of 33 CFR 332.4(c)(2) through (14) must be approved by the district engineer before the permittee begins work in waters of the United States, unless the district engineer determines that prior approval of the final mitigation plan is not practicable or not necessary to ensure timely completion of the…