COMMONWEALTH OF KENTUCKY

KENTUCKY DEPARTMENT OF FISH AND WILDLIFE RESOURCES

INVITATION TO BID NO: FW-006-24

FOR: Ballard Big River Pump Station Ballard, Kentucky

DATE: May 8, 2024

RFB 660 2400000596

ADDENDUM NO.

BIDDER SHALL CONFORM TO THE FOLLOWING CHANGES AS SAME SHALL BECOME BINDING

UPON THE CONTRACT TO BE ISSUED IN RESPONSE TO THIS INVITATION TO BID.

Item 1: Bid Date Extension to May 29, 2024, 12:00 PM, Eastern Time

Item 2: Deadline to submit questions is May 15, 2024, 12:00 PM, Eastern Time

Item 3: Questions and Responses attached

Item 4: Site Visit Meeting Sign-In Sheet Attached

Item 5: Appendix C Attached

END OF ADDENDUM

Invitation to Bid No. FW-006-24 For: Ballard Big River Pump Station Ballard, Kentucky

Kyla Satterly Kentucky Department of Fish and Wildlife Resources

Big River Pump Sta�on Bidding Ques�ons

1. Since the majority of the trees have been removed will the remaining clearing be allowed during the stated April to October “Black-Out” dates?

The remaining brushing should all be able to be done during the bat window. If there are any trees with a >=4” DBH (Diameter at Breast Height), those can only be downed October 15th through March 31st.

2. It is our understanding that all necessary permits have been acquired. Are there any limita�ons to the USACE river permit for cofferdams extending into the river up to the end of the 72’’ intake line?

All the necessary permits are in hand. The USACE permit does NOT have any limita�ons on cofferdams out into the river to install the intake structure (the 72” pipe). The selected contractor will want to keep that coffer dam in close proximity to the actual work area as possible.

3. Would a cast-in-place structure be an acceptable subs�tute for the box culvert?

Please bid the project as designed and specified on the plans. This is to ensure fair bidding between contractors. Once a contractor is under contract with KDFWR, we will look at alterna�ves.

4. The documents include specifica�on sec�on 02456 – Concrete-Filled Steel Piles but we cannot locate and such piles on the project plans. Please clarify if there are concrete filled piles on this project.

The concrete filled steel piles spec. was a carryover from another project. There are no such piles on the plans. That was an error on Ducks Unlimited’s part.

5. Will the exterior surfaces of the box culvert and intake structure require a waterproofing mas�c be applied?

The waterproofing mas�c is not required on the culvert or the intake.

6. Specifica�on 03300 Paragraph 2.2A references ASTM A 615 (uncoated) reinforcement in the Control Building. Please clarify which structure is referred to as the Control Building.

My apologies, but the Control Building was a carryover from a different project. In that case the control building should have been changed to the pump sta�on structure.

7. Specifica�on 03300 paragraph 3.14 states a liquid penetra�ng floor treatment be applied to the concrete. Please specify if this is just the floor of the pump sta�on at eleva�on 287’ or the en�re interior surface of the pump sta�on concrete surface up to eleva�on 318.50’?

The liquid penetra�ng floor treatment is not called out in the plans, and therefore will not be required on this project.

8. Can the box culvert in gar creek be a precast box or a contech arch culvert?

Please bid the project as designed and specified on the plans. This is to ensure fair bidding between contractors. Once a contractor is under contract with KDFWR, we will look at alterna�ves.

9. Also, can a diversion ditch be excavated to deal with water while and avoid pumping around the area while construc�ng the culvert?

A diversion for Gar Creek can be put into place (channel, culvert, pumping, etc.) while the Gar Creek structure is being constructed. This is a means and methods of the contractor selected.

The selected contractor will want to ensure whatever dewatering solu�on is chosen, that we do not flood out the private landowner upstream of the project site.

10. Could the ditch be straightened to allow the culvert to be built in an area not currently transpor�ng water?

Gar Creek channel CAN NOT be straightened or relocated due to permi�ng.

11. MWI is an American pump manufacturer of Axial and Mixed flow pumps in business since 1926.

We have dozens of successful projects completed with DU over the past decades.

We were no�fied of your upcoming bid for the Ballard Big River Pump Sta�on and were looking for some clarifica�on. The pump specifica�on sec�on was writen using our MWI submersible electric pump and materials spec, with Flygt or equal named. However, the drives/controls sec�ons and Electrical plan page E-602 names Danfoss VFD’s, Flygt Mul�smart controls, and Flygt Cloud connec�vity with no excep�ons. This leads to a contradic�on between what pump construc�on/spec vs controls/VFDs, please see below. As you know, addi�onal pump manufacturers can supply controls that meet or exceed. Sec�on 15123 Part 2 Products, Sub sec�on 2.1.a men�ons Sigma Controls Inc or equal for the level transducer. The next sec�on 2.2.b states manufactured by Sigma Controls Inc, no subs�tu�ons permited. Please clarify if equal is acceptable?

Please bid the project as designed and specified on the plans. This is to ensure fair bidding between contractors. Once a contractor is under contract with KDFWR, we will look at alterna�ves.

12. Sec�on 26 29 23 Part 2 Products, Sub sec�on 2.2 Variable Frequency Drives item A. states VFDs shall be manufactured by Danfoss. While atemp�ng to get VFD quotes we have run into the following issues: -Danfoss has strict distribu�on policies. Therefore, not allowing quotes from across their specific rep distribu�on areas and only local to the project. This leads to another challenge that the Danfoss rep in the local market to the project is also a Flygt representa�ve.

Therefore, they will not quote the VFD’s to an outside pump manufacturer which is equal to Flygt. Please clarify if an equal is acceptable?

Please bid the project as designed and specified on the plans. This is to ensure fair bidding between contractors. Once a contractor is under contract with KDFWR, we will look at alterna�ves.

13. From plans sheet E-602, Flygt Mul�smart and Flygt Cloud connec�vity is named. Please clarify if an equal is acceptable?

Please bid the project as designed and specified on the plans. This is to ensure fair bidding between contractors. Once a contractor is under contract with KDFWR, we will look at alterna�ves.

14. Does the owner require a remote/text-based monitoring pla�orm? This is normally seen in wastewater not usually stormwater.

Remote/text-based monitoring would be nice to have if it fits within the budget of the project.

15. If temporary sheet piling is used at the intake, could it be le� in place upon comple�on?

Temporary sheet piling must be removed a�er project comple�on.

16. I couldn't find what type of pipe the 72" intake is. Can we confirm which materials are acceptable?

The 72” intake pipe should be duc�le iron. Once a contractor is under contract with KDFWR, we will look at alterna�ves.

17. What are the an�cipated Contract Award and No�ce to Proceed dates?

KDFWR goal is to provide a contract within 30 days of the intent to award leter.

18. Are there any Time-of-Year Restric�ons for work on this project, due to migratory waterfowl, fish or mussel species or similar?

State guidelines for the Indiana/Northern Long-Eared bat states that any trees larger than 4” DBH (Diameter at Breast Hight) can only be removed between October 15th – March 31st without approval. Site staff will close the construc�on area to hun�ng, so the selected contractor and their employees will be safe.

19. Please provide the Appendix C-Permits documents.

Included

20. Does this project have a tax exempt status on permanent materials?

No.

21. Does this project have a Davis-Bacon / Prevailing Wage Rate requirement? If so, please provide the applicable Wage Determina�ons.

Prevailing wages are not required to be paid on this project.

22. Please provide a specifica�on for the 72” diameter intake pipe material and advise what func�onal tes�ng is required for the intake pipe.

Intake Pipe shall be 72” duc�le iron pipe. No func�onal tes�ng is required.

23. The specifica�ons include Sec�on 02456 Concrete Filled Piles. We have not iden�fied any concrete filled piles within the plans provided. Please advise.

Please disregard the concrete filled piles spec as there are no concrete filled piles specified in the plans.

24. Have all the rammed aggregate piers been installed? Is there any deep founda�on work to be performed within the project scope currently bidding?

No piers have been installed. All founda�on work is considered incidental to the items “Box Culvert, Complete”, “Pump Sta�on Structure, Complete”, “Elevated Electric Pla�orm, Complete.”

25. Has the site been fully cleared to the easement limits? What clearing and/or grubbing remains to be performed within the project scope currently bidding?

The site has been cleared of large trees. There will s�ll be clearing needed to remove stumps, small brush, and/or debris that remains.

26. We note the Geogrid material is on hand for the access roadway. Are any other materials and/or subcontractor services required for the project scope currently bidding, being provided by Others?

The item “Tensar Interax Geogrid NX850” has been purchased and donated to KDFWR. The item will s�ll need to be installed by the contractor. No other material or services have been donated at this �me.

27. Division 15110 3.4 A references a spec sec�on “Basic Mechanical Materials and Methods” (CSI 15050 ) which is not included.

Please disregard this specifica�on.

28. Please provide a pain�ng schedule. It appears all fabricated and misc metals are HDG. This would leave exposed DIP and valves and conduits to paint. Please confirm.

A pain�ng schedule will not be provided. All structural framing, railing, and miscellaneous metals shall be hot-dipped-galvanized as specified on the plans prior to arriving on site. Duc�le Iron Pipe, valves, and conduits are not to be painted.

29. Plans and specifica�ons reference “DU CL IV Rip Rap” which in turn is not defined/described within the specifica�ons. Please provide a grada�on or specifica�on for this material.

Please see table below.

30. Plan sheet C-102: The 42” DI Cross is detailed as a flanged fi�ng. Is the intent for the 42” discharge main to be bolted to the flanged outlet? This places a rigid joint at the point where the discharge main leaves the pump sta�on structure. Please confirm that a flexible connec�on is not required at this loca�on.

The intent for the 42” discharge main is to be bolted to the flanged outlet. Confirmed that a flexible connec�on is not required at this loca�on.

31. Plan sheet C-103 shows a series of ver�cal bends/deflec�ons between sta�ons 7+00 and 9+00. What type of restraint is required for these fi�ngs? We suggest the pipe and fi�ngs to use a joint restraint system through this area.

Please refer to Specifica�on 02667 – Duc�le Irion Pipe, Sec�on 3.5 for more details on the thrust blocks required.

32. Plan sheet C-106 shows a flap gate on the end of the discharge main. Is the intent to use a uni-flange or factory threaded flange on the end of the pipe, for moun�ng the flap gate?

As labeled on sheet C-106, the flap gate is to be AF-41 aluminum flap gate or equal with flangeback connec�on.

33. Plan sheet C-501 Blow Off Detail. Is the intent to direct tap the 42” DIP or to use a tap saddle? If so, please provide a specifica�on for the tap saddle.

See detail 3 on sheet C-501. It calls out a 2” tap for the blowoff, so no saddle.

34. Specifica�on 02667 3.6 A.2. calls for a pressure test at 1.5 �mes the maximum opera�ng pressure. What is this pressure?

Per Specifica�on 02667 – Duc�le Iron Pipe, sec�on 2.1, A.1, for duc�le iron pipe 30” and larger, the pressure class shall be 150 psi.

35. Specifica�on 15445 2.4 Pump Controls includes a note in red leters sta�ng “this needs to be revised for VFD’s and Control Panel” Please advise.

This was an internal comment when the specifica�ons were put together. That red text should have been removed. Please disregard the red text.

36. Will the muck need to be excavated from under the culvert botom before adding rock?

Please reference the plans (Sheet SC101, plan notes in the top right corner of the sheet), specifica�ons, and geotechnical report to aid in construc�on methods.

37. Sec�on 15123 Part 2 Products, Sub sec�on 2.1.a men�ons Sigma Controls Inc or equal for the level transducer. The next sec�on 2.2.b states manufactured by Sigma Controls Inc, no subs�tu�ons permited. -Please clarify if equal is acceptable?

Please bid the project as designed and specified on the plans. This is to ensure fair bidding between contractors. Once a contractor is under contract with KDFWR, we will look at alterna�ves.

38. SP151 Details 2 & 3 show CIP concrete around the sheet pile opening for the intake pipe. Since this area will be underwater can the concrete be subs�tuted with steel channel or angles?

Please bid the project as designed and specified on the plans. This is to ensure fair bidding between contractors. Once a contractor is under contract with KDFWR, we will look at alterna�ves.

39. Will excavated material be suitable for backfill around the pump sta�on once complete?

It is assumed that the material will be suitable but will require engineer approval before use.

40. Can unacceptable backfill material excavated for construc�on be disposed onsite (within 1,000 �. of the work area).

Yes.

41. Specifica�on 15445 2.2 D Pump Cans- how is air within the cans expelled under pumping condi�ons? Does air become trapped in the upper part of the can, above the liquid level of the discharge outlet? Not sure if this is an issue.

Once the project is awarded, these details will be verified with the selected contractor through the submital process and will be based on the pump manufactures recommenda�ons.

42. On Sheet SE201 it men�ons “Tower Framing, See Sheets SE211 & SE212”. I don’t see these sheets in the set of plans. Can you supply these sheets?

Please reference sheets SE221 and SE222 for details on tower framing. This was a typo that wasn’t updated.

43. I’m not seeing any specs for the roof. Can those be supplied as well?

I would clarify to the contractors that the roof system is Light Gauge Metal Deck ONLY and nothing else. As such, there shouldn’t be a need for any specifica�on regarding the roof. If the contractor’s have any further ques�ons regarding the roof system, they should submit an addi�onal RFI seeking more specific informa�on post award of the project. – Laramie McMasters, PE, Maurer-Stutz Inc. Project Engineer - Structures

Please reference sheets SE221 and SE222 for details on the roof of the electrical tower.

44. I’m sure the stated Dimensions are what we should go by, but the scale is off on the details. On Sheet SC501.

As stated below the longitudinal sec�on �tle, the dimensions on this sec�on are perpendicular to the center line of the roadway. This may seem a bit confusing to the contractors as the sec�on is cut along the length of the culvert barrel, thus the dimensions are in fact longer than called out in this sec�on view. This is how culvert plans are typically detailed and laid out here in Illinois which is way it was completed this way. Dimensions along the barrel length and perpendicular to the center line of the roadway are both shown on the plan view on sheet SC101. This should provide clarity on the overall culvert dimensions. – Laramie McMasters, PE, Maurer-Stutz Inc. Project Engineer – Structures

2021 Nationwide Permit Summary US Army Corps of Engineers Louisville District ®

Issued: March 15, 2021 Expires: March 14, 2026

No. 39. Commercial and Institutional Developments

(NWP Final Rule, 86 FR 2744)

Discharges of dredged or fill material into non-tidal waters of the United States for the construction or expansion of commercial and institutional building foundations and building pads and attendant features that are necessary for the use and maintenance of the structures. Attendant features may include, but are not limited to, roads, parking lots, garages, yards, utility lines, storm water management facilities, wastewater treatment facilities, and recreation facilities such as playgrounds and playing fields. Examples of commercial developments include retail stores, industrial facilities, restaurants, business parks, and shopping centers.

Examples of institutional developments include schools, fire stations, government office buildings, judicial buildings, public works buildings, libraries, hospitals, and places of worship. The construction of new golf courses and new ski areas is not authorized by this NWP.

The discharge must not cause the loss of greater than 1/2-acre of non-tidal waters of the United States. This NWP does not authorize discharges of dredged or fill material into non-tidal wetlands adjacent to tidal waters.

Notification: The permittee must submit a pre-construction notification to the district engineer prior to commencing the activity.

(See general condition 32.) (Authorities:

Sections 10 and 404)

Note: For any activity that involves the construction of a wind energy generating structure, solar tower, or overhead transmission line, a copy of the PCN and NWP verification will be provided by the Corps to the Department of Defense Siting

Clearinghouse, which will evaluate potential effects on military activities.

Nationwide Permit General Conditions

Note: To qualify for NWP authorization, the prospective permittee must comply with the following general conditions, as applicable, in addition to any regional or case-specific conditions imposed by the division engineer or district engineer.

Prospective permittees should contact the appropriate Corps district office to determine if regional conditions have been imposed on an NWP. Prospective permittees should also contact the appropriate Corps district office to determine the status of Clean Water Act Section 401 water quality certification and/or Coastal Zone Management Act consistency for an NWP. Every person who may wish to obtain permit authorization under one or more NWPs, or who is currently relying on an existing or prior permit authorization under one or more NWPs, has been and is on notice that all of the provisions of 33 CFR 330.1 through

330.6 apply to every NWP authorization.

Note especially 33 CFR 330.5 relating to the modification, suspension, or revocation of any NWP authorization.

1. Navigation. (a) No activity may cause more than a minimal adverse effect on navigation.

(b) Any safety lights and signals prescribed by the U.S. Coast Guard, through regulations or otherwise, must be installed and maintained at the permittee's expense on authorized facilities in navigable waters of the United States.

(c) The permittee understands and agrees that, if future operations by the United States require the removal, relocation, or other alteration, of the structure or work herein authorized, or if, in the opinion of the

Secretary of the Army or his or her authorized representative, said structure or work shall cause unreasonable obstruction to the free navigation of the navigable waters, the permittee will be required, upon due notice from the Corps of Engineers, to remove, relocate, or alter the structural work or obstructions caused thereby, without expense to the United States. No claim shall be made against the United States on account of any such removal or alteration.

2. Aquatic Life Movements. No activity may substantially disrupt the necessary life cycle movements of those species of aquatic life indigenous to the waterbody, including those species that normally migrate through the area, unless the activity's primary purpose is to impound water. All permanent and temporary crossings of waterbodies shall be suitably culverted, bridged, or otherwise designed and constructed to maintain low flows to sustain the movement of those aquatic species. If a bottomless culvert cannot be used, then the crossing should be designed and constructed to minimize adverse effects to aquatic life movements.

3. Spawning Areas. Activities in spawning areas during spawning seasons must be avoided to the maximum extent practicable.

Activities that result in the physical destruction (e.g., through excavation, fill, or downstream smothering by substantial turbidity) of an important spawning area are not authorized.

4. Migratory Bird Breeding Areas.

Activities in waters of the United States that serve as breeding areas for migratory birds must be avoided to the maximum extent practicable.

5. Shellfish Beds. No activity may occur in areas of concentrated shellfish populations, unless the activity is directly related to a shellfish harvesting activity authorized by NWPs 4 and 48, or is a shellfish seeding or habitat restoration activity authorized by

NWP 27.

6. Suitable Material. No activity may use unsuitable material (e.g., trash, debris, car bodies, asphalt, etc.). Material used for construction or discharged must be free from toxic pollutants in toxic amounts (see section 307 of the Clean Water Act).

7. Water Supply Intakes. No activity may occur in the proximity of a public water supply intake, except where the activity is for the repair or improvement of public water supply intake structures or adjacent bank stabilization.

8. Adverse Effects From Impoundments. If the activity creates an impoundment of water, adverse effects to the aquatic system due to accelerating the passage of water, and/or restricting its flow must be minimized to the maximum extent practicable.

9. Management of Water Flows. To the maximum extent practicable, the pre-construction course, condition, capacity, and location of open waters must be maintained for each activity, including stream channelization, storm water management activities, and temporary and permanent road crossings, except as provided below. The activity must be constructed to withstand expected high flows. The activity must not restrict or impede the passage of normal or high flows, unless the primary purpose of the activity is to impound water or manage high flows. The activity may alter the pre-construction course, condition, capacity, and location of open waters if it benefits the aquatic environment (e.g., stream restoration or relocation activities).

10. Fills Within 100-Year Floodplains. The activity must comply with applicable FEMA-approved state or local floodplain management requirements.

11. Equipment. Heavy equipment working in wetlands or mudflats must be placed on mats, or other measures must be taken to minimize soil disturbance.

12. Soil Erosion and Sediment Controls.

Appropriate soil erosion and sediment controls must be used and maintained in effective operating condition during construction, and all exposed soil and other fills, as well as any work below the ordinary high water mark or high tide line, must be permanently stabilized at the earliest practicable date. Permittees are encouraged to perform work within waters of the United States during periods of low-flow or no-flow, or during low tides.

13. Removal of Temporary Structures and Fills. Temporary structures must be removed, to the maximum extent practicable, after their use has been discontinued. Temporary fills must be removed in their entirety and the affected areas returned to pre-construction elevations. The affected areas must be revegetated, as appropriate.

14. Proper Maintenance. Any authorized structure or fill shall be properly maintained, including maintenance to ensure public safety and compliance with applicable NWP general conditions, as well as any activity-specific conditions added by the district engineer to an NWP authorization.

15. Single and Complete Project. The activity must be a single and complete project. The same NWP cannot be used more than once for the same single and complete project.

16. Wild and Scenic Rivers. (a) No NWP activity may occur in a component of the National Wild and Scenic River System, or in a river officially designated by Congress as a “study river” for possible inclusion in the system while the river is in an official study status, unless the appropriate Federal agency with direct management responsibility for such river, has determined in writing that the proposed activity will not adversely affect the Wild and Scenic River designation or study status.

(b) If a proposed NWP activity will occur in a component of the National Wild and Scenic River System, or in a river officially designated by Congress as a “study river” for possible inclusion in the system while the river is in an official study status, the permittee must submit a pre-construction notification (see general condition 32). The district engineer will coordinate the PCN with the Federal agency with direct management responsibility for that river.

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

(c) Information on Wild and Scenic Rivers may be obtained from the appropriate Federal land management agency responsible for the designated Wild and Scenic River or study river (e.g., National Park Service, U.S. Forest Service, Bureau of Land Management, U.S. Fish and Wildlife Service). Information on these rivers is also available at:

http://www.rivers.gov/.

17. Tribal Rights. No activity or its operation may impair reserved tribal rights, including, but not limited to, reserved water rights and treaty fishing and hunting rights.

18. Endangered Species. (a) No activity is authorized under any NWP which is likely to directly or indirectly jeopardize the continued existence of a threatened or endangered species or a species proposed for such designation, as identified under the Federal Endangered Species Act (ESA), or which will directly or indirectly destroy or adversely modify designated critical habitat or critical habitat proposed for such designation. No activity is authorized under any NWP which “may affect” a listed species or critical habitat, unless ESA section 7 consultation addressing the consequences of the proposed activity on listed species or critical habitat has been completed. See 50 CFR 402.02 for the definition of “effects of the action” for the purposes of ESA section 7 consultation, as well as 50 CFR 402.17, which provides further explanation under ESA section 7 regarding “activities that are reasonably certain to occur” and “consequences caused by the proposed action.”

(b) Federal agencies should follow their own procedures for complying with the requirements of the ESA (see 33 CFR 330.4(f)(1)). If pre-construction notification is required for the proposed activity, the Federal permittee must provide the district engineer with the appropriate documentation to demonstrate compliance with those requirements. The district engineer will verify that the appropriate documentation has been submitted. If the appropriate documentation has not been submitted, additional ESA section 7 consultation may be necessary for the activity and the respective federal agency would be responsible for fulfilling its obligation under section 7 of the ESA.

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

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

(e) Authorization of an activity by an NWP does not authorize the “take” of a threatened or endangered species as defined under the ESA. In the absence of separate authorization (e.g., an ESA Section 10 Permit, a Biological Opinion with “incidental take” provisions, etc.) from the FWS or the NMFS, the Endangered Species Act prohibits any person subject to the jurisdiction of the United States to take a listed species, where "take" means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. The word “harm” in the definition of “take'' means an act which actually kills or injures wildlife.

Such an act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering.

(f) If the non-federal permittee has a valid ESA section 10(a)(1)(B) incidental take permit with an approved Habitat Conservation Plan for a project or a group of projects that includes the proposed NWP activity, the non-federal applicant should provide a copy of that ESA section 10(a)(1)(B) permit with the PCN required by paragraph (c) of this general condition.

The district engineer will coordinate with the agency that issued the ESA section 10(a)(1)(B) permit to determine whether the proposed NWP activity and the associated incidental take were considered in the internal ESA section 7 consultation conducted for the ESA section 10(a)(1)(B) permit. If that coordination results in concurrence from the agency that the proposed NWP activity and the associated incidental take were considered in the internal ESA section 7 consultation for the ESA section 10(a)(1)(B) permit, the district engineer does not need to conduct a separate ESA section 7 consultation for the proposed NWP activity. The district engineer will notify the non-federal applicant within 45 days of receipt of a complete pre-construction notification whether the ESA section 10(a)(1)(B) permit covers the proposed NWP activity or whether additional ESA section 7 consultation is required.

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

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

20. Historic Properties. (a) No activity is authorized under any NWP which may have the potential to cause effects to properties listed, or eligible for listing, in the National Register of Historic Places until the requirements of Section 106 of the National Historic Preservation Act (NHPA) have been satisfied.

(b) Federal permittees should follow their own procedures for complying with the requirements of section 106 of the National Historic Preservation Act (see 33 CFR 330.4(g)(1)). If pre-construction notification is required for the proposed NWP activity, the Federal permittee must provide the district engineer with the appropriate documentation to demonstrate compliance with those requirements. The district engineer will verify that the appropriate documentation has been submitted. If the appropriate documentation is not submitted, then additional consultation under section 106 may be necessary. The respective federal agency is responsible for fulfilling its obligation to comply with section 106.

(c) Non-federal permittees must submit a pre-construction notification to the district engineer if the NWP activity might have the potential to cause effects to any historic properties listed on, determined to be eligible for listing on, or potentially eligible for listing on the National Register of Historic Places, including previously unidentified properties. For such activities, the pre-construction notification must state which historic properties might have the potential to be affected by the proposed NWP activity or include a vicinity map indicating the location of the historic properties or the potential for the presence of historic properties. Assistance regarding information on the location of, or potential for, the presence of historic properties can be sought from the State Historic Preservation Officer, Tribal Historic Preservation Officer, or designated tribal representative, as appropriate, and the National Register of Historic Places (see 33 CFR 330.4(g)). When reviewing pre-construction notifications, district engineers will comply with the current procedures for addressing the requirements of section 106 of the National Historic Preservation Act. The district engineer shall make a reasonable and good faith effort to carry out appropriate identification efforts commensurate with potential impacts, which may include background research, consultation, oral history interviews, sample field investigation, and/or field survey. Based on the information submitted in the PCN and these identification efforts, the district engineer shall determine whether the proposed NWP activity has the potential to cause effects on the historic properties. Section 106 consultation is not required when the district engineer determines that the activity does not have the potential to cause effects on historic properties (see 36 CFR 800.3(a)). Section 106 consultation is required when the district engineer determines that the activity has the potential to cause effects on historic properties. The district engineer will conduct consultation with consulting parties identified under 36 CFR 800.2(c) when he or she makes any of the following effect determinations for the purposes of section 106 of the NHPA: no historic properties affected, no adverse effect, or adverse effect.

(d) Where the non-Federal applicant has identified historic properties on which the proposed NWP activity might have the potential to cause effects and has so notified the Corps, the non-Federal applicant shall not begin the activity until notified by the district engineer either that the activity has no potential to cause effects to historic properties or that NHPA section 106 consultation has been completed. For non-federal permittees, the district engineer will notify the prospective permittee within 45 days of receipt of a complete pre-construction notification whether NHPA section 106 consultation is required. If NHPA section 106 consultation is required, the district engineer will notify the non- Federal applicant that he or she cannot begin the activity until section 106 consultation is completed. If the non- Federal applicant has not heard back from the Corps within 45 days, the applicant must still wait for notification from the Corps.

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

306113) prevents the Corps from granting a permit or other assistance to an applicant who, with intent to avoid the requirements of section 106 of the NHPA, has intentionally significantly adversely affected a historic property to which the permit would relate, or having legal power to prevent it, allowed such significant adverse effect to occur, unless the Corps, after consultation with the Advisory Council on Historic Preservation (ACHP), determines that circumstances justify granting such assistance despite the adverse effect created or permitted by the applicant.

If circumstances justify granting the assistance, the Corps is required to notify the ACHP and provide documentation specifying the circumstances, the degree of damage to the integrity of any historic properties affected, and proposed mitigation. This documentation must include any views obtained from the applicant, SHPO/THPO, appropriate Indian tribes if the undertaking occurs on or affects historic properties on tribal lands or affects properties of interest to those tribes, and other parties known to have a legitimate interest in the impacts to the permitted activity on historic properties.

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

22. Designated Critical Resource Waters.

Critical resource waters include, NOAA-managed marine sanctuaries and marine monuments, and National Estuarine Research Reserves. The district engineer may designate, after notice and opportunity for public comment, additional waters officially designated by a state as having particular environmental or ecological significance, such as outstanding national resource waters or state natural heritage sites. The district engineer may also designate additional critical resource waters after notice and opportunity for public comment.

(a) Discharges of dredged or fill material into waters of the United States are not authorized by NWPs 7, 12, 14, 16, 17, 21, 29, 31, 35, 39, 40, 42, 43, 44, 49, 50, 51, 52, 57 and 58 for any activity within, or directly affecting, critical resource waters, including wetlands adjacent to such waters.

(b) For NWPs 3, 8, 10, 13, 15, 18, 19, 22, 23, 25, 27, 28, 30, 33, 34, 36, 37, 38, and 54, notification is required in accordance with general condition 32, for any activity proposed by permittees in the designated critical resource waters including wetlands adjacent to those waters. The district engineer may authorize activities under these NWPs only after she or he determines that the impacts to the critical resource waters will be no more than minimal.

23. Mitigation. The district engineer will consider the following factors when determining appropriate and practicable mitigation necessary to ensure that the individual and cumulative adverse environmental effects are no more than minimal:

(a) The activity must be designed and constructed to avoid and minimize adverse effects, both temporary and permanent, to waters of the United States to the maximum extent practicable at the project site (i.e., on site).

(b) Mitigation in all its forms (avoiding, minimizing, rectifying, reducing, or compensating for resource losses) will be required to the extent necessary to ensure that the individual and cumulative adverse 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) Compensatory mitigation at a minimum one-for-one ratio will be required for all losses of stream bed that exceed 3/100-acre and require pre-construction notification, unless the district engineer determines in writing that either some other form of mitigation would be more environmentally appropriate or the adverse environmental effects of the proposed activity are no more than minimal, and provides an activity-specific waiver of this requirement. This compensatory mitigation requirement may be satisfied through the restoration or enhancement of riparian areas next to streams in accordance with paragraph (e) of this general condition. For losses of stream bed of 3/100-acre or less that require pre-construction notification, the district engineer may determine on a case-by-case basis that compensatory mitigation is required to ensure that the activity results in only minimal adverse environmental effects. Compensatory mitigation for losses of streams should be provided, if practicable, through stream rehabilitation, enhancement, or preservation, since streams are difficult-to-replace resources (see 33 CFR 332.3(e)(3)).

(e) Compensatory mitigation plans for NWP activities in or near streams or other open waters will normally include a requirement for the restoration or enhancement, maintenance, and legal protection (e.g., conservation easements) of riparian areas next to open waters. In some cases, the restoration or maintenance/protection of riparian areas may be the only compensatory mitigation required. If restoring riparian areas involves planting vegetation, only native species should be planted. The width of the required riparian area will address documented water quality or aquatic habitat loss concerns. Normally, the riparian area will be 25 to 50 feet wide on each side of the stream, but the district engineer may require slightly wider riparian areas to address documented water quality or habitat loss concerns. If it is not possible to restore or maintain/protect a riparian area on both sides of a stream, or if the waterbody is a lake or coastal waters, then restoring or maintaining/protecting a riparian area along a single bank or shoreline may be sufficient. Where both wetlands and open waters exist on the project site, the district engineer will determine the appropriate compensatory mitigation (e.g., riparian areas and/or wetlands compensation) based on what is best for the aquatic environment on a watershed basis. In cases where riparian areas are determined to be the most appropriate form of minimization or compensatory mitigation, the district engineer may waive or reduce the requirement to provide wetland compensatory mitigation for wetland losses.

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

(1) The prospective permittee is responsible for proposing an appropriate compensatory mitigation option if compensatory mitigation is necessary to ensure that the activity results in no more than minimal adverse environmental effects. For the NWPs, the preferred mechanism for providing compensatory mitigation is mitigation bank credits or in-lieu fee program credits (see 33 CFR 332.3(b)(2) and (3)). However, if an appropriate number and type of mitigation bank or in-lieu credits are not available at the time the PCN is submitted to the district engineer, the district engineer may approve the use of permittee-responsible mitigation.

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

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

(4) If permittee-responsible mitigation is the proposed option, the prospective permittee is responsible for submitting a mitigation plan. A conceptual or detailed mitigation plan may be used by the district engineer to make the decision on the NWP verification request, but a final mitigation plan that addresses the applicable requirements of 33 CFR 332.4(c)(2) through (14) must be approved by the district engineer before the permittee begins work in waters of the United States, unless the district engineer determines that prior approval of the final mitigation plan is not practicable or not necessary to ensure timely completion of the required compensatory mitigation (see 33 CFR 332.3(k)(3)). If permittee-responsible mitigation is the proposed option, and the proposed compensatory mitigation site is located on land in which another federal agency holds an easement, the district engineer will coordinate with that federal agency to determine if proposed compensatory mitigation project is compatible with the terms of the easement.

(5) If mitigation bank or in-lieu fee program credits are the proposed option, the mitigation plan needs to address only the baseline conditions at the impact site and the number of credits to be provided (see 33 CFR 332.4(c)(1)(ii)).

(6) Compensatory mitigation requirements (e.g., resource type and amount to be provided as compensatory mitigation, site protection, ecological performance standards, monitoring requirements) may be addressed through conditions added to the NWP authorization, instead of components of a compensatory mitigation plan (see 33 CFR 332.4(c)(1)(ii)).

(g) Compensatory mitigation will not be used to increase the acreage losses allowed by the acreage limits of the NWPs. For example, if an NWP has an acreage limit of 1/2-acre, it cannot be used to authorize any NWP activity resulting in the loss of greater than 1/2-acre of waters of the United States, even if compensatory mitigation is provided that replaces or restores some of the lost waters. However, compensatory mitigation can and should be used, as necessary, to ensure that an NWP activity already meeting the established acreage limits also satisfies the no more than minimal impact requirement for the NWPs.

(h) Permittees may propose the use of mitigation banks, in-lieu fee programs, or permittee-responsible mitigation. When developing a compensatory mitigation proposal, the permittee must consider appropriate and practicable options consistent with the framework at 33 CFR 332.3(b). For activities resulting in the loss of marine or estuarine resources, permittee-responsible mitigation may be environmentally preferable if there are no mitigation banks or in-lieu fee programs in the area that have marine or estuarine credits available for sale or transfer to the permittee. For permittee-responsible mitigation, the special conditions of the NWP verification must clearly indicate the party or parties responsible for the implementation and performance of the compensatory mitigation project, and, if required, its long-term management.

(i) Where certain functions and services of waters of the United States are permanently adversely affected by a regulated activity, such as discharges of dredged or fill material into waters of the United States that will convert a forested or scrub-shrub wetland to a herbaceous wetland in a permanently maintained utility line right-of-way, mitigation may be required to reduce the adverse environmental effects of the activity to the no more than minimal level.

24. Safety of Impoundment Structures. To ensure that all impoundment structures are safely designed, the district engineer may require non-Federal applicants to demonstrate that the structures comply with established state or federal, dam safety criteria or have been designed by qualified persons. The district engineer may also require documentation that the design has been independently reviewed by similarly qualified persons, and appropriate modifications made to ensure safety.

25. Water Quality. (a) Where the certifying authority (state, authorized tribe, or EPA, as appropriate) has not previously certified compliance of an NWP with CWA section 401, a CWA section 401 water quality certification for the proposed discharge must be obtained or waived (see 33 CFR…