HomeMy WebLinkAboutWPO202200024 Correspondence 2023-01-12 (5)Nationwide Permit 14 — Linear Transportation Projects
Effective Date: February 25, 20221 Expiration Date: March 14, 2026
Authorities: Sections 10 and 404
Activities required for crossings of waters of the United States associated with the
construction, expansion, modification, or improvement of linear transportation projects
(e.g., roads, highways, railways, trails, driveways, airport runways, and taxiways) in
waters of the United States. For linear transportation projects in non -tidal waters, the
discharge of dredged or fill material cannot cause the loss of greater than 1/2-acre of
waters of the United States. For linear transportation projects in tidal waters, the
discharge of dredged or fill material cannot cause the loss of greater than 1/3-acre of
waters of the United States. Any stream channel modification, including bank
stabilization, is limited to the minimum necessary to construct or protect the linear
transportation project; such modifications must be in the immediate vicinity of the
project.
This NWP also authorizes temporary structures, fills, and work, including the use of
temporary mats, necessary to construct the linear transportation project. 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.
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.
This NWP cannot be used to authorize non -linear features commonly associated with
transportation projects, such as vehicle maintenance or storage buildings, parking lots,
train stations, or aircraft hangars.
Notification: The permittee must submit a pre -construction notification to the district
engineer prior to commencing the activity if: (1) the loss of waters of the United States
exceeds 1/10-acre; or (2) there is a discharge of dredged or fill material in a special
aquatic site, including wetlands. (See general condition 32.) (Authorities: Sections 10 and
404)
Note 1: For linear transportation projects crossing a single waterbody more than one
time at separate and distant locations, or multiple waterbodies at separate and distant
locations, each crossing is considered a single and complete project for purposes of
NWP authorization. Linear transportation projects must comply with 33 CFR 330.6(d).
Note 2: Some discharges of dredged or fill material for the construction of farm roads or
forest roads, or temporary roads for moving mining equipment, may quality for an
exemption under Section 404(f) of the Clean Water Act (see 33 CFR 323.4).
Note 3: For NWP 14 activities that require pre -construction notification, the PCN must
include any other NWP(s), regional general permit(s), or individual permit(s) used or
intended to be used to authorize any part of the proposed project or any related activity,
including other separate and distant crossings that require Department of the Army
authorization but do not require pre -construction notification (see paragraph (b)(4) of
general condition 32). The district engineer will evaluate the PCN in accordance with
Section D, "District Engineer's Decision." The district engineer may require mitigation to
ensure that the authorized activity results in no more than minimal individual and
cumulative adverse environmental effects (see general condition 23).
REGIONAL CONDITIONS:
For applicable Regional Conditions, Water Quality Certification (WQC) determination or
requirements, and Coastal Zone Management Act (CZMA) consistency determinations or
requirements see the Norfolk District Final Regional Conditions for the 2021 Nationwide
Permits (NWPs) Applicable in Virginia (Including Northern Virginia Military Installations
within Baltimore District's Area of Responsibility) for the 41 Nationwide Permits affixed to
the end of this document.
GENERAL CONDITIONS:
Note: To quality 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.
Navigation.
(a) No activity may cause more than a minimal adverse effect on navigation.
(b) Any safety lights and signals prescribed by the U.S. Coast Guard, through regulations or
otherwise, must be installed and maintained at the permittee's expense on authorized
facilities in navigable waters of the United States.
(c) The permittee understands and agrees that, if future operations by the United States
require the removal, relocation, or other alteration, of the structure or work herein
authorized, or if, in the opinion of the Secretary of the Army or his authorized
representative, said structure or work shall cause unreasonable obstruction to the free
navigation of the navigable waters, the permittee will be required, upon due notice from
the Corps of Engineers, to remove, relocate, or alter the structural work or obstructions
caused thereby, without expense to the United States. No claim shall be made against the
United States on account of any such removal or alteration.
2. Aquatic Life Movements. No activity may substantially disrupt the necessary life cycle
movements of those species of aquatic life indigenous to the waterbody, including those
species that normally migrate through the area, unless the activity's primary purpose is to
impound water. All permanent and temporary crossings of waterbodies shall be suitably
culverted, bridged, or otherwise designed and constructed to maintain low flows to sustain the
movement of those aquatic species. If a bottomless culvert cannot be used, then the crossing
should be designed and constructed to minimize adverse effects to aquatic life movements.
3. Spawning Areas. Activities in spawning areas during spawning seasons must be avoided to
the maximum extent practicable. Activities that result in the physical destruction (e.g., through
excavation, fill, or downstream smothering by substantial turbidity) of an important spawning
area are not authorized.
4. Migratory Bird Breeding Areas. Activities in waters of the United States that serve as breeding
areas for migratory birds must be avoided to the maximum extent practicable.
5. Shellfish Beds. No activity may occur in areas of concentrated shellfish populations, unless
the activity is directly related to a shellfish harvesting activity authorized by NWPs 4 and 48, or
is a shellfish seeding or habitat restoration activity authorized by NWP 27.
Nationwide Permit 14 -Activities, Regional Conditions, General Conditions, and Definitions
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 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 venting 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://v .rivers.9ov/.
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 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 designated critical habitat might be affected or is in the vicinity of
the activity, or if the activity is located in designated critical habitat, and shall not begin
work on the activity until notified by the district engineer that the requirements of the ESA
have been satisfied and that the activity is authorized. For activities that might affect
Federally -listed endangered or threatened species or designated critical habitat, the pre -
construction notification must include the name(s) of the endangered or threatened
species that might be affected by the proposed activity or that utilize the designated
critical habitat that might be affected by the proposed activity. The district engineer will
determine whether the proposed activity "may affect" or will have "no effect" to listed
species and designated critical habitat and will notify the non- Federal applicant of the
Corps' determination within 45 days of receipt of a complete pre -construction notification.
For activities where the non -Federal applicant has identified listed species or critical
habitat that might be affected or is in the vicinity of the activity, and has so notified the
Corps, the applicant shall not begin work until the Corps has provided notification that the
proposed activity will have "no effect" on listed species or critical habitat, or until ESA
section 7 consultation has been completed. If the non -Federal applicant has not heard
back from the Corps within 45 days, the applicant must still wait for notification from the
Corps.
(d) As a result of formal or informal consultation with the FWS or NMFS the district engineer
may add species specific permit conditions to the NWPs.
(a) (a) 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
Nationwide Permit 14 -Activities, Regional Conditions, General Conditions, and Definitions
(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 'lake" 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 worldwide Web
pages athtfDJ/wwwfws.Dou/ orhttD:/0vww.fws.aou11Dac and
httD:/Avww.nmfs.noaa.aov/Dr/soecies/esa/ respectively.
19. Migratory Birds and Bald and Golden Eagles. The permittee is responsible for ensuring that
an action authorized by 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 verity 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-construcion 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 prospecive permittee within 45 days of receipt of a complete pre-
construclion 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.
(a) 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 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
Nationwide Permit 14 - Activities, Regional Conditions, General Conditions, and Definitions
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 5258
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 VIO-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 VIO-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 1/103/100-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 (a) of this general condition. For losses of stream bed of 11103/100-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)).
(a) Compensatory mitigation plans for NWP activities in or near streams or other open waters
will normally include a requirement for the restoration or enhancement, maintenance, and
legal protection (e.g., conservation easements) of riparian areas next to open waters. In
some cases, the restoration or maintenance/protection of riparian areas may be the only
compensatory mitigation required. If restoring riparian areas involves planting vegetation,
only native species should be planted. The width of the required riparian area will address
documented water quality or aquatic habitat loss concerns. Normally, the riparian area will
be 25 to 50 feet wide on each side of the stream, but the district engineer may require
slightly wider riparian areas to address documented water quality or habitat loss concerns.
If it is not possible to restore or maintain/protect a riparian area on both sides of a stream,
or if the waterbody is a lake or coastal waters, then restoring or maintaining/protecting a
riparian area along a single bank or shoreline may be sufficient. Where both wetlands and
open waters exist on the project site, the district engineer will determine the
appropriate compensatory mitigation (e.g., riparian areas and/or wetlands compensation)
based on what is best for the aquatic environment on a watershed basis. In cases where
riparian areas are determined to be the most appropriate form of minimization or
compensatory mitigation, the district engineer may waive or reduce the requirement to
provide wetland compensatory mitigation for wetand losses.
(f) Compensatory mitigation projects provided to offset losses of aquatic resources must
comply with the applicable provisions of 33 CFR part 332.
(1) The prospective permittee is responsible for proposing an appropriate compensatory
mitigation option if compensatory mitigation is necessary to ensure that the activity
results in no more than minimal adverse environmental effects. For the NWPs, the
preferred mechanism for providing compensatory mitigation is mitigation bank credits
or in -lieu fee program credits (see 33 CFR 332.3(b)(2) and (3)). However, if an
appropriate number and type of mitigation bank or in -lieu credits are not available at
the time the PCN is submitted to the district engineer, the district engineer may
approve the use of permittee- responsible mitigation.
(2) The amount of compensatory mitigation required by the district engineer must be
sufficient to ensure that the authorized activity results in no more than minimal
individual and cumulative adverse environmental effects (see 33 CFR 330.1(e)(3)).
(See also 33 CFR 332.3(f)).
(3) Since the likelihood of success is greater and the impacts to potentially valuable
uplands are reduced, aquatic resource restoration should be the first compensatory
mitigation option considered for permittee-responsible mitigation.
(4) If permittee-responsible mitigation is the proposed option, the prospective permittee is
responsible for submitting a mitigation plan. A conceptual or detailed mitigation plan
may be used by the district engineer to make the decision on the NWP verification
request, but a final mitigation plan that addresses the applicable requirements of 33
CFR 332.4(c)(2) through (14) must be approved by the district engineer before the
permittee begins work in waters of the United States, unless the district engineer
determines that prior approval of the final mitigation plan is not practicable or not
necessary to ensure timely completion of the required compensatory mitigation (see
33 CFR 332.3(k)(3)). If permittee-responsible mitigation is the proposed option, and
the proposed compensatory mitigation site is located on land in which another federal
agency holds an easement, the district engineer will coordinate with that federal
agency to determine if proposed compensatory mitigation project is compatible with
the terms of the easement.
(5) If mitigation bank or in -lieu fee program credits are the proposed option, the mitigation
plan needs to address only the baseline conditions at the impact site and the number
of credits to be provided (see 33 CFR 332.4(c)(1)(ii)).
(6) Compensatory mitigation requirements (e.g., resource type and amount to be provided
as compensatory mitigation, site protection, ecological performance standards,
monitoring requirements) may be addressed through conditions added to the NWP
authorization, instead of components of a compensatory mitigation plan (see 33 CFR
332.4(c)(1)(ii)).
(g) Compensatory mitigation will not be used to increase the acreage losses allowed by the
acreage limits of the NWPs. For example, if an NWP has an acreage limit of W-acre, it
cannot be used to authorize any NWP activity resulting in the loss of greater than W-acre
of waters of the United States, even if compensatory mitigation is provided that replaces
or restores some of the lost waters. However, compensatory mitigation can and should be
used, as necessary, to ensure that an NWP activity already meeting the established
acreage limits also satisfies the no more than minimal impact requirement for the NWPs.
(h) Permittees may propose the use of mitigation banks, in -lieu fee programs, or permittee-
responsible mitigation. When developing a compensatory mitigation proposal, the
permittee must consider appropriate and practicable options consistent with the
framework at 33 CFR 332.3(b). For activities resulting in the loss of marine or estuarine
resources, permittee-responsible mitigation may be environmentally preferable if there are
no mitigation banks or in -lieu fee programs in the area that have marine or estuarine
credits available for sale or transfer to the permittee. For permittee-responsible mitigation,
the special conditions of the NWP verification must clearly indicate the party or parties
Nationwide Permit 14 -Activities, Regional Conditions, General Conditions, and Definitions
responsible for the implementation and performance of the compensatory mitigation
project, and, if required, its long-term management.
(i) Where certain functions and services of waters of the United States are permanently
adversely affected by a regulated activity, such as discharges of dredged or fill material
into waters of the United States that will convert a forested or scrub -shrub wetand to a
herbaceous wetland in a permanency maintained utility line right-of-way, mitigation may
be required to reduce the adverse environmental effects of the activity to the no more than
minimal level.
24. Safety of Impoundment Structures. To ensure that all impoundment structures are safely
designed, the district engineer may require non -Federal applicants to demonstrate that the
structures comply with established state or federal, dam safety criteria or have been designed
by qualified persons. The district engineer may also require documentation that the design
has been independently reviewed by similarly qualified persons, and appropriate
modifications made to ensure safety.
25. Water Quality.
(a) Where the certifying authority (state, authorized tribe, or EPA, as appropriate) has not
previously certified compliance of an NWP with CWA section 401, a CWA section 401
water quality certification for the proposed discharge must be obtained or waived (see 33
CFF 330.4(c)). If the permittee cannot comply with all of the conditions of a water quality
certification previously issued by certifying authority for the issuance of the NWP, then the
permittee must obtain a water quality certification or waiver for the proposed discharge in
order for the activity to be authorized by an NWP.
(b) If the NWP activity requires pre -construction notification and the certifying authority has
not previously certified compliance of an NWP with CWA section 401, the proposed
discharge is not authorized by an NWP until water quality certification is obtained or
waived. If the certifying authority issues a water quality certification for the proposed
discharge, the permittee must submit a copy of the certification to the district engineer.
The discharge is not authorized by an NWP until the district engineer has notified the
permittee that the water quality certification requirement has been satisfied by the
issuance of a water quality certification or a waiver.
(c) The district engineer or certifying authority may require additional water quality
management measures to ensure that the authorized activity does not result in more than
minimal degradation of water quality.
26. Coastal Zone Management. In coastal states where an NWP has not previously received a
state coastal zone management consistency concurrence, an individual state coastal zone
management consistency concurrence must be obtained, or a presumption of concurrence
must occur (see 33 CFR 330.4(d)). If the permittee cannot comply with all of the conditions of
a coastal zone management consistency concurrence previously issued by the state, then the
permittee must obtain an individual coastal zone management consistency concurrence or
presumption of concurrence in order for the activity to be authorized by an NWP. The district
engineer or a state may require additional measures to ensure that the authorized activity is
consistent with state coastal zone management requirements.
27. Regional and Case -By -Case Conditions. The activity must comply with any regional
conditions that may have been added by the Division Engineer (see 33 CFR 330.4(e)) and
with any case specific conditions added by the Corps or by the state, Indian Tribe, or U.S.
EPA in its CWA section 401 Water Quality Certification, or by the state in its Coastal Zone
Management Act consistency determination.
28. Use of Multiple Nationwide Permits. The use of more than one NWP for a single and complete
project is authorized, subject to the following restrictions:
(a) If only one of the NWPs used to authorize the single and complete project has a specked
acreage limit, the acreage loss of waters of the United States cannot exceed the acreage
limit of the NWP with the highest specified acreage limit. For example, if a road crossing
over tidal waters is constructed under NWP 14, with associated bank stabilization
authorized by NWP 13, the maximum acreage loss of waters of the United States for the
total project cannot exceed W-acre.
(b) If one or more of the NWPs used to authorize the single and complete project has
specified acreage limits, the acreage loss of waters of the United States authorized by
those NWPs cannot exceed their respective specified acreage limits. For example, if a
commercial development is constructed under NWP 39, and the single and complete
project includes the filling of an upland ditch authorized by NWP 46, the maximum
acreage loss of waters of the United States for the commercial development under NWP
39 cannot exceed 1/2-acre, and the total acreage loss of waters of United States due to
the NWP 39 and 46 activities cannot exceed 1 acre.
29. Transfer of Nationwide Permit Verifications. If the permittee sells the property associated with
a nationwide permit verification, the permittee may transfer the nationwide permit verification
to the new owner by submitting a letter to the appropriate Corps district office to validate the
transfer. A copy of the nationwide permit verification must be attached to the letter, and the
letter must contain the following statement and signature:
"When the structures or work authorized by this nationwide permit are still in existence at
the time the property is transferred, the terms and conditions of this nationwide permit,
including any special conditions, will continue to be binding on the new owner(s) of the
property. To validate the transfer of this nationwide permit and the associated liabilities
associated with compliance with its terms and conditions, have the transferee sign and
date below"
(Transferee)
(Date)
30. Compliance Certification. Each permittee who receives an NWP verification letter from the
Corps must provide a signed certification documenting completion of the authorized activity
and implementation of any required compensatory mitigation. The success of any required
permittee-responsible mitigation, including the achievement of ecological performance
standards, will be addressed separately by the district engineer. The Corps will provide the
permittee the certification document with the NWP verification letter. The certification
document will include:
(a) A statement that the authorized activity was done in accordance with the NWP
authorization, including any general, regional, or activity -specific conditions;
(b) A statement that the implementation of any required compensatory mitigation was
completed in accordance with the permit conditions. If credits from a mitigation bank or in -
lieu fee program are used to satisfy the compensatory mitigation requirements, the
certification must include the documentation required by 33 CFR 332.3(1)(3) to confirm
that the permittee secured the appropriate number and resource type of credits; and
(c) The signature of the permittee certifying the completion of the activity and mitigation. The
completed certification document must be submitted to the district engineer within 30 days
of completion of the authorized activity or the implementation of any required
compensatory mitigation, whichever occurs later.
31. Activities Affecting Structures or Works Built by the United States. If an NWP activity also
requires permission from the Corps pursuant to 33 U.S.C. 408 because it will alter or
temporarily or permanently occupy or use a U.S. Army Corps of Engineers (USACE) federally
authorized Civil Works project (a "USACE project"), the prospective permittee must submit a
pre -construction notification. See paragraph (b)(10) of general condition 32. An activity that
requires section 408 permission and/or review is not authorized by an NWP until the
appropriate Corps office issues the section 408 permission or completes its review to alter,
occupy, or use the USACE project, and the district engineer issues a written NWP verification.
32. Pre -Construction Notification.
Nationwide Permit 14 -Activities, Regional Conditions, General Conditions, and Definitions
(a) Timing. Where required by the terms of the NWP, the permittee must notify the district
those single and complete crossings authorized by an NWP but do not require
engineer by submitting a pre -construction notification (PCN) as early as possible. The
PCNs). This information will be used by the district engineer to evaluate the
district engineer must determine if the PCN is complete within 30 calendar days of the
cumulative adverse environmental effects of the proposed linear project and does
date of receipt and, if the PCN is determined to be incomplete, notify the prospective
not change those non-PCN NWP activities into NWP PCNs.
permittee within that 30 day period to request the additional information necessary to
(iii) Sketches should be provided when necessary to show that the activity complies
make the PCN complete. The request must specify the information needed to make the
with the terms of the NWP. (Sketches usually clarify the activity and when provided
PCN complete. As a general rule, district engineers will request additional information
results in a quicker decision. Sketches should contain sufficient detail to provide an
necessary to make the PCN complete only once. However, if the prospective permittee
illustrative description of the proposed activity (e.g., a conceptual plan), but do not
does not provide all of the requested information, then the district engineer will notify the
need to be detailed engineering plans).
prospeclive permittee that the PCN is still incomplete and the PCN review process will not
(5) The PCN must include a delineation of wetlands, other special aquatic sites, and other
commence until all of the requested information has been received by the district
waters, such as lakes and ponds, and perennial and intermittent streams, on the
engineer. The prospective permittee shall not begin the activity until either:
project site. Wetland delineations must be prepared in accordance with the current
(1) He or she is notified in writing by the district engineer that the activity may proceed
method required by the Corps. The permittee may ask the Corps to delineate the
under the NWP with any special conditions imposed by the district or division
special aquatic sites and other waters on the project site, but there may be a delay if
engineer; or
the Corps does the delineation, especially if the project site is large or contains many
(2) 45 calendar days have passed from the district engineer's receipt of the complete
wetlands, other special aquatic sites, and other waters. Furthermore, the 45-day
PCN and the prospeclive permittee has not received written notice from the district or
period will not start until the delineation has been submitted to or completed by the
division engineer. However, if the permittee was required to notify the Corps pursuant
Corps, as appropriate.
to general condition 18 that listed species or critical habitat might be affected or are in
(6) If the proposed activity will result in the loss of greater than VI O-acre of wetlands or
the vicinity of the activity, or to notify the Corps pursuant to general condition 20 that
31100-acre of stream bed and a PCN is required, the prospective permittee must
the activity might have the potential to cause effects to historic properties, the
submit a statement describing how the mitigation requirement will be satisfied, or
permittee cannot begin the activity until receiving written notification from the Corps
explaining why the adverse environmental effects are no more than minimal and why
that there is "no effect" on listed species or "no potential to cause effects" on historic
compensatory mitigation should not be required. As an alternative, the prospective
properties, or that any consultation required under Section 7 of the Endangered
permittee may submit a conceptual or detailed mitigation plan.
Species Act (see 33 CFR 330.4(f)) and/or section 106 of the National Historic
(7) For non-federal permittees, if any listed species (or species proposed for listing) or
Preservation Act (see 33 CFR 330.4(g)) has been completed. If the proposed activity
designated critical habitat (or critical habitat proposed for such designation) might be
requires a written waiver to exceed specified limits of an NWP, the permittee may not
affected or is in the vicinity of the activity, or if the activity is located in designated
begin the activity until the district engineer issues the waiver. If the district or division
critical habitat (or critical habitat proposed for such designation), the PCN must include
engineer notifies the permittee in writing that an individual permit is required within 45
the name(s) of those endangered or threatened species (or species proposed for
calendar days of receipt of a complete PCN, the permittee cannot begin the activity
listing) that might be affected by the proposed activity or utilize the designated critical
until an individual permit has been obtained. Subsequently, the permittee's right to
habitat (or critical habitat proposed for such designation) that might be affected by the
proceed under the NWP may be modified, suspended, or revoked only in accordance
proposed activity. For NWP activities that require pre -construction notification, Federal
with the pr set forth in 33 CFR 330.5(d)(2).
permittees must provide documentation demonstrating compliance with the
(b) Contents of Pre -Construction Notification: The PCN must be in writing and include the
Endangered Species Act.
following information:
(8) For non-federal permittees, if the NWP activity might have the potential to cause
(1) Name, address and telephone numbers of the prospective permittee;
effects to a historic property listed on, determined to be eligible for listing on, or
(2) Location of the proposed activity;
potentially eligible for listing on, the National Register of Historic Places, the PCN must
(3) Identify the specific NWP or NWP(s) the prospective permittee wants to use to
state which historic property might have the potential to be affected by the proposed
authorize the proposed activity;
activity or include a vicinity map indicating the location of the historic property. For
(4)
NWP activities that require pre -construction notification, Federal permittees must
(i) A description of the proposed activity; the activity's purpose; direct and indirect
provide documentation demonstrating compliance with section 106 of the National
adverse environmental effects the activity would cause, including the anticipated
Historic Preservation Act.
amount of loss of wetlands, other special aquatic sites, and other waters expected
(9) For an activity that will occur in a component of the National Wild and Scenic River
to result from the NWP activity, in acres, linear feet, or other appropriate unit of
System, or in a river officially designated by Congress as a "study river'' for possible
measure; a description of any proposed mitigation measures intended to reduce the
inclusion in the system while the river is in an official study status, the PCN must
adverse environmental effects caused by the proposed activity; and any other
identify the Wild and Scenic River or the "study river'' (see general condition 16); and
NWP(s), regional general permit(s), or individual permit(s) used or intended to be
(10) For an NWP activity that requires permission from, or review by, the Corps pursuant to
used to authorize any part of the proposed project or any related activity, including
33 U.S.C. 408 because it will alter or temporarily or permanently occupy or use a U.S.
other separate and distant crossings for linear projects that require Department of
Army Corps of Engineers federally authorized civil works project, the pre -construction
the Army authorization but do not require pre -construction notification. The
notification must include a statement confirming that the project proponent has
description of the proposed activity and any proposed mitigation measures should
submitted a written request for section 408 permission from, or review by, the Corps
be sufficiently detailed to allow the district engineer to determine that the adverse
office having jurisdiction over that USACE project.
environmental effects of the activity will be no more than minimal and to determine
(c) Form of Pm -Construction Notification: The nationwide permit pre -construction notification
the need for compensatory mitigation or other mitigation measures.
form (Form ENG 6082) should be used for NWP PCNs. A letter containing the required
(ii)For linear projects where one or more single and complete crossings require pre-
information may also be used. Applicants may provide electronic files of PCNs and
construction notification, the PCN must include the quantity of anticipated losses of
supporting materials if the district engineer has established tools and procedures for
wetlands, other special aquatic sites, and other waters for each single and complete
electronic submittals.
crossing of those wetlands, other special aquatic sites, and other waters (including
(d) Agency Coordination:
Nationwide Permit 14 -Activities, Regional Conditions, General Conditions, and Definitions
(1) The district engineer will consider any comments from Federal and state agencies
concerning the proposed activity's compliance with the terms and conditions of the
NWPs and the need for mitigation to reduce the activity's adverse environmental
effects so that they are no more than minimal.
(2) Agency coordination is required for:
(i) All NWP activities that require pre -construction notification and result in the loss of
greater than W-acre of waters of the United States;
(ii) NWP 13 activities in excess of 500 linear feet, fills greater than one cubic yard per
running foot, or involve discharges of dredged or fill material into special aquatic
sites; and
(iii) NWP 54 activities in excess of 500 linear feet, or that extend into the waterbody
more than 30 feet from the mean low water line in tidal waters or the ordinary high
water mark in the Great Lakes.
(3) When agency coordination is required, the district engineer will immediately provide
(e.g., via email, facsimile transmission, overnight mail, or other expeditious manner) a
copy of the complete PCN to the appropriate Federal or state offices (FWS, state
natural resource or water quality agency, EPA, and, if appropriate, the NMFS). With
the exception of NWP 37, these agencies will have 10 calendar days from the date the
material is transmitted to notify the district engineer via telephone, facsimile
transmission, or email that they intend to provide substantive, site -specific comments.
The comments must explain why the agency believes the adverse environmental
effects will be more than minimal. If so, contacted by an agency, the district engineer
will wait an additional 15 calendar days before making a decision on the pre -
construction notification. The district engineer will fully consider agency comments
received within the specified time frame concerning the proposed activity's compliance
with the terms and conditions of the NWPs, including the need for mitigation to ensure
that the net adverse environmental effects of the proposed activity are no more than
minimal. The district engineer will provide no response to the resource agency, except
as provided below. The district engineer will indicate in the administrative record
associated with each pre -construction notification that the resource agencies'
concerns were considered. For NWP 37, the emergency watershed protection and
rehabilitation activity may proceed immediately in cases where there is an
unacceptable hazard to life or a significant loss of property or economic hardship will
occur. The district engineer will consider any comments received to decide whether
the NWP 37 authorization should be modified, suspended, or revoked in accordance
with the procedures at 33 CFR 330.5.
(4) In cases of where the prospective permittee is not a Federal agency, the district
engineer will provide a response to NMFS within 30 calendar days of receipt of any
Essential Fish Habitat conservation recommendations, as required by section
305(b)(4)(B) of the Magnuson -Stevens Fishery Conservation and Management Act.
(5) Applicants are encouraged to provide the Corps with either electronic files or multiple
copies of pre -construction notifications to expedite agency coordination.
DISTRICT ENGINEER'S DECISION:
1. In reviewing the PCN for the proposed activity, the district engineer will determine whether the
activity authorized by the NWP will result in more than minimal individual or cumulative
adverse environmental effects or may be contrary to the public interest. If a project proponent
requests authorization by a specific NWP, the district engineer should issue the NWP
verification for that activity if it meets the terms and conditions of that NWP, unless he or she
determines, after considering mitigation, that the proposed activity will result in more than
minimal individual and cumulative adverse effects on the aquatic environment and other
aspects of the public interest and exercises discretionary authority to require an individual
permit for the proposed activity. For a linear project, this determination will include an
evaluation of the single and complete crossings of waters of the United States that require
PCNs to determine whether they individually satisfy the terms and conditions of the NWP(s),
as well as the cumulative effects caused by all of the crossings of waters of the United States
authorized by an NWP. If an applicant requests a waiver of an applicable limit, as provided for
in NWPs 13, 36, or 54, the district engineer will only grant the waiver upon a written
determination that the NWP activity will result in only minimal individual and cumulative
adverse environmental effects.
2. When making minimal adverse environmental effects determinations the district engineer will
consider the direct and indirect effects caused by the NWP activity. He or she will also
consider the cumulative adverse environmental effects caused by activities authorized by an
NWP and whether those cumulative adverse environmental effects are no more than minimal.
The district engineer will also consider site specific factors, such as the environmental setting
in the vicinity of the NWP activity, the type of resource that will be affected by the NWP
activity, the functions provided by the aquatic resources that will be affected by the NWP
activity, the degree or magnitude to which the aquatic resources perform those functions, the
extent that aquatic resource functions will be lost as a result of the NWP activity (e.g., partial
or complete loss), the duration of the adverse effects (temporary or permanent), the
importance of the aquatic resource functions to the region (e.g., watershed or ecoregion), and
mitigation required by the district engineer. If an appropriate functional or condition
assessment method is available and practicable to use, that assessment method may be
used by the district engineer to assist in the minimal adverse environmental effects
determination. The district engineer may add case -specific special conditions to the NWP
authorization to address site -specific environmental concerns.
3. If the proposed activity requires a PCN and will result in a loss of greater than VI O-acre of
wetlands or 3100-acre of stream bed, the prospective permittee should submit a mitigation
proposal with the PCN. Applicants may also propose compensatory mitigation for NWP
activities with smaller impacts, or for impacts to other types of waters. The district engineer
will consider any proposed compensatory mitigation or other mitigation measures the
applicant has included in the proposal in determining whether the net adverse environmental
effects of the proposed activity are no more than minimal. The compensatory mitigation
proposal may be either conceptual or detailed. If the district engineer determines that the
activity complies with the terms and conditions of the NWP and that the adverse
environmental effects are no more than minimal, after considering mitigation, the district
engineer will notify the permittee and include any activity -specific conditions in the NWP
verification the district engineer deems necessary. Conditions for compensatory mitigation
requirements must comply with the appropriate provisions at 33 CFR 332.3(k). The district
engineer must approve the final mitigation plan before the permittee commences 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. If the prospective permittee elects to submit a
compensatory mitigation plan with the PCN, the district engineer will expeditiously review the
proposed compensatory mitigation plan. The district engineer must review the proposed
compensatory mitigation plan within 45 calendar days of receiving a complete PCN and
determine whether the proposed mitigation would ensure that the NWP activity results in no
more than minimal adverse environmental effects. If the net adverse environmental effects of
the NWP activity (after consideration of the mitigation proposal) are determined by the district
engineer to be no more than minimal, the district engineer will provide a timely written
response to the applicant. The response will state that the NWP activity can proceed under
the terms and conditions of the NWP, including any acivity-specific conditions added to the
NWP authorization by the district engineer.
4. If the district engineer determines that the adverse environmental effects of the proposed
activity are more than minimal, then the district engineer will notify the applicant either:
(a) That the activity does not qualify for authorization under the NWP and instruct the
applicant on the procedures to seek authorization under an individual permit;
(b) that the activity is authorized under the NWP subject to the applicant's submission of a
mitigation plan that would reduce the adverse environmental effects so that they are no
more than minimal; or
(c) that the activity is authorized under the NWP with specific modifications or conditions.
Where the district engineer determines that mitigation is required to ensure no more than
minimal adverse environmental effects, the activity will be authorized within the 45-day
PCN period (unless additional time is required to comply with general conditions 18, 20,
and/or 31), with activity -specific conditions that state the mitigation requirements. The
Nationwide Permit 14 -Activities, Regional Conditions, General Conditions, and Definitions
authorization will include the necessary conceptual or detailed mitigation plan or a
requirement that the applicant submit a mitigation plan that would reduce the adverse
environmental effects so that they are no more than minimal. When compensatory
mitigation is required, no work in waters of the United States may occur until the district
engineer has approved a specific mitigation plan or has determined that prior approval of
a final mitigation plan is not practicable or not necessary to ensure timely completion of
the required compensatory mitigation.
1. District engineers have authority to determine if an activity complies with the terms and
conditions of an NWP.
2. NWPs do not obviate the need to obtain other federal, state, or local permits, approvals, or
authorizations required by law.
3. NWPs do not grant any property rights or exclusive privileges.
4. NWPs do not authorize any injury to the property or rights of others.
5. NWPs do not authorize interference with any existing or proposed Federal project (see
general condition 31).
DEFINITIONS:
Best management practices (BMPs): Policies, practices, procedures, or structures
implemented to mitigate the adverse environmental effects on surface water quality resulting
from development. BMPs are categorized as structural or non-structural.
Compensatory mitigation: The restoration (re-establishment or rehabilitation), establishment
(creation), enhancement, and/or in certain circumstances preservation of aquatic resources for
the purposes of offsetting unavoidable adverse impacts which remain after all appropriate and
practicable avoidance and minimization has been achieved.
Currently serviceable: Useable as is or with some maintenance, but not so degraded as to
essentially require reconstruction.
Direct effects: Effects that are caused by the activity and occur at the same time and place.
Discharge: The term "discharge" means any discharge of dredged or fill material into waters
of the United States.
Ecological reference: A model used to plan and design an aquatic habitat and riparian area
restoration, enhancement, or establishment activity under NWP 27. An ecological reference may
be based on the structure, functions, and dynamics of an aquatic habitat type or a riparian area
type that currently exists in the region where the proposed NWP 27 activity is located.
Alternatively, an ecological reference may be based on a conceptual model for the aquatic
habitat type or riparian area type to be restored, enhanced, or established as a result of the
proposed NWP 27 activity. An ecological reference takes into account the range of variation of
the aquatic habitat type or riparian area type in the region.
Enhancement: The manipulation of the physical, chemical, or biological characteristics of an
aquatic resource to heighten, intensity, or improve a specific aquatic resource function(s).
Enhancement results in the gain of selected aquatic resource function(s), but may also lead to a
decline in other aquatic resource function(s). Enhancement does not result in a gain in aquatic
resource area.
Establishment (creation): The manipulation of the physical, chemical, or biological
characteristics present to develop an aquatic resource that did not previously exist at an upland
site. Establishment results in a gain in aquatic resource area.
High Tide Line: The line of intersection of the land with the water's surface at the maximum
height reached by a rising tide. The high tide line may be determined, in the absence of actual
data, by a line of oil or scum along shore objects, a more or less continuous deposit of fine shell
or debris on the foreshore or berm, other physical markings or characteristics, vegetation lines,
tidal gages, or other suitable means that delineate the general height reached by a rising tide.
The line encompasses spring high tides and other high tides that occur with periodic frequency
but does not include storm surges in which there is a departure from the normal or predicted
reach of the tide due to the piling up of water against a coast by strong winds such as those
accompanying a hurricane or other intense storm.
Historic Property Any prehistoric or historic district, site (including archaeological site),
building, structure, or other object included in, or eligible for inclusion in, the National
Register of Historic Places maintained by the Secretary of the Interior. This term includes
artifacts, records, and remains that are related to and located within such properties. The term
includes properties of traditional religious and cultural importance to an Indian tribe or Native
Hawaiian organization and that meet the National Register criteria (36 CFR part 60).
Independent utility: A test to determine what constitutes a single and complete non -linear
project in the Corps Regulatory Program. A project is considered to have independent utility if it
would be constructed absent the construction of other projects in the project area. Portions of a
multi -phase project that depend upon other phases of the project do not have independent
utility. Phases of a project that would be constructed even if the other phases were not built can
be considered as separate single and complete projects with independent utility.
Indirect effects: Effects that are caused by the activity and are later in time or farther removed
in distance but are still reasonably foreseeable.
Loss of waters of the United States: Waters of the United States that are permanently
adversely affected by filling, flooding, excavation, or drainage because of the regulated activity.
The loss of stream bed includes the acres of stream bed that are permanently adversely affected
by filling or excavation because of the regulated activity. Permanent adverse effects include
permanent discharges of dredged or fill material that change an aquatic area to dry land,
increase the bottom elevation of a waterbody, or change the use of a waterbody. The acreage of
loss of waters of the United States is a threshold measurement of the impact to jurisdictional
waters or wetlands for determining whether a project may qualify for an NWP; it is not a net
threshold that is calculated after considering compensatory mitigation that may be used to offset
losses of aquatic functions and services. Waters of the United States temporarily filled, flooded,
excavated, or drained, but restored to pre -construction contours and elevations after
construction, are not included in the measurement of loss of waters of the United States.
Impacts resulting from activities that do not require Department of the Army authorization, such
as activities eligible for exemptions under section 404(f) of the Clean Water Act, are not
considered when calculating the loss of waters of the United States.
Navigable waters: Waters subject to section 10 of the Rivers and Harbors Act of 1899. These
waters are defined at 33 CFR part 329.
Non -tidal wetland: A non -tidal wetland is a wetland that is not subject to the ebb and flow of
tidal waters. Non- tidal wetlands contiguous to tidal waters are located landward of the high tide
line (i.e., spring high tide line).
Open water: For purposes of the NWPs, an open water is any area that in a year with normal
patterns of precipitation has water flowing or standing above ground to the extent that an
ordinary high water mark can be determined. Aquatic vegetation within the area of flouring or
standing water is either non -emergent, sparse, or absent. Vegetated shallows are considered to
be open waters. Examples of "open waters" include rivers, streams, lakes, and ponds.
Ordinary High Water Mark The term ordinary high water mark means that line on the shore
established by the fluctuations of water and indicated by physical characteristics such as a clear,
natural line impressed on the bank, shelving, changes in the character of soil, destruction of
terrestrial vegetation, the presence of litter and debris, or other appropriate means that consider
the characteristics of the surrounding areas.
Perennial stream: A perennial stream has surface water flowing continuously year-round
during a typical year.
Practicable: Available and capable of being done after taking into consideration cost, existing
technology, and logistics in light of overall project purposes.
Pre -construction notification: A request submitted by the project proponent to the Corps for
confirmation that a particular activity is authorized by nationwide permit. The request may be a
permit application, letter, or similar document that includes information about the proposed work
and its anticipated environmental effects. Pre- construction notification may be required by the
terms and conditions of a nationwide permit, or by regional conditions. A pre -construction
notification may be voluntarily submitted in cases where pre -construction notification is not
required and the project proponent wants confirmation that the activity is authorized by
nationwide permit.
Preservation: The removal of a threat to, or preventing the decline of, aquatic resources by an
Nationwide Permit 14 - Activities, Regional Conditions, General Conditions, and Definitions
action in or near those aquatic resources. This term includes activities commonly associated
with the protection and maintenance of aquatic resources through the implementalion of
appropriate legal and physical mechanisms. Preservation does not result in a gain of aquatic
resource area or functions.
Re-establishment The manipulation of the physical, chemical, or biological characteristics of
a site with the goal of returning natural/historic functions to a former aquatic resource. Re-
establishment results in rebuilding a former aquatic resource and results in a gain in aquatic
resource area and functions.
Rehabilitation: The manipulation of the physical, chemical, or biological characteristics of a
site with the goal of repairing natural/historic functions to a degraded aquatic resource.
Rehabilitation results in a gain in aquatic resource function but does not result in a gain in
aquatic resource area.
Restoration: The manipulation of the physical, chemical, or biological characteristics of a site
with the goal of returning natural/historic functions to a former or degraded aquatic resource. For
the purpose of tracking net gains in aquatic resource area, restoration is divided into two
categories: Re-establishment and rehabilitation.
Riffle and pool complex: Riffle and pool complexes are special aquatic sites under the
404(b)(1) Guidelines. Riffle and pool complexes sometimes characterize steep gradient sections
of streams. Such stream sections are recognizable by their hydraulic characteristics. The rapid
movement of water over a course substrate in riffles results in a rough flow, a turbulent surface,
and high dissolved oxygen levels in the water. Pools are deeper areas associated with riffles. A
slower stream velocity, a streaming flow, a smooth surface, and a finer substrate characterize
Pools.
Riparian areas: Riparian areas are lands next to streams, lakes, and estuarine -marine
shorelines. Riparian areas are transitional between terrestrial and aquatic ecosystems, through
which surface and subsurface hydrology connects riverine, lacustrine, estuarine, and marine
waters with their adjacent wetlands, non -wetland waters, or uplands. Riparian areas provide a
variety of ecological functions and services and help improve or maintain local water quality.
(See general condition 23.)
Shellfish seeding The placement of shellfish seed and/or suitable substrate to increase
shellfish production. Shellfish seed consists of immature individual shellfish or individual shellfish
attached to shells or shell fragments (i.e., spat on shell). Suitable substrate may consist of
shellfish shells, shell fragments, or other appropriate materials placed into waters for shellfish
habitat.
Single and complete linear project A linear project is a project constructed for the purpose of
getting people, goods, or services from a point of origin to a terminal point, which often involves
multiple crossings of one or more waterbodies at separate and distant locations. The term
'single and complete project' is defined as that portion of the total linear project proposed or
accomplished by one owner/developer or partnership or other association of owners/developers
that includes all crossings of a single water of the United States (i.e., a single waterbody) at a
specific location. For linear projects crossing a single or multiple waterbodies several times at
separate and distant locations, each crossing is considered a single and complete project for
purposes of NWP authorization. However, individual channels in a braided stream or river, or
individual arms of a large, irregularly shaped wetland or lake, etc., are not separate waterbodies,
and crossings of such features cannot be considered separately.
Single and complete non -linear project For non -linear projects, the term "single and complete
project" is defined at 33 CFR 330.2(i) as the total project proposed or accomplished by one
owner/developer or partnership or other association of owners/developers. A single and
complete non -linear project must have independent utility (see definition of "independent utility").
Single and complete non -linear projects may not be "piecemealed" to avoid the limits in an NWP
authorization.
Stormwater management Stormwater management is the mechanism for controlling
stormwater runoff for the purposes of reducing downstream erosion, water quality degradation,
and flooding and mitigating the adverse effects of changes in land use on the aquatic
environment.
Stormwater management facilities: Stormwater management facilities are those facilities,
including but not limited to, stormwater retention and detention ponds and best management
practices, which retain water for a period of time to control runoff and/or improve the quality (i.e.,
by reducing the concentration of nutrients, sediments, hazardous substances and other
pollutants) of stormwater runoff.
Stream bed: The substrate of the stream channel between the ordinary high water marks. The
substrate may be bedrock or inorganic particles that range in size from clay to boulders.
Wetlands contiguous to the stream bed, but outside of the ordinary high water marks, are not
considered part of the stream bed.
Stream channelization: The manipulation of a stream's course, condition, capacity, or location
that causes more than minimal interruption of normal stream processes. A channelized
jurisdictional stream remains a water of the United States.
Structure: An object that is arranged in a definite pattern of organization. Examples of
structures include, without limitation, any pier, boat dock, boat ramp, wharf, dolphin, weir, boom,
breakwater, bulkhead, revetment, riprap, jetty, artificial island, artificial reef, permanent mooring
structure, power transmission line, permanently moored floating vessel, piling, aid to navigation,
or any other manmade obstacle or obstruction.
Tidal wetland: A tidal wetland is a jurisdictional wetland that is inundated by tidal waters. Tidal
waters rise and fall in a predictable and measurable rhythm or cycle due to the gravitational
pulls of the moon and sun. Tidal waters end where the rise and fall of the water surface can no
longer be practically measured in a predictable rhythm due to masking by other waters, wind, or
other effects. Tidal wetlands are located channelward of the high tide line.
Tribal lands: Any lands title to which is either: (1) Held in trust by the United States for the
benefit of any Indian tribe or individual; or (2) held by any Indian tribe or individual subject to
restrictions by the United States against alienation.
Tribal rights: Those rights legally accruing to a tribe or tribes by virtue of inherent sovereign
authority, unextinguished aboriginal title, treaty, statute, judicial decisions, executive order or
agreement, and that give rise to legally enforceable remedies.
Vegetated shallows: Vegetated shallows are special aquatic sites under the 404(b)(1)
Guidelines. They are areas that are permanently inundated and under normal circumstances
have rooted aquatic vegetation, such as seagrasses in marine and estuarine systems and a
variety of vascular rooted plants in freshwater systems.
Waterbody: For purposes of the NWPs, a waterbody is a "water of the United States" If a
wetland is adjacent to a waterbody determined to be a water of the United States, that
waterbody and any adjacent wetlands are considered together as a sing a aquatic unit (see 33
CFR 328.4(c)(2)).
Norfolk District Final Regional Conditions for the
2021 Nationwide Permits (NWPs) Applicable in Virginia
(Including Northern Virginia Military Installations within Baltimore
District's Area of Responsibility)
These Regional Conditions apply only to the 41 NWPs published in the December 27,
2021 (86 FIR 73522). The following 41 NWPs are effective February 25, 2022 and will
expire on March 14, 2026:
NWP 1, NWP 2, NWP 3, NWP 4, NWP 5, NWP 6, NWP 7, NWP 8, NWP 9, NWP 10, NWP
11, NWP 13, NWP 14, NWP 15, NWP 16, NWP 17, NWP 18, NWP 19, NWP 20, NWP 22,
NWP 23, NWP 24, NWP 25, NWP 27, NWP 28, NWP 30, NWP 31, NWP 32, NWP 33,
NWP 34, NWP 35, NWP 36, NWP 37, NWP 38, NWP 41, NWP 45, NWP 46, NWP 49,
NWP 53, NWP 54, and NWP 59.
/_1tI:IIII
1. Waters Containing Submerged Aquatic Vegetation (SAV) Beds:
This condition applies to: NWPs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17,
18, 19, 20, 22, 23, 24, 25, 27, 28, 31, 32, 33, 35, 36, 37, 38, 45, 53, and 54.
A pre -construction notification (PCN) is required if work will occur in areas that contain
submerged aquatic vegetation (SAV). Information about SAV habitat can be found at
the Virginia Institute of Marine Science's website
htti)://mobmack.vims.edu/sav/savwabmai) . Additional avoidance and minimization
measures, such as relocating a structure or time -of -year restrictions (TOYR), may be
required to avoid or reduce impacts to SAV habitat.
2. Anadromous Fish Use Areas:
Authorizations associated with the NWPs shall not adversely affect spawning habitat or
a migratory pathway for anadromous fish. Areas of anadromous fish use are indicated
on the Virginia Department of Wildlife Resources (DWR) information system at:
https://services.dwr.virginia.gov/fwis/ . If a project is located within an area documented
as an anadromous fish use area (confirmed or potential), all in -stream work is
prohibited from occurring between February 15 through June 30 of any given year or
other time of year restriction (TOYR) specified by the DWR and/or the Virginia Marine
Resources Commission (VMRC). Should the Norfolk District determine that the work is
minimal and no TOYR is needed, the District will initiate consultation with NOAA
Fisheries Service for their concurrence. A TOYR is not required for dredging activities
in the Elizabeth River upstream of the Mid -Town Tunnel on the main -stem and the
Norfolk District Final 2020 Nationwide Permit Regional Conditions Page 1 of 18
January 18, 2022
West Norfolk Bridge (Route 164, Western Freeway) on the Western Branch of the
Elizabeth River.
3. Designated Critical Resource Waters, which include National Estuarine Research
Reserves:
A PCN is required for work under NWPs 3, 8, 10, 13, 15, 18, 19, 22, 23, 25, 27, 28, 30,
33, 34, 36, 37, 38 and 54 in the Chesapeake Bay National Estuarine Research
Reserve in Virginia. This multi -site system along a salinity gradient of the York River
includes Sweet Hall Marsh, Taskinas Creek, Catlett Islands, and Goodwin Islands.
More information can be found at: http://www.vims.edu/cbnerr/.
NWPs 7, 12, 14, 16, 17, 31, 35, and 49 cannot be used to authorize the discharge of
dredged or fill material in the Chesapeake Bay National Estuarine Research Reserve in
Virginia.
4. Federally Listed Threatened or Endangered Species and Designated Critical
Habitat for Non -Federal Permittees
For ALL NWPs, a PCN is required for any project that may affect a federally listed
threatened or endangered species or designated critical habitat. The U.S. Fish and
Wildlife Service (Service) has developed an online system that allows users to find
information about sensitive resources that may occur within the vicinity of a proposed
project. This system named "Information, Planning and Conservation System" (IPaC),
is located at: http://ecos.fws.gov/ipac/ . The applicant may use IPaC to determine if any
federally listed threatened or endangered species or designated critical habitat may be
affected by their proposed project. If your Official Species List from IPaC identifies any
federally listed threatened or endangered species, you are required to submit a PCN
for the proposed activity, unless the project clearly does not impact a listed species or
suitable habitat for the listed species. If you are unsure about whether your project will
impact federally listed threatened or endangered species, please submit a PCN, so the
Norfolk District may review the action. Further information about the Virginia Field
Office "Project Review Process" may be found at:
http://www.fws.gov/northeast/virginiafield/endangered/r)romectreviews. html.
Additional consultation may also be required with NOAA Fisheries Service, Protected
Resources Division, for listed species or critical habitat under their jurisdiction, including
sea turtles, marine mammals, shortnose sturgeon, and Atlantic sturgeon. For
additional information about species under their jurisdiction in Virginia, please see
https://www.fisheries.noaa.gov/new-england-mid-atlantic/consultations/section-7-
consultations-greater-atlantic-region .
Additional resources to assist in determining compliance with this condition can be
found on our webpage:
http://www.nao.usace.army.mil/Missions/Regulatory/USFWS.asi)x
Norfolk District Final 2020 Nationwide Permit Regional Conditions Page 2 of 18
January 18, 2022
5. Conditions for Designated Trout Waters
A PCN is required for work in Designated Trout Waters, as defined by the Virginia State
Water Control Board and the DWR. The waters, occurring specifically within the
mountains of Virginia, are within the following river basins:
1) Potomac -Shenandoah River Basins
2) James River Basin
3) Roanoke River Basin
4) New River Basin
5) Tennessee and Big Sandy River Basins
6) Rappahannock River Basin
Information on designated trout streams can be obtained via DWR's Virginia Fish and
Wildlife Information Service's (VAFWIS's) Cold Water Stream Survey database. Basic
access to the VAFWIS is available via https://services.dwr.virginia.gov/fwis/.
DWR specifies the following time -of -year restrictions (TOYRs) for any in -stream work
within streams identified as wild trout waters in its Cold Water Stream Survey database.
The recommended TOYRs for trout species are:
• Brook Trout:
October 1 through March 31
• Brown Trout:
October 1 through March 31
• Rainbow Trout:
March 15 through May 15
This condition applies to the following counties and cities: Albemarle, Allegheny,
Amherst, Augusta, Bath, Bedford, Bland, Botetourt, Bristol, Buchanan, Buena Vista,
Carroll, Clarke, Covington, Craig, Dickenson, Floyd, Franklin, Frederick, Giles,
Grayson, Greene, Henry, Highland, Lee, Loudoun, Madison, Montgomery, Nelson,
Page, Patrick, Pulaski, Rappahannock, Roanoke City, Roanoke Co., Rockbridge,
Rockingham, Russell, Scott, Shenandoah, Smyth, Staunton, Tazewell, Warren,
Washington, Waynesboro, Wise, and Wythe.
Any discharge of dredged and/or fill material authorized by the NWPs, which would
occur in the designated waterways or adjacent wetlands of the specified counties,
requires a PCN to the appropriate Corps of Engineers field office, and written approval
from that office prior to performing the work. The Norfolk District recommends that
permittees first contact the applicable Norfolk District Field Office, found at this web
link: http://www.nao.usace.armV.mil/Missions/Regulatory/Contacts.aspx, to determine if
the PCN procedures would apply.
Norfolk District Final 2020 Nationwide Permit Regional Conditions Page 3 of 18
January 18, 2022
6. Invasive Species
Plant species listed in the most current Virginia Department of Conservation and
Recreation's (DCR) Invasive Alien Plant List shall not be used for re -vegetation for
activities authorized by any NWP. The list of invasive plants in Virginia is found at:
httr)s://www.dcr.virginia.gov/natural-heritage/invsr)pdflist. DCR recommends the use of
regional native species for re -vegetation as identified in the DCR Native Plants for
Conservation, Restoration and Landscaping brochures for the coastal, piedmont and
mountain regions http://www.dcr.virginia.gov/natural-heritage/nativeplants#brochure
also see the DCR native plant finder: https://www.dcr.virginia.gov/natural-
heritage/n ative-p I ants -finder.
7. Countersinking Pipes and Culverts
This condition applies to: NWPs 3, 7, 12, 14, 17, 18, 23, 25, 27, 32, 33, 37, 38, 41, 45,
46, and 49.
NOTE FOR WORK IN TIDAL WATERS: New and replacement pipes/culverts in tidal
waters must be installed with the inverts no higher than the prevailing stream/channel
bottom elevation. If the permittee determines that matching existing elevations is not
practicable, then a PCN is required. This condition does not apply to pipe extensions in
tidal waters.
Based on consultation with DWR, the Norfolk District has determined that fish and
other aquatic organisms are most likely present in any nontidal stream being crossed,
in the absence of site -specific evidence to the contrary. The following conditions will
apply in nontidal waters:
All pipes and culverts placed in streams will be countersunk at both the inlet and
outlet ends, unless indicated otherwise by the Norfolk District on a case -by -case
basis (see below). Pipes that are 24" or less in diameter shall be countersunk 3"
below the natural stream bottom. Pipes that are greater than 24" in diameter shall
be countersunk 6" below the natural stream bottom. The countersinking
requirement does not apply to bottomless pipes/culverts or pipe arches. All single
pipes or culverts (with bottoms) shall be depressed (countersunk) below the
natural streambed at both the inlet and outlet of the structure. In sets of multiple
pipes or culverts (with bottoms) at least one pipe or culvert shall be depressed
(countersunk) at both the inlet and outlet to convey low flows.
When countersinking culverts, permittees must ensure reestablishment of a
surface water channel (within 15 days post construction) that allows for the
movement of aquatic organisms and maintains the same hydrologic regime that
was present pre -construction (i.e. the depth of surface water through the permit
area should match the upstream and downstream depths). This may require the
addition of finer materials to choke the larger stone and/or placement of riprap to
allow for a low flow channel.
Norfolk District Final 2020 Nationwide Permit Regional Conditions Page 4 of 18
January 18, 2022
c. The requirement to countersink does not apply to extensions of existing pipes or
culverts that are not countersunk, or to maintenance to pipes/culverts that does
not involve replacing the pipe/culvert (such as repairing cracks, adding material to
prevent/correct scour, etc.).
d. F000dplain pipes: The requirement to countersink does not apply to pipes or
culverts that are being placed above ordinary high water, such as those placed to
allow for floodplain flows. The placement of pipes above ordinary high water is not
jurisdictional (provided no fill is discharged into wetlands).
e. Hydraulic opening: Pipes should be adequately sized to allow for the passage of
ordinary high water with the countersinking and invert restrictions taken into
account.
f. Pipes on bedrock or above existing utility lines: Different procedures will be
followed for pipes or culverts to be placed on bedrock or above existing buried
utility lines where it is not practicable to relocate the lines, depending on whether
the work is for replacement of an existing pipe/culvert or a new pipe/culvert:
Replacement of an existing pipe/culvert: Countersinking is not required
provided the elevations of the inlet and outlet ends of the replacement
pipe/culvert are no higher above the stream bottom than those of the existing
pipe/culvert. Documentation (photographic or other evidence) must be
maintained in the permittee's records showing the bedrock condition and the
existing inlet and outlet elevations.
ii. A pipe/culvert is being placed in a new location: If the permittee determines
that bedrock or an existing buried utility line that is not practicable to relocate
prevents countersinking, they should evaluate the use of a bottomless
pipe/culvert, bottomless utility vault, span (bridge) or other bottomless
structure to cross the waterway, and also evaluate alternative locations for
the new pipe/culvert that will allow for countersinking. If the permittee
determines that neither a bottomless structure nor an alternative location is
practicable, then a PCN is required. The permittee must provide
documentation of measures evaluated to minimize disruption of the
movement of aquatic life as well as documentation of the cost, engineering
factors, and site conditions that prohibit countersinking the pipe/culvert.
Options that must be considered include partial countersinking (such as less
than 3" of countersinking, or countersinking of one end of the pipe), and
constructing stone step pools, low rock weirs downstream, or other measures
to provide for the movement of aquatic organisms. PCN must also include
photographs documenting site conditions. NOTE: Blasting of stream bottoms
through the use of explosives is not acceptable as a means of providing for
countersinking of pipes on bedrock.
Norfolk District Final 2020 Nationwide Permit Regional Conditions Page 5 of 18
January 18, 2022
g. Pipes on steep terrain: Pipes being placed on steep terrain (slope of 5% or
greater) must be countersunk in accordance with the conditions above and will in
most cases be non -reporting. It is recommended that on slopes greater than 5%,
a larger pipe than required be installed to allow for the passage of ordinary high
water in order to increase the likelihood that natural velocities can be maintained.
There may be situations where countersinking both the inlet and outlet may result
in a slope in the pipe that results in flow velocities that cause excessive scour at
the outlet and/or prohibit some fish movement. This type of situation could occur
on the side of a mountain where falls and drop pools occur along a stream.
Should this be the case, or should the permittee not want to countersink the
pipe/culvert for other reasons, they must submit a PCN. The permittee must
provide documentation of measures evaluated to minimize disruption of the
movement of aquatic life as well as documentation of the cost, engineering
factors, and site conditions that prohibit countersinking the pipe/culvert. The
permittee should design the pipe to be placed at a slope as steep as stream
characteristics allow, countersink the inlet 3-6", and implement measures to
minimize any disruption of fish movement. These measures can include
constructing a stone step/pool structure, preferably using river rock/native stone
rather than riprap, constructing low rock weirs to create a pool or pools, or other
structures to allow for fish movements in both directions. Stone structures should
be designed with sufficient -sized stone to prevent erosion or washout and should
include keying -in as appropriate. These structures should be designed both to
allow for fish passage and to minimize scour at the outlet. The quantities of fill
discharged below ordinary high water necessary to comply with these
requirements (i.e., the cubic yards of stone, riprap or other fill placed below the
plane of ordinary high water) must be included in project totals.
h. Problems encountered during construction: When a pipe/culvert is being replaced,
and the design calls for countersinking at both ends of the pipe/culvert, and during
construction it is found that the streambed/banks are on bedrock, a utility line, or
other documentable obstacle, then the permittee must stop work and contact the
Norfolk District (contact by telephone and/or email is acceptable). The permittee
must provide the Norfolk District with specific information concerning site
conditions and limitations on countersinking. The Norfolk District will work with the
permittee to determine an acceptable plan, taking into consideration the
information provided by the permittee, but the permittee should recognize that the
Norfolk District could determine that the work will not qualify for a NWP.
Emergency pipe replacements: In the case of an emergency situation, such as
when a pipe/culvert washes out during a flood, a permittee is encouraged to
countersink the replacement pipe at the time of replacement, in accordance with
the conditions above. However, if conditions or timeframes do not allow for
countersinking, then the pipe can be replaced as it was before the washout, but
the permittee will have to come back and replace the pipe/culvert and countersink
it in accordance with the guidance above. In other words, the replacement of the
washed out pipe is viewed as a temporary repair, and a countersunk replacement
should be made at the earliest possible date. The Norfolk District must be notified
Norfolk District Final 2020 Nationwide Permit Regional Conditions Page 6 of 18
January 18, 2022
of all pipes/culverts that are replaced without countersinking at the time that it
occurs, even if it is an otherwise non -reporting activity, and must provide the
permittee's planned schedule for installing a countersunk replacement (it is
acceptable to submit such notification by email). The permittee should anticipate
whether bedrock or steep terrain will limit countersinking, and if so, should follow
the procedures outlined in (f) and/or (g) above.
8. Repair of Pipes
This condition applies to: NWPs 3, 7, 12, 14, 17, 18, 23, 25, 27, 32, 33, 37, 38, 41, 45,
46, and 49.
NOTE FOR WORK IN TIDAL WATERS: New and replacement pipes/culverts in tidal
waters must be installed with the inverts no higher than the prevailing stream/channel
bottom elevation. If the permittee determines that matching existing elevations is not
practicable, then a PCN is required. This condition does not apply to pipe extensions in
tidal waters.
For Nontidal Waters: If any discharge of fill material will occur in conjunction with pipe
maintenance, such as concrete being pumped over rebar into an existing deteriorated
pipe for stabilization, then the following conditions apply:
a. If the existing pipe or multi -barrel array of pipes are NOT currently countersunk:
As long as the inlet and outlet invert elevations of at least one pipe located in
the low flow channel are not being altered, and provided that no concrete
apron is being constructed, then the work may proceed under the NWP for
the other pipes, provided it complies with all other NWP General Conditions.
In such cases, a PCN is not required, unless specified in the Regional
Conditions for other reasons, and the permittee may proceed with the work.
ii. Otherwise, the permittee must submit a PCN prior to commencing the
activity. For all such projects, the following information should be provided:
1) Photographs of the existing inlet and outlet;
2) A measurement of the degree to which the work will raise the invert
elevations of both the inlet and outlet of the existing pipe;
3) The reasons why other methods of pipe maintenance are not
practicable (such as metal sleeves or a countersunk pipe replacement);
4) A vicinity map showing the pipe locations.
The Norfolk District will assess all such pipe repair proposals in accordance
with guidelines that can be found under "Pipe Repair Guidelines" at:
http://www.nao.usace.armV.mil/Missions/Regulatory/GuidanceDocuments.aspx
Norfolk District Final 2020 Nationwide Permit Regional Conditions Page 7 of 18
January 18, 2022
iii. If the Norfolk District determines that the work qualifies for the NWP,
additional conditions will be placed on the verification. Those conditions can
be found at the web link above (in item ii).
iv. If the Norfolk District determines that the work does NOT qualify for the
NWP, the applicant will be directed to apply for either Regional Permit 01,
applicable only for Virginia Department of Transportation (VDOT) projects or
an Individual Permit. However, it is anticipated that the applicant will still be
required to perform the work such that the waterway is not blocked or
restricted to a greater degree than its current conditions.
b. If the existing pipe or at least one pipe in the multi -barrel array of pipes IS
countersunk and at least one pipe located in the low flow channel will continue to
be countersunk, and no concrete aprons are proposed:
No PCN to the Norfolk District is required, unless specified in the Regional
Conditions for other reasons, and the permittee may proceed with the work.
c. If the existing pipe or at least one pipe in the multi -barrel array of pipes IS
countersunk and no pipe will continue to be countersunk in the low flow channel:
This work cannot be performed under the NWPs. The permittee must apply for
either a Regional Permit 01 (applicable only for VDOT projects) or an Individual
Permit. However, it is anticipated that the permittee will still be required to
perform the work such that the waterway is not blocked or restricted more so
than its current conditions.
d. In emergency situations, if conditions or timeframes do not allow for compliance
with the procedure outlined herein, then the pipe can be temporarily repaired to
the condition before the washout. If the temporary repair would require a PCN
by the above procedures, the permittee must submit the PCN at the earliest
practicable date, but no longer than 15 days after the temporary repair.
9. Impacts Requiring a Compensatory Mitigation Plan
When a PCN is required, a compensatory mitigation plan must be submitted if the
permanent loss exceeds 0.1 acre of wetlands and/or 0.03 acre of stream bed or
300 linear feet of stream bed unless otherwise stated in the regional conditions
(see Regional Condition 11 for Transportation Projects). The stream channel loss
must be reported in acreage and linear feet.
10. Removal of Temporary Fills and Impacts
The soils of any temporarily impacted areas located in wetlands that are cleared,
grubbed, excavated, dredged and/or filled, must be restored once these areas are
Norfolk District Final 2020 Nationwide Permit Regional Conditions Page 8 of 18
January 18, 2022
no longer needed for their authorized purpose, no later than completion of project
construction, and not to exceed twelve (12) months after commencing the
temporary impacts. To restore, temporary fill must be removed in its entirety and
the affected areas returned to preconstruction elevations, the soil surface loosened
by ripping or chisel plowing to a depth of 8-12", and then seeded using native
wetland species. See Regional Condition 6: Invasive Species for more information
on vegetation recommendations.
Fill or dredged material in waters of the U.S. that is not removed within the 12-
month period will be considered a permanent impact, unless otherwise
determined by the Corps. This additional impact to waters of the U.S. may result
in the Corps initiating a permit non-compliance action, which may include a
restoration order, after -the -fact permitting, and/or compensatory mitigation.
11.Transportation Projects Funded in Part or in Total by Local, State or Federal
Funds
For all impacts associated with transportation projects funded in part or in total by
local, state or federal funds and requiring a PCN, compensatory mitigation will
generally be required for all permanent wetland impacts (including impacts less than
1/10 acre). Therefore, the PCN must include a compensatory mitigation plan.
12.Activities Affecting Structures or Works Built by the United States
If the NWP activity also requires permission from the Corps pursuant to 33 U.S.C.
408 because it will alter or temporarily or permanently occupy or use a Corps
Federally authorized Civil Works project, the activity that requires section 408
permission is not authorized by the NWP until the appropriate Corps District office
issues the section 408 permission to alter, occupy, or use the Corps Civil Works
project, and the District Engineer issues a written NWP verification.
Contact a Norfolk District Regulatory Project Manager to assist in determining if
your proposed activity might alter or temporarily or permanently occupy or use a
Corps of Engineers Civil Works project.
Locations of Norfolk District Civil Works projects can be found at:
http://www. nao. usace. army.miI/Portals/31 /docs/regulatory/RPSPdocs/RP-
17 Corps Project Maps.pdf
For projects located within the Civil Works boundary of the Baltimore, Huntington,
Nashville or Wilmington District, please contact a Norfolk District Project Manager
for assistance.
Norfolk District Final 2020 Nationwide Permit Regional Conditions Page 9 of 18
January 18, 2022
13.Clean Water Act Section 401 Water Quality Certification
The Virginia Department of Environmental Quality (VADEQ) provided general
Section 401 Water Quality Certification (WQC) for NWPs 3, 4, 5, 6, 7, 8, 11, 13, 14,
15, 16, 18, 19, 20, 22, 23, 25, 27, 28, 30, 31, 33, 34, 35, 36, 37, 38, 41, 45, 46, 49,
53, 54 and 59. As a condition of the General Certifications, applicants are required
to satisfy one of the following:
a. Comply with VADEQ's WQC Conditions 1-12 (see attached Appendix A)
b. Obtain one of the following from the VADEQ: a Virginia Water Protection (VWP)
permit, an Individual Section 401 Water Quality Certification, or a waiver from
the VWP program.
In addition, the VADEQ also included additional general Section 401 WQC
conditions for NWP 3, 13, 14, 16, 18, 22, 27, 33, 36, and 59. See these specific
NWP requirements in Section II. REGIONAL CONDITIONS APPLICABLE TO
SPECIFIC 2021 NWPS to determine if your project qualifies for general water
quality certification or if you must obtain an individual Section 401 WQC from
VADEQ.
The VADEQ provided a written Section 401 WQC waiver for NWPs 1, 2, 9, 10, 24,
and 32; therefore, no further Section 401 WQC action is needed for the use of these
NWPS.
The VADEQ denied general WQC for NWP 17; therefore, applicants must obtain an
individual Section 401 WQC from the VADEQ in order to qualify for use of NWP 17.
14.Federal Consistency under the Coastal Zone Management Act (CZMA)
For proposed activities located within Virginia's designated coastal zone, applicants
are required to access the Virginia Department of Wildlife Resources' (DWR)
Virginia Fish and Wildlife Information Service (VAFWIS) at
https://services.dwr.virginia.gov/fwis/ to determine if a state -listed species or
designated resource is known within 2 miles of the proposed activity being
permitted. Should a state -listed species and/or designated resource be identified
within 2 miles of the proposed activity, the applicant must coordinate with the
DWR's Environmental Services Section (ESS) by submitting information on permit
applications via email to: ESSProiects(i)dwr.virginia.gov. Applicant shall allow at
least 30 days for review and comment by the DWR ESS.
Norfolk District Final 2020 Nationwide Permit Regional Conditions Page 10 of 18
January 18, 2022
II. REGIONAL CONDITIONS APPLICABLE TO SPECIFIC 2021 NWPS:
NWP 3 - Maintenance
Section 401 WQC Conditions -An Individual WQC is required if any of the following
conditions are not met.
1. Activities conducted under NWP 3 shall not modify the original configuration or
filled area such that the character, scope, or size of the original or DEQ approved
alternative design is changed.
2. Activities conducted under NWP 3 that involve emergency reconstruction shall
occur as soon as practicable after damage occurs or is discovered.
Discharges conducted under NWP 3 shall not increase the capacity of an
impoundment or reduce instream flows.
NWP 5 - Scientific Measurement Devices
Condition for Construction or Installation of Subaqueous Turbines:
A PCN is required if a permittee proposes the construction or installation of
subaqueous turbines because this work may have more than minimal impacts and the
work will need to be coordinated with appropriate federal, state, and/or local agencies.
NWP 7 - Outfall Structures and Associated Intake Structures
Conditions for Intakes in Anadromous Fish Waters:
When an intake is proposed in designated anadromous fish waters, the following
design parameters will be incorporated as permit conditions to protect the sensitive life
stages of shellfish, resident and anadromous fish:
1. Screening over the mouth of the intake with mesh size that does not exceed 1 mm;
2. Intake velocities that do not exceed 0.25 feet per second;
3. Intake must be positioned such that an unimpeded flow of water parallel to the
screen surface occurs along the entire surface of the screen to take advantage of
sweeping velocity.
NWP 10 - Mooring Buoys
Conditions for Sufficient Mooring Depths:
Water depths in the mooring areas should be sufficient that vessels moored float at
all stages of the tide.
Norfolk District Final 2020 Nationwide Permit Regional Conditions Page 11 of 18
January 18, 2022
2. Boats should not hit bottom during low water conditions. The swing radius of the
vessel plus the mooring chain should not result in the vessel becoming an
obstruction to navigation.
3. Use of this NWP is prohibited in and around SAV beds. Information about SAV
habitat can be found at the Virginia Institute of Marine Science's website
http://mobmack.vims.edu/sav/savwabmap/.
NWP 11 - Temporary Recreational Structures
Conditions for Sufficient Mooring Depths:
Water depths in the mooring areas should be sufficient that structures moored float
at all stages of the tide or stoppers must be utilized to prevent the structures from
resting on the bottom, so as to not damage the underlying benthic communities.
2. Structures should not hit bottom during low water conditions.
Use of this NWP is prohibited in and around SAV beds. Information about SAV
habitat can be found at the Virginia Institute of Marine Science's website
http://mobmack.vims.edu/sav/savwabmap/.
NWP 13 - Bank Stabilization
Section 401 WQC Conditions -An Individual WQC is required if any of the following
conditions are not met.
1. Stabilization activities conducted under NWP 13 shall not channelize the stream
bed or stream channel as defined in 9VAC25-210-10.
Stabilization activities shall not permanently impact more than 1,500 linear feet
below the ordinary water mark of any type of nontidal stream bed or stream
channel as defined in 9VAC25-210-10, regardless of any waiver decision made by
the Norfolk District.
NWP 14-Linear Transportation Projects
Restricted use of NWP 14 Linear Transportation Projects in Nontidal Waters
A portion of NWP 14 overlaps with the current State Program General Permit (SPGP-
01); therefore, NWP 14 may not be used for projects impacting Section 404 only,
nontidal waters of the United States, including wetlands, unless the Norfolk District
determines that the SGPG-01 is not applicable. NWP 14 may still be considered for
projects impacting tidal waters of the United States, other nontidal, Section 10 waters of
the United States and in the Northern Virginia Military Installations within Baltimore
District's Area of Responsibility.
Norfolk District Final 2020 Nationwide Permit Regional Conditions Page 12 of 18
January 18, 2022
Section 401 WQC Conditions -An Individual WQC is required if the following
condition is not met.
Activities conducted under NWP 14 shall not cumulatively impact more than 1/10 of an
acre of wetlands or open water or more than 300 linear feet of stream bed or stream
channel, as defined in 9VAC25-210-10.
NWP 16 - Return Water from Upland Disposal Areas
Section 401 WQC Conditions -An Individual WQC is required if the following
condition is not met.
Return flow discharges from dredge disposal sites conducted under NWP 16 shall not
occur where prohibited by state law or without applicable authorization from DEQ.
NWP 17 — Hydropower Projects
Section 401 WQC Denial -An Individual WQC is required for all NWP 17 projects.
NWP 18 — Minor Discharges
Section 401 WQC Conditions -An Individual WQC is required if the following
condition is not met.
Discharges conducted under NWP 18 shall comply with Virginia Department of
Environmental Quality law and regulations for discharge of sewage and other wastes
from boats, if applicable.
NWP 22 — Removal of Vessels
Section 401 WQC Conditions -An Individual WQC is required if the following
condition is not met.
Discharges conducted under NWP 22 shall comply with Virginia Department of
Environmental Quality law and regulations for discharge of sewage and other wastes
from boats, if applicable.
NWP 23 - Approved Categorical Exclusions
Conditions Specific to NWP 23:
1. The use of this NWP applies to an entire project addressed in the Categorical
Exclusion prepared by another Federal agency. This NWP cannot be used
separately at individual crossings/impact areas of a single project. However,
multiple crossings/impact areas of a single project can be authorized by this NWP
provided the combined impacts of all crossings/impact areas do not exceed the
Norfolk District Final 2020 Nationwide Permit Regional Conditions Page 13 of 18
January 18, 2022
thresholds described below. This NWP cannot be used in combination with other
NWPs for a single project.
2. Discharges from an entire project must not cause a combined permanent loss of
greater than % acre of wetlands or 1,000 linear feet of stream.
The permittee must submit a PCN if the project results in a discharge to a special
aquatic site, including wetlands, and/or results in combined impacts to more than
300 linear feet of streambed from the entire project.
4. To ensure that permanent losses of waters of the United States do not result in
more than minimal adverse effects to the aquatic environment, compensation will be
required for all wetland impacts and for any single impact to a stream of greater
than 300 linear feet. For projects where the combined impacts to streams due to
the entire project exceed 300 linear feet, but no single impact exceeds 300 linear
feet, the Corps will determine on a case -by -case basis whether compensation for
stream impacts is required.
NWP 27-Aquatic Habitat Restoration, Establishment, and Enhancement Activities
For all projects proposing stream restoration, when a PCN is required, proponents
must provide a completed Natural Channel Design Review Checklist and Selected
Morphological Characteristics form, including the name and location of the
reference reach, unless the district engineer waives this criterion by making a
written determination concluding that the discharge will result in no more than
minimal adverse environmental effects. These forms and the associated manual
can be located at:
httr)s://www.fws.gov/chesai)eakebay/PD F/stream-restoration/Natural-Channel-
Design-Checklist-Doc-V2-Final-11-4-11. pdf
2. Proponents must provide a monitoring plan to DEQ in accordance with the 401
certificate conditions for NWP 27.
3. If the permittee intends for the permitted activity to generate compensatory
mitigation credits, the permittee must comply with all terms and conditions of the
mitigation banking instrument/in-Ieu fee program instrument and modifications to
those instruments. Verification of this NWP prior to execution of the mitigation
banking instrument/in-Ieu fee program instrument or modifications to those
instruments does not guarantee the approval of the use of any credits, generated
from the permitted activities, for compensatory mitigation.
4. Section 401 WQC Conditions -An Individual WQC is required if any of the
following conditions are not met.
Norfolk District Final 2020 Nationwide Permit Regional Conditions Page 14 of 18
January 18, 2022
a. When NWP 27 authorizes wetland or stream mitigation banks or in -lieu fee
mitigation sites, compensation required for any surface water impacts shall
be debited from the bank's or in -lieu fee program's credits.
b. Natural stream channel design methods shall be used for stream restoration
projects authorized by NWP 27.
c. Performance monitoring shall be conducted for projects authorized by NWP
27.
i. Reports shall be submitted with the as -built during post -construction
monitoring years, at a frequency and duration adequate to observe
performance according to project objectives. If there is no monitoring
schedule otherwise specified, then an as -built and a minimum of five
years of annual postconstruction monitoring will be required.
ii. The as -built report may include final grade topographic surveys (plan,
profile, and cross sections, as appropriate, and approved by DEQ), final
location of all planted riparian buffer vegetation (as appropriate and
approved by DEQ), site photographs, and a discussion of project design
versus as -built conditions.
iii. As approved by DEQ, each postconstruction monitoring report may
include comparison of as built to monitoring year surveys (plan, profile,
and cross sections, as appropriate), vegetation surveys (as appropriate)
site photographs/ and a discussion of project performance.
NWP 33 - Temporary Construction, Access, and Dewatering
Section 401 WQC Conditions -An Individual WQC is required if any of the following
conditions are not met.
Activities conducted under NWP 33 that involve emergency reconstruction shall
occur as soon as practicable after damage occurs or is discovered.
2. Discharges conducted under NWP 33 shall not increase the capacity of an
impoundment or reduce instream flows.
NWP 36 - Boat Ramps
Section 401 WQC Conditions -An Individual WQC is required if any of the following
conditions are not met.
Activities conducted under NWP 36 shall not impact more than 1/10 of an acre of
wetlands or more than 1,500 linear feet of stream bed or stream channel as defined
in 9VAC25-210-10.
2. Excavation conducted under NWP 36 shall be limited to the area necessary for site
preparation and all excavated material shall be removed to an area that has no
surface waters. Deviations from the original configuration or filled area shall not
change the character, scope, or size of the original or DEQ approved alternative
design.
Norfolk District Final 2020 Nationwide Permit Regional Conditions Page 15 of 18
January 18, 2022
NWP 53-Removal of Low -Head Dams
The following information related to physical removal of the dam structure should be
included in the PCN:
1. Timing and rate of the drawdown of the impoundment to avoid and minimize
downstream flooding and excessive sedimentation to downstream areas.
2. Method of re-establishment and stabilization of the stream channel, and avoidance
of other environmental impacts, including the potential for drainage of adjacent
wetlands.
Construction equipment to be used in the stream channel and appropriate
measures that will be taken, such as the use of construction mats or barges, to
minimize impacts.
4. Information sufficient to ensure that accumulated sediments are free from
contaminants and are disposed of properly. If testing is required, the testing criteria
shall be developed in cooperation with Virginia Department of Environmental
Quality.
Information concerning competing uses of the waterbody above the dam if the
impoundment is not fully owned by the applicant.
NWP 54-Living Shorelines
This activity authorizes the placement of sandy fill material, including the
placement landward of sill(s) provided the fill is for shoreline protection and/or
wetland establishment or enhancement (and not solely a recreational beach). The
maximum fill area within waters of the United States that can be authorized under
this NWP is one (1) acre. For the purpose of this NWP, a sill is defined as a low
(not to exceed +1 ft. above MHW), detached structure constructed near shore and
parallel to the shoreline for the purpose of building up an existing beach by
trapping and retaining sand in the littoral zone. Because a sill acts like a natural
bar, it is most effective when constructed at or near the mean low water line and
low enough to allow wave overtopping.
The grain size of the source material used for fill must be beach quality sand that is
the same size or slightly larger than that of the native beach material and suitable
for the proposed project. Excess silt/clay fraction and grain sizes smaller than the
former native sands will perform poorly. In most cases, sand material with no more
than 10% passing a #100 sieve is appropriate. All fill material will be obtained from
either an upland source, a borrow pit, or dredge material approved by the Corps.
Norfolk District Final 2020 Nationwide Permit Regional Conditions Page 16 of 18
January 18, 2022
Coir logs, coir mats, and native oyster shell should be of sufficient weight,
adequately anchored, or placed in a manner to prevent them from being dislodged
or carried away by wave action.
4. Sills may be constructed of riprap stone, gabion baskets, or clean broken concrete
free of metal and re -bar. Alternative materials may be considered for use during
the permit review process. The materials should be of sufficient weight or
adequately anchored to prevent them from being dislodged and carried away by
wave action. Asphalt and materials containing asphalt or other contaminants shall
not be used in the construction of sills.
Sills will be designed with at least one 5-foot window/gap per property and per 100
linear feet of sill unless waived by the District Engineer.
The sill height should be a maximum of +1 foot above mean high water and should
be placed at a distance no greater than 30 feet from mean low water to the
channelward toe of the sill unless waived by the District Engineer.
The total amount of existing vegetated wetlands, which may be filled, graded, or
excavated, in square feet, may not exceed the length of the activity along the
shoreline in linear feet unless the District Engineer waives this criterion by making
a written determination concluding that the project will result in minimal adverse
effects. Impacts to sub -tidal, inter -tidal, and/or existing wetland vegetation may
require a wetland mitigation plan and must result in no net loss of vegetated
wetlands.
If the proposed project results in impacts to existing wetland vegetation, then a
written monitoring report may be required at the end of the first full growing season
following planting, and after the second year of establishment. If required, the
monitoring should be undertaken between June and September of each year and
should include at a minimum: the project location, the Corps project number,
representative photos of the site, and a brief statement on the success of the
project.
9. As the design of a living shoreline project is site specific, it is suggested that the
applicant refer to the Virginia Institute of Marine Sciences Living Shoreline Design
Guidelines for Shore Protection in Virginia's Estuarine Environments and other
reference documents which can be found at:
https://www.vims.edu/ccrm/outreach/living shorelines/index.php
10. Projects which include placement of sandy fill material may result in impacts to or
creation of suitable habitat for various federally listed threatened or endangered
species. If this occurs or the applicant seeks to either add to or replenish the area
previously filled, the Corps will consult with the U.S. Fish and Wildlife Service
pursuant to Section 7 of the Endangered Species Act to ensure work is not likely to
adversely affect proposed or listed species or proposed or designated critical
Norfolk District Final 2020 Nationwide Permit Regional Conditions Page 17 of 18
January 18, 2022
habitat. Specific requirements on the type of sand allowed for beach and dune
work may be required.
NWP 59 — Water Reclamation and Reuse Facilities
Section 401 WQC Conditions -An Individual WQC is required if any of the following
conditions are not met.
Construction or expansion activities conducted under NWP 59 shall not impact
more than 1/4 of an acre of wetlands or 300 linear feet of stream bed or stream
channel as defined in 9VAC25-210-10. Maintenance activities conducted under
NWP 59 shall not impact more than 300 linear feet of stream bed or stream channel
when conducted in impact areas not previously authorized by DEQ or when located
on or in existing, currently serviceable structures or fills.
2. Activities conducted under NWP 59 that involve emergency reconstruction shall
occur as soon as practicable after damage occurs or is discovered.
Discharges conducted under NWP 59 shall not increase the capacity of an
impoundment or reduce instream flows.
Norfolk District Final 2020 Nationwide Permit Regional Conditions Page 18 of 18
January 18, 2022
APPENDIX A
Norfolk District Final Regional Conditions for the
2021 Nationwide Permits (NWPs) Applicable in Virginia
(Including Northern Virginia Military Installations within Baltimore
District's Area of Responsibility)
Section 401 Water Quality Certification Conditions (1-12)
1. For activities that are proposed to occur in state surface waters as defined in § 62.1-
44.3 of the Code of Virginia: Once an activity is proposed to occur in any surface water
that is not subject to federal jurisdiction, and as such not subject to a NATIONWIDE
PERMIT, application to DEQ shall be required in accordance with Virginia
Administrative Code 9VAC25-210 et seq., 9VAC25-660 et seq. through -690 et seq. as
applicable, and State Water Control Law for i) coverage under a Virginia Water
Protection (VWP) general permit, ii) a VWP individual permit, or iii) a decision that no
permit is required (in situations where VWP permitting exclusions apply). A DEQ VWP
permit or decision shall need to have been finalized prior to the project proponent
impacting any surface waters. If a DEQ VWP general permit coverage or individual
permit is issued, it shall be based on all impacts of the proposed activities in surface
waters under both state and federal jurisdiction, pursuant to applicable permit
regulations and State Water Control Law. Other permits may be required from DEQ
based on the proposed activities or impacts.
40 C.F.R. § 121.7(d)(2)(i): This condition is necessary in order to assure that i) any discharge authorized under the
general license or permit will comply with water quality requirements; ii) activities will not cause or contribute to a
significant impairment of state waters or fish and wildlife resources; and iii) state water quality requirements are met,
including the General Criteria (9VAC25-260-20 et seq.): "State waters, including wetlands, shall be free from substances
attributable to sewage, industrial waste, or other waste in concentrations, amounts, or combinations which contravene
established standards or interfere directly or indirectly with designated uses of such water or which are inimical or harmful
to human, animal, plant, or aquatic life.
40 C.F.R. § 121.7(d)(2)(ii): Article XI, Section 1 Constitution of VA; Title 62.1 of the Code of Virginia; Chapter 3.1 of Title
62.1 of the Code of Virginia (§§ 62.1-44.2 through 62.1-44.34:28) [§ 62.1-44.2 through -44.6, § 62.1-44.15, §
62.1-44.15:01, § 62.1-44.15:4.1, § 62.1-44.15:5.1, § 62.1-44.15:5.2, § 62.1-44.15:20, § 62.1-44.15:21, § 62.1-44.15:24, §
62.1-44.15:25, § 62.1-44.15:28, § 62.1-44.15:28.1, § 62.1-44.15:31, § 62.1-44.15:34, § 62.1-44.15:40, § 62.1-44.15:50, §
62.1-44.15:52, Article 2.5 of Title 62.1 (§§ 62.1-44.15:67 through § 62.1-44.15:79), § 62.1-44.19:5]; § 10.1-400 et seq.; §
10.1-604 et seq.; § 10.1-1408.5; § 28.2-1300 et seq.; § 62.1-7; § 62.1-8; § 62.1-10; § 62.1-11; § 62.1-194 through-194.3;
9VAC25 - Preface (Agency Summary); 9VAC25-31 et seq.; 9VAC25-40 et seq.; 9VAC25-210 Sections 10 through 230
and 500; 9VAC25-260 et seq.; 9VAC25-380 et seq.; 9VAC25-401 et seq.; 9VAC25-410 and 415 et seq.; 9VAC25-630 et
seq.; 9VAC25-660 et seq.; 9VAC25-670 et seq.; 9VAC25-680 et seq.; 9VAC25-690 et seq.; 9VAC25-720 et seq.;
9VAC25-820 et seq.; 9VAC25-830 et seq.; 9VAC25-840 et seq.; 9VAC25-870 through 890 et seq.; 33 U.S.C. § 1251 et
seq.; 33 U.S.C. § 1313(d); 33 U.S.C. § 1315(b); 33 U.S.C. § 1317(a); 33 U.S.0 § 1341 et seq.; 33 U.S.0 § 1344 et seq.;
33 U.S.C. § 1370; 33 C.F.R. Part 332; 40 C.F.R. § 121 et seq.; 40 C.F.R. § 131 et seq.; Public Law 95-217
2. For activities in wetlands, open water, streams, or mitigation sites that are under a
deed restriction, conservation easement, declaration of restrictive covenant, or other
land use protective instrument ("protected areas"), and when such restriction,
easement, covenant, or instrument is the result of a federal or state permit action and is
specific to activities in wetlands and compensatory mitigation sites, application to DEQ
shall be required in accordance with Virginia Administrative Code 9VAC25-210 et seq.,
I I P a g e
9VAC25-660 et seq. through -690 et seq., and State Water Control Law for i) coverage
under a Virginia Water Protection (VWP) general permit, ii) a VWP individual permit, or
iii) a decision that no permit is required (in situations where VWP permitting exclusions
apply). A DEQ VWP permit or decision shall need to have been finalized prior to the
project proponent impacting any surface waters. If a DEQ VWP general permit
coverage or individual permit is issued, it shall be based on all impacts of the proposed
activities in surface waters under both state and federal jurisdiction, pursuant to
applicable permit regulations and State Water Control Law. Compensatory mitigation
may be required for all permanent impacts. Other permits may be required from DEQ
based on the proposed activities or impacts.
40 C.F.R. § 121.7(d)(2)(i): This condition is necessary in order to assure that i) any discharge authorized under the
general license or permit will comply with water quality requirements; ii) activities will not cause or contribute to a
significant impairment of state waters or fish and wildlife resources; and iii) state water quality requirements are met,
including the General Criteria (9VAC25-260-20 et seq.): "State waters, including wetlands, shall be free from substances
attributable to sewage, industrial waste, or other waste in concentrations, amounts, or combinations which contravene
established standards or interfere directly or indirectly with designated uses of such water or which are inimical or harmful
to human, animal, plant, or aquatic life."
40 C.F.R. § 121.7(d)(2)(ii): Article XI, Section 1 Constitution of VA; Title 62.1 of the Code of Virginia; Chapter 3.1 of Title
62.1 of the Code of Virginia (§§ 62.1-44.2 through 62.1-44.34:28) [§ 62.1-44.2 through -44.5, § 62.1-44.13, § 62.1 �44.15,
§ 62.1-44.15:01, § 62.1-44.15:5.1, § 62.1-44.15:20, § 62.1-44.15:21, § 62.1-44.15:23, § 62.1-44.19:5; § 62. 1 �44.34:18]; §
28.2-1300 et seq.; 9VAC25 - Preface (Agency Summary); 9VAC25-31 et seq.; 9VAC25-210 Sections 10 through 230 and
500; 9VAC25-380 et seq.; 9VAC25-660 et seq., 9VAC25-670 et seq., 9VAC25-680 et seq. or 9VAC25-690 et seq. as
applicable; 9VAC25-770 et seq.; 33 U.S.0 § 1341 et seq.; 33 U.S.0 § 1344 et seq.; 33 U.S.C. § 1370; 33 C.F.R. Part 332;
40 C.F.R. § 121 et seq.; 40 C.F.R. § 131 et seq.; 40 C.F.R. § 230 et seq.
3. Activities conducted in state surface waters shall not cause or contribute to a
significant impairment of state fish and wildlife resources, including but not limited to: 1)
documented spawning habitat or a migratory pathways for anadromous fish; 2) trout
waters in specified locations of Virginia, as provided by the Virginia State Water Control
Board's Water Quality Standards 9VAC25-260-370 et seq. and 9VAC25-260-390 et
seq.; 3) state -listed threatened or endangered species or designated critical habitat; and
4) areas that contain submerged aquatic vegetation (SAV). This certification condition
does not preclude compliance by the permittee with all applicable state laws and
regulations concerning Virginia's fish and wildlife or critical habitat resources.
a. The project proponent shall ensure the activities do not cause or contribute to
a significant impairment of state waters or fish and wildlife resources, including
state listed threatened or endangered species or critical habitat, through
screening or coordination with state resource agencies prior to doing work in
surface waters. This requirement is in addition to identifying any potential or
actual impacts to federal listed threatened or endangered species or critical
habitat that may be required by the NATIONWIDE PERMIT or regional
conditions.
(i) Where a project proponent is not required to obtain a verification from
the Corps that the proposed activities qualify for the NATIONWIDE
PERMIT, the project proponent shall follow all Time -of -Year Restrictions
(TOYRs) applicable to state surface waters that are recommended by the
2 1 P a g e
state resource agencies and other interested and affected agencies in the
results or information provided to the project proponent. Results or
information may include correspondence or documentation from state
resource agencies and other interested and affected agencies addressing
potential impacts, or reference materials that address potential impacts
such as database search results or confirmed waters and wetlands
delineations or jurisdictional determinations, or a combination thereof.
(ii) Where the project proponent receives a verification from the Corps that
the proposed activities qualify for the NATIONWIDE PERMIT, the project
proponent or authorized agent shall submit upon receipt or the next
business day the screening or coordination results or information
concerning the potential for activities to impact state threatened and
endangered species (listed or proposed) or critical habitat to the Corps
office having responsibility over the proposed project. Results or
information may include correspondence or documentation from state
resource agencies and other interested and affected agencies addressing
potential impacts, or reference materials that address potential impacts
such as database search results or confirmed waters and wetlands
delineations or jurisdictional determinations, or a combination thereof.
Time -of -year restrictions (TOYRs) recommended by state resource
agencies and other interested and affected agencies shall be applied to
any Corps verification of the NATIONWIDE PERMIT.
State resource agencies include the Virginia Department of Wildlife
Resources (DWR), the Virginia Department of Conservation and
Recreation (DCR), the Virginia Marine Resources Commission (MRC) at
minimum. Other interested and affected agencies may include the Virginia
Department of Health (VDH) or the Maryland Department of the
Environment where activities occur in the Potomac River. The Virginia
DWR has developed an online system that allows users to find information
about sensitive state resources that may occur within the vicinity of a
proposed project. This system named the Virginia Fish and Wildlife
Information System is located at httr)s://vafwis.dgif.virginia.clov/fwis/. This
system may be used to determine if any state listed threatened or
endangered species or designated critical habitat may be affected by the
proposed activities.
b. Notification to the Corps is required prior to conducting any activities in state
surface waters if they contain submerged aquatic vegetation (SAV). Information
regarding submerged aquatic vegetation can be located on the Virginia Institute
of Marine Science's SAV website at http://moboack.vims.edu/sav/savwabmap/.
Additional avoidance and minimization measures, such as relocating a structure
3�Page
or time -of -year restrictions (TOYR), may be required to reduce impacts to SAV
habitat in state surface waters.
c. Activities in surface waters shall be performed behind cofferdams, turbidity
curtains, or other methods to control turbidity when operationally feasible and
state listed threatened or endangered species may be present.
d. No activities may substantially disrupt the movement of aquatic life indigenous
to the water body, including those species which normally migrate through the
area, unless the primary purpose of the activity is to impound water.
40 C.F.R. § 121.7(d)(2)(i): This condition is necessary in order to assure that i) any discharge authorized under the
general license or permit will comply with water quality requirements; ii) activities will not cause or contribute to a
significant impairment of state waters or fish and wildlife resources; and iii) state water quality requirements are met,
including the General Criteria (9VAC25-260-20 at seq.): "State waters, including wetlands, shall be free from substances
attributable to sewage, industrial waste, or other waste in concentrations, amounts, or combinations which contravene
established standards or interfere directly or indirectly with designated uses of such water or which are inimical or harmful
to human, animal, plant, or aquatic life."
40 C.F.R. § 121.7(d)(2)(ii): Article XI, Section 1 Constitution of VA; Title 62.1 of the Code of Virginia; Chapter 3.1 of Title
62.1 of the Code of Virginia (§§ 62.1-44.2 through 62.1-44.34:28) [§ 62.1-44.2 through -44.6, § 62.1-44.13, § 62.1- 44.15,
§ 62.1-44.15:4.1, § 62.1-44.15:5.1, § 62.1-44.15:5.2, § 62.1-44.15:20, § 62.1-44.15:21, § 62.1-44.15:23, § 62.1- 44.15:24,
§62.1-44.15:25, §62.1-44.15:27, §62.1-44.15:28, §62.1-44.15:31, §62.1-44.15:34, §62.1-44.15:37, §62.1- 44.15:37.1,§
62.1-44.15:40,§ 62.1-44.15:50,§ 62.1-44.15:52,§ 62.1-44.15:54,§ 62.1-44.15:55,§ 62.1-44.15:56,§ 62.1-44.15:58, § 62.1-
44.15:58.1, Article 2.5 of Title 62.1 (§§ 62.1-44.15:67 through § 62.1-44.15:79), §§ 62.1-44.16 through § 62.1-44.17, §
62.1-44.17:2, § 62.1-44.17:3, § 62.1-44.18, § 62.1-44.19, § 62.1-44.19:3, § 62.1-44.19:5, § 62.1-44.33, §§ 62.1-44.34:14
through § 62.1-44.34:19, § 62.1-44.34:23, § 62.1-44.34:26]; §§ 3.2-1000 through 3.2,1011; § 10.1-400 at Seq.; § 10.1-
604 at seq.; § 28.2-1200 at seq.; § 28.2-1300 at seq.; § 29.1-500 through -579; § 62.1 n7; § 62.1-8; § 62.1-10; § 62.1-11;
62.1-194 through-194.3; 4VAC15-20 at seq.; 4VAC15-30 at seq.; 4VAC15-29"0; 4VAC15-320-100; 9VAC25 - Preface
(Agency Summary); 9VAC25-31 Sections 10 through 60, 120, 150 through 220, 330, and if applicable, 420 through 1030;
9VAC25-40 at seq.; 9VAC25-120 at seq.; 9VAC25-151 at seq.; 9VAC25-190 at seq.; 9VAC25-191 through -196 at seq.;
9VAC25-210 Sections 10 through 230 and 500; 9VAC25-260 at seq.; 9VAC25-370 at seq.; 9VAC25-380 at seq.;
9VAC25-390 at seq.; 9VAC25-401 at seq.; 9VAC25-410 and 415 at seq.; 9VAC25-630 at seq.; 9VAC25-660 at seq.,
9VAC25-670 at seq., 9VAC25-680 at seq. or 9VAC25-690 at seq. as applicable; 9VAC25-720 at seq.; 9VAC25-740 at
seq.; 9VAC25-790 at seq.; 9VAC25-800 at seq.; 9VAC25-820 at seq.; 9VAC25-830 at seq.;
9VAC25-840 at seq.; 9VAC25-860 at seq.; 9VAC25-870 through 890 at seq.; 33 U.S.C. § 1251 at seq.; 33 U.S.C. §
1313(d); 33 U.S.C. § 1315(b); 33 U.S.C. § 1317(a); 33 U.S.0 § 1341 at seq.; 33 U.S.0 § 1344 at seq.; 33 U.S.C. § 1370;
40 C.F.R. § 121 at Seq.; 40 C.F.R. § 131 at Seq.; Public Law 95-217
4. Plant species listed in the most current Virginia Department of Conservation and
Recreation's (DCR) Virginia Invasive Plant Species List shall not be used for re -
vegetation. The list of invasive plants in Virginia is found at:
http://www.dcr.virginia.gov/natural-heritage/invsaadflist. DCR recommends the use of
regional native species for re -vegetation as identified in the DCR Native Plants for
Conservation, Restoration and Landscaping brochures for the coastal, piedmont and
mountain regions http://www.dcr.virginia.gov/natural-heritage/nativei)lants#brochure.
See also DCR's native plant finder at https://www.dcr.virginia.gov/natural-
heritage/native-plants-finder.
40 C.F.R. § 121.7(d)(2)(i): This condition is necessary in order to assure that i) any discharge authorized under the
general license or permit will comply with water quality requirements; ii) activities will not cause or contribute to a
significant impairment of state waters or fish and wildlife resources; and iii) state water quality requirements are met,
including the General Criteria (9VAC25-260-20 at seq.): "State waters, including wetlands, shall be free from substances
attributable to sewage, industrial waste, or other waste in concentrations, amounts, or combinations which contravene
established standards or interfere directly or indirectly with designated uses of such water or which are inimical or harmful
to human, animal, plant, or aquatic life."
4 1 P a g e
40 C.F.R. § 121.7(d)(2)(ii): Article XI, Section 1 Constitution of VA; Title 62.1 of the Code of Virginia; Chapter 3.1 of Title
62.1 of the Code of Virginia (§§ 62.1-44.2 through 62.1-44.34:28) [§ 62.1-44.2, § 62.1-44.13, § 62.1-44.15, §
62.1-44.15:20, § 62.1-44.15:21, § 62.1-44.15:23, § 62.1-44.15:501; §§ 3.2-800 through -805; 2VAC5-317 at seq.;
4VAC15-20-210; 4VAC15-30-20; 4VAC15-30-40; 4VAC15-20-130 B and C; 4VAC15-290-60; 9VAC25 - Preface (Agency
Summary); 9VAC25-210 Sections 10 through 230 and 500; 9VAC25-380 at seq.; 9VAC25-660 at seq., 9VAC25-670 at
seq., 9VAC25-680 at seq. or 9VAC25-690 at seq. as applicable; 9VAC25-800 at seq.; 9VAC25-830 at seq.; 9VAC25-840
at seq.; 33 U.S.0 § 1341 at seq.; 33 U.S.0 § 1344 at seq.; 33 U.S.C. § 1370; 40 C.F.R. § 121 at seq.; 40 C.F.R. § 131 at
seq.; 40 C.F.R. § 230 at seq.
5. Stormwater management facilities, as defined in 9VAC25-870-10, shall not be
constructed in a perennial stream bed or stream channel, as defined in 9VAC25-210-10,
or in waters designated as oxygen -impaired or temperature -impaired (does not include
wetlands).
40 C.F.R. § 121.7(d)(2)(i): This condition is necessary in order to assure that i) any discharge authorized under the
general license or permit will comply with water quality requirements; ii) activities will not cause or contribute to a
significant impairment of state waters or fish and wildlife resources; and iii) state water quality requirements are met,
including the General Criteria (9VAC25-260-20 at seq.): "State waters, including wetlands, shall be free from substances
attributable to sewage, industrial waste, or other waste in concentrations, amounts, or combinations which contravene
established standards or interfere directly or indirectly with designated uses of such water or which are inimical or harmful
to human, animal, plant, or aquatic life."
40 C.F.R. § 121.7(d)(2)(ii): Article XI, Section 1 Constitution of VA; Title 62.1 of the Code of Virginia; Chapter 3.1 of Title
62.1 of the Code of Virginia (§§ 62.1-44.2 through 62.1-44.34:28) [§ 62.1-44.2 through -44.6, § 62.1-44.15, §
62.1-44.15:20, § 62.1-44.15:21, § 62.1-44.15:24, § 62.1-44.15:25, § 62.1-44.15:27, § 62.1-44.15:28, § 62.1-44.15:31, §
62.1-44.15:34, § 62.1-44.19:5]; § 10.1-604 at seq.; § 28.2-1300 at seq.; § 62.1-7; § 62.1-8; § 62.1-10; § 62.1-11; 9VAC25
- Preface (Agency Summary); 9VAC25-31 Sections 10 through 60, 120, 150 through 220, 330, and if applicable, 420
through 1030; 9VAC25-40 at seq.; 9VAC25-151 at seq.; 9VAC25-210 Sections 10 through 230 and 500; 9VAC25-260 at
seq.; 9VAC25-660 at seq., 9VAC25-670 at seq., 9VAC25-680 at seq. or 9VAC25-690 at seq. as applicable; 9VAC25-720
at seq.; 9VAC25-820 at seq.; 9VAC25-870 through 890 at seq.; 33 U.S.C. 403 at seq.; 33 U.S.C. § 1251 at seq.; 33
U.S.C. § 1313(d); 33 U.S.C. § 1315(b); 33 U.S.C. § 1317(a); 33 U.S.0 § 1341 at seq.; 33 U.S.0 § 1344 at seq.; 33 U.S.C.
§ 1370; 40 C.F.R. § 121 at seq.; 40 C.F.R. § 131 at seq.; Public Law 95-217
6. Compensatory mitigation for unavoidable permanent impacts, including the
conversion of forested wetlands, that are greater than 1/10 of an acre of wetlands or
greater than 300 linear feet of stream bed or stream channel as defined by 9VAC25-
210-10 shall be provided in accordance with Section 62.1-44.15:23 A through C of the
Code of Virginia, as applicable to the project activities and Virginia Water Protection
Permit Program regulations.
a. Stream bed or stream channel impacts shall be determined by utilizing a
stream impact assessment methodology acceptable to the Department of
Environmental Quality.
b. The mitigation shall be sufficient to achieve no net loss of existing wetland
acreage and functions or stream functions and water quality benefits. In the
absence of same river watershed alternatives in Hydrologic Unit Codes (HUC)
02040303 and 02040304, single-family dwellings or locality projects may use
compensatory mitigation in HUC 02080102, 02080108, 02080110, or 02080111
in Virginia.
c. Unless the area is outside of permittee control, the permittee shall have all
non -impacted surface waters and compensatory mitigation areas within 50 feet of
authorized activities and within the project or right-of-way limits clearly flagged or
marked for the life of the construction activity at that location to preclude
5 1 P a g e
unauthorized disturbances to these surface waters and compensatory mitigation
areas during construction. The permittee shall notify contractors that no activities
are to occur in these marked surface waters.
40 C.F.R. § 121.7(d)(2)(i): This condition is necessary in order to assure that i) any discharge authorized under the
general license or permit will comply with water quality requirements; ii) activities will not cause or contribute to a
significant impairment of state waters or fish and wildlife resources; and iii) state water quality requirements are met,
including the General Criteria (9VAC25-260-20 et seq.): "State waters, including wetlands, shall be free from substances
attributable to sewage, industrial waste, or other waste in concentrations, amounts, or combinations which contravene
established standards or interfere directly or indirectly with designated uses of such water or which are inimical or harmful
to human, animal, plant, or aquatic life."
40 C.F.R. § 121.7(d)(2)(ii): Article XI, Section 1 Constitution of VA; Title 62.1 of the Code of Virginia; Chapter 3.1 of Title
62.1 of the Code of Virginia (§§ 62.1-44.2 through 62.1-44.34:28) [§ 62.1-44.2 through -44.5, § 62.1-44.13, § 62.1 ,44.15,
§ 62.1-44.15:01, § 62.1-44.15:5.1, § 62.1-44.15:20, § 62.1-44.15:21, § 62.1-44.15:231; 9VAC25 - Preface (Agency
Summary); 9VAC25-210 Sections 10 through 230 and 500; 9VAC25-380 et seq.; 9VAC25-660 et seq., 9VAC25-670 et
seq., 9VAC25-680 et seq. or 9VAC25-690 et seq. as applicable; 9VAC25-770 et seq.; 9VAC25-800 et seq.; 33 U.S.0 §
1341 et seq.; 33 U.S.0 § 1344 et seq.; 33 U.S.C. § 1370; 33 C.F.R. Part 332; 40 C.F.R. § 121 et seq.; 40 C.F.R. § 131 et
seq.; 40 C.F.R. § 230 et seq.
7. The following information associated with activities in state surface waters, as
applicable, shall be submitted by the permittee to the Virginia Water Protection Permit
Program at the DEQ office having responsibility over the project location. The Joint
Permit Application process may be used to meet this condition, provided all required
information is included.
a. When required, any pre -construction notification (PCN) materials or
information shall be concurrently submitted to DEQ and the Corps.
b. All jurisdictional determination information provided to the Corps and issued
from the Corps, such as jurisdictional determination requests, maps, forms,
photos, correspondence, Corps determinations or confirmations, shall be
concurrently submitted to or shared with DEQ. Delineation of state surface
waters on the entire project site is strongly encouraged prior to submitting an
application to expedite state permit processing, if required.
c. Proof of coverage ("verification") under one or more NATIONWIDE PERMITS,
upon issuance by the Corps or on the next business day, unless the activities are
excluded from permitting under the Virginia Water Protection Permit Program or
no NATIONWIDE PERMIT verification is issued by the Corps.
40 C.F.R. § 121.7(d)(2)(i): This condition is necessary in order to assure that i) any discharge authorized under the
general license or permit will comply with water quality requirements; ii) activities will not cause or contribute to a
significant impairment of state waters or fish and wildlife resources; and iii) state water quality requirements are met,
including the General Criteria (9VAC25-260-20 et seq.): "State waters, including wetlands, shall be free from substances
attributable to sewage, industrial waste, or other waste in concentrations, amounts, or combinations which contravene
established standards or interfere directly or indirectly with designated uses of such water or which are inimical or harmful
to human, animal, plant, or aquatic life."
40 C.F.R. § 121.7(d)(2)(ii): Article XI, Section 1 Constitution of VA; Title 62.1 of the Code of Virginia; Chapter 3.1 of Title
62.1 of the Code of Virginia (§§ 62.1-44.2 through 62.1-44.34:28) [§ 62.1-44.2, § 62.1-44.3, § 62.1-44.6, § 62.1-44.13, §
62.1-44.19:5, § 62.1-44.15, § 62.1-44.15:01, § 62.1-44.15:5.1, § 62.1-44.15:20, § 62.1-44.15:21, § 62.1-44.15:23]; § 10.1-
604 et seq.; § 28.2-1300 et seq.; 9VAC25 - Preface (Agency Summary); 9VAC25-210 Sections 10 through 230 and 500;
9VAC25-380 et seq.;9VAC25-660 et seq.,9VAC25-670 et seq.,9VAC25-680 et seq. or 9VAC25-690 et seq. as
applicable; 33 U.S.C. § 1251 et seq.; 33 U.S.C. § 1313(d); 33 U.S.C. § 1315(b); 33 U.S.C. § 1317(a); 33 U.S.0 § 1341 et
6 1 P a g e
seq.; 33 U.S.0 § 1344 at seq.; 33 U.S.C. § 1370; 40 C.F.R. § 121 at seq.; 40 C.F.R. § 131 at seq.; 40 C.F.R. § 230 at
seq.; Public Law 95-217
8. Activities shall include measures to prevent spills of fuels or lubricants into state
waters. Any fish kills or spills of fuels or oils shall be reported to DEQ immediately upon
discovery. If DEQ cannot be reached, the spill or fish kill shall be reported to the Virginia
Department of Emergency Management (VDEM) at 1-800-468-8892 or the National
Response Center (NRC) at 1-800-424-8802. Any spill of oil as defined in § 62.1-
44.34:14 of the Code of Virginia that is less than 25 gallons, and that reaches or is
expected to reach land only, is not reportable if recorded per § 62.1-44.34:19.2 of the
Code of Virginia and if properly cleaned up. If unauthorized impacts have occurred, the
permittee shall notify DEQ within 24 hours of discovery.
40 C.F.R. § 121.7(d)(2)(i): This condition is necessary in order to assure that i) any discharge authorized under the
general license or permit will comply with water quality requirements; ii) activities will not cause or contribute to a
significant impairment of state waters or fish and wildlife resources; and iii) state water quality requirements are met,
including the General Criteria (9VAC25-260-20 at seq.): "State waters, including wetlands, shall be free from substances
attributable to sewage, industrial waste, or other waste in concentrations, amounts, or combinations which contravene
established standards or interfere directly or indirectly with designated uses of such water or which are inimical or harmful
to human, animal, plant, or aquatic life."
40 C.F.R. § 121.7(d)(2)(ii): Article XI, Section 1 Constitution of VA; Title 62.1 of the Code of Virginia; Chapter 3.1 of Title
62.1 of the Code of Virginia (§§ 62.1-44.2 through 62.144.34:28) [§ 62.144.2 through 44.6, § 62.1-44.13, § 62.1-44.15,
§ 62.144.15:4.1, § 62.1-44.15:20, § 62.1-44.15:21, § 62.1-44.15:40, § 62.1-44.15:50, Article 2.5 of Title 62.1 (§§ 62.1-
44.15:67 through § 62.1-44.15:79), §§ 62.144.16 through § 62.1-44.17, § 62.1-44.17:2, § 62.1-44.17:3, §
62.1 ,44.34:19.2, § 62.1-44.19:5, § 62.1-44.33, §§ 62.144.34:14 through § 62.1-44.34:19, § 62.1-44.34:23, § 62.1-
44.34:26]; § 62.1-10; § 62.1-11; § 62.1-194 through-194.3; 9VAC25 - Preface (Agency Summary); 9VAC25-31 Sections
10 through 60, 120, 150 through 220, 330, and if applicable, 420 through 1030; 9VAC25-40 at seq.; 9VAC25-71 at seq.;
9VAC25-101 at seq.; 9VAC25-120 at seq.; 9VAC25-151 at seq.; 9VAC25-190 at seq.; 9VAC25-210 Sections 10 through
230 and 500; 9VAC25-260 at seq.; 9VAC25-380 at seq.; 9VAC25410 and 415 at seq.; 9VAC25-660 at seq., 9VAC25-670
at seq., 9VAC25-680 at seq. or 9VAC25-690 at seq. as applicable; 9VAC25-720 at seq.; 9VAC25-820 at seq.; 9VAC25-
830 at seq.; 33 U.S.C. § 1251 at seq.; 33 U.S.C. § 1313(d); 33 U.S.C. § 1315(b); 33 U.S.C. § 1317(a); 33 U.S.0 § 1341 at
seq.; 33 U.S.0 § 1344 at seq.; 33 U.S.C. § 1370; 40 C.F.R. § 121 at seq.; 40 C.F.R. § 131 at seq.; 40 C.F.R. § 140;
Public Law 95n217
9. Activities shall be executed in a manner so as to minimize adverse impacts on
instream beneficial uses as defined in § 62.1-10 (b) of the Code of Virginia.
40 C.F.R. § 121.7(d)(2)(i): This condition is necessary in order to assure that i) any discharge authorized under the
general license or permit will comply with water quality requirements; ii) activities will not cause or contribute to a
significant impairment of state waters or fish and wildlife resources; and iii) state water quality requirements are met,
including the General Criteria (9VAC25-260-20 at seq.): "State waters, including wetlands, shall be free from substances
attributable to sewage, industrial waste, or other waste in concentrations, amounts, or combinations which contravene
established standards or interfere directly or indirectly with designated uses of such water or which are inimical or harmful
to human, animal, plant, or aquatic life."
40 C.F.R. § 121.7(d)(2)(ii): Article XI, Section 1 Constitution of VA; Title 62.1 of the Code of Virginia; Chapter 3.1 of Title
62.1 of the Code of Virginia (§§ 62.144.2 through 62.144.34:28) [§ 62.1-44.2 through 44.6, § 62.1-44.15, §
62.1 ,44.15:4.1, § 62.1-44.15:5.1, § 62.1-44.15:5.2, § 62.1-44.15:20, § 62.1-44.15:21, § 62.1-44.15:24, § 62.1-44.15:25, §
62.1-44.15:27, § 62.1-44.15:28, § 62.1-44.15:28.1, § 62.144.15:31, § 62.144.15:34, § 62.144.15:37, § 62.1-44.15:37.1,
§ 62.144.15:50, § 62.144.15:52, § 62.144.15:54, § 62.144.15:55, § 62.144.15:56, § 62.144.15:58, § 62.144.15:58.1,
Article 2.5 of Title 62.1 (§§ 62.144.15:67 through § 62.1-44.15:79), §§ 62.1-44.16 through § 62.1-44.17, § 62.1-44.17:2,
§ 62.144.17:3, § 62.1-44.18, § 62.1-44.19, § 62.144.19:3, § 62.1-44.19:5, § 62.1-44.33, §§ 62.1-44.34:14 through §
62.1-44.34:19, § 62.1-44.34:23, § 62.1-44.34:26]; § 10.1-400 at seq.; § 10.1-604 at seq.; § 28.2-1300 at seq.; § 62.1-7; §
62.1-8; § 62.1-10; § 62.1-11; § 62.1-194 through-194.3; 9VAC25 - Preface (Agency Summary); 9VAC25-31 Sections 10
through 60, 120, 150 through 220, 330, and if applicable, 420 through 1030; 9VAC25-40 at seq.; 9VAC25-71 at seq.;
9VAC25-101 at seq.; 9VAC25-120 at seq.; 9VAC25-151 at seq.; 9VAC25-190 at seq.; 9VAC25-191 through -196 at seq.;
9VAC25-210 Sections 10 through 230 and 500; 9VAC25-260 at seq.; 9VAC25-370 at seq.; 9VAC25401 at seq.;
9VAC25410 and 415 at seq.; 9VAC25-630 at seq.; 9VAC25-660 at seq., 9VAC25-670 at seq., 9VAC25-680 at seq. or
9VAC25-690 at seq. as applicable; 9VAC25-720 at seq.; 9VAC25-740 at seq.; 9VAC25-790 at seq.; 9VAC25-800 at seq.;
9VAC25-820 at seq.; 9VAC25-830 at seq.; 9VAC25-840 at seq.; 9VAC25-860 at seq.; 9VAC25-870 through 890 at seq.;
7 1 P a g e
33 U.S.C. § 1251 et seq.; 33 U.S.C. 403 et seq.; 33 U.S.C. § 1313(d); 33 U.S.C. § 1315(b); 33 U.S.C. § 1317(a); 33
U.S.0 § 1341 et seq.; 33 U.S.0 § 1344 et seq.; 33 U.S.C. § 1370; 40 C.F.R. § 121 et seq.; 40 C.F.R. § 131 et seq.; 40
C.F.R. § 140; 40 C.F.R. § 230 et seq.; Public Law 95-217
10. All fill material in state surface waters shall be clean and free of contaminants in
toxic concentrations or amounts in accordance with all applicable state laws and
regulations.
40 C.F.R. § 121.7(d)(2)(i): This condition is necessary in order to assure that i) any discharge authorized under the
general license or permit will comply with water quality requirements; ii) activities will not cause or contribute to a
significant impairment of state waters or fish and wildlife resources; and iii) state water quality requirements are met,
including the General Criteria (9VAC25-260-20 et seq.): "State waters, including wetlands, shall be free from substances
attributable to sewage, industrial waste, or other waste in concentrations, amounts, or combinations which contravene
established standards or interfere directly or indirectly with designated uses of such water or which are inimical or harmful
to human, animal, plant, or aquatic life."
40 C.F.R. § 121.7(d)(2)(ii): Article XI, Section 1 Constitution of VA; Title 62.1 of the Code of Virginia; Chapter 3.1 of Title
62.1 of the Code of Virginia (§§ 62.1-44.2 through 62.1-44.34:28) [§ 62.1-44.2, § 62.1-44.4 through -44.6, § 62.1-44.15, §
62.1-44.15:5.1, § 62.1-44.15:20, § 62.1-44.15:21, § 62.1-44.15:52, § 62.1-44.15:54, § 62.1-44.15:55, § 62.1-44.15:56,
Article 2.5 of Title 62.1 (§§ 62.1-44.15:67 through § 62.1-44.15:79), §§ 62.1-44.16 through § 62.1-44.17, § 62.1-44.17:2, §
62.1-44.17:3, § 62.1-44.19:5]; § 62.1-194 through-194.3; 9VAC25 - Preface (Agency Summary); 9VAC25-40 et seq.;
9VAC25-190 et seq.; 9VAC25-210 Sections 10 through 230 and 500; 9VAC25-260 et seq.; 9VAC25-380 et seq.;
9VAC25-410 and 415 et seq.; 9VAC25-660 et seq., 9VAC25-670 et seq., 9VAC25-680 et seq. or 9VAC25-690 et seq. as
applicable; 9VAC25-720 et seq.; 9VAC25-820 et seq.; 9VAC25-830 et seq.; 33 U.S.C. § 1251 et seq.; 33 U.S.C. 403 et
seq.; 33 U.S.C. § 1313(d); 33 U.S.C. § 1315(b); 33 U.S.C. § 1317(a); 33 U.S.0 § 1341 et seq.; 33 U.S.0 § 1344 et seq.;
33 U.S.C. § 1370; 40 C.F.R. § 121 et seq.; 40 C.F.R. § 131 et seq.; Public Law 95-217
11. Temporary disturbances to surface waters during construction shall be avoided and
minimized to the maximum extent practicable.
a. All temporarily disturbed wetland areas shall be restored to preexisting conditions
within 30 days of completing work at each respective temporary impact area, which
shall include reestablishing preconstruction elevations and contours with topsoil from
the impact area where practicable and planting or seeding with appropriate wetland
vegetation according to cover type (i.e., emergent, scrub -shrub, or forested). The
permittee shall take all appropriate measures to promote and maintain revegetation of
temporarily disturbed wetland areas with wetland vegetation through the second year
post -disturbance. All temporarily impacted stream beds or stream channels and
streambanks shall be restored to their preconstruction elevations and contours with
topsoil from the impact area where practicable within 30 days following the construction
at that stream segment. Streambanks shall be seeded or planted with the same
vegetation cover type originally present, including any necessary supplemental erosion
control grasses. Invasive species identified on the Department of Conservation and
Recreation's Virginia Invasive Plant Species List shall not be used without prior approval
from the Department of Environmental Quality.
b. Materials (including fill, construction debris, and excavated and woody materials)
temporarily stockpiled in wetlands, and heavy equipment in temporarily impacted
wetland areas shall be placed on mats, geotextile fabric, or other suitable material; shall
be immediately stabilized to prevent entry into state waters; shall be managed such that
leachate does not enter state waters; and shall be completely removed within 30 days
following completion of that construction activity. Disturbed areas shall be returned to
preconstruction elevations and contours with topsoil from the impact area where
8 1 P a g e
practicable; restored within 30 days following removal of the stockpile; and restored with
the same vegetation cover type originally present, including any necessary
supplemental erosion control grasses. Invasive species identified on the Department of
Conservation and Recreation's Virginia Invasive Plant Species List shall not be used to
the maximum extent practicable or without prior approval from the Department of
Environmental Quality.
c. All construction, construction access (e.g., cofferdams, sheet piling, and causeways)
and demolition activities associated with the project shall be accomplished in a manner
that minimizes construction or waste materials from entering surface waters to the
maximum extent practicable.
40 C.F.R. § 121.7(d)(2)(i): This condition is necessary in order to assure that i) any discharge authorized under the
general license or permit will comply with water quality requirements; ii) activities will not cause or contribute to a
significant impairment of state waters or fish and wildlife resources; and iii) state water quality requirements are met,
including the General Criteria (9VAC25-260-20 et seq.): "State waters, including wetlands, shall be free from substances
attributable to sewage, industrial waste, or other waste in concentrations, amounts, or combinations which contravene
established standards or interfere directly or indirectly with designated uses of such water or which are inimical or harmful
to human, animal, plant, or aquatic life."
40 C.F.R. § 121.7(d)(2)(ii): Article XI, Section 1 Constitution of VA; Title 62.1 of the Code of Virginia; Chapter 3.1 of Title
62.1 of the Code of Virginia (§§ 62.1-44.2 through 62.1-44.34:28) [§ 62.1-44.2 through -44.6, § 62.1-44.13, § 62.1 �44.15,
§ 62.1-44.15:4.1, § 62.1-44.15:5.1, § 62.1-44.15:5.2, § 62.1-44.15:20, § 62.1-44.15:21, § 62.1-44.15:24, § 62.1-44.15:25,
§ 62.1-44.15:27, § 62.1-44.15:28, § 62.1-44.15:31, § 62.1-44.15:34, § 62.1-44.15:37.1, § 62.1-44.15:50, § 62.1-44.15:52,
§ 62.1-44.15:54, § 62.1-44.15:55, § 62.1-44.15:56, § 62.1-44.15:58, § 62.1-44.15:58.1, Article 2.5 of Title 62.1 (§§ 62.1-
44.15:67 through § 62.1-44.15:79), §§ 62.1-44.16 through § 62.1-44.17, § 62.1-44.19:5]; § 10.1-604 et seq.; § 28.2-1300
et seq.; § 62.1-7; § 62.1-8; § 62.1-10; § 62.1-11; § 62.1-194 through-194.3; 9VAC25 - Preface (Agency Summary);
9VAC25-40 et seq.; 9VAC25-210 Sections 10 through 230 and 500; 9VAC25-260 et seq.; 9VAC25-380 et seq.; 9VAC25-
401 et seq.; 9VAC25-410 and 415 et seq.; 9VAC25-660 et seq., 9VAC25-670 et seq., 9VAC25-680 et seq. or 9VAC25-
690 et seq. as applicable; 9VAC25-720 et seq.; 9VAC25-770 et seq.; 9VAC25-800 et seq.; 9VAC25-820 et seq.; 9VAC25-
830 et seq.; 33 U.S.C. § 1251 et seq.; 33 U.S.C. § 1313(d); 33 U.S.C. § 1315(b); 33 U.S.C. § 1317(a); 33 U.S.0 § 1341 et
seq.; 33 U.S.0 § 1344 et seq.; 33 U.S.C. § 1370; 33 C.F.R. Part 332; 40 C.F.R. § 121 et seq.; 40 C.F.R. § 131 et seq.; 40
C.F.R. § 230 et seq.; Public Law 95-217
12. If stream channelization or relocation is required, all work in surface waters shall be
done in the dry, unless otherwise authorized by the Department of Environmental
Quality, and all flows shall be diverted around the channelization or relocation area until
the new channel is stabilized. This work shall be accomplished by leaving a plug at the
inlet and outlet ends of the new channel during excavation. Once the new channel has
been stabilized, flow shall be routed into the new channel by first removing the
downstream plug and then the upstream plug. The rerouted stream flow must be fully
established before construction activities in the old stream bed or stream channel can
begin.
40 C.F.R. § 121.7(d)(2)(i): This condition is necessary in order to assure that i) any discharge authorized under the
general license or permit will comply with water quality requirements; ii) activities will not cause or contribute to a
significant impairment of state waters or fish and wildlife resources; and iii) state water quality requirements are met,
including the General Criteria (9VAC25-260-20 et seq.): "State waters, including wetlands, shall be free from substances
attributable to sewage, industrial waste, or other waste in concentrations, amounts, or combinations which contravene
established standards or interfere directly or indirectly with designated uses of such water or which are inimical or harmful
to human, animal, plant, or aquatic life."
40 C.F.R. § 121.7(d)(2)(ii): Article XI, Section 1 Constitution of VA; Title 62.1 of the Code of Virginia; Chapter 3.1 of Title
62.1 of the Code of Virginia (§§ 62.1-44.2 through 62.1-44.34:28) [§ 62.1-44.2, § 62.1-44.5, § 62.1-44.6, § 62.1-44.13, §
62.1-44.15, § 62.1-44.15:5.1, § 62.1-44.15:20, § 62.1-44.15:21, § 62.1-44.15:52, § 62.1-44.15:54, § 62.1-44.15:55, §
62.1-44.15:56, Article 2.5 of Title 62.1 (§§ 62.1-44.15:67 through § 62.1-44.15:79)]; § 62.1-10; § 62.1-11; § 62.1-194
through-194.3; 9VAC25 - Preface (Agency Summary); 9VAC25-210 Sections 10 through 230 and 500; 9VAC25-260 et
9 1 P a g e
seq.; 9VAC25-660 at seq., 9VAC25-670 at seq., 9VAC25-680 at seq. or 9VAC25-690 at seq. as applicable; 9VAC25-800
at seq.; 9VAC25-840 at seq.; 33 U.S.C. 403 at seq.; 33 U.S.0 § 1341 at seq.; 33 U.S.0 § 1344 at seq.; 33 U.S.C. § 1370;
40 C.F.R. § 121 at seq.; 40 C.F.R. § 131 at seq
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