Permit_USACE.pdf

Nationwide Permit #13 Bank Stabilization

Permit Specific Regional Condition –

1. To the maximum extent practicable, bank stabilization activities shall be accomplished using natural stabilization techniques and/or natural channel design. Riparian plantings shall be included in project designs to the extent practicable.

2. Essential Fish Habitat Regional Condition (Applicable to the Delaware River in

Pennsylvania):

a. Any activity on the Delaware River associated with this NWP shall comply with the time-of-year restrictions developed in conjunction with the Delaware Basin Fish and Wildlife Management Cooperative and accepted by the Corps of Engineers, as applicable.

3. Essential Fish Habitat Regional Condition (Applicable in the District of Columbia, Maryland, and the Potomac River watershed within military installations of Northern Virginia in the regulatory geographic boundaries of the Baltimore District):

a. Instream work is prohibited during the period of February 15 through June 15, each year, within all tidal and nontidal coastal plain streams within the areas referenced above; and nontidal piedmont streams in Harford and Cecil Counties, Maryland for the protection of anadromous fish spawning.

2012 Nationwide Permit General Regional Conditions

Note: To qualify for NWP authorization, the prospective permittee must comply with the following regional general conditions, as applicable, in addition to any nationwide permit specific regional conditions identified above in Section I, the general conditions found in the 2012 NWPs published in the Federal Register on February 21, 2012 (77 FR 10282), and any case-specific conditions imposed by the Corps.

Nationwide Permit General Condition #2 Aquatic Life Movement

Regional General Condition 2a - The permittee shall apply any appropriate time-of -year restrictions to protect the aquatic resources present within the project area and downstream of the project site. See attached addresses of agencies for information on state imposed time-of-year restrictions (see “List of Agencies”, numbers 7, 8 & 9 for contact information in Pennsylvania;

numbers 10, 12, & 13 for contact information in Maryland; number 15 & 21 for contact information in Washington, DC; and number 17, 18, 19, and 20 for Virginia).

Nationwide Permit General Condition #18 Endangered Species

Regional Condition 18a – For all work in Pennsylvania associated with any of the NWPs, the applicant is required to complete a Pennsylvania Natural Diversity Inventory (PNDI) project screening for federally listed threatened and endangered species. The PNDI Environmental Review Tool is located at: http://www.naturalheritage.state.pa.us. The prospective permittee must submit a PCN to the District Engineer, in accordance with the current Corps permit application procedures (See general condition 31 and regional general condition 31a), prior to doing the work, if the PNDI receipt identifies a “Potential Impact”, or “Avoidance Measures”, in association with the U.S. Fish and Wildlife Service.

Regional Condition 18b - Interactions with National Marine Fisheries Service Federally Threatened or Endangered Species (Applicable to the District of Columbia, Maryland, and certain military installations of Northern Virginia in the regulatory geographic boundaries of the Baltimore District): Any interaction between a sea turtle or any species listed now or in the future under Federal law as a threatened or endangered species (“listed species”) (e.g., North Atlantic right whale, humpback whale, shortnose sturgeon) and the vessels associated with the project must be reported to the National Marine Fisheries Service as follows: (1) If the animal appears alive and uninjured (i.e., breathing normally, no visible wounds, movement uninhibited), the permittee or its representative must report the incident to the National Marine Fisheries Service Northeast Region Marine Mammal and Sea Turtle Stranding and Entanglement Hotline at (866) 755-6622 within 24 hours of returning from the trip on which they made the discovery;

(2) If the animal requires assistance, the call to the hotline must be made immediately; (3) If the animal appears to be injured (i.e. bleeding, gasping for air, etc.) or dead, the permittee or its representative must also immediately call the hotline so the appropriate rehabilitation or stranding network representative can be contacted. The applicant shall also notify the Corps of all correspondence and coordination with the National Marine Fisheries Service within two calendar days. Additional information about any Federally threatened or endangered species may be obtained from the attached fact sheet or online at:

file:///C:\Documents%20and%20Settings\e1opxjjd\Local%20Settings\Temporary%20Internet%20Files\Content.Outlook\Local%20Settings\Temporary%20Internet%20Files\Content.Outlook\Local%20Settings\Temporary%20Internet%20Files\Content.Outlook\Local%20Settings\Temporary%20Internet%20Files\Content.Outlook\Local%20Settings\Temporary%20Internet%20Files\Content.Outlook\Local%20Settings\Temporary%20Internet%20Files\Content.Outlook\Local%20Settings\Temporary%20Internet%20Files\e1opxbeb\Local%20Settings\Temporary%20Internet%20Files\Local%20Settings\Temporary%20Internet%20Files\OLK1A5\agencies.htm http://www.naturalheritage.state.pa.us/ http://www.nero.noaa.gov/prot_res/stranding/SpeciesOverview.html and at:

http://www.nero.noaa.gov/prot_res/esp/. An interaction is defined as an entanglement or capture of a listed species or a strike/direct contact between vessels or equipment used for the project and a listed species.

Regional Condition 18c - Vessel Buffer (Applicable to the District of Columbia, Maryland, and certain military installation of Northern Virginia in the regulatory geographic boundaries of the Baltimore District): When listed species are sighted, vessels must attempt to maintain a distance of 50 yards (150 feet) or greater between the animal and the vessel whenever possible. State and Federal regulations prohibit approaching a right whale within a 500 yard (1,500 foot) buffer zone. Any vessel finding itself within the 500 yard (1,500 foot) buffer zone created by a surfacing right whale must depart immediately at a safe, slow speed. If other listed species are detected, vessels will reduce their speeds to 10 knots or to the maximum extent practicable to ensure human safety. If listed species are sighted off of a moving dredge, intentional approaches within 100 yards (300 feet) of the animal must be avoided. Vessels must reduce speeds to 4 knots or the lowest speed practicable to ensure human safety. Any interactions must be reported to the National Marine Fisheries Service.

Regional Condition 18d - Best Management Practices Applicable Within Tidal Waters of the Chesapeake Bay in Maryland, District of Columbia, and certain military installations of northern Virginia having Salinity Levels Less Than 6 Parts Per Thousand (ppt) (See Enclosure 1):

1. Pile Driving: For the protection of listed species, pile driving methods must maintain noise level thresholds not to exceed 187dB sound exposure level (SEL) re 1μPa or 206dB peak re 1μPa at a distance of >10m from the pile being installed; and levels >155dB peak re 1μPa must not exceed 12 consecutive hours on any given day and a 12 hour recovery period (i.e., in-water noise levels below 155dB peak re 1μPa) must be provided between work days. Pile driving construction must adhere to one of the following methods: (a) piles must be installed in-the-dry during low water; (b) piles must be drilled and pinned to ledge; (c) vibratory hammers must be used to install any size and quantity of wood, concrete, or steel pilings; (d) impact hammers must be limited to one hammer and <50 piles installed per day with the following: (1) wood piles of any size; (2) concrete piles <18-inches diameter; (3) steel piles <12-inch diameter if the hammer is <3,000 pounds and a wood cushion is used between the hammer and steel pile; or (e) approved pile driving methods that will allow noise level thresholds to be met.

2. Sediment Disturbing Activities Time-of-Year Restriction: Within all tidal waters of the Chesapeake Bay and its tidal tributaries in Maryland, sediment disturbing activities with salinity levels <6 ppt, which includes pile driving activities, are prohibited during the period April 1 through June 30 for the protection of shortnose sturgeon and early life stages in these waters.

http://www.nero.noaa.gov/prot_res/esp/

Nationwide Permit General Condition #31 Pre-Construction Notification

The following regional general conditions are incorporated as part of the terms and conditions of NWP General Condition 31, Pre-Construction Notification. These regional general conditions are applicable to all NWPs where a PCN is submitted to the district engineer. This includes the following: (a) those NWPs requiring notification to the district engineer pursuant to the NWP general conditions 18, 22 and 31, (b) those NWPs requiring notification to the district engineer pursuant to a regional condition, and (c) any other pre-constriction notifications to the district engineer where an applicant has requested verification of an NWP authorization. Those NWPs that require a PCN include NWPs 1*, 2*, 3*, 4*, 5*, 6*, 7, 8, 9*, l0*, 11, 12, 13*, 14*, 15*, 16*, 17, 18, 19, 20*, 21*, 22*, 23, 24*, 25*, 27, 28, 29, 30, 31, 32*, 33, 34, 35, 36*, 37*, 38, 39, 40, 41, 42, 43*, 44, 45, 46, 48*, 49, 50, 51, and 52.

*These NWP activities require notification under certain circumstances. Review the NWP authorization, general conditions 18, 22 & 31, and the regional conditions to identify these circumstances.

Regional General Conditions 31a

1. A PCN shall be submitted to the District Engineer for any proposed activity, which would result in impacts, temporary or permanent, to jurisdictional wetlands in the following Counties in Pennsylvania: Adams, Berks, Bucks, Carbon (Aquashicola Creek Watershed), Chester, Cumberland, Delaware, Lancaster, Lebanon, Lehigh, Monroe, Montgomery, Northampton, Schuylkill (Swatara Creek Watershed), and York.

2. For a PCN required in Pennsylvania under Regional Nationwide Permit General

Condition 18a, a copy of the PCN must also be concurrently forwarded to the U.S. Fish and Wildlife Service if the PNDI receipt identifies a “Potential Impact” related to the U.S. Fish and Wildlife Service, or if the applicant cannot implement, or does not agree to implement one or more U. S. Fish and Wildlife Service issued “Avoidance Measures” detailed on the PNDI receipt.

3. A PCN shall be submitted the Baltimore District Corps of Engineers for proposed construction and modification of docks, piers, and other structures that will occur along and/or within 150 feet of the horizontal limits of a federally authorized channel within the Baltimore District Civil Works Boundary http://www.nab.usace.army.mil/Navigation/DepthRpts.htm#017. In addition, a PCN is required for the replacement of previously authorized, currently serviceable structures located along federally authorized channels that are destroyed by an act of nature or sudden event. All proposed work shall comply with the most current version of the Baltimore District’s setback guidance on the Baltimore District Regulatory website at:

http://www.nab.usace.army.mil/Wetlands%20Permits/ see http://www.nab.usace.army.mil/Wetlands%20Permits/PublicNotice/SPN/spn11-17.pdf

4. All pre-construction notifications (PCNs) to the District Engineer shall be completed using the established Corps of Engineers permit application procedures for that locality http://www.nab.usace.army.mil/Navigation/DepthRpts.htm#017 http://www.nab.usace.army.mil/Wetlands%20Permits/ http://www.nab.usace.army.mil/Wetlands%20Permits/PublicNotice/SPN/spn11-17.pdf

(see http://www.nab.usace.army.mil/Wetlands%20Permits/permits.htm). The PCN shall include all activities that the applicant plans to undertake that are reasonably related to the same project. All PCNs to the District Engineer shall include the following information, where applicable, in addition to the information specified in the nationwide permit conditions, including General Condition 31:

a) Plan(s) of the proposed work on 8-1/2 by 11 inch paper which includes a location map; longitude and latitude; and plan view drawings clearly depicting the location, size, and dimensions of the proposed activity as well as the location of the delineated waters and wetlands, for the entire project area. The drawings shall contain the amount (in cubic yards) and the area (square feet) of dredged and/or fill material to be discharged in Corps jurisdiction, including both permanent and temporary structures. Plans should depict all proposed work, including areas proposed for filling, grading, excavation, drainage, and/or inundation. All drawings shall include the ordinary high water mark, or if in tidal waters, the mean high water mark and high tide line; existing water depths; cross-sectional plan; depth of any structure(s) below mean low water; height of any structure(s) above mean high water; the maximum distance that the structure(s) or fill will extend channelward of the existing shoreline; the width of the waterway at the project site; the location of any dredged material disposal area; the distance from the edge of any federal navigation channel and the location of any temporary work; structures, vessels, or fills required for construction; a copy of any previous Federal or State approvals; and the location and nature of any submerged aquatic vegetation (e.g., eel grass, Zostera marina). In the Baltimore District, the applicant may refer to the Virginia Institute of Marine Science aerial surveys for obtaining such information. http://web.vims.edu/bio/sav/index.html The applicant should also refer to other reliable sources to comply with this condition.

b) The PCN shall include a wetland and stream delineation for the entire project area, including latitude and longitude, identified on a scaled plan of the project site. All existing or proposed work in aquatic resources shall be identified on the same-scaled plan. Further, at the discretion of the District Engineer, the Corps may determine that a PCN is incomplete if it is determined that field verification of the wetland and/or stream delineation is required.

c) Numbered and dated pre-project color photographs showing all aquatic resources proposed to be impacted on the project site. The compass angle and position of each photograph shall be documented on the plan view drawing.

d) Evidence that the prospective permittee has already contacted and received a response from the National Marine Fisheries Service and/or the U.S. Fish and Wildlife Service concerning any Federally listed Threatened and Endangered Species that may be affected by the proposed activity. (see “List of Agencies”, numbers 2 & 4 for contact information in Pennsylvania; numbers 3, & 5 for contact information in Maryland and Washington, DC; and Numbers 5, 19 & 20 for contact information in Virginia).

http://www.nab.usace.army.mil/Wetlands%20Permits/permits.htm http://web.vims.edu/bio/sav/index.html

In Pennsylvania, a PNDI receipt or U.S. Fish and Wildlife Service letter (issued pursuant to the ESA) serves as evidence that the prospective permittee has contacted and received a response from the U.S. Fish and Wildlife Service.

e) Evidence that the prospective permittee has already contacted and received a response from the State Historic Preservation Office concerning historic properties that may be affected by the proposed activity. (see “List of Agencies”, number 6 for contact information in Pennsylvania; number 11 for contact information in Maryland; number 14 for contact information in Washington, DC;

and number 16 for contact information in Virginia).

f) Documentation from the appropriate State agency indicating whether the proposed project is located within a State Natural Heritage site, Outstanding National Resource Water, or National Estuarine Research Reserve. For further information, reference NWP general condition 22. (see “List of Agencies”, numbers 2, 4, & 7 for contact information in Pennsylvania; numbers 3, 5, 10, 12, & 13 for contact information in Maryland; numbers 3, 5, 15, & 21 for contact information in Washington, DC; and numbers 17, 18, 19, & 20 for contact information in Virginia).

g) A written statement describing the following:

i. what measures have been taken to avoid impacts to aquatic resources;

ii. what measures have been taken to minimize unavoidable impacts to aquatic resources;

iii. what measures have been developed to compensate for the loss of aquatic resources. Where compensatory mitigation is required, approval of a mitigation plan (complete with the 12 fundamental components of a compensatory mitigation plan, as identified in 33 CFR 332.4/40 CFR

230.92.4 (c)) is required prior to initiating any authorized work.

5. When a PCN is required, the Corps review period shall commence with the receipt of a complete permit application at the Corps District Office. The prospective permittee shall not begin the activity until notified in writing by the District Engineer (normally within 60 days) that the activity may proceed under the nationwide permit with any special conditions imposed, if applicable.

6. Where required by the regional conditions of the NWP, the prospective permittee must submit a PCN to the District Engineer for any activity that may adversely affect Essential Fish Habitat within the District of Columbia, Maryland, and certain military installations of Northern Virginia within the Potomac River watershed in the regulatory geographic boundaries of the Baltimore District. The District Engineer will immediately provide (e.g., via email, facsimile transmission, or other expeditious manner) a copy of the PCN, including project description, site location map, project plans, and any ancillary information relevant to the National Marine Fisheries Service’s jurisdiction for an Essential Fish Habitat assessment, or where appropriate, an individual Essential Fish Habitat consultation and coordination. The National Marine Fisheries Service- Chesapeake Bay Office shall then have a 30 day review and comment period from the date of their receipt of the EFH assessment, as provided by the Magnuson-Stevens Act.

7. Any requests to waive the 300 linear foot limitation for the intermittent and ephemeral streams for NWPs 12, 21, 29, 39, 40, 42, 43, 44, 50, 51, and 52, or to waive the 500 linear foot limitation along the bank for NWP 13, or to waive the 20 foot width limitation for NWP 36, must include:

a) A narrative description of the stream. This should include known information on:

volume and duration of flow; the approximate length, width, and depth of the waterbody and characteristics observed associated with the Ordinary High Water Mark (e.g., bed and bank, wrack line, or scour marks); a description of the adjacent vegetation community, including a statement as to if the area is upland or wetland; surrounding land use; water quality; issues related to cumulative impacts in the watershed, and; any other relevant information.

b) An analysis of the proposed impacts to the waterbody in accordance with General

Condition 31.

c) Measures taken to avoid and minimize losses, including other methods of constructing the proposed project; and

d) A mitigation plan describing how the unavoidable losses are proposed to be compensated (complete with the 12 fundamental components of a compensatory mitigation plan, as identified in 33 CFR 332.4/40 CFR 230.92.4 (c)).

8. Any compensatory mitigation required by special conditions of the NWP verification shall be completed before or concurrent with commencement of construction of the authorized activity, except when specifically determined to be impracticable by the Corps. When compensatory mitigation involves use of a mitigation bank or in-lieu-fee program, the special conditions of the permit must identify the specific mitigation bank or in-lieu-fee program used to provide the required compensatory mitigation and the number and resource type of credits the permittee is required to secure. Proof of payment to the approved mitigation bank or in-lieu-fee program shall be submitted to the appropriate Corps district prior to commencement of construction of the authorized activity. The amount of required compensatory mitigation must be, to the extent practicable, sufficient to replace lost aquatic resource functions and services. A watershed approach to compensatory mitigation that considers the importance of landscape position and resource type of compensatory mitigation projects for the sustainability of aquatic resource functions within the watershed should be used.

SPECIAL NOTES:

1. Where the Commonwealth, State or the District of Columbia (District) has denied 401

WQC and/or not concurred with the Corps' CZM consistency determination for a NWP authorization, the prospective permittee should contact the Commonwealth/State/District to obtain an activity specific review and approval by the Commonwealth/State/District prior to submitting any required pre-construction notification (PCN) to the Corps of Engineers.

2. The attached addresses should be used for notification to those agencies required by regional conditions.

List of Agencies:

(1) Environmental Protection Agency 1650 Arch Street - 3ES42 Philadelphia, Pennsylvania 19103-2029

(2) U.S. Department of the Interior Fish and Wildlife Service 315 South Allen Street, Suite 322 State College, Pennsylvania 16801-4850

(3) U.S. Department of the Interior Fish and Wildlife Service 177 Admiral Cochrane Drive Annapolis, Maryland 21401

(4) National Marine Fisheries Service Habitat Conservation Division 74 Magruder Road, Sandy Hook Highlands, New Jersey 07732

(5) National Marine Fisheries Service Chesapeake Bay Office 410 Severn Ave., Suite 107A Annapolis, Maryland 21403

(6) Pennsylvania Historical & Museum Commission Bureau of Historic Trust P.O. Box 1026 Harrisburg, Pennsylvania 17110

(7) Pennsylvania Fish & Boat Commission Bureau of Fisheries & Engineering 450 Robinson Lane Bellefonte, Pennsylvania 16823-9616

(8) Pennsylvania Department of Environmental Protection Bureau of Watershed Management Division of Waterways, Wetlands & Stormwater Management Rachel Carson State Office Building P.O. Box 8460 Harrisburg, Pennsylvania 17105-8775

(9) Pennsylvania Game Commission 2001 Elmerton Avenue Harrisburg, Pennsylvania 17110-9797

(10) Maryland Department of Natural Resources Environmental Review, B-3 Tawes State Office Building 580 Taylor Avenue Annapolis, Maryland 21401

(11) Maryland Historical Trust Division of Historical & Cultural Programs 100 Community Place Crownsville, Maryland 21032-2023

(12) Maryland Department of the Environment Water Resources Administration Tidal Wetlands Division Montgomery Park Business Center 1800 Washington Boulevard, Suite 430 Baltimore, Maryland 21230-1708

(13) Maryland Department of the Environment Non-tidal Wetlands and Waterways Division/CZC Unit Montgomery Park Business Center, Suite Baltimore, Maryland 21230-1708

(14) District of Columbia Office of Planning Historic Preservation Office 1100 4th Street, SW Suite E 650 Washington, DC 20024

(15) District Department of Environment Water Quality Division 51 N Street, NE, 6th Floor Washington, DC 20002

(16) Virginia Department of Historic Resources Attn: Project Review 2801 Kensington Avenue Richmond, Virginia 23221

(17) Virginia Department of Game and Inland Fisheries 4010 West Broad Street P.O. Box 11104 Richmond, Virginia 23230

(18) Northern Regional Office Virginia Department of Environmental Quality 13901 Crown Court Woodbridge, Virginia 22193

(19) Virginia Marine Resources Commission Habitat Management Division 2600 Washington Avenue, 3rd Floor Newport News, Virginia 23607-0756

(20) U.S. Fish and Wildlife Service Division of Habitat and Resource Conservation 4401 N. Fairfax Drive, Suite 840 Arlington, Virginia 22203

(21) U.S. Fish & Wildlife Service District of Columbia 1849 C Street NW, Room 3331 Washington, DC 20240-0001

Nationwide Permit (NWP) #13, BANK STABILIZATION, with specific conditions.

Bank stabilization activities necessary for erosion prevention, provided the activity meets all of the following criteria:

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

(b) The activity is no more than 500 feet in length along the bank, unless the district engineer waives this criterion by making a written determination concluding that the discharge will result in minimal adverse effects;

(c) The activity will not exceed an average of one cubic yard per running foot placed along the bank below the plane of the ordinary high water mark or the high tide line, unless the district engineer waives this criterion by making a written determination concluding that the discharge will result in minimal adverse effects;

(d) The activity does not involve discharges of dredged or fill material into special aquatic sites, unless the district engineer waives this criterion by making a written determination concluding that the discharge will result in minimal adverse effects;

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

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

(g) The activity is not a stream channelization activity.

This NWP also authorizes temporary structures, fills, and work necessary to construct the bank stabilization activity. Appropriate measures must be taken to maintain normal downstream flows and minimize flooding to the maximum extent practicable, when temporary structures, work, and discharges, including cofferdams, are necessary for construction activities, access fills, or dewatering of construction sites. Temporary fills must consist of materials, and be placed in a manner, that will not be eroded by expected high flows. Temporary fills must be removed in their entirety and the affected areas returned to pre-construction elevations. The areas affected by temporary fills must be revegetated, as appropriate.

Invasive plant species shall not be used for bioengineering or vegetative bank stabilization.

Notification: The permittee must submit a pre-construction notification to the district engineer prior to commencing the activity if the bank stabilization activity: (1) involves discharges into special aquatic sites; or (2) is in excess of 500 feet in length; or (3) will involve the discharge of greater than an average of one cubic yard per running foot along the bank below the plane of the ordinary high water mark or the high tide line. (See general condition 31.) (Sections 10 and 404)

Nationwide Permit General Conditions

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

Prospective permittees should contact the appropriate Corps district office to determine if regional conditions have been imposed on an NWP. Prospective permittees should also contact the appropriate Corps district office to determine the status of Clean Water Act Section 401 water quality certification and/or Coastal Zone Management Act consistency for an NWP. Every person who may wish to obtain permit authorization under one or more NWPs, or who is currently relying on an existing or prior permit authorization under one or more NWPs, has been and is on notice that all of the provisions of 33 CFR §§ 330.1 through 330.6 apply to every NWP authorization. Note especially 33 CFR § 330.5 relating to the modification, suspension, or revocation of any NWP authorization.

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

(b) Any safety lights and signals prescribed by the U.S. Coast Guard, through regulations or otherwise, must be installed and maintained at the permittee's expense on authorized facilities in navigable waters of the United States. (c) The permittee understands and agrees that, if future operations by the United States require the removal, relocation, or other alteration, of the structure or work herein authorized, or if, in the opinion of the Secretary of the Army or his authorized representative, said structure or work shall cause unreasonable obstruction to the free navigation of the navigable waters, the permittee will be required, upon due notice from the Corps of Engineers, to remove, relocate, or alter the structural work or obstructions caused thereby, without expense to the United States. No claim shall be made against the United States on account of any such removal or alteration.

2. Aquatic Life Movements. No activity may substantially disrupt the necessary life cycle movements of those species of aquatic life indigenous to the waterbody, including those species that normally migrate through the area, unless the activity's primary purpose is to impound water. All permanent and temporary crossings of waterbodies shall be suitably culverted, bridged, or otherwise designed and constructed to maintain low flows to sustain the movement of those aquatic species.

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 and storm water management activities, 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.

13. Removal of Temporary Fills. Temporary fills must be removed in their entirety and the affected areas returned to pre-construction elevations. The affected areas must be revegetated, as appropriate.

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

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

16. Wild and Scenic Rivers. 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 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. 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).

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 the critical habitat of such species. 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 activity has been completed.

(b) Federal agencies should follow their own procedures for complying with the requirements of the ESA. Federal permittees must provide the district engineer with the appropriate documentation to demonstrate compliance with those requirements. The district engineer will review the documentation and determine whether it is sufficient to address ESA compliance for the NWP activity, or whether additional ESA consultation is necessary.

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

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

(e) Authorization of an activity by a 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 U.S. 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) Information on the location of threatened and endangered species and their critical habitat can be obtained directly from the offices of the U.S. FWS and NMFS or their world wide web pages at http://www.fws.gov/ or http://www.fws.gov/ipac and http://www.noaa.gov/fisheries.html respectively.

19. Migratory Birds and Bald and Golden Eagles. The permittee is responsible for obtaining any “take” permits required under the U.S. Fish and Wildlife Service’s regulations governing compliance with the Migratory Bird Treaty Act or the Bald and Golden Eagle Protection Act. The permittee should contact the appropriate local office of the U.S. Fish and Wildlife Service to determine if such “take” permits are required for a particular activity.

20. Historic Properties. (a) In cases where the district engineer determines that the activity may affect properties listed, or eligible for listing, in the National Register of Historic Places, the activity is not authorized, until the requirements of Section 106 of the National Historic Preservation Act (NHPA) have been satisfied.

(b) Federal permittees should follow their own procedures for complying with the requirements of Section 106 of the National Historic Preservation Act. Federal permittees must provide the district engineer with the appropriate documentation to demonstrate compliance with those requirements. The district engineer will review the documentation and determine whether it is sufficient to address section 106 compliance for the NWP activity, or whether additional section 106 consultation is necessary.

(c) Non-federal permittees must submit a pre-construction notification to the district engineer if the authorized activity may 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 may be affected by the proposed work 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 resources can be sought from the State Historic Preservation Officer or Tribal Historic Preservation Officer, as appropriate, and the National Register of Historic Places (see 33 CFR 330.4(g)).

When reviewing pre-construction notifications, district engineers will comply with the current procedures for addressing the requirements of Section 106 of the National Historic Preservation Act. The district engineer shall make a reasonable and good faith effort to carry out appropriate identification efforts, which may include background research, consultation, oral history interviews, sample field investigation, and field survey. Based on the information submitted and these efforts, the district engineer shall determine whether the proposed activity has the potential to cause an effect on the historic properties. Where the non-Federal applicant has identified historic properties on which the activity may have the potential to cause effects and so notified the Corps, the non-Federal applicant shall not begin the activity until notified by the district engineer either that the activity has no potential to cause effects or that consultation under Section 106 of the NHPA has been completed.

(d) 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. Section 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)). If NHPA section 106 consultation is required and will occur, the district engineer will notify the non-Federal applicant that he or she cannot begin work 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 (16 U.S.C. 470h-2(k)) prevents the Corps from granting a permit or other assistance to an applicant who, with intent to avoid the requirements of Section 106 of the NHPA, has intentionally significantly adversely affected a historic property to which the permit would relate, or having legal power to prevent it, allowed such significant adverse effect to occur, unless the Corps, after consultation with the Advisory Council on Historic Preservation (ACHP), determines that circumstances justify granting such assistance despite the adverse effect created or permitted by the applicant. If circumstances justify granting the assistance, the Corps is required to notify the ACHP and provide documentation specifying the circumstances, the degree of damage to the integrity of any historic properties affected, and proposed mitigation. This documentation must include any views obtained from the applicant, SHPO/THPO, appropriate Indian tribes if the undertaking occurs on or affects historic properties on tribal lands or affects properties of interest to those tribes, and other parties known to have a legitimate interest in the impacts to the permitted activity on historic properties.

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

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

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

(b) For NWPs 3, 8, 10, 13, 15, 18, 19, 22, 23, 25, 27, 28, 30, 33, 34, 36, 37, and 38, notification is required in accordance with general condition 31, for any activity proposed in the designated critical resource waters including wetlands adjacent to those waters. The district engineer may authorize activities under these NWPs only after it is determined that the impacts to the critical resource waters will be no more than minimal.

23. Mitigation. The district engineer will consider the following factors when determining appropriate and practicable mitigation necessary to ensure that adverse effects on the aquatic environment are 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 adverse effects to the aquatic environment are 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 effects of the proposed activity are minimal, and provides a project-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 minimal adverse effects on the aquatic environment. 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 minimal adverse effects on the aquatic environment.

(2) Since the likelihood of success is greater and the impacts to potentially valuable uplands are reduced, wetland restoration should be the first compensatory mitigation option considered.

(3) 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) – (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)).

(4) If mitigation bank or in-lieu fee program credits are the proposed option, the mitigation plan only needs to address the baseline conditions at the impact site and the number of credits to be provided.

(5) 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.

(d) For losses of streams or other open waters that require pre-construction notification, the district engineer may require compensatory mitigation, such as stream rehabilitation, enhancement, or preservation, to ensure that the activity results in minimal adverse effects on the aquatic environment.

(e) 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 project 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 a project already meeting the established 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 will normally include a requirement for the restoration or establishment, maintenance, and legal protection (e.g., conservation easements) of riparian areas next to open waters.

In some cases, riparian areas may be the only compensatory mitigation required. Riparian areas should consist of native species.

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