5-Appendix B Permits.pdf

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11 N. Water Street, Suite 20220 Mobile, AL 36602

(251) 378-9005 www.moffattnichol.com

September 24, 2024

Mr. Dan Bond, Environmental/Grants Coordinator City of Gulf Shores 203 Clubhouse Drive, Suite B Gulf Shores, AL 36547

Subject: Permit Certification Letter Marsh Restoration in Oyster Bay Gulf Shores, Baldwin County, Alabama Moffatt & Nichol Project No.: 9943-05

The City of Gulf Shores and its various professional architecture and engineering consultants have performed the necessary assessments to determine the environmental effects and any permitting requirements for the proposed project. Using information gathered from these assessments, the project was planned and designed in a manner that ensures the quality of the environment is protected and that all permits necessary for the completion of the project have been received.

In accordance with the National Environmental Policy Act and the Clean Water Act, on April 10, 2019 Moffatt & Nichol (MN) submitted a letter (attached) notifying the Mobile District USACE that the project(s) met the exemption for Pre Construction Notification for Nationwide Permit 27 (Aquatic Habitat Restoration, Enhancement and Establishment Activities). The project team met with the USACE Mobile District and also confirmed that the Alabama Department of Environmental Management (ADEM) did not require additional submissions for Water Quality Certification or Coastal Zone Management Act conditions. We would recommend that this be re-confirmed with the Mobile District USACE since it has been more than 5 years since the determination has been made.

The project will comply with Alabama’s General National Pollutant Discharge Elimination System (NPDES) General Permit to authorize discharges from construction activities to all waters of the state of Alabama. A Construction Best Management Practices Plan will be created for this project to ensure stormwater pollution prevention requirements are met as per Alabama Department of Transportation (ALDOT) Standard Specifications for Highway Construction.

The U.S. Fish and Wildlife Service reviewed the project including applicability with the Fish and Wildlife Coordination Act, the Migratory Bird Treaty Act, the Bald and Golden Eagle Protection Act, the Coastal Barrier Resources Act, and the Marine Mammal Protection Act. By letter dated March 11, 2020, the following comments were provided with reference to the RESTORE Council’s compliance with the Endangered Species Act: “Based on the information provided in your biological evaluation, we concur with your determination that the proposed project “may affect, but is not likely to adversely affect” http://www.moffattnichol.com/ https://www.facebook.com/moffattnichol https://www.linkedin.com/company/moffatt-&-nichol https://twitter.com/moffattnichol

Mr. Dan Bond, Environmental/Grants Coordinator City of Gulf Shores 9/24/2024 the Alabama red-bellied turtle (Pseudemys alabamensis). The project activities involve restoring and enhancing coastal wetland habitats for rare species, therefore, the proposed action should result in beneficial effects to these species.”

The National Oceanic and Atmospheric Administration National Marine Fisheries Service (NOAA NMFS) reviewed the project. NOAA's Protected Resources and Habitat Conservation Divisions in the Southeast Regional Office, the NOAA Restoration Center (RC) made the following determinations under the Endangered Species Act (ESA), Magnuson Stevens Act (MSA;Essential Fish Habitat) and Marine Mammal Protection Act (MMPA). By Memorandum dated April 14, 2020): “This project will replace a culvert on Oyster Bay Rd to improve flow through the culvert and reduce impoundment of water on the upstream side of the culvert. The culvert is located approximately 700 feet north of Oyster Bay.

Based on the location and limited scope of the work, no direct or indirect effects are expected to species or habitats protected under ESA, MSA or MMPA.”

The Alabama Historical Commission reviewed the project and determined by letter dated July 17, 2020 that it will have no effect on cultural resources eligible for or listed on the National Register of Historic Places.

Based on the review of our project files and coordination with our client, NOAA, this letter is a summary of federal, state, local permits necessary for the completion of the project. The permits have been received. Mitigative or special construction methods identified by the RESTORE Act Environmental Checklist have been incorporated into the contract documents.

Please let us know if you have any questions or require additional information.

Sincerely, Don Blancher, Ph.D. B.C.E.S.

Supervisory Coastal Scientist Moffatt & Nichol O 251.378.9000 ext. 46105 D 251.378.9005 C 251.454.5523

CC: Clint Colvin, City of Gulf Shores

Enclosures

11 North Water Street, Suite 20220 Mobile, AL 36602

(251) 378-9000 www.moffattnichol.com

Transmitted via U.S.P.S. and email (steven.b.crosson@usace.army.mil)

April 10, 2019

U.S. Army Corps of Engineers Mobile District – Regulatory Division 109 St. Joseph Street Mobile, Alabama 36602

Attn: S. Brad Crosson, Team Leader – South Alabama Branch

Subject: Alabama Connecting Coastal Waters Marsh Restoration in Fish River, Weeks Bay, Oyster Bay and Meadows Tract Moffatt & Nichol Project No. 9943-05

Dear Mr. Crosson:

The National Oceanic and Atmospheric Administration (NOAA) and its state partners are leading the Connecting Coastal Waters (CCW) project to restore the extent, functionality, and resiliency of wetlands across three (3) Gulf Coast states. The CCW project is funded by the Council-Selected Restoration Component of the Resources and Ecosystems Sustainability, Tourist Opportunities, and Revived Economies of the Gulf States Act (RESTORE Act) or “RESTORE Bucket 2”. Three (3) project sites of the gulf-wide CCW project were selected and approved by the Council to restore hydrology and improve water quality and restore coastal estuarine habitat in Alabama. NOAA and the Alabama Department of Conservation and Natural Resources (ADCNR), the designated state cooperating agency, are the partnering Council members leading the implementation of the Alabama CCW project components.

Moffat & Nichol (M&N) is under contract to complete the planning activities including pre-design investigations, engineering and design, and regulatory compliance for the Alabama sites.

Based on the projects’ goals and locations, it is our opinion that the projects’ activities meet the criteria of Nationwide Permit (NWP) 27: Aquatic Habitat Restoration, Enhancement and Establishment Activities. Furthermore, the projects will consist of activities conducted on non-Federal public lands and private lands, in accordance with the terms and conditions of the RESTORE Act. The RESTORE Act serves as a binding restoration agreement between the landowners and NOAA (including NOAA’s National Marine Fisheries Service (NMFS)) and ADCNR, the state’s designated cooperating agency. It is our evaluation that these activities meet the pre-construction notification exception (1) as described in NWP 27.

mailto:steven.b.crosson@usace.army.mil

Alabama Connecting Coastal Waters M&N Project No. 9943-05 Marsh Restoration in Fish River, Weeks Bay, Oyster Bay and Meadows Tract Attachments

ATTACHMENT 1: RESTORE ACT DOCUMENTATION

ATTACHMENT 2: PROJECT DESCRIPTIONS

Site 1: Fish River and Weeks Bay Marsh Restoration

Project Site 1 is located in Baldwin County, Alabama on Fish River at the Weeks Bay National Estuarine Research Reserve (NERR) property north of US Highway 98 (Figure 1). The property is owned by the State of Alabama’s Department of Conservation and Natural Resources (ADCNR). The NERR has a diverse array of habitats including oak hammocks and pine flatwood savannahs that are interspersed with pitcher plant bogs that grade into tidal swamps, coastal marshes, seagrass beds, and unvegetated benthic substrates.

The project site is approximately eighty (80) acres and surrounded by public lands that were previously used as a campground. The project site contains salt marsh habitat interspersed with approximately eight (8) acres of canals that were artificially dredged in the late 1960’s and early 1970’s to facilitate access to the campground and small docking facility. These canals do not allow adequate water exchange between the tidally influenced portion of Fish River and cause stagnant water in the uppermost portion of the canals. This condition leads to low dissolved oxygen level, which reduces the value of this habitat for many fish species. Further, the historic tidal flow of the wetland system is disrupted by the canals. The project goal for Site 1 is to backfill the artificial canals to restore the hydrology to the site.

Site 2: Meadows Tract Marsh Restoration

Project Site 2: Meadows Tract Marsh Restoration is located east of County Road (CR) 1 in Fairhope, Alabama, known as the Meadows Tract, on property owned by Baldwin County and the State of Alabama (Figure 2). The Meadows Tract contains approximately two hundred (200) acres of herbaceous and forested wetlands adjacent to Mobile Bay and Bon Secour Bay.

Historic construction of CR 1 has resulted in the loss of tidal exchange from Bon Secour Bay to adjacent marsh and forested wetlands. According to the Baldwin County Meadows Tract Habitat Management Plan, CR 1 appears to have caused a damming effect, at least to some of the lower elevation wetlands closest to the highway. The existing culverts passing under CR 1 allow only limited tidal flow from Mobile Bay and Bon Secour Bay into the Meadows Tract. In addition, historic logging roads constructed throughout the site have created numerous ditched areas, further altering the historic hydrology of the site. The goal of this project is to restore tidal exchange and improve sheet flow by installing structures (culverts) along and altering drainage ditches (by filling, blocking or reshaping).

Site 3: Oyster Bay Marsh Restoration

Project Site 3: Oyster Bay Marsh Restoration is located within the Oyster Bay watershed where County Road (CR 4) – Oyster Bay Road crosses Oyster Bay in the City of Gulf Shores, Alabama (Figure 3). The Oyster Bay site contains approximately one hundred fifty (150) acres of estuarine tidal and brackish marsh on the north and south side of CR4. The project area is comprised of a causeway constructed across the northern portion of Oyster Bay. The historical flow pattern was altered by the construction of the Intracoastal Waterway (1940s), the construction of CR 4 (1960s), and by surge inundation issues in this area caused by Hurricane Ivan (2004). The construction of CR4 entailed placement of a causeway across the northern portion of Oyster Bay, ditching on the north and south side of the road, and placement of undersized culverts beneath the roadway. The culverts restrict water exchange resulting in impoundment of freshwater and a subsequent conversion of habitat on the north side of CR 4 from mesohaline marsh to brackish marsh. Due to the lack of water movement, the drainage areas on both the north and south sides of the culvert have trapped sediments resulting in colonization of these areas by giant reed (Phragmites australis). This nuisance plant species further reduces natural flow through the culverts. The goal of this project is to improve water movement from the south side of CR4 to the north side of CR4 by installing structures.

Sullivan, Mary Beth

From: Estelle Wilson - NOAA Affiliate <estelle.wilson@noaa.gov> Sent: Tuesday, June 25, 2019 1:07 PM To: Sullivan, Mary Beth Cc: Dan Van-Nostrand - NOAA Federal; Jason Manthey - NOAA Federal; Jason Kroll - NOAA Federal Subject: Fwd: RESTORE Hydrologic Restoration Projects in Mobile Bay, AL led by NOAA

CAUTION: This email originated from outside of the organization.

FYI

‐‐‐‐‐‐‐‐‐‐ Forwarded message ‐‐‐‐‐‐‐‐‐ From: Estelle Wilson ‐ NOAA Affiliate <estelle.wilson@noaa.gov> Date: Tue, Jun 25, 2019 at 10:53 AM Subject: Re: RESTORE Hydrologic Restoration Projects in Mobile Bay, AL led by NOAA To: Brown, Scott <jsb@adem.alabama.gov> Cc: jsb@adem.state.al.us <jsb@adem.state.al.us>, ADCNR‐SLD | Will Underwood <Will.Underwood@dcnr.alabama.gov>

Thank you so much for the quick response! We'll follow up with Will Underwood on any submerged lands impacts.

Stella

On Tue, Jun 25, 2019 at 8:58 AM Brown, Scott <jsb@adem.alabama.gov> wrote:

Good morning Stella:

You asked, ” Since USACE does not require a pre-construction notification, does one still need to be submitted to ADEM? Is there anything else that needs to be submitted to ADEM for these projects?

In this case, the answer is no - we do not need a PCN or any additional submission.

v/r, J. Scott Brown, Chief

Mobile Field Office

Alabama Department of Environmental Management

251.304.1176

From: Estelle Wilson ‐ NOAA Affiliate <estelle.wilson@noaa.gov> Sent: Monday, June 24, 2019 4:29 PM To: Brown, Scott <jsb@adem.alabama.gov> Subject: Re: RESTORE Hydrologic Restoration Projects in Mobile Bay, AL led by NOAA

Thank you!

On Mon, Jun 24, 2019 at 1:48 PM Brown, Scott <jsb@adem.alabama.gov> wrote:

Got it. I’ll look in to it tomorrow.

From: Estelle Wilson ‐ NOAA Affiliate <estelle.wilson@noaa.gov> Sent: Monday, June 24, 2019 1:18 PM To: jsb@adem.state.al.us Subject: RESTORE Hydrologic Restoration Projects in Mobile Bay, AL led by NOAA

Hi Mr. Brown, NOAA is leading a suite of hydrologic restoration projects across the Gulf funded through the RESTORE Initial FPL, including three projects in Mobile Bay, AL.

We have met with USACE to discuss these three project sites in Mobile Bay, AL and have determined that they fall within the Nationwide Permit #27, and that these do not require a pre‐construction notification to USACE.

A brief summary of each project is attached as well as the WQ and CZM conditions for the NWP27.

Since USACE does not require a pre‐construction notification, does one still need to be submitted to ADEM? Is there anything else that needs to be submitted to ADEM for these projects?

I tried to give you a call today at 251‐304‐1176, but your VM box is full. If you would like to discuss these projects further via phone, my phone number is 251‐544‐5016.

Thanks, Stella Wilson

Contractor, ERT

NOAA National Marine Fisheries Service

Restoration Center, DWH Program

7344 Zeigler Blvd.

Mobile, AL 36608

251‐544‐5016

Contractor, ERT NOAA National Marine Fisheries Service Restoration Center, DWH Program 7344 Zeigler Blvd.

Contractor, ERT NOAA National Marine Fisheries Service Restoration Center, DWH Program 7344 Zeigler Blvd.

NATIONWIDE PERMIT 27

Aquatic Habitat Restoration, Enhancement, and Establishment Activities

Effective Date: March 19, 2017 (NWP Final Notice, 82 FR 4 )

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.

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 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 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, and 52 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 in the designated critical resource waters including wetlands adjacent to those waters. The district engineer may authorize activities under these NWPs only after it is determined that the impacts to the critical resource waters will be no more than minimal.

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 environmental effects are no 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) For losses of streams or other open waters that require pre-construction notification, the district engineer may require compensatory mitigation to ensure that the activity results in no more than 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. Restored riparian areas should consist of native species. The width of the required riparian area will address documented water quality or aquatic habitat loss concerns.

Normally, the riparian area will be 25 to 50 feet wide on each side of the stream, but the district engineer may require slightly wider riparian areas to address documented water quality or habitat loss concerns. 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)).