SAC-2024-01250_NWP_Letter.pdf

DEPARTMENT OF THE ARMY

U.S. ARMY CORPS OF ENGINEERS, CHARLESTON DISTRICT

69A HAGOOD AVENUE

CHARLESTON, SOUTH CAROLINA 29403-5107

June 11, 2025

Regulatory Division

Mr. Bryan Bauer Beaufort County Public Works Department 100 Ribaut Road Beaufort, South Carolina 29902 frederick.bauer@bcgov.net

Dear Mr. Bauer:

This is in response to a Pre-Construction Notification (PCN) (SAC-2024-01250) received on March 18, 2025, and considered complete on June 5, 2025. In submitting the PCN, you requested verification the proposed project is authorized by a Department of the Army (DA) Nationwide Permit (NWP).

The work affecting waters of the United States is part of an overall project known as Paukie Island Causeway Culvert Replacement. The activities in waters of the United States include replacing an existing culvert. This would include the replacement of the two existing 48" corrugated pipe culverts with an 8'x8' box culvert. The causeway is proposed to be widened along the approaches to the culvert to account for new wingwalls and improved safety measures (guardrail, etc.). The existing roadway is failing at the two undersized culverts, requiring repairs to restore safety and functionality. A temporary causeway is proposed to divert traffic around the construction area in order to maintain access to residences on the island. The temporary causeway would include fill within tidal wetlands between walls of sheet piles, approximately 18' wide and 150' long. The temporary fill will be removed once the culvert is replaced. The project involves impacts to not more than 0.02-acre of temporary impacts and 0.14-acre of permanent impacts to waters of the United States.

The project is located on Paulkie Island Road, Beaufort, Beaufort County, South Carolina (Latitude: 32.5078 °, Longitude: -80.7000 °).The PCN also includes the following supplemental information:

a. Drawing sheets 1-6 of 6 titled “Paukie Island Culvert Replacement" and dated December 2024 through April 2025.

b. A mitigation statement titled "Nationwide Permit 3 Application" and dated March 13, 2025.

c. A delineation of wetlands, other special aquatic sites, and other waters (SAC 2024-01250, verified by letter dated June 5, 2025).

Based on a review of the PCN, including the supplemental information indicated above, the Corps has determined the proposed activity will result in minimal individual and cumulative adverse environmental effects and is not contrary to the public interest.

Furthermore, the activity meets the terms and conditions of NWP 3 Maintenance.

For this authorization to remain valid, the project must comply with the enclosed NWP General Conditions, Charleston District Regional Conditions, and the following special conditions:

a. That prior to beginning the authorized work the permittee must obtain and provide the Corps with a copy of all appropriate state certifications and/or authorizations (e.g., Coastal Zone Management Act concurrence, State Navigable Waters Permit, etc.). This PROVISIONAL NWP is NOT VALID until the permittee obtains and provides the requisite state certification(s) and/or authorization(s) in accordance with this special condition.

b. That impacts to aquatic areas do not exceed those specified in the above mentioned PCN, including any supplemental information or revised permit drawings that were submitted to the Corps by the permittee.

c. That the construction, use, and maintenance of the authorized activity is in accordance with the information given in the PCN, including the supplemental information listed above, and is subject to any conditions or restrictions imposed by this letter.

d. That the permittee shall submit the attached signed compliance certification to the Corps within 30 days following completion of the authorized work.

e. Prior to beginning the authorized work, the permittee must coordinate with the local NFIP flood plain manager and comply with FEMA requirements. A list of NFIP floodplain managers may be found at:

https://www.dnr.sc.gov/water/flood/index.html.

f. That the permittee shall use only clean fill material obtained from an upland source.

g. That the permittee shall incorporate Best Management Practices (BMPs) during construction to protect adjacent wetlands and Waters of the United States from sediment and erosion during construction. BMPs to be utilized, independently or in combination, may include but are not limited to;

erosion control matting, mulch, silt fences, sediment tubes, and other devices. BMPs shall be maintained until the fill material is stabilized.

h. The permittee recognizes that their commitment to perform and implement the following conditions was a deciding factor in the favorable and timely decision on this permit and recognizes that a failure on their part to both actively pursue and implement these conditions may be grounds for modification, suspension or revocation of this Department of the Army authorization:

1. That as compensatory mitigation for impacts to aquatic resources, the permittee agrees to purchase or debit a total of 1.98 credits from

Clydesdale Mitigation Bank. At least one half of the required credits

[0.99] must be restoration/non-buffer enhancement credits. In addition, no more than one half of the required mitigation credits [0.99] may be preservation credits.

2. That in order to fulfill your responsibility to complete the required compensatory mitigation as set forth in Special Condition h, the permittee must submit evidence of the purchase or debit of the required mitigation credits to both the Corps of Engineers and SCDES prior to commencement of the authorized work.

i. In order to ensure protection of any threatened or endangered species, and designated critical habitat that may be present in the vicinity of the project area during construction activities, the permittee will comply with the following:

1. The permittee shall instruct all personnel associated with the project of the potential presence of and the need to avoid collisions with protected species, which may include but is not limited to West Indian manatees, Atlantic sturgeon, shortnose sturgeon, sea turtles, wood stork, blue whale, fin whale, humpback whale, North Atlantic right whale, sei whale and sperm whale.

2. The permittee shall advise all construction personnel that there are civil and criminal penalties for harming, harassing, or killing protected species, to include manatee(s), which are protected under the Marine Mammal Protection Act of 1972 and/or the Endangered Species Act of 1973.

3. Any siltation barriers used during the project shall be made of material in which protected species, to include manatee(s), cannot become entangled and must be properly secured, and regularly monitored to avoid protected species entrapment.

4. All vessels associated with the project shall operate at "no wake/idle" speeds at all times while in the construction area and while in water where the draft of the vessel provides less than a four-foot clearance from the bottom. All vessels will follow routes of deep water whenever possible.

5. If protected species, to include manatee(s), are seen within 100 yards of the active construction area all appropriate precautions shall be implemented to ensure protection of the protected species, to include manatee(s). These precautions shall include the operation of all moving equipment no closer than 50 feet to a protected species, to include manatee(s). Operation of any equipment closer than 50 feet to a protected species, to include manatee(s), shall necessitate immediate shutdown of that equipment. Activities will not resume until the protected species, to include manatee(s), has departed the project area of its own volition.

6. Incidents where any individuals of sea turtles, Atlantic sturgeon, shortnose sturgeon, blue whale, fin whale, humpback whale, North Atlantic right whale, sei whale and sperm whale listed by NOAA Fisheries under the Endangered Species Act appear to be injured or killed as a result of discharges of dredged or fill material into waters of the United States or structures or work in navigable waters of the United States authorized by this DA permit shall be reported to NOAA Fisheries, Office of Protected Species at (727) 824-5312, the SCDNR Hotline at 1-800-922-5431, and the Regulatory Office of the Charleston District of the U.S. Army Corps of Engineers at (843) 329-8044. The finder should leave the animal alone, make note of any circumstances likely causing the death or injury, note the location and number of individuals involved and, if possible, take photographs. Adult animals should not be disturbed unless circumstances arise where they are obviously injured or killed by discharge exposure, or some unnatural cause. The finder may be asked to carry out instructions provided by NOAA Fisheries, Office of Protected Resources, to collect specimens or take other measures to ensure that evidence intrinsic to the specimen is preserved.

7. The permittee understands and agrees that all in-water lines (rope, chain, and cable, including the lines to secure turbidity curtains) must be stiff, taut, and non-looping. Examples of such lines are heavy metal chains or heavy cables that do not readily loop and tangle. Flexible in-water lines, such as nylon rope or any lines that could loop or tangle, must be enclosed in a plastic or rubber sleeve/tube to add rigidity and prevent the line from looping and tangling. In all instances, no excess line is allowed in the water. Where appropriate, in water wires should be fitted with PVC sleeve from the surface to the bottom to prevent any potential scraping of the passing manatees.

j. In order to ensure protection and reduce potential construction-related impacts to West Indian manatees that may be in the vicinity of the project area during construction activities, to discountable and insignificant levels, the permittee will comply with the following for all projects affecting the coastal waters of South Carolina:

1. The permittee shall instruct all personnel associated with the project of the potential presence of manatees and the need to avoid collisions with manatees. All construction personnel MUST monitor water-related activities for the presence of manatee(s).

2. Any collision with and/or injury to a manatee shall be reported immediately to the U.S. Fish and Wildlife Service contacts: Melanie Olds, South Carolina Manatee Lead, Charleston Field Office, at 843-727-4707 ext.

205; or Terri Calleson, Manatee Recovery Coordinator, North Florida Field Office, at 904-731-3286.

3. That the permittee shall install and maintain sturdy grates or bars, with a maximum of 8 inches between bars, at the downstream end of all proposed new water control structures, pipes and/or culverts and/or these structures that will be repaired or replaced to prevent West Indian manatee from entering the pipes.

k. The project falls within the range of the Tri-colored bat (TCB) and the monarch butterfly which are proposed to be federally listed under the Endangered Species Act of 1973, as amended (ESA). The permittee understands and agrees that if the TCB and/or the monarch butterfly are reclassified as threatened or endangered by the U.S. Fish and Wildlife Service (USFWS) before the authorized work has been completed additional consultation may be required. In order to evaluate and address potential adverse effects to federally listed species, additional information and modification to the special conditions of this Department of the Army permit may be required.

l. That the permittee understands that the project area overlaps with an area where wood storks may be present and construction will not occur during nesting season (February 15- April 15). If at any time the permittee is unable to adhere to these construction windows, prior to completing the authorized work the permittee must contact the Corps. Additional consultation with the USFWS may be required and this DA Authorization may be suspended until consultation with USFWS has concluded.

m. The overall width of a single or multi-barrel box culvert shall be approximately equal to, but not narrower than, the typical bankfull width of the stream channel. Additional pipes or culverts may be used to receive flows exceeding bankfull, but the inlet(s) shall be baffled to or sit at the stream's bankfull elevation.

n. The upstream and downstream invert of culverts (except bottomless or arch-span culverts) shall be buried/embedded to a depth of 20% of the culvert height to allow natural substrate to colonize the structure's bottom and encourage aquatic life movement. Additional culverts used to receive flows exceeding bankfull are not required to be embedded.

This verification is valid until March 14, 2026, unless the district engineer modifies, suspends, or revokes the NWP authorization in accordance with 33 CFR 330.5(d). If prior to this date, the NWP authorization is reissued without modification or the activity complies with any subsequent modification of the NWP authorization, the verification continues to remain valid until March 14, 2026. If you commence, or are under contract to commence this activity before the NWP expires, or the NWP is modified, suspended, or revoked by the Chief of Engineers or division engineer in accordance with 33 CFR 330.5(b) or (c), respectively, in such a way that the activity would no longer comply with the terms and conditions of the NWP, you will have 12 months after the date the NWP expires or is modified, suspended, or revoked, to complete the activity under the present terms and conditions of this NWP.

This NWP is verified based on information you provided. It is your responsibility to read the attached NWP(s) along with the General, Regional, and Special Conditions before you begin work. If you determine your project will not be able to meet the NWP and the conditions, you must contact the Corps before you proceed.

In all future correspondence, please refer to file number SAC-2024-01250. A copy of this letter is forwarded to State and/or Federal agencies for their information. If you have any questions, please contact Brittany Pittman, Project Manager, at 843-329- 8046, or by email at Brittany.F.Pittman@usace.army.mil.

Sincerely, Leslie Estill Team Lead

Attachments Permit Drawings Nationwide Permit 3 Maintenance

Nationwide Permit General Conditions Nationwide Permit Regional Conditions Compliance Certification Form

Copies Furnished:

Mr. Wade Biltoft Three Oaks Engineering 1022 State Street, Bldg 2 Cayce, South Carolina 29033 wade.biltoft@threeoaksengineering.com

SCDES – Bureau of Coastal Management 1362 McMillan Avenue, Suite 400 North Charleston, South Carolina 29405 OCRMPermitting@des.sc.gov

SCDES-Bureau of Water 2600 Bull Street Columbia, South Carolina 29201 WQCWetlands@des.sc.gov

US Coast Guard Sector Charleston Attention: Waterways Management 1050 Register Street North Charleston, SC 29405 D07-PF-SECTORCHASN-WWM@uscg.mil mailto:wade.biltoft@threeoaksengineering.com mailto:OCRMPermitting@des.sc.gov mailto:WQCWetlands@des.sc.gov mailto:D07-PF-SECTORCHASN-WWM@uscg.mil

124-108

December, 2024 FigurePaukie Causeway Culvert Replacement

Project Location Map Beaufort County, South Carolina

Prepared For: Date:

Checked By:

Job No.:

Drawn By:

Scale:

1 in = 100 ft

ZCB WCB

Legend Proposed Permit Limits - 1.21 acres

0 100 200 Feet ±

Pa uk ie Isl an d R d

SAC-2024-01250

k2rdsbaf Permitted Plans

224-108

December, 2024 FigurePaukie Causeway Culvert Replacement

Feature Location Map Beaufort County, South Carolina

Prepared For: Date:

Checked By:

Job No.:

Drawn By:

Scale:

1 in = 50 ft

ZCB WCB

Legend Proposed Permit Limits - 1.21 acres Tidal Wetland - 0.92 acres

0 50 100 Feet

Sta.10 + 00 Sta.11 + 00 Sta.12 + 00 Sta.13 + 00 Sta.14 + 00

Paukie Island Rd

SAC-2024-01250

324-108

March, 2025 FigurePaukie Causeway Culvert Replacement

Waters of the US Impacts Beaufort County, South Carolina

Prepared For: Date:

Checked By:

Job No.:

Drawn By:

Scale:

1 in = 50 ft

ZCB WCB

Legend Project Study Area - 1.21 acres Tidal Wetland - 0.92 acres Permanent Wetland Fill Temporary Wetland Fill Armoring Final Travelway

NPDES Line Construction Limits Proposed Culvert Temporary Detour Proposed Guardrail

0 50 100 Feet

Sta.11 + 00 Sta.14 + 00A

A'

Sta. 12 + 57.50

Area between NPDES Line and Construction Limits provide access for construction and maintenance of erosion control BMPs

Impacts Acreage Permanent Fill 0.14 Temporary Fill 0.02

SAC-2024-01250

424-108

April, 2025 FigurePaukie Causeway Culvert Replacement

Waters of the US Impacts Beaufort County, South Carolina

Prepared For: Date:

Checked By:

Job No.:

Drawn By:

Scale:

1 in = 3 ft

ZCB WCB

Legend Tidal Wetland Permanent Fill Temporary Fill Armoring

Proposed Culvert Final Travelway Temporary Detour Proposed Guardrails

Centerline Existing Ground

A A'Sta. 12 + 57.50

*Not to Scale*

MLW

MHW HTL

HTL (High Tide Line) = 3.55 ft MHW (Mean High Water) = 3.17 ft MLW (Mean Low Water) = -4.22 ft

SAC-2024-01250

Paukie Island Culvert Replacement

SAC-2024-01250

25' DEDICATED R/W

25' DEDICATED R/W

25' DEDICATED R/W

25' DEDICATED R/W

CONSTRUCT TYPE B TRAILING END TREATMENT

ERECT 37.5 LF STANDARD W-BEAM GUARDRAIL

CONSTRUCT TYPE T TL-2 LEADING END TREATMENT

TIDAL MARSH

PAUKIE ISLAND ROAD 10'

10'

10'

10'

(SEE SHEET BR-9)

(TYP. ALL QUADRANTS)

PLACE 20' L X 3' W CONCRETE WINGWALL

FROM STA. 12+57.50 TO STA. 12+76.50

CULVERT (DOUBLE)

PLACE 8' X 8' CONCRETE BOX

REMOVE EXISTING DUAL 48" CMP CULVERTS

CONSTRUCT TYPE T TL-2 LEADING END TREATMENT

ERECT 37.5 LF STANDARD W-BEAM GUARDRAIL

CONSTRUCT TYPE B TRAILING END TREATMENT

TIDAL MARSH

BEGIN CONSTRUCTION

STA. 11+00.00

PAUKIE ISLAND ROAD

(TIE TO EXISTING)

END CONSTRUCTION

STA. 14+00.00

PAUKIE ISLAND ROAD

(TIE TO EXISTING)

25' TAPER

(BY OTHERS)

RELOCATE WATER MAIN

F10 F22 F23

F11F22

F10

F24 F21

F28

F21

F29

F11

SLOPE MAX 2H:1V

EMBED TOE 2-FEET BELOW EXISTING GRADE

PLACE 121 SY CLASS 1 (TYPE C) GEOTEXTILE

PLACE 226 TONS OF CLASS C RIPRAP

SLOPE MAX 2H:1V

EMBED TOE 2-FEET BELOW EXISTING GRADE

PLACE 108 SY CLASS 1 (TYPE C) GEOTEXTILE

PLACE 201 TONS OF CLASS C RIPRAP

P I 1

.0

P I 1

.0

10+00 15+00

N14°47'13"E N16°32'36"E

N17°31'41"E

(75.00') (325.00')

(113.47')

25' TAPER

+75.00 +00.00

+00.00 +25.00

25' TAPER 25' TAPER

N

-10 -10

0 0

10 10

20 20

10+00 11+00 12+00 13+00 14+00 15+00

VPI = 12+60.00

Elev = 7.39

83K = V.C.75'

112K = V.C.75'

FROM STA. 12+57.50 TO STA. 12+76.50

CULVERT (DOUBLE)

PLACE 8' X 8' CONCRETE BOX

EXISTING GROUND

FINISHED GRADE

H ig h P o in t

.7

E le v .3

L o w P o in t

.5

E le v .9

11+00.00 12+57.50

14+00.00

0.16%

VPI = 13+62.50

Elev = 6.87

+0.40% -0.50%

.2

V

P C

.5

.2

V

P T

.5

.0

V

P C

.0

.9

V

P T

.0

.7

.9

.1

.3

.1

.9

.9

.9

.9

.9

.7

.7

.8

.8

.8

.8

.9

.9

.9

12+76.50

BE FOUND ON REFERENCE SHEET

ALIGNMENT CONTROL CAN

PROFILE SCALE: HOR. 1"=20', VER. 1"=4'

PLAN SCALE: 1" = 20'

NO.

ROUTE

PROJECT IDCOUNTYSTATE

S.C.3

DIV. NO.

FED. RD.

NO.

SHEET

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S a v e d

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PAUKIEBEAUFORT 6

TELECOM

POWER

UTILITY OWNERS

500 Year Tidal Surge Velocity = 7.22 fps

100 Year Tidal Surge Velocity = 7.33 fps

Max. Vel. Within Culvert:

500 Year Stillwater Height = 16.20 ft.

100 Year Stillwater Height = 12.20 ft.

(Includes Wave Height)

10 Year Tidal Surge Height = 7.30 ft

Mean Lower Low Tide Elevation = - 4.43 ft.

Mean Higher High Tide Elevation = 3.55 ft.

HYDROLOGY DATA FOR CULVERT:

& SEWER AUTHORITY

BEAUFORT-JASPER WATER

SPARKLIGHT/HARGRAY

DOMINION ENERGY

WATER

S O

U

TH CAROLIN

A

LI

C E N S E D

PR

OF

ESSIONAL EN

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IN

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No. 27285

C H

A D D

A

NIEL BOBR

O W

S K I

CONSOR

AMERICA, INC.

NORTH

No. 6971

S O

UTH CAROLIN

A

C E

R T

IF

IC

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TE OF AUTHO

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IZ

A T I O

N

03-04-2025

Paukie Island Culvert Replacement

SAC-2024-01250

3. Maintenance. (a) The repair, rehabilitation, or replacement of any previously authorized, currently serviceable structure or fill, or of any currently serviceable structure or fill authorized by 33 CFR 330.3, provided that the structure or fill is not to be put to uses differing from those uses specified or contemplated for it in the original permit or the most recently authorized modification. Minor deviations in the structure's configuration or filled area, including those due to changes in materials, construction techniques, requirements of other regulatory agencies, or current construction codes or safety standards that are necessary to make the repair, rehabilitation, or replacement are authorized. This NWP also authorizes the removal of previously authorized structures or fills. Any stream channel modification is limited to the minimum necessary for the repair, rehabilitation, or replacement of the structure or fill; such modifications, including the removal of material from the stream channel, must be immediately adjacent to the project. This NWP also authorizes the removal of accumulated sediment and debris within, and in the immediate vicinity of, the structure or fill. This NWP also authorizes the repair, rehabilitation, or replacement of those structures or fills destroyed or damaged by storms, floods, fire or other discrete events, provided the repair, rehabilitation, or replacement is commenced, or is under contract to commence, within two years of the date of their destruction or damage. In cases of catastrophic events, such as hurricanes or tornadoes, this two-year limit may be waived by the district engineer, provided the permittee can demonstrate funding, contract, or other similar delays.

(b) This NWP also authorizes the removal of accumulated sediments and debris outside the immediate vicinity of existing structures (e.g., bridges, culverted road crossings, water intake structures, etc.). The removal of sediment is limited to the minimum necessary to restore the waterway in the vicinity of the structure to the approximate dimensions that existed when the structure was built, but cannot extend farther than 200 feet in any direction from the structure. This 200 foot limit does not apply to maintenance dredging to remove accumulated sediments blocking or restricting outfall and intake structures or to maintenance dredging to remove accumulated sediments from canals associated with outfall and intake structures. All dredged or excavated materials must be deposited and retained in an area that has no waters of the United States unless otherwise specifically approved by the district engineer under separate authorization.

(c) This NWP also authorizes temporary structures, fills, and work, including the use of temporary mats, necessary to conduct the maintenance 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 of dredged or fill material, 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.

After conducting the maintenance activity, 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.

(d) This NWP does not authorize maintenance dredging for the primary purpose of navigation. This NWP does not authorize beach restoration. This NWP does not authorize new stream channelization or stream relocation projects.

Notification: For activities authorized by paragraph (b) of this NWP, the permittee must submit a pre-construction notification to the district engineer prior to commencing the activity (see general condition 32). The pre-construction notification must include information regarding the original design capacities and configurations of the outfalls, intakes, small impoundments, and canals. (Authorities: Section 10 of the Rivers and Harbors Act of 1899 and Section 404 of the Clean Water Act (Sections 10 and 404))

Note: This NWP authorizes the repair, rehabilitation, or replacement of any previously authorized structure or fill that does not qualify for the Clean Water Act Section 404(f) exemption for maintenance.

Nationwide Permit General Conditions

Note: To qualify for NWP authorization, the prospective permittee must comply with the following general conditions, as applicable, in addition to any regional or case-specific conditions imposed by the division engineer or district engineer. Prospective permittees should contact the appropriate Corps district office to determine if regional conditions have been imposed on an NWP. Prospective permittees should also contact the appropriate Corps district office to determine the status of Clean Water Act Section 401 water quality certification and/or Coastal Zone Management Act consistency for an NWP. Every person who may wish to obtain permit authorization under one or more NWPs, or who is currently relying on an existing or prior permit authorization under one or more NWPs, has been and is on notice that all of the provisions of 33 CFR 330.1 through 330.6 apply to every NWP authorization. Note especially 33 CFR 330.5 relating to the modification, suspension, or revocation of any NWP authorization.

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

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

(c) The permittee understands and agrees that, if future operations by the United States require the removal, relocation, or other alteration, of the structure or work herein authorized, or if, in the opinion of the Secretary of the Army or his or her authorized representative, said structure or work shall cause unreasonable obstruction to the free navigation of the navigable waters, the permittee will be required, upon due notice from the Corps of Engineers, to remove, relocate, or alter the structural work or obstructions caused thereby, without expense to the United States. No claim shall be made against the United States on account of any such removal or alteration.

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

3. Spawning Areas. Activities in spawning areas during spawning seasons must be avoided to the maximum extent practicable. Activities that result in the physical destruction (e.g., through excavation, fill, or downstream smothering by substantial turbidity) of an important spawning area are not authorized.

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

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

NWP 27.

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

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

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

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

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

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

12. Soil Erosion and Sediment Controls. Appropriate soil erosion and sediment controls must be used and maintained in effective operating condition during construction, and all exposed soil and other fills, as well as any work below the ordinary high water mark or high tide line, must be permanently stabilized at the earliest practicable date.

Permittees are encouraged to perform work within waters of the United States during periods of low-flow or no-flow, or during low tides.

13. Removal of Temporary Structures and Fills. Temporary structures must be removed, to the maximum extent practicable, after their use has been discontinued.

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

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

15. Single and Complete Project. The activity must be a single and complete project.

The same NWP cannot be used more than once for the same single and complete project.

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

(b) If a proposed NWP activity will occur in a component of the National Wild and Scenic River System, or in a river officially designated by Congress as a “study river” for possible inclusion in the system while the river is in an official study status, the permittee must submit a pre-construction notification (see general condition 32). The district engineer will coordinate the PCN with the Federal agency with direct management responsibility for that river. Permittees shall not begin the NWP activity until notified by the district engineer that the Federal agency with direct management responsibility for that river has determined in writing that the proposed NWP activity will not adversely affect the Wild and Scenic River designation or study status.

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

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

18. Endangered Species. (a) No activity is authorized under any NWP which is likely to directly or indirectly jeopardize the continued existence of a threatened or endangered species or a species proposed for such designation, as identified under the Federal Endangered Species Act (ESA), or which will directly or indirectly destroy or adversely modify designated critical habitat or critical habitat proposed for such designation. No activity is authorized under any NWP which “may affect” a listed species or critical habitat, unless ESA section 7 consultation addressing the consequences of the proposed activity on listed species or critical habitat has been completed. See 50 CFR

402.02 for the definition of “effects of the action” for the purposes of ESA section 7 consultation, as well as 50 CFR 402.17, which provides further explanation under ESA section 7 regarding “activities that are reasonably certain to occur” and “consequences caused by the proposed action.”

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

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

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

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

(f) If the non-federal permittee has a valid ESA section 10(a)(1)(B) incidental take permit with an approved Habitat Conservation Plan for a project or a group of projects that includes the proposed NWP activity, the non-federal applicant should provide a copy of that ESA section 10(a)(1)(B) permit with the PCN required by paragraph (c) of this general condition. The district engineer will coordinate with the agency that issued the ESA section 10(a)(1)(B) permit to determine whether the proposed NWP activity and the associated incidental take were considered in the internal ESA section 7 consultation conducted for the ESA section 10(a)(1)(B) permit. If that coordination results in concurrence from the agency that the proposed NWP activity and the associated incidental take were considered in the internal ESA section 7 consultation for the ESA section 10(a)(1)(B) permit, the district engineer does not need to conduct a separate ESA section 7 consultation for the proposed NWP activity. The district engineer will notify the non-federal applicant within 45 days of receipt of a complete pre-construction notification whether the ESA section 10(a)(1)(B) permit covers the proposed NWP activity or whether additional ESA section 7 consultation is required.

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

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

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

(b) Federal permittees should follow their own procedures for complying with the requirements of section 106 of the National Historic Preservation Act (see 33 CFR

330.4(g)(1)). If pre-construction notification is required for the proposed NWP activity, the Federal permittee must provide the district engineer with the appropriate documentation to demonstrate compliance with those requirements. The district engineer will verify that the appropriate documentation has been submitted. If the appropriate documentation is not submitted, then additional consultation under section 106 may be necessary. The respective federal agency is responsible for fulfilling its obligation to comply with section 106.

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

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

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

306113) prevents the Corps from granting a permit or other assistance to an applicant who, with intent to avoid the requirements of section 106 of the NHPA, has intentionally significantly adversely affected a historic property to which the permit would relate, or having legal power to prevent it, allowed such significant adverse effect to occur, unless the Corps, after consultation with the Advisory Council on Historic Preservation (ACHP), determines that circumstances justify granting such assistance despite the adverse effect created or permitted by the applicant. If circumstances justify granting the assistance, the Corps is required to notify the ACHP and provide documentation specifying the circumstances, the degree of damage to the integrity of any historic properties affected, and proposed mitigation. This documentation must include any views obtained from the applicant, SHPO/THPO, appropriate Indian tribes if the undertaking occurs on or affects historic properties on tribal lands or affects properties of interest to those tribes, and other parties known to have a legitimate interest in the impacts to the permitted activity on historic properties.

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

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

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

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

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

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

(b) Mitigation in all its forms (avoiding, minimizing, rectifying, reducing, or compensating for resource losses) will be required to the extent necessary to ensure that the individual and cumulative adverse environmental effects are no more than minimal.

(c) Compensatory mitigation at a minimum one-for-one ratio will be required for all wetland losses that exceed 1/10-acre and require pre-construction notification, unless the district engineer determines in writing that either some other form of mitigation would be more environmentally appropriate or the adverse environmental effects of the proposed activity are no more than minimal, and provides an activity-specific waiver of this requirement. For wetland losses of 1/10-acre or less that require pre-construction notification, the district engineer may determine on a case-by-case basis that compensatory mitigation is required to ensure that the activity results in only minimal adverse environmental effects.

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

(e) Compensatory mitigation plans for NWP activities in or near streams or other open waters will normally include a requirement for the restoration or enhancement, maintenance, and legal protection (e.g., conservation easements) of riparian areas next to open waters. In some cases, the restoration or maintenance/protection of riparian areas may be the only compensatory mitigation required. If restoring riparian areas involves planting vegetation, only native species should be planted. The width of the required riparian area will address documented water quality or aquatic habitat loss concerns.