J_6h__USACE_Permit_0008.pdf

DEPARTMENT OF THE ARMY

CORPS OF ENGINEERS, SEATTLE DISTRICT

P.O. BOX 3755

SEATTLE, WASHINGTON 98124-3755

Regulatory Branch June 9, 2021

Ms. Elizabeth Heether

Bureau of Reclamation

Columbia-Cascades Area Office

1917 Marsh Road

Yakima, Washington 98901

Reference: NWS-2020-279

Leavenworth National Fish

Hatchery SWISP Project

Dear Ms. Heether:

We have reviewed your application to install a low-flow boulder weir roughened channel, replace current screening, and temporarily install coffer dams, as described in the submitted

JARPA in order to improve current screening for listed fish and to comply with regulatory requirements to provide full passage for ESA listed fish in Icicle Creek near Leavenworth, Chelan County, Washington. Based on the information you provided to us, Nationwide Permit

(NWP) 27, Aquatic Habitat Restoration, Enhancement, and Establishment Activities, and

Nationwide Permit (NWP) 33, Temporary Construction, Access, and Dewatering (Federal

Register January 6, 2017, Vol. 82, No. 4, authorizes your proposal as depicted on the enclosed drawings dated July 10, 2020.

In order for this authorization to be valid, you must ensure the work is performed in accordance with the enclosed NWP 27 & 33, Terms and Conditions and the following special conditions:

a. In order to meet the requirements of the Endangered Species Act (ESA) and Magnuson-

Stevens Fishery Conservation and Management Act (MSA) programmatic consultation

Fish Passage and Restoration Actions in Washington State (FPRP III) (National Marine

Fisheries Service (NMFS) Reference Number WCRO-2014-00004), you must implement and abide by the ESA requirements and/or agreements set forth in the Biological Opinion

(BO) dated June 21, 2017, and the Project Information Form in the enclosed document

Appendix A: FPRP III Guidelines and Implementation Forms (NMFS Reference Number

WCRO-2014-00004-2465) The BO is available on the U.S. Army Corps of Engineers

(Corps) website (Permit Guidebook, Endangered Species, Programmatic Consultations, -2-

Fish Passage and Restoration Programmatic Consultations). Within 45 days of completing the permitted work in waters of the U.S., you must provide the Corps the information requested in the FPRP Action Completion Reporting Form in the enclosed document Appendix A: FPRP III Guidelines and Implementation Forms. If fish salvage occurs as part of your project, you must also provide the Corps the information requested in the FPRP Fish Salvage Reporting Form in the enclosed document Appendix A: FPRP

III Guidelines and Implementation Forms, within 45 days of completing the permitted work in waters of the U.S. All information must prominently display the reference number NWS-2020-279. Failure to comply with these requirements constitutes non-compliance with the ESA and your Corps permit. The NMFS is the appropriate authority to determine compliance with the terms and conditions of their BO and with the ESA. If you cannot comply with the terms and conditions of this programmatic consultation, you must, prior to commencing construction, contact the Corps, Seattle District, Regulatory

Branch for an individual consultation in accordance with the requirements of the ESA and/or the MSA.

b. This U.S. Army Corps of Engineers (Corps) permit does not authorize you to take a threatened or endangered species, in particular Bull Trout. In order to legally take a listed species, you must have a separate authorization under the Endangered

Species Act (ESA; e.g., an ESA Section 10 permit, or ESA Section 7 consultation

Biological Opinion (BO) with non-discretionary “incidental take” provisions with which you must comply). The enclosed BO(s) prepared by the U.S. Fish and

Wildlife Service (USFWS) dated March 4, 2021, contains mandatory terms and conditions to implement the reasonable and prudent measures that are associated with the specified “incidental take” in the BO USFWS (Reference Number

01EWFW00-2021-F-0063). Your authorization under this Corps permit is conditional upon your compliance with all of the mandatory terms and conditions associated with incidental take of the enclosed BO. These terms and conditions are incorporated by reference in this permit. Failure to comply with the terms and conditions associated with incidental take of the BO, where a take of the listed species occurs, would constitute an unauthorized take, and it would also constitute non-compliance with your Corps permit. The USFWS/NMFS is the appropriate authority to determine compliance with the terms and conditions of its BO and with the ESA.

c. You shall implement and abide by the developed Inadvertent Discovery Plan.

d. You shall implement and abide by the submitted planting plan, titled, LFNH

Planting Plan. To ensure the project results in a net increase in aquatic resource functions and services, an as-built report shall be submitted within six months of project completion. This report should state if any adaptive management is

-3-required to ensure a net increase in aquatic resource functions; The as-built report must prominently display the reference number NWS-2020-279.

We have reviewed your project pursuant to the requirements of the Endangered Species Act, the Magnuson-Stevens Fishery Conservation and Management Act and the National Historic

Preservation Act. We have determined this project complies with the requirements of these laws provided you comply with all of the permit general and special conditions.

Please be reminded that Special Condition “a.” of your permit requires that you implement and abide by the Endangered Species Act (ESA) requirements set forth in the programmatic

Biological Opinion (BO) for this project. In particular, within 45 days of project completion, you must provide the Action Completion Reporting Form and Fish Salvage Reporting Form, as described in the BO.

Please be reminded that Special Condition “b” of your permit requires that you implement and abide by the Endangered Species Act (ESA) requirements set forth in the Biological Opinion

(BO) for this project. The non-discretionary terms and conditions are listed in Section 17.

The Bureau of Reclamation completed National Historic Preservation Act consultation for the proposed activity. For the purpose of this Department of the Army authorization, we have determined this project will comply with the requirements of the National Historic Preservation

Act provided you comply with all of the permit conditions.

Please note that National General Condition 21, Discovery of Previously Unknown Remains and Artifacts, found in the Nationwide Permit Terms and Conditions enclosure, details procedures that must be followed should an inadvertent discovery occur. You must ensure that you comply with this condition during the construction of your project.

The authorized work complies with the Washington State Department of Ecology’s

(Ecology) Water Quality Certification (WQC) requirements for this NWP. No further coordination with Ecology for WQC is required.

You have not requested a jurisdictional determination for this proposed project. If you believe the U.S. Army Corps of Engineers does not have jurisdiction over all or portions of your project you may request a preliminary or approved jurisdictional determination (JD). If one is requested, please be aware that we may require the submittal of additional information to complete the JD and work authorized in this letter may not occur until the JD has been completed.

Our verification of this 2017 NWP authorization is valid until March 18, 2022, unless the

NWP is modified, reissued, or revoked prior to that date. If the authorized work for the 2017

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NWP authorization has not been completed by that date and you have commenced or are under contract to commence this activity before March 18, 2022, you will have until March 18, 2023, to complete the activity under the enclosed terms and conditions of this NWP. Failure to comply with all terms and conditions of these NWP verifications invalidates these authorizations and could result in a violation of Section 404 of the Clean Water Act and/or Section 10 of the Rivers and Harbors Act. You must also obtain all local, State, and other Federal permits that apply to this project.

You are cautioned that any change in project location or plans will require that you submit a copy of the revised plans to this office and obtain our approval before you begin work. Deviating from the approved plans could result in the assessment of criminal or civil penalties. Please note that we may need to reinitiate consultation with the National Marine Fisheries Service and/or U.S.

Fish and Wildlife Service in order to authorize any work not already included in the enclosed plans. Civil administrative penalties are described in the enclosure Clean Water Act Class I

Administrative Penalties.

Upon completing the authorized work, you must fill out and return the enclosed Certificate of Compliance with Department of the Army Permit. All compliance reports should be submitted to the U.S. Army Corps of Engineers, Seattle District, Regulatory Branch electronically at nws.compliance@usace.army.mil. Thank you for your cooperation during the permitting process. We are interested in your experience with our Regulatory Program and encourage you to complete a customer service survey. Referenced documents and information about our program are available on our website at www.nws.usace.army.mil, select “Regulatory Permit

Information”. If you have any questions, please contact me at dale.j.jordan@usace.army.mil or

(206) 316-3967.

Sincerely, Jess Jordan, Biologist

Regulatory Branch

Enclosures

WEST COAST REGION

PROGRAMMATIC TRACKING & RESPONSE FORM

Project Name: ________________________________________________________________________

PROGRAMMATIC #: ___________________________

RCV’D DATE: ___________________________________

6th Field HUC: ___________________________________

Acres of Habitat Protected: __________________________ Lead Action Agency: ________________________________ Action Agency Contact: ______________________________ Project Biologist: _________________________________

NMFS TRACKING #:____________________________________

RESPONSE DATE:______________________________________

CATEGORY OF ACTIVITY:______________________________

Statutory Authority:

ESA only EFH only ESA & EFH

Applicant______________________________________________ Agency Reference No.: ____________________________________ BC for ARA Kim Kratz: __________________________________

NMFS Species/Critical Habitat Present in Action Area:

Identify the species found in the action area:

ESA Species

Upper Willamette River spring-run Chinook MCR steelhead Green sturgeon Upper Willamette River steelhead UCR spring-run Chinook Eulachon Lower Columbia River Chinook UCR steelhead PS Chinook Lower Columbia River steelhead SR spring/summer run Chinook PS Steelhead Lower Columbia River coho SR fall-run Chinook Whale (Killer) Columbia River chum SR steelhead Whale (Humpback) HC Summer-Run Chum SR sockeye

EFH Species Rockfish Bocaccio

Salmon, Chinook Canary Salmon, coho Yelloweye Coastal Pelagics Groundfish

NMFS RESPONSE NMFS CONFIRMS

# EFH Conservation Recommendations: ______________

WEST COAST REGION

PROGRAMMATIC TRACKING & RESPONSE FORM

NMFS TRACKING #:____________________

(CONT.)

-1- FPRP Guidelines & Forms

WCR-2014-1857

Appendix A: FPRP Programmatic Email Guidelines and Implementation Forms

Use the FPRP Programmatic email box (fprp-wa.wcr@noaa.gov) to transmit the following information to NMFS regarding use of this Programmatic Biological Opinion (opinion):

Send only one project per email submittal, attach all related documents preferably in pdf format;

and ensure the final project is being submitted to avoid multiple submittals and withdrawals.

Please send:

1. Action Implementation Form, containing Action Notification and Action Completion and

Fish Salvage reports (if fish salvage is conducted).

2. Map(s) and project design drawings (if applicable)

3. Final project plan.

If a withdrawal is necessary, please specify in the email subject line that the project is being withdrawn. Simply state the reason for the withdrawal and submit to the email box, following the email titling conventions. If a previously-withdrawn notification is resubmitted later, this resubmittal will be regarded as a new action notification.

An automatic reply will be sent upon receipt, but no other communication will be sent from the programmatic email box; this box is used for Incoming Only. All other pre-decisional communication should be conducted outside the use of the fprp-wa.wcr@noaa.gov email boxes.

In the subject line of the email (see below for requirements), clearly identify the specific submittal category (action notification, project completion, withdrawal, or salvage report), and Corps number. The submitted documents will contain identifying information, including the Applicant Name, County, Waterway, and State.

Email Titling Conventions

Use caution when entering the necessary information in the subject line. If these titling conventions are not used, the email will not be accepted. Ensure that you clearly identify:

1. The specific submittal category: (a) Action Notification; (b) Action Completion Report;

(c) Fish Salvage Report; or (d) Annual Report

2. Corps number

3. Applicant Name

4. County

5. Waterway

6. State

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WCR-2014-1857

FPRP Implementation Forms

NMFS Review and Certification Corps project managers shall submit this form with the Action Notification portion completed to NMFS at fprp-wa.wcr@noaa.gov for notification or approval.

The Following Actions Require Certification from NMFS as consistent with FPRP before that action is authorized by the Corps:

Hydraulic design of culverts Stream simulation culverts No-slope culverts Tidally influenced road crossings Tidegates with fish passage Screens for diversions over 20 cfs Structures to provide fish passage over dams 0 Starter channels Fishway Designs that Exceed 3 feet Removal of dams larger than 10 feet high Use of steel piles larger than 12 inches to anchor ELJs Channel reconstruction with significant grade control

NMFS will notify the Corps within 30 calendar days if the action is certified or disqualified.

When requested, NMFS will provide an estimate of the time necessary to complete the review based on the complexity of the proposed action and work load considerations at the time of the request. Certification may be delayed if a substandard design is submitted for review during the post-design or action implementation stage and significant revision is necessary. These reviews are best initiated in the context of technical assistance during the preliminary development project phase, when project team members are developing goals and objectives with stakeholders.

Attach information to e-mail message if required or relevant to NMFS’ review, such as:

Erosion and pollution control plan Engineering designs

Project Reporting. The project manager shall submit the following reports as necessary:

Action Completion Reporting. Submit this form to NMFS within 60 days of completing all work below ordinary high water (OHW).

Fish Salvage Reporting. Submit this form to NMFS within 60 days of completing a capture and release as part of an action completed under FPRP.

The fprp-wa.wcr@noaa.gov email is to be used for incoming only.

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WCR-2014-1857

FPRP Project Information Form

DATE OF REQUEST: NMFS TRACKING #: WCRO-2014-00004

TYPE OF REQUEST:

ACTION NOTIFICATION

ACTION NOTIFICATION (NMFS REVIEW AND CERTIFICATION REQUIRED)

Statutory Authority: ESA-ONLY EFH-ONLY

ESA & EFH

COMBINED

Action Agency Contact: Corps Permit#:

Project Name:

6th Field HUC & Name:

Latitude & Longitude Longitude (in signed degrees format: DDD.dddd)

Proposed Construction Period: Start Date: End Date:

Proposed Length of Channel and/or Riparian Modification in linear feet:

Proposed Area of Herbicide Application in acres:

Project Description:

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WCR-2014-1857

Type of Action: Identify the type of action proposed.

Actions Consistent with Limit 8 Fish Passage Installation of In-Water Habitat and Streambank Stabilization Features Levee Removal, Modification, and Public Access Channel Restoration and Reconnection Salmonid Spawning Gravel Restoration Beach Nourishment, Bioengineering or Living Shoreline, and Benefical Use of Landslide

Material Livestock Crossings Irrigation Screen Installation and Replacement Debris and Structure Removal Mitigation and Conservation Bank Construction Invasive Plant Treatement

NMFS Species/Critical Habitat Present in Action Area: Identify the species and critical habitats present in the action area (N/A means not applicable):

Species Critical Habitat EFH Species

LCR Chinook salmon Salmon, Chinook UCR spring-run Chinook salmon Salmon, coho SR spring/summer-run Chinook salmon Salmon, pink SR fall-run Chinook salmon Coastal Pelagics PS Chinook salmon Groundfish CR chum salmon HC summer-run chum salmon LCR coho salmon SR sockeye salmon Lake Ozette sockeye salmon LCR steelhead MCR steelhead UCR steelhead SRB steelhead PS steelhead Southern DPS eulachon

Project Modifications: Check any applicable project modifications. Each modifications must be certified by NMFS.

Variance to the timing of inwater work

Location of staging/refueling area where applicant cannot meet the required distance due to site constraints

Use of substances other than vegetable oil in hydraulic lines

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WCR-2014-1857

Activities Requiring NMFS Certification:

Hydraulic design of culverts Stream simulation culverts No-slope culverts Tidally influenced road crossings Tidegates with fish passage Screens for diversions over 20 cfs Structures to provide fish passage over dams Starter channels

Fishway Designs that Exceed 3 feet Removal of dams larger than 10 feet high

Use of steel piles larger than 12 inches to anchor ELJs

Channel reconstruction with significant grade control

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FPRP Action Completion Reporting Form

Within 60 days of completing all work below ordinary high water (OHW) as part of an action completed under FPRP, submit the completed Action Completion Form with the following information to NMFS at fprp-wa.wcr@noaa.gov

Actual Start and End Dates for the Completion of In-water Work:

Start:

End:

Actual Linear-feet of Riparian and/or Channel Modification:

Actual Acreage of Herbicide Treatment

Turbidity Monitoring/Sampling Completed

Yes (include details below) No

Please include the following:

1. Photos of habitat conditions before, during, and after action completion.

2. A summary of the results of pollution and erosion control inspections, including any erosion control failure, contaminant release, and correction effort.

3. Records of turbidity monitoring (visual or by turbidimeter) including dates, times and location of monitoring. Include any exceedances and steps taken to reduce turbidity observed.

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FPRP Fish Salvage Reporting Form

If applicable: Within 60 days of completing a capture and release as part of an action completed under FPRP, submit a complete Salvage Reporting Form, with the following information to NMFS at fprp-wa.wcr@noaa.gov.

Date(s) of Fish Salvage Operation(s):

Supervisory Fish Biologist:

Address

Telephone Number

Describe methods that were used to isolate the work area and remove fish

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Fish Salvage Data

Water Temperature:

Air Temperature:

Time of Day:

ESA-Listed Species10 Number Handled Number Injured Number Killed

Juvenile Adult Juvenile Adult Juvenile Adult

Lower Columbia River Chinook salmon

Upper Columbia River spring-run Chinook salmon

Snake River spring/summer run Chinook salmon

Snake River fall-run Chinook salmon

Puget Sound Chinook salmon

Hood Canal chum salmon

Columbia River chum salmon

Lower Columbia River coho salmon

Lower Columbia River steelhead

Middle Columbia River steelhead

Upper Columbia River steelhead

Snake River Basin steelhead

Puget Sound steelhead

Lake Ozette Sockeye salmon

10 Fish should be identified to the degree possible. When species is in doubt, use best professional judgement when filling out table.

NATIONWIDE PERMIT 27

Terms and Conditions

Effective Date: March 19, 2017

A. Description of Authorized Activities B. U.S. Army Corps of Engineers (Corps) National General Conditions for all NWPs C. Corps Seattle District Regional General Conditions D. Corps Regional Specific Conditions for this NWP E. Washington Department of Ecology (Ecology) Section 401 Water Quality Certification (401

Certification): General Conditions F. Ecology 401 Certification: Specific Conditions for this NWP G. Coastal Zone Management Consistency Response for this NWP

In addition to any special condition that may be required on a case-by-case basis by the District Engineer, the following terms and conditions must be met, as applicable, for a Nationwide Permit (NWP) authorization to be valid in Washington State.

A. DESCRIPTION OF AUTHORIZED ACTIVITIES

27. Aquatic Habitat Restoration, Enhancement, and Establishment Activities. Activities in waters of the United States associated with the restoration, enhancement, and establishment of tidal and non-tidal wetlands and riparian areas, the restoration and enhancement of non-tidal streams and other non-tidal open waters, and the rehabilitation or enhancement of tidal streams, tidal wetlands, and tidal open waters, provided those activities result in net increases in aquatic resource functions and services.

To be authorized by this NWP, the aquatic habitat restoration, enhancement, or establishment activity must be planned, designed, and implemented so that it results in aquatic habitat that resembles an ecological reference. An ecological reference may be based on the characteristics of an intact aquatic habitat or riparian area of the same type that exists in the region. An ecological reference may be based on a conceptual model developed from regional ecological knowledge of the target aquatic habitat type or riparian area.

To the extent that a Corps permit is required, activities authorized by this NWP include, but are not limited to: the removal of accumulated sediments; the installation, removal, and maintenance of small water control structures, dikes, and berms, as well as discharges of dredged or fill material to restore appropriate stream channel configurations after small water control structures, dikes, and berms, are removed; the installation of current deflectors; the enhancement, rehabilitation, or re-establishment of riffle and pool stream structure; the placement of in-stream habitat structures; modifications of the stream bed and/or banks to enhance, rehabilitate, or re-establish stream meanders; the removal of stream barriers, such as undersized culverts, fords, and grade control structures; the backfilling of artificial channels; the removal of existing drainage structures, such as drain tiles, and the filling, blocking, or reshaping of drainage ditches to restore wetland hydrology; the installation of structures or fills necessary to restore or enhance wetland or stream hydrology; the construction of small nesting islands; the construction of open water areas; the construction of oyster habitat over unvegetated bottom in tidal waters; shellfish seeding;

activities needed to reestablish vegetation, including plowing or discing for seed bed preparation and the planting of appropriate wetland species; re-establishment of submerged aquatic vegetation in areas where those plant communities previously existed; re-establishment of tidal wetlands in tidal waters where those wetlands previously existed; mechanized land clearing to remove non-native invasive, exotic, or nuisance vegetation; and other related activities. Only native plant species should be planted at the site.

This NWP authorizes the relocation of non-tidal waters, including non-tidal wetlands and streams, on the project site provided there are net increases in aquatic resource functions and services. Except for the relocation of non-tidal waters on the project site, this NWP does not authorize the conversion of a stream or natural wetlands to another aquatic habitat type (e.g., the conversion of a stream to wetland or vice versa) or uplands. Changes in wetland plant communities that occur when wetland hydrology is more fully restored during wetland rehabilitation activities are not considered a conversion to another aquatic habitat type. This NWP does not authorize stream channelization. This NWP does not authorize the relocation of tidal waters or the conversion of tidal waters, including tidal wetlands, to other aquatic uses, such as the conversion of tidal wetlands into open water impoundments. Compensatory mitigation is not required for activities authorized by this NWP since these activities must result in net increases in aquatic resource functions and services.

Reversion. For enhancement, restoration, and establishment activities conducted: (1) In accordance with the terms and conditions of a binding stream or wetland enhancement or restoration agreement, or a wetland establishment agreement, between the landowner and the U.S. Fish and Wildlife Service (FWS), the Natural Resources Conservation Service (NRCS), the Farm Service Agency (FSA), the National Marine Fisheries Service (NMFS), the National Ocean Service (NOS), U.S. Forest Service (USFS), or their designated state cooperating agencies; (2) as voluntary wetland restoration, enhancement, and establishment actions documented by the NRCS or USDA Technical Service Provider pursuant to NRCS Field Office Technical Guide standards; or (3) on reclaimed surface coal mine lands, in accordance with a Surface Mining Control and Reclamation Act permit issued by the Office of Surface Mining Reclamation and Enforcement (OSMRE) or the applicable state agency, this NWP also authorizes any future discharge of dredged or fill material associated with the reversion of the area to its documented prior condition and use (i.e., prior to the restoration, enhancement, or establishment activities). The reversion must occur within five years after expiration of a limited term wetland restoration or establishment agreement or permit, and is authorized in these circumstances even if the discharge occurs after this NWP expires. The five-year reversion limit does not apply to agreements without time limits reached between the landowner and the FWS, NRCS, FSA, NMFS, NOS, USFS, or an appropriate state cooperating agency. This NWP also authorizes discharges of dredged or fill material in waters of the United States for the reversion of wetlands that were restored, enhanced, or established on prior-converted cropland or on uplands, in accordance with a binding agreement between the landowner and NRCS, FSA, FWS, or their designated state cooperating agencies (even though the restoration, enhancement, or establishment activity did not require a section 404 permit). The prior condition will be documented in the original agreement or permit, and the determination of return to prior conditions will be made by the Federal agency or appropriate state agency executing the agreement or permit. Before conducting any reversion activity the permittee or the appropriate Federal or state agency must notify the district engineer and include the documentation of the prior condition. Once an area has reverted to its prior physical condition, it will be subject to whatever the Corps Regulatory requirements are applicable to that type of land at the time. The requirement that the activity results in a net increase in aquatic resource functions and services does not apply to reversion activities meeting the above conditions. Except for the activities described above, this NWP does not authorize any future discharge of dredged or fill material associated with the reversion of the area to its prior condition. In such cases a separate permit would be required for any reversion.

Reporting. For those activities that do not require pre-construction notification, the permittee must submit to the district engineer a copy of: (1) The binding stream enhancement or restoration agreement or wetland enhancement, restoration, or establishment agreement, or a project description, including project plans and location map; (2) the NRCS or USDA Technical Service Provider documentation for the voluntary stream enhancement or restoration action or wetland restoration, enhancement, or establishment action; or (3) the SMCRA permit issued by OSMRE or the applicable state agency. The report must also include information on baseline ecological conditions on the project site, such as a delineation of wetlands, streams, and/or other aquatic habitats. These documents must be submitted to the district engineer at least 30 days prior to commencing activities in waters of the United States authorized by this

NWP.

Notification: The permittee must submit a pre-construction notification to the district engineer prior to commencing any activity (see general condition 32), except for the following activities: (1) Activities conducted on non-Federal public lands and private lands, in accordance with the terms and conditions of a binding stream enhancement or restoration agreement or wetland enhancement, restoration, or establishment agreement between the landowner and the FWS, NRCS, FSA, NMFS, NOS, USFS or their designated state cooperating agencies; (2) Voluntary stream or wetland restoration or enhancement action, or wetland establishment action, documented by the NRCS or USDA Technical Service Provider pursuant to NRCS Field Office Technical Guide standards; or (3) The reclamation of surface coal mine lands, in accordance with an SMCRA permit issued by the OSMRE or the applicable state agency.

However, the permittee must submit a copy of the appropriate documentation to the district engineer to fulfill the reporting requirement. (Authorities: Sections 10 and 404) Note: This NWP can be used to authorize compensatory mitigation projects, including mitigation banks and in-lieu fee projects. However, this NWP does not authorize the reversion of an area used for a compensatory mitigation project to its prior condition, since compensatory mitigation is generally intended to be permanent.

B. CORPS NATIONAL GENERAL CONDITIONS FOR ALL NWPs

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. 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 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 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 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. The permittee 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 NWP activity may cause more than minimal adverse effects on tribal rights (including treaty rights), protected tribal resources, or tribal lands.

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 the critical habitat of such species. No activity is authorized under any NWP which “may affect” a listed species or critical habitat, unless ESA section 7 consultation addressing the effects of the proposed activity has been completed. Direct effects are the immediate effects on listed species and critical habitat caused by the NWP activity. Indirect effects are those effects on listed species and critical habitat that are caused by the NWP activity and are later in time, but still are reasonably certain to occur. (b) Federal agencies should follow their own procedures for complying with the requirements of the ESA. 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 designated critical habitat might be affected or is in the vicinity of the activity, or if the activity 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 might be affected by the proposed activity or that utilize the designated critical habitat that might be 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. 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 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 critical habitat, or until ESA section 7 consultation 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 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 their action complies with the Migratory Bird Treaty Act and the Bald and Golden Eagle Protection Act. The permittee is responsible for contacting appropriate local office of the U.S. Fish and Wildlife Service to determine applicable measures to reduce impacts 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) In cases where the district engineer determines that the activity may have the potential to cause effects to 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. 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, which may include background research, consultation, oral history interviews, sample field investigation, and 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)). 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. Where the non-Federal applicant has identified historic properties on which the activity might 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 to historic properties or that NHPA section 106 consultation has been completed. (d) 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. If you discover any previously unknown historic, cultural or archeological remains and artifacts while accomplishing the activity authorized by this permit, you must immediately notify the district engineer of what you have found, and to the maximum extent practicable, avoid construction activities that may affect the remains and artifacts until the required coordination has been…