permit.pdf

. DEPARTMENT OF THE ARMY

WALLA WALLA DISTRICT, CCRPS OF ENGINEERS

COEUR D'ALENE REGULATORY OFFICE

IDAHO PANHANDLE NATIONAL FOREST BUILDING

REPLY TO 3B15 SCHREIBER WAY

ATT'ENllON OF COEUR D'ALENE, IDAHO B3B15-B362

May 5, 2009

Regulatory Division

SUBJECT: NWW-2009-243-C08

Mr, Randall Swick U,S, Forest Service 2502 East Sherman Avenue Coeur d'Alene, Idaho 83814

Dear Mr, Swick:

The U.s. Forest Service's proposed installation of 174 stream enhancement structures within an 0.8 mile section of Short Creek located within Section 7, Township 51 N, Range 2 E, Boise Meridian, Shoshone County, Idaho, is authorized under the terms and conditions of Department of the Army Nationwide Permit 27. This authorization requires your project be constructed as shown on the enclosed drawings and comply wit.':! the terms alld conditions of the enclosed nationwide permitand the spedal conditions listed below.

a. Disturbed soils must be reseeded and protected from erosion until the site has stabilized, Reseeding and erosion protection shall be accomplished upon completion of project construction.

b, Permittee is responsible for all work done by any contractor, Permittee shall ensure any contractor who performs the work is informed of and follows all the terms and conditions of this authorization (including any special conditions listed above).

Permittee shall also ensure these terms and conditions are incorporated into engineering plans and contract specifications.

c, Permittee shall notifY me at 208-765-7237 when construction begins. Permittee shall sign and return the enclosed Compliance Certification when the project is completed.

Please carefully review these conditions, including the Water Quality Certification conditions, Ifyou cannot meet these conditions, this NWP verification is not valid. Your project must comply with the Idaho Water Quality Standards as stated in IDAP A 58.01.02. If you have any questions about the Water Quality Certification conditions, please contact Ms. June Bergquist of the Idaho Department ofEnvironrnental Quality at 208-769-1422. If you change the project description in your permit application, this NWP may not be valid and you should contact us before starting work. We have enclosed a Compliance Certification for you to sign and return when you have completed your project.

Pr\f11i!d on ® Recycled Paper http:58.01.02

-2

1ms verification is valid for 2 years from the date ofthis letter. Ifyou start or are under contract to start this activity before this date, you will have an additional 12 months to complete the activity under the present terms and conditions of this NWP.

1ms authorization applies only to Department ofthe Army permits administered by the Corps ofEngineers. Your project may also require permits from other Federal, state, and local agencies. Ifyour work requires a permit from the Idaho Department of Water Resources, you will need to obtain their approval before starting work. You should also contact your local city or county zoning office for any permits they may require for your project.

We have not prepared, and this letter does not constitute an approved jurisdictional determination for your project. Ifyou want us to make an approved jurisdictional determination concerning Short Creek, please send us a request prior to the start of work. Ifyou do this, you may not begin construction until we have issued our approved determination

If you do not want the Corps to complete an approved JD, you may proceed with the proposed project in accordance with the terms and conditions ofDepactment of the Army Nationwide Permit No. 27 found in the March 12, 2007 Federal Register (72 FR 11092), Re issuance ofNationwide Permits. .

We are interested in your thoughts and opinions concerning the quality of service you received from the Walla Walla District, Corps ofEngine~rs Regulatory Division. Ifyou have Intemet access and are interested in letting us know how we are doing, you can complete an electronic version of our Customer Service Survey form on our web site at: http://per2.nwp.usace.army.millsurvey.html which will be automatically submitted to us. Alternatively, you may call and request a paper copy of the survey so you may complete and return to us by mail or fax.

If you have any questions conceming this authorization or Corps jurisdiction, please contact me at 208-765-7237. A copy of this letter is being sent to Mr. Greg Taylor, Idaho Department of Water Resources, 7600 Mineral Drive, Coeur d'Alene, Idaho 83815.

Sincerely, Houston 1. Hannafious Environmental Protection Specialist

Enclosures http://per2.nwp.usace.army.millsurvey.html

·NATlONWIDE PERMIT 27

Aquatic Habitat Restoration, Establishment, and Enhancement Activities. Aclivities in waters of the United States associated with the restoration, enhancement:, and establishment oftidai and non-tidal wetlands and riparian Mens and the restoration and enhancement of non-tidal streams and other non~tidal open waters! provided those activities result in net increases in aquatic resource functions and services, 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; t1e instaUation. removal. and maintenance of smaJl water control structures. dikes, and berms; the instaUation of current deflectors; the enhancement, restoration, or establishment of riffle IlIld pool stream structure; the placement of in-stream habitat structures; modifications of the stream bed and/or bnnks to restore or establish stream meanders; the backfilling of artificiai channels and drainage ditches; the removal of existing drainage structures; 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 preparaUon and the planting of appropriate wetland species; I!lechanized land clearing to remove non-native inv3Sive~ exotic) or nuisance vegetation;

and other related activities. Only native planl species should be planted al the site.

This NWP authorizes the relocation ofnon-tidal waters, incIuding non-tidal weHands 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 wetlnnds-to another aquatic habitat type (e.g., stream to wetland or vice versa) or uplands. This NWP does not authorize stream channelization. This NWP does not authorize the relocation of tidal wnters or the conversion of tidal waters, including tidal wetlands, to other aquatie uses, sueh as the conversion of tidal wetlands into open water impoundments.

Reversion. For enhancement, restoration, and establishment activities conducted: (1) In accordance with the tenus and conditions ofa binding wetland enhancement, restoration,. or establishment agreement between the landowner and the U.S. Fish nnd 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), or their designated state cooperating agencies; (2) as voluntary wetlnnd resloralion, enhancement, and establishment actions documented by the NRCS or USDA Technical Service Provider pursulIDt to NRCS Field Office Technical Guide slandards; or (3) on reclaimed sumce coal mine lands, in accordance with a Surface Mining Conlrol and Recl1l!llation Acl permit issued by the OSM or the applicable stale agency, this NWP also authorizes any future discharge ofdredged 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 tenn wetland restoration or establishment agreement or pennit. and is authorized in these circumstances even if the discharge occurs after this 1'.-rwF expires. The five~year reversion limit does not apply to agreements withoullime limits rcaehed between the lando"",e, nnd the FWS, J>.'RCS, FSA, NMFS, NOS, or an appropriale stnle cooperaling agency. This NWP also authorizes dischruges of dredged or fill malerial in walers of the United Siaies fur the reversion of wetlands that were restored, enhanced, or established on priorMconverted cropland that has not been abandoned or on uplands) in accordance with a binding agreement betvveen the landowner and NRCS. FS~ FWS, Or their designated state cooperating agencies (even though the restoration, enhancement" or establishment activity did not require n section 404 permit), The prior condition will be documented in the original agreement or permit, and the determination of return to prior condHions win 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 pdor condition. Once an orea has reverted to its prior physical condition, it win be subject to ,\o'hatever the Corps Regulatory requirements ore applicable to that type of land at the time. The requirement that the activity result in a net increase in aquatic resource functions and services does not apply to reversion aetivities meeting the above eonditions. Except for the activities described above, this NWP does not authoriZG any future discharge of dredged or fill material associated with the reversion oCthe area to its prior condition. In such cases a separate permit would be required for MY reversion.

RepDrting: For those activities that do not require pcc.-constmction notification, the permittee must submit to the di~ct engineer a copy of: (1) The binding wetland enhancement, restoration, or establishment agreement1 or a project description, including project plans and localion map; (2) the NRCS or USDA Technical Service Provider documentation for the voluntary wetland restoration, enhancement, or establishment action; or (3) the SMCRA permit issued by OSM or the applicable slole agency. These documents must be submitted to the district engineer at least 30 days prior fo commencing activities in waters of the United States authorized by this NWP.

Notification. The permittee must submit Ii pre-construction notification to the district engineer prior to commencing the activity (see general condilion 27), except for the following aclivilies:

{l) Activities conducted on non~Federal pUblic lands and private lands) in accordance with the terms and conditions of a binding wetland enhancemenl, restoration, or eslablishment agreemenl between the landowner and the U.S. FWS, J>.'RCS, FSA, NMFS, NOS, or their designated state cooperating agencies~

(2) Voluntary wetland restoralion, enhancement, and establishment aclions documented by the NRCS or USDA Technical Service Provider pursuant 10 NRCS Field Office Technical Guide standards; or

(3) The reclamation of surface coal mine lands, in accordance with an SMCRA permil issued by Ihe OSM or thc . ~·-applicaolest8Ieagency. ~":.~~ ..". -------~..---~""..---"-..

However, the permittee must submit a copy of the appropriate documentation. (Sections 10 and 404)

Note: Tllis NWP can be used to ~uthorize compensatory mitigation projects. including mitigation banks und in~!ieu fee progrnms, However, this NWP does not Duthorize the reversion of an area used for a compensatory mitigatioo project to its prior condition, since compensatory mitigatIon is generally Intended to be permanent.

Regional Conditions

1" Notification under General Condition 27 shall include the fOllowing:

a, Description ofllie pre.-project site conditions, photographs, geneIill wetland functions and services the site provides and benefits anticipated from project construction.

b. For projects which invoJve creation of stream meanders; riffle and pool compJexes or pool stream structures, provide evidence the structure is designed by an expert in river dynamics such as a hydrologist. fluvial morphologist or wetland expert c,. For projects which Involve dlschurges in high value wetlands (forested wetlands, peatlands, vernal pools, kettles, or wetlands Identified in Idaho Department ofFish nod Game Wetlund Conservation Strategy' as CiIDls I, Class II, Reference und Habitat sites)) provide a monitoring phm which includes annual reporting) and identify any necessary maintenance required. to ensure a net increase in aquatic resource functions and serviees.

'!'later Quality Certification - CONDITIONS THAT ARE NECESSARY TO ASSURE COMPLIANCE WITH

WATER QUALITY STANDARDS

Activities on Impaired Waters Prior to commencing work, the permittee must notIfY the appropriate Regional IDEQ Office ofall activities that occur on waters not meeting state water quality standards timpaired waters'~, regardless ofwhether the Corps requl'res a pre~ construction notification. This notification must be in writing and must contain a praject description, location, name of affected water body, start and completion dates, a description ofplanned best management practices (e.g, methods that will be used to control turbidity), and permittee contact information.

The most current EPA-approved IDEQ Integrated Report at the time ofthe proposed activity must be used/or determining whether. thli"affected water is considered an impaired water. A copy ofthe current, EPA-approvedfinal 2002 Integrated

Report can be vielt'ed at: ht(p:!lwlVw,dea. idaho. VQvlwaterldata reports/surface l~gter/manitan'nflI2002.cfm.

TlIis URL also has a link to IDEQ's map*based Integrated Report which presents informaUonfrom the Integrated Report in a searchable, map-based format.

Activities on impaired waters with a tolal maximum daily laad (TMDL) must be implemented by the permittee ,'n a manner that is consistent with the TlvIDL. IDEQ believes that ifthe permittee fully camplies with the conditions ofthis certification (most notably the best management practices and bank stobilization conditions), then the project wi/lUkely comply with

"the TMD£. The permittee is advised to contact the appropriate regional office to determine if their project will be in compliance with (he TMDL. A list afEPA-appraved TMDLs is a:vailable online at:

hUD:I!w1'lw.dC(f idaho,gov/waterJdata reports/surface water/tmdlslsba lmdl master list.cfi'll.

BestlvlanagemenJ Practices Best management practices (BMPs) must be deSigned, implemented, and maintained by the permittee tofit/ly protect and maintain the benefiCial uses ofwaters ofthe state. Furthermore, the permittee must monitor and evaluate BMP effectiveness during project construction to determine ifwater quality standard.r are being inet. Ifthere are indications that water quality standards are nat being met (sitch as a plume ofsllspended material), then the B ..~Ps must be modified as necessary to ensure compliance with water quality standards.

Appral'ed B~fPs for specific activities (such as mining, forestry, stream channel alteration) afe codified in IDAPA 58.0/,02.350, In addition, IDEQ has a catalog ofstormwaler best management practices that is available on line at:

1 Idaho Department of Fish and Game (IDFG) Wetland Conservation S({Dlegff:$hDvebefJlldevelopedfurHellrY5Fork fJasln. Ncfthcm IdiJho, Big Wood fWeT S/rg/n, SOUrhfJUleFIIlda/w. EIJst·CentTaf Idiilha ilnd Spokane River Basin. Mfddlo an;t Wes:tern SnDhl River illid fffb.utiJTif.!s, and fhe Up{Jcr St'!Di.'il River lind .,dj;lr:ent wf.!tlands. Refer to the lMemof si'fil at http://www2.stateJd-:iJs/iishQam(i}Tiif(;jCDC/wetlands.htmfiJ, il ccmpfete-'(sl-ar IDFG wiJt!4~n1! pilb/icDlions'-'he ....---~-...

Conservation Strategies are authored by Jancovsky-Jones.

http://www2.stateJd-:iJs/iishQam(i}Tiif(;jCDC/wetlands.htmfiJ http://www.deq.idaho.iCJ.j.·/wateridatarepQr.!s/stormwoter/catalov/index.cfm.This catalog presents a variely o/Bk!Ps Ihal can be used 10 cantrol erosion and sediment during and after construclton. Other sOllrc.es ofin/ormation are also available and may he use for selecting appropriate BltfP.'i.

Wood Preservatives

Any use oftreated woad materials in the aquatic environment must be conducted in accordance with IDEQ Policy #

P}'!97~/, ffWater Quality an'd Woad Preservatives Policy ~femoranda. This is available on-line at:

H http:l(wwlV.deq.idaho. govlrulesl(lolicieslom9 7 I.c(m.

Hazardous and Deleterious ;l-falerials Hazardous and deleterious materials (e,g. oil, gasoline, cheml'cals, trash, and sm-vdust) must not be slored, disposed of. or accumulated aqjacent to or in the immediate vicinity a/waters ofthe state unless 'adequate measures and controls are prOVided to ensure that those materials will not enter waters ofthe state, Bank Stabilization Any projects involving bank stabilization must incorporate, wherever practicable. bioengineering techniques (using rool wads and vegetation) in the bank stabilization design.

General Conditions

No.fe: To qualify for NWP tl.uthorizntion. the prospective permittee must comply with the fonowing general conditions. as nppropriate, in nddition to any regional or case~specifie conditions imposed by the division engineer or district engineer, Prospective pennittees should contact the appropriate Corps district office to detemline ifregional conditions have been imposed on an NWP. Prospective pennittees should also cont.'lCt the npproprinre Corps district office to detemtinc the status of Clean W3Ier Act Section 401 wat:er quality certification a.ndJ or Coastal Zone Management Act consistency fur on NV!lP.

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, Const Guard, through regulations or otherwise, must be installed and maintained at the pennittee's expense on authorized facilities in navigable waters of the United States.

(c) The pennittee understnnds and agrees that, iffuture operations by the United States require the removal, relocation, or other alteration, of the structure or work herein authorized, or it: in the opinion of the Secretary ofthe Anny or his authorized representative) swd structure or work shalJ cause unreasonable obstruction to the free navigation ofthe navigable waters~ the permittee will be required~ upon due notice from the Corps ofEngineers. to·remove. relocate. Or alter the structural work or obstructions caused thereby, without expense to the United States. No claim shall be made agwnst the United States on account ofany sueh removal or alteration.

2 Aquatic Life Movements. No activity may sUbstantiaUy disrupt the necessary life cyele movements of those species of aquatic fife indigenous to the waterbody, including those species that normaHy migrate through the area, unless the aetivity·s primary purpose is to impound water. Culverts plaeed in streams must be installed to maintain low flow conditions.

3 Spmvning Areas, Aetivities in spawning areas during spa\'l<l1ing seasons must be avoided to the maximum extent practicable. Activities that result in the physical destruetion (e,g" through excavation. fiU. or downstream smothering by substantial turbidity) ofan important spawning nrea are not authorized, 4 ABgratory Bird Breeding Areas. Aetivities in waters of the United States that serve as breeding areas for migratory birds must be avoided to the ma.ximum extent practicable.

5 Shellfish Beds, No activity may oceur in arens ofconcentrated shellfISh populations, unless the activity is directly related to a shellfish harvesting activity authorized by NWPs 4 and 48, 6 Sui/able Malerial, No activity may use unsuitable malllrial (e.g., trash, debris, ear bodies, asphalt, etc,), Material used for construction or discharged must be free from toxic pollutants in toxic amounts (see Section 307 of the Clcan Water Act).

7 Water Supply Intakes, No activity may occur in the proximity ofa public water supply inlnke, except where the activity' is for tile repair or improvement ofpubUe water supply intake structures Or adjacent bank stabilization.

8 Adverse F/focls From Impoundments. If the activity creates an impoundment of water, adverse effects to the aquatic system due to accelerating the passage of water. andJor restricting its flow must be minimiz.ed to the maximum extent practicahle.

9 Afanagemenl ofWater Flows. To the maximum extent practicabler the pre~construction course~ condition. capncity. and location ofopen waters must be mainlnined for each activity, including stream channeHzation and stann water m.anagement activities, except as provided below. The activity must be constructed to withstand expeeted high flows, The activity must not restrict or impede tile passage ofnormal or high flows, unless the primary purpose of the aetivity 15 to impound water or manage high flows. The activity may alter the pre-construetion course, condftion, capacity~ and location of open waters jf it benefits the aquatic environment (e.g., stream restoration or relocation activities).

10 Fills Within IOO·Year Floodplains, The activity must comply with applicnbleFEMA·approved stnte or local floodplain management re.quirements.

11 eqUipment. Heavy equipment working In wetlands or mudflats must be placed on mats. or other measures must be taken to minImize soH disturbance .

. ~·12 .. SoiJ.Erosion·andSedimentC...:1ntrols: Appropriate soil erosinn and sedimentcontroJs·must~be·used-atld1TUlintained in effective operating condition during constructjon~ and all exposed soil and other fiUs. as well as any work below the ordinary http:minimiz.ed http:l(wwlV.deq.idaho http:sOllrc.es http://www.deq.idaho.iCJ.j.�/wateridatarepQr.!s/stormwoter/catalov/index.cfm.This high water mark or high tide line, must be permanently stabilized at the earliest practicable date. Permittees are encouraged to perform work within waters of the United States during periods of low-flow or no~flow.

13 Removal a/Temporary Fills. Temporary fiUs 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 MaI'ntenance. Any authorized strueture or fill shall be,properly maintained. including maintenance to ensure public safety.

15 Wild and Scenic Rivers. No activity may,occur in a component of the National Wild and Scenic River System. or in a river officially designated by Congress as a "study 'river" for possible inclusion in the system while the river is in on official study status, unless the appropriate Federal agency with direct management responsibility for such river) has detennined in 'WTiting that the proposed activity will not adversely affect tile Wild and Scenic River designation or study status. Information on Wild and Scenic Rivers may be obtained from the appropriate Federal land managemcnt agency in the area (e.g., National Park Service, U.S. Forest Service, Bureau ofLand Managemen~ U.S. Fish lUld Wildlife Service).

16 Tribal Rights. No activity or its operation may impair reserved tribal rights, including, but not limited to, reserved water rights lll1d treaty fishing and hunting rights.

17 Endangered Species. (al No activity is authorized under any NWP \Vilich is likely to jeopardize the continued existence of a threatened or endangered species or a species proposed for such designation, as identified under the Federal Endangered Species Act (ESA), or which will destroy or adversely modify the critical habitat of such specie~. No activity is authorized under any NWP which ·~may affect" a listed species or critical habitat, unless Section 7 consultation addressing the effects of the proposed activitr hos been completed.

(b) Federal agencies ,ilculd follow their own procedures for complying with the requirements of the ESA. Federal pennittees must provide the district engineer with the appropriate documentation to demonstrate compliance willi those req uirements.

(c) Non-federnl pennit11:es shall notifY the district engineer if any listed species or designated critical habitat might be affected or is in the vicinity of the project, or if the project is located in designated critical habitat, and shall not begin work on the activity until notified by the district engineer that the requirements of the ESA have been satisfied and that the activity is authorized. For activities that might affcct FederaUy..listed endangered or threatened species or designated critical habitat, the pre..construction notification must include the name{s) of the endangered or threatened specics that may be affected by the proposed work or that utilize the designated critical habimt that may be affected by the proposed work. The district engineer will detennine whether the proposed activity "may affectH or will have Hno effectH to listed species and designated critica1 habitat and wHl notify the non~Fcdera1 applicant of the Corps' dctennination within 45 days of receipt of a complete pre~construction notification. In cases whcre the non~Federa1 applicant has identifie.d listed species or critical habitat that might be affech!d or j5 in the vicinity of the project, and has so notified the CO!]lS, the applicant shall not begin work until the CO!]ls has provided notiflcation the proposed· activities wit! have "no effect" on listed species or critical habitat, or until Section 7 consultation has been completed.

(d) As a result offonnal or infonnal consultation with the FWS or NMFS the district engincer may add species-specific regional endangered species conditions to the NWPs.

(e) Authorization ofan activity by a N\VP does not authorize the "take" ofa threatened or endangered species as defined under the ESA-In the absence of separate authorization (e.g., an ESA Section 10 Permit, a Biological Opinion with

"'incidental take" proviSions, etc.) from the U.S. FWS or the NlvlFS, both lethal and non~letha! • 'takes' • ofprotected species nre in violation of the ESA Information on the location of threatened and endangered species nnd their critical habitat cnn be obtained directly from thc offices of the U.S. FWS and NMFS or their world wide Web pages at http://www./lrs.gov!and hft p://www,noaa.gavljisheries.hunl respectively.

18 Historic Properties. (a) In cases where the district engineer determines that the activity may affect properties listed, or eligible for listing, in the 'f".!ational Register ofHistoric Places, the activity.Js not authorized. until the requirements of Section

106 of the National Historic Preservation Act (NEPA) have been satisfied.

(b) Federal permittees should follow their own procedures for complying with the requirements of Section 106 of the National Historic Preservation Act. Federal permittees must provide the district engineer with the appropriate documentation to demonstrate complhmce with those requirements.

(c) Non~federal permittees must submit fl pre-construction notification to the district engineer if the authorized activity may have the potential to cause effects to any historic properties listed, detennined to be eligible for listing on, or potentially eligible for listing on the National Register of Historic Places, induding prevjously unidentified properties. For sueh activities!

the pre~construction notification must state which historic properties may be nffeeted by the proposed work or include a vicinity map indicating the loeation ofthe historic properties or the potential for the presence ofhistorie properties, Assistance regarding infonnation on the location ofor potential for the presence of historic resources can be sought from the State Historic Preservation Officer Dr Tribal Historic Preservation Offieer, as appropriate, and the National Register of Historic Places (see 33 CFR 330.4(g». The district engineer shull make a reasonable and good fuith 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 inionnation submitted and these efforts) the distriet engineer shall determine whether the proposed activity hIlS the potential to cause un effect an the historic properties. Where the non..Federal applicant has identified hi.!>ioric properties whieh the activity may have the potential to cause effects and so notified the Corps, the non-Federal applicant shaH nat begin the activity ·untirnonfie(rbY~tlitf{fiSiflct erigineefeither that the IlCtivity hmrno patentjo.r-to'"tnu5e-effeets~or thutconsuitation under Section 106 of the NHPA has been completed.

http:activity.Js http://www./lrs.gov!and

(d) The district engineer wiH notify the prospective pennittee within 45 days ofreceipt of a complete pre-construction notification whether NHPA Section 106 consultation is required. Sectlon 106 consultation is not required when the Corps determines that the activity does not have the potential to cause effects on historic properties (see 36 CFR 800.3(a». IfNHPA section 106 consuUation is required and wlll occur, the district engineer wm notify the non~Federal applicant that he or she cannot begin work until Section 106 consultation is completed.

(e) Prospeetive pennittees should be aware thut section IIOk of the NHPA (16 U.S.C. 470h-2(k» prevents the Corps from grunting a permit or other assistance to an applicant who, with intent to avoid the requirements of Section 106 of the NHPA, has inllmtionally significontly adversely affected a historic property to which the pennit 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 ereated or permitted by the applicant. If eircwnstances justil'y granting the assistance, the Corps is required to notil'y the ACHP and provide documentation specifying the circumstances, explaining the degree of damage to. the integrity of any historic properties affected, and proposed mitigation. This documentation must include any views obtained from the applicant, SHPOrrHPO, 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 histonc properties.

19 Designated Critical Resource Waters. Critical resource waters include, NOAA~designated marine sanctuaries, National Estuarine Researcb Reserves, state natural heritage sites. and outstanding nationni resource waters or other waters officially designated by a state as hnving particular environmental or ecotogieaJ significance and identified by the district engineer after· notice and opportunity for public comment The district engineer may also designate additional critical resource waters after notiee and opportunity for comment.

(a) Discharges of dredged or fill material into waters of the United States are not authorized by NWPs 7, 12, 14, 16, 17, 21.29.31,35,39,40,42,43) 44, 49, and 50 for any activity within, or directly affecting, critical resouree waters, including wetlands adjacent to such waters.

(b) For NWPs 3,8, 10, 13, 15, 18, 19,22,23,25,27,28,30,33,34,36,37, and 38, notification is required in aeeordance with general condition 27; for W1Y activity proposed in the designated critical resource waters including wetlands adjacent to those waters. The district engineer may authorize activities under these NVlPs only after it is determIned that the impacts to the critical resource waters wiU be no more than minimal.

20 Mitigation. The district engineer will consider the following faetors when determining appropriate W1d practicable mitigation necessary to ensure that adverse effects on the aquatic environment are minimal:

(al The activity must be designed and constructed to avoid and minimize edverse 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 irinll its forms (avoiding, minimizing, rectifYing, reducing, or compensating) will be required to the extent necessary to ensure that the adverse effects to the aquatic environment are minimal.

(c) Compensatory mitigation at a minimum one-for-one ratio will be required for nll wetland losses that exceed Ylo acre and require pre-construction notifieation~ unless the district engineer determines in writing that some other form of mitigation would be more environmentally appropriate and provides a project-specific waiver ofthls requirement. For wetland tosses of 1;10 aere or less that require pre-construction notification, the distriet engineer may determine on n c;use-by~case basis that compensatory mitigation is required to ensure that the activity results in minimal adverse effects on the aquatie' environment Since the likelihood ofsuccess is greater and the impaets to potentially valuable uplands nre reduced, wetland restoration should be the first compensatory mitigation option considered.

(d) For losses of streams or other open waters that require pre*construetion notifieation, the district engineer may require compensatory mitigation, such as stream restoratio~ to ensure that the activity results in minimal adverse effects on the aquatic environment.

(e) Compensatory mitigntion 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 hacre~ it cannot be used to authorize any project resulting in the loss of greater than IS; acre ofwaters 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 use~ as necessary~ to em-ure that a project already meeting the estabJished acreage limits also satisfies the minimal impact requirement associated with the NWPs,

(f) Compensatory mitigation plans for projects In or near streams or other open waters win normally include n requirement fur the establishment, maintennnce. and legal protection (e.g. f conservation easements) of riparian arellS next to open waters. In some cases, riparian o.reas may be the only compensatory mitigation required. Riparian areas should consist of native speeies. The width of the required riparian area will address documented water qunlity or aquatic habitat loss concerns. NonnalIy, the riparian area will be 25 to 50 feet wide on each side of the strell1l1~ but the district engIneer may reqUIre slightly wider riparian areas to address documented water quaUty or habitat loss concerns, Where both wetlands and open waters exist on the project sHe) the distriet engineer will determine the appropriate compensatory mitigation (e.g.~ riparian areas andlor wetlands eompensation) based on what is best for the aquatic environment on a watershed basis, 1n eases where riparian areas are determined to be the most appropriate form of compensatory mitigation. the district engineer may waive or reduce the requirement to provide wetland compensatory mitigation for wetland losses.

(g) Penn1ttees niay propose the use of mitigation banks. in·lieu fee arrangementS or separate activity-specific compensatory mitigation. In all cases, the mitigation provisions will specifY the party responsible for aeeomplishing and/or compl;ing witlnhlnfiitigationplan. ~

(h) \¥here certain functions and services of waters of the United States arc permanently adversely affeeted. such as the converSion ofa forested or scrub-shrub wetland to a herbaceous wetland in a permanently maintained utility line right~of·way~ mitigation may be required to reduce the adverse effects of the project to the minlmal level.

21 Water Quality, Where States und authorized Tribes, or EPA where applicable. have not previously certified compliunce of an NWP with CWA Section 401, individual 401 Water Quality Certification must be obtnined or waived (see 33 CPR 330.4(c)). The district engineer or Slate or Tribe may require additional water quaUty monngement measures to ensure that the authorized activity does not result in more than minimal degradation of water quruity.

22 Coastal ZONe )"ianagement, hl coastal. states where an h.rwP has not previously reteived a state coastal zone management consistency concurrence) an individual state coastal zone management consistency concurrence must be obtained, or a presumption ofconcurrence must occur (see 33 CFR 330.4(d). The district engineer or 11 State may require additional measures to ensure that the authorized activity is consistent with state coastal zone management requirements.

23 Regional and Case-By-Case Conditions, The activity must comply with any regional conditions that mllY have been added by the Division Engineer (see 33 CFR 330.4(e» and with any case specific conditions added by tile Corps or by the ,late, Indian Tribe. or U,S, EPA in its section 40 I Water Quality Certification, or by the statc in its Coastal Zone Management Act consistency determination.

24 Use ofMultiple Nationwide Permits, The use of more than one NWP for a single und complete project is prohibited, except when the acreage loss ofw!lters of the United States authorized by the NWPs does not exceed the acreage limit of the NWP with the highest speeified acreage limit. For example, if n road crossing over tidal waters is constructed under NWP 14, with associated bank stabilization authorized by NWP 13. the maximum acreagc loss of waterS of the United States for the total project cnnnot exceed ~~acre. .

25 Transfer ofNationwide Permit Verifications. If the permittee sells the property associated with a nationwide permit verification, the permittee may transfer the nationwide permit verification to the new owner by submitting a letter to the appropriate Corps district office to validate the trnn.sfer. A copy of the nationwide permit verification must be attached to the letter, and the letter must contain the following statement and signature:

H\\'ben the strucrures or work authorized by this nationwide permit are stiH in existence at the time the property is trl.U1Sferred, the terms and conditions of this nationwide permit.. inciuding any special conditions, will continue to be binding on the new owner(s) of the property, To validate the transfer ofthis nationwide permit and the IlSsociated liabilities associated with compliance with its terms and conditions: have the transferee sign and date below.· t

(Transferee)

26 Compliance C2rtijicaUoIL El1ch permittee who received an N\VP verification from the Corps must submit a signed certification regarding the eompleted work and any required mitigation, The certification fonn must be forwarded by the Corps with the NWP verification letter and will include:

(a) A statement that the authorized work was done in accordance with the NVIP authorization~ including any genern] or specific conditions;

(b) A statement that any required mitigation was completed in accordance with the permit conditions; and

(c) Toe signature of the pennittee certifying the'completion of the work and mitigation.

27 Pre-Constrltclion Notification. (a) Timing, Where required by the terms ofthe N\VP, the prospective pennittee must notify the district engineer by submitting a preMconstruction notification (peN) as early as possible, The district engineer must determine if the PCN is complete within 30 calendar days of the date of receipt and, as a general rule, will request additional infonnation necessary to make the PCN complete only once. However~ if the prospective permittee does not provide'all of the requested infonnntion. then the district engineer will notify the prospective pennittee that the PCN is still hi.complele and the peN review process will not commence until all of the requested information has been received by the distrIct engineer. The prospective permittee shall not begin the activity:

(I) Until notified in writing by the district engineer that the activity may proceed under the NWP with any special conditions imposed by the district or division engineer; or

(2) If45 calendar days have pG.'lsed from the district engineer's receipt of the complete PCN and the prospective pennrttee haS not received written nooce from the district or division engineer. However~ if the permittee WIlS required to notifY the Corps pursuant to general condition 17 that listed species or critical habitat might be affected or in ,the vicinit}' of the project, or to notify the Corps pursuant to general condition 18 thllt the activity may have the potential to cause effects to historic properties) the pennittee cannot begin the activity until receiving written notification from the Corps thnt is "no effect U on listed species or "no potential to cause effectsH on historic properties, or that any consultation required under Section 7 of the Endangcred Species Act (see 33 CFR 330.4(1)) undlor Section 106 of the National Historic Preservation (see 33 CPR 330.4(g)) is completed. Also, work eunnot begin under NWPs 21, 49, or 50 until the permittee has received written approval from the Corps. .

lfthe proposed activity requires a written wlliver to exceed specified limits ofan NWP) the permittee cnnnot begin the activity until the district engineer issues the waiver. If the district or division engineer notifies the permittee in writing that an iodividuat pennit is required within 45 calendar days ofreceipt of a complete PCN, the permittee cannot begin the activity until ilIl mdividual permit has been ob!Jlined:Subscquently,-thel'ermittee's-rightioproceed under the NWPl1IllY be modified,suspended, ..

or revoked only in accordance with the procedure set forth in 33 CPR 3305(d)(2),

(b) Contents ofPre~Constrllctian Notification: The PCN must be in writing nnd include the following infonnation:

(I) Name, address and telephone numbers ofthe prospective permittee;

(2) Location of the proposed project;

(3) A description ofthe proposed project; the project's purpose; direct and indirect adverse environmentaJ effects the projeet would cause; uny other NWP(s), regional general permlt(s), or individual penmit(s) used or intended to be used to authorize any part of the proposed project or uny related activity. The description should be sufficiently detailed to allow the district engineer to determine that the adverse effects ofthe project will be minimal and to determine the need for compensatory mitigation. Sketches should be provided when necessary to show that the activity complies with the tenns of the NWP. (Sketches usually clarify the project and when provided result in a quicker decision,);

(4) The PCN must include a delineation ofspecial aquatic sites and other waters ofthe United States on the project site. Wetland delineations must be prepared in accordance with the current method required by the Corps. The permittee may llSk the Corps to delineate the special aquatic sites and other waters of the United States, but there may be a delay if the Corps does the delineation, especially If the project site is large Or contains many waterS of the United States. Furthermore, the 45 day period will not slllrt until the delineation hus been submitted to or completed by the Corps, where appropriate;

(5) !fthe proposed activity will result in the loss ofgreater thlll1 y,,.cre of wetlands and a PCN is required, the prospective pemilttee must submit [l statement describing how the mitigation requirement will be satisfied. As an alternative, the prospective permittee may submit a conceptual or detailed mitigation plan.

(6) Ifany listed species or designated critical habitat might be mocted or is in the vicinity ofthe projec~ or ifthe project is located in desigaated critical habita~ for non-Federal applicants the PCN must include the narno(s) of those endangered or lllJ'COtened species that might he meeted by the proposed work or utilize the designated critical habitat that may be mected by the proposed work. Federal (!ppUcants must provide doeumentation demonstrating compliance with the Endangered Species Act;

and

(7) For an activity that may meet a historic property listed on, detennined to be eligible for listing on, or potentially eligible for listing on, the National Register ofHistoric Places, for non-Federal applicants the PCN must state which historic property may be mected by the proposed work or include a vicinity map indicating the location of the historic property.

Federal applicants must provide documentation demonstrating compliance with Section 106 of the National Historic Preservation Act '

(c) Form ofPre-Construction Notification: The standard individual permit application form (Form ENG 4345) may be used, but the completed application fonn must clearly indicate that it is a PCN and must include all of the infunnation required in paragraphs (b)(I) through (7) of this genernl condition. A letter containing the required infonnation may also be used. .

(d) Agency Coordination: (I) The district engineer will consider any comments from Fcdernl and state agencies concerning the proposed activity's compliance with the terms and conditions of the NWPs and the need for mitigation to reduce the project's ad verse environmental effects to a minimalleve!.

(2) For all NWP 48 activities requiring pre~construction notification and for other NWP activities requiring pre~ construction notification to the district engineer that result in the loss ofgreater than I!HICre of waters of the United States. the district engineer will immediately provide (e.g., via facsimile transmiSSion, overnight mail. or other expeditious manner) a copy ofthePCN to the appropriate Federal or state offices (U.S. FWS, state natural resource Or water quality agency, EPA. State Historic Preservation Officer (SHPO) or Tribal Historic Preservation Office (THPO), and, if appropriate, the NMFS). With the exception ofNWP 37, these agencies wiH then have 10 calendar days from the date the material is transmitted to telephone or fax the district engineer notice that they intend to provide substantive~ sitcMspecific comments. Ifso contacted by an agency, the district engineer will wait an additional 15 calendar days before making a decision on the prewconstruction notification, The district engineer will fully consider agency comments received within the specified time frame, but \vitI provide no response to the resource agency, except llS provided below. The district engineer wilI indicate in the administrative record IlSsoeiated with each pre~construction notification that the resource agencies' concerns were considered. For l\rwP 37, the emergency watershed protection and rehabilitation activity may proeeed immediately in cases where there is an unacceptable hazard to Ufe or a significant loss of property or economic hardship wiIi occur. The district engineer will consider any comments received to decide whether the NWP 37 authorization should be modified, suspendcd t or revoked in accordance with the procedures at 33 CFR 330.5.

(3) In cases ofwhere the prospective pennittee is not a Federal agency, the district engineer will provide a response to N1viFS within 30 calendar days of receipt of any Essential Fish Habitat conservation recommendations, as required by Section 305(b)( 4 )(B) ofthe Magnuson-Stevens Fishery Conservation and Management Act.

(4) Appliclll1ts are encouraged to provide the Corps muliiple copies of pre-construction notifications to expedite agency coordinlltion,

(5) For NWP 48 activities that require reporting, the district engineer will provide a copy of each report within 10 calendar days of receipt to the appropriate regional offico of the NMFS.

(e) District Engineer's Decision: In reviewing the PCN for the proposed activity, the district engineer will detennine whether ~e llctivity authorized by the NWP will result in more than mfnirnnl individual or cumulative adverse environmental effects or lIl1ly be contrary to the public interest. If the proposed activity requires a PCN and will result in a loss of greater than m

------'1lOll~te ofwetlands, the prospective·pennittee-shOillasubmIt a ml1!gallon propoSal with the PCN. Applicantsma),fiIs-opropose- _-compensatory mitigation for projects with smaller impacts. The district engineer will consider any proposed compensatory mitigation the applicant has included in the proposal in determining whether the net adverse cnviromnental effects to the aquatic environment of the proposed work are minimal. The eompensatory mitigation proposal may be either conceptual or detailed. If the district engineer determines that the activity complies with the terms and conditions of the NVlP and that the adverse effects on the aquatic environment are minimal, after considering mitigation, the district engineer will notify the permittee and include any conditions the district engineer deems necessary. The district engin~er must approve any compensatory mitigation proposal before the permittee commences work. If the prospeetive permittee elects to submit a compensatory mitigation plan with the peN, the district engineer will expeditiously review the proposed compensatory mitigation plan. The distriet engineer must review the plan within 4S calendar days ofreceiving a complete PCN and determine whether the proposed mitigation would ensure no more than minimal adverse effects on the aquatic environment. If the net adverse effects of the project on the aquatic environment (after consideration of the compensatory mitigation proposal) nre del.emlined by the district engineer to be minimal.

the district engineer wHJ provide a timely written response to the applicant. The response will state that the project can proceed UDder the terms and corulitiollS of the NWP.