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HomeMy WebLinkAboutWPO201800038 Approval - Agencies 2018-07-12COMMONWEALTH of VIRGINIA DEPARTMENT OF ENVIRONMENTAL QUALITY Street address: 1111 E. Main Street, Suite 1400, Richmond, Virginia 23219 Matthew J. Strickler Mailing address: P.O. Box 1105, Richmond, Virginia 23218 David K. Paylor Secretary of Natural Resources www.deq.virginia.gov Director (804) 698-4000 1-800-592-5482 July 12, 2018 Albemarle County 410 McIntire Rd Charlottesville, VA 22902-4596 wharris@albemarle.org RE: Coverage under the VPDES Construction General Permit (VAR10) General Permit No. VARlOL375 WP0201800038 Chapel Hills Stream Restoration Environmental - Approximately 1200 If restoration to stabilize stream bed and banks to limit erosion Albemarle Dear Permittee: DEQ has reviewed your Registration Statement received on May 15, 2018 and determined that the proposed land -disturbing activity is covered under the General VPDES Permit for Discharges of Stormwater from Construction Activities (VAR10). The effective date of your coverage under this general permit is July 1, 2014 or the date of this letter, whichever is later. A copy of the general permit can be obtained from DEQ's webpage at the following location: http://www.deg.virginia.gov/Portals/0/DEQ/Water/Publications/CGP2014.pdf. The general permit contains the applicable Stormwater Pollution Prevention Plan (SWPPP) requirements and other conditions of coverage. Please print the general permit and read it carefully as you will be responsible for compliance with all permit conditions. Additionally, coverage under this construction general permit does not relieve the operator of complying with all other federal, state, or local laws and regulations. DEQ staff has determined that the proposed land -disturbing activity will discharge to a surface water identified as impaired or for which a TMDL wasteload allocation has been established and approved prior to the term of the general permit for (i) sediment or a sediment -related parameter or (ii) nutrients. Therefore, the following general permit (Part 1.B.4) and SWPPP requirements (Part II.A.5) must be implemented for the land -disturbing activity: • Permanent or temporary soil stabilization shall be applied to denuded areas within seven (7) days after final grade is reached on any portion of the site; • Nutrients (e.g., fertilizers) shall be applied in accordance with manufacturer's recommendations or an approved nutrient management plan and shall not be applied during rainfall events; • Inspections shall be conducted at a frequency of (i) at least once every four (4) business days or (ii) at least once every (5) business days and no later than 48 hours following a measurable storm event. In the event that a measurable storm event occurs when there are more than 48 hours between business days, the inspection shall be conducted on the next business day; and • Representative inspections used by utility line installation, pipeline construction, or other similar linear construction activities shall inspect all outfalls. In accordance with the Virginia Stormwater Management Program State Permit Fee Regulation (9 VAC 25-870-830), you may be required to pay an annual permit maintenance fee until coverage under this general permit is terminated. If you are required to pay an annual permit maintenance fee, you will receive an invoice from the VSMP Authority including the amount and due date. The general permit will expire on June 30, 2019. The conditions of the general permit require that you submit a new registration statement at least 90 days prior to that date if you wish to continue coverage under the general permit, unless permission for a later date has been granted by the Board. Permission cannot be granted to submit the registration statement after the expiration date of the general permit. If you have any questions about this permit, please contact the DEQ Office of Stormwater Management at Construction GP(a)deg.virginia.gov. Sincerely, Jaime B. Robb, Manager Office of Stormwater Management 2 County of Albemarle c/o John E. Anderson P.E. 401 McIntire Road, Room 420 Charlottesville, Virginia 22902-4596 Dear Mr. Anderson: This is in regard to your Department of the Army permit application number NAO- 2017-02165 to do stream restoration on approximately 1300 linear foot of stream on an unnamed tributary to Meadow Creek. The work will occur on property near Rio Road East and east of Hillsdale Drive, Albemarle County, Virginia. Work will occur as detailed on drawings on file at this office. Your proposed work as outlined above satisfies the criteria contained in the Corps Nationwide Permit(s) (27). The Corps Nationwide Permits were published in the January 6, 2017, Federal Register notice (82 FR 1860) and the regulations governing their use can be found in 33 CFR 330 published in Volume 56, Number 226 of the Federal Register dated November 22, 1991. Provided the Nationwide Permit General Conditions (enclosed) are met, an individual Department of the Army Permit will not be required. In addition, the Virginia Department of Environmental Quality has provided an unconditional/conditional §401 Water Quality Certification for Nationwide Permit Number(s) 27. A permit may be required from the Virginia Marine Resources Commission and/or your local wetlands board, and this verification is not valid until you obtain their approval, if necessary. This authorization does not relieve your responsibility to comply with local requirements pursuant to the Chesapeake Bay Preservation Act (CBPA), nor does it supersede local government authority and responsibilities pursuant to the Act. You should contact your local government before you begin work to find out how the CBPA applies to your project. Enclosed is a "compliance certification" form, which must be signed and returned within 30 days of completion of the project, including any required mitigation. Your signature on this form certifies that you have completed the work in accordance with the nationwide permit terms and conditions. SPECIAL CONDITIONS: DEPARTMENT OF THE ARMY i1 US ARMY CORPS OF ENGINEERS NORFOLK DISTRICT FORT NORFOLK 803 FRONT STREET NORFOLK VA 23510-1011 ----- May 18, 2018 Western Virginia Regulatory Section NAO-2017-02165 County of Albemarle c/o John E. Anderson P.E. 401 McIntire Road, Room 420 Charlottesville, Virginia 22902-4596 Dear Mr. Anderson: This is in regard to your Department of the Army permit application number NAO- 2017-02165 to do stream restoration on approximately 1300 linear foot of stream on an unnamed tributary to Meadow Creek. The work will occur on property near Rio Road East and east of Hillsdale Drive, Albemarle County, Virginia. Work will occur as detailed on drawings on file at this office. Your proposed work as outlined above satisfies the criteria contained in the Corps Nationwide Permit(s) (27). The Corps Nationwide Permits were published in the January 6, 2017, Federal Register notice (82 FR 1860) and the regulations governing their use can be found in 33 CFR 330 published in Volume 56, Number 226 of the Federal Register dated November 22, 1991. Provided the Nationwide Permit General Conditions (enclosed) are met, an individual Department of the Army Permit will not be required. In addition, the Virginia Department of Environmental Quality has provided an unconditional/conditional §401 Water Quality Certification for Nationwide Permit Number(s) 27. A permit may be required from the Virginia Marine Resources Commission and/or your local wetlands board, and this verification is not valid until you obtain their approval, if necessary. This authorization does not relieve your responsibility to comply with local requirements pursuant to the Chesapeake Bay Preservation Act (CBPA), nor does it supersede local government authority and responsibilities pursuant to the Act. You should contact your local government before you begin work to find out how the CBPA applies to your project. Enclosed is a "compliance certification" form, which must be signed and returned within 30 days of completion of the project, including any required mitigation. Your signature on this form certifies that you have completed the work in accordance with the nationwide permit terms and conditions. SPECIAL CONDITIONS: 1. Before work can commence, a monitoring plan must be submitted to this office and approved. This verification is valid until the NWP is modified, reissued, or revoked. All of the existing NWPs are scheduled to be modified, reissued, or revoked prior to March 18, 2022. It is incumbent upon you to remain informed of changes to the NWPs. We will issue a public notice when the NWPs are reissued. Furthermore, if you commence or are under contract to commence this activity before the date that the relevant nationwide permit is modified or revoked, you will have twelve (12) months from the date of the modification or revocation of the NWP to complete the activity under the present terms and conditions of this nationwide permit unless discretionary authority has been exercised on a case-by-case basis to modify, suspend, or revoke the authorization in accordance with 33 CFR 330.4(e) and 33 CFR 330.5 (c) or (d). Project specific conditions listed in this letter continue to remain in effect after the NWP verification expires, unless the district engineer removes those conditions. Activities completed under the authorization of an NWP which was in effect at the time the activity was completed continue to be authorized by that NWP. In granting an authorization pursuant to this permit, the Norfolk District has relied on the information and data provided by the permittee. If, subsequent to notification by the Corps that a project qualifies for this permit, such information and data prove to be materially false or materially incomplete, the authorization may be suspended or revoked, in whole or in part, and/or the Government may institute appropriate legal proceedings. If you have any questions and/or concerns about this permit authorization, please contact Vincent Pero via telephone at 434-973-0568 or via email at Vincent.d.pero@usace.army.mil Sincerely, 255 PEROYINCENT.D.1270778 DNIc=1US,lo=U.S.Goverrnme Government, oed by PEROMINCENT.D.17u8PKl, 255 ou=USA, cn=PERO.VINCENT.D.1270778255 Date: 2018.05.18 06:57:36 -04'00' Vincent D. Pero Western Virginia Regulatory Section o.� DEPARTMENT OF THE ARMY 4 US ARMY CORPS OF ENGINEERS f NORFOLK DISTRICT 61 T-= to FORT NORFOLK A 7, 1.1803 FRONT STREET NORFOLK VA 23 51 0-1 01 1 ed' ATES.TMs' Western Virginia Regulatory Section December 27, 2017 NAO 2017-02165 County of Albemarle c/o John E. Anderson P.E. 401 McIntire Road, Room 420 Charlottesville, Virginia 22902-4596 Dear Mr. Anderson: This letter is in regard to your request for verification of an approved jurisdictional determination for the waters of the U.S. (including wetlands) on property located near Rio Road East and east of Hillsdale Drive, Albemarle County, Virginia. A jurisdictional determination has found waters regulated under Section 404 of the Clean Water Act (33 U.S.C. 1344) on the property listed above. Streams have been identified on the site. This letter shall serve to confirm the stream delineation by WSSI, shown on the map (attached). Our basis for this determination is the application of the Corps' definition of waters of the United States. These waters are part of a tributary system to interstate waters (33 CFR 328.3 (a)) and have an ordinary high water mark. This letter is not confirming the Cowardin classifications of these aquatic resources. The Norfolk District has relied on the information and data provided by the applicant or agent. If such information and data subsequently prove to be materially false or materially incomplete, this verification may be suspended or revoked, in whole or in part, and/or the Government may institute appropriate legal proceedings. Discharges of dredged or fill material, including those associated with mechanized landclearing, into waters and/or wetlands on this site may require a Department of the Army permit and authorization by state and local authorities including a Virginia Water Protection Permit from the Virginia Department of Environmental Quality (DEQ), a permit from the Virginia Marine Resources Commission (VMRC) and/or a permit from your local wetlands board. This letter is a confirmation of the Corps preliminary jurisdiction for the waters and/or wetlands on the subject property and does not authorize any work in these areas. Please obtain all required permits before starting work in the delineated waters/wetland areas. This letter contains an approved jurisdictional determination for your subject site. If you object to this determination, you may request an administrative appeal under Corps regulations at 33 CFR Part 331 . Enclosed you will find a Notification of Appeal Process (NAP) fact sheet and Request for Appeal (RFA) form. If you request to appeal this determination you must submit a completed RFA form to the North Atlantic Division Office at the following address: ATTN: Mr. James Haggerty, Regulatory Program Manager United States Army Corps of Engineers CENAD-PD-OR Fort Hamilton Military Community 301 General Lee Avenue Brooklyn, NY 11252-6700 Email: lames.w.haggertv(a�usace.armv.mil In order for an RFA to be accepted by the Corps, the Corps must determine that it is complete, that it meets the criteria for appeal under 33 C.F.R. part 331 .5, and that it has been received by the Division Office within 60 days of the date of the NAP. Should you decide to submit an RFA form, it must be received at the above address by DATE (60 days). It is not necessary to submit an RFA form to the Division office if you do not object to the determination in this letter. This jurisdictional determination is valid for a period of five (5) years from the date of this letter unless new information warrants revision prior to the expiration date. If you have any questions, please contact me at 434.973.0568 or Vincent.d.pero©usace.army.mil. Sincerely, PE R O.V I N C E N T.D.1 Digitally signed by PERO.VINCENT.D.1270778255 DN:c=US,o=U.S.Government,ou=DoD,ou=PKI, 270778255 ou=USA,cn=PERO.VINCENT.D.1270778255 Date:2017.12.27 10:49:00-05'00' Vincent D. Pero Western Virginia Regulatory Section Enclosures: Wetland/Waters Delineation Map Preliminary Jurisdictional Determination Form NOTIFICATION OF ADMINISTRATIVE APPEAL OPTIONS AND PROCESS AND REQUEST FOR APPEAL Applicant: County of Albemarle—John Anderson File Number: NAO-2017-0216 Date: December 27. 2017 Attached is: See Section below ❑ INITIAL PROFFERED PERMIT(Standard Permit or Letter of permission) A ❑ PROFFERED PERMIT(Standard Permit or Letter of permission) B ❑ PERMIT DENIAL C ® APPROVED JURISDICTIONAL DETERMINATION D ❑ PRELIMINARY JURISDICTIONAL DETERMINATION E SECTION I - The following identifies your rights and options regarding an administrative appeal of the above decision. Additional information may be found at http://usace.army.mil/inet/functions/cw/cecwo/reg or Corps regulations at 33 CFR Part 331. A: INITIAL PROFFERED PERMIT: You may accept or object to the permit. • ACCEPT: If you received a Standard Permit,you may sign the permit document and return it to the Norfolk District Engineer for final authorization. If you received a Letter of Permission(LOP),you may accept the LOP and your work is authorized. Your signature on the Standard Permit or acceptance of the LOP means that you accept the permit in its entirety,and waive all rights to appeal the permit,including its terms and conditions,and approved jurisdictional determinations(JD)associated with the permit. • OBJECT: If you object to the permit(Standard or LOP)because of certain terms and conditions therein,you may request that the permit be modified accordingly.You must complete Section II of this form and return the form to the Norfolk District Engineer. Your objections must be received by the Norfolk District Engineer within 60 days of the date of this notice,or you will forfeit your right to appeal the permit in the future. Upon receipt of your letter,the Norfolk District Engineer will evaluate your objections and may:(a)modify the permit to address all of your concerns,(b)modify the permit to address some of your objections,or(c)not modify the permit having determined that the permit should be issued as previously written. After evaluating your objections,the Norfolk District Engineer will send you a proffered permit for your reconsideration,as indicated in Section B below. B: PROFFERED PERMIT: You may accept or appeal the permit • ACCEPT: If you received a Standard Permit,you may sign the permit document and return it to the Norfolk District Engineer for final authorization. If you received a Letter of Permission(LOP),you may accept the LOP and your work is authorized. Your signature on the Standard Permit or acceptance of the LOP means that you accept the permit in its entirety,and waive all rights to appeal the permit,including its terms and conditions,and approved jurisdictional determinations associated with the permit. • APPEAL: If you choose to decline the proffered permit(Standard or LOP)because of certain terms and conditions therein,you may appeal the declined permit under the Corps of Engineers Administrative Appeal Process by completing Section II of this form and sending the form to the North Atlantic Division Engineer,ATTN: CENAD-PD-PSD-O,Fort Hamilton Military Community,Building 301,General Lee Avenue,Brooklyn,NY 11252-6700. This form must be received by the North Atlantic Division Engineer within 60 days of the date of this notice with a copy furnished to the Norfolk District Engineer. C: PERMIT DENIAL: You may appeal the denial of a permit under the Corps of Engineers Administrative Appeal Process by completing Section II of this form and sending the form to the North Atlantic Division Engineer,ATTN:CENAD-PD-PSD-O,Fort Hamilton Military Community,Building 301,General Lee Avenue,Brooklyn,NY 11252-6700. This form must be received by the North Atlantic Division Engineer within 60 days of the date of this notice with a copy furnished to the Norfolk District Engineer. D: APPROVED JURISDICTIONAL DETERMINATION: You may accept or appeal the approved JD or provide new information. • ACCEPT: You do not need to notify the Corps to accept an approved JD. Failure to notify the Corps within 60 days of the date of this notice,means that you accept the approved JD in its entirety,and waive all rights to appeal the approved JD. • APPEAL: If you disagree with the approved JD,you may appeal the approved JD under the Corps of Engineers Administrative Appeal Process by completing Section II of this form and sending the form to the North Atlantic Division Engineer,ATTN: CENAD-PD-PSD-O,Fort Hamilton Military Community,Building 301,General Lee Avenue,Brooklyn,NY 11252-6700. This form must be received by the North Atlantic Division Engineer within 60 days of the date of this notice with a copy furnished to the Norfolk District Engineer. E: PRELIMINARY JURISDICTIONAL DETERMINATION: You do not need to respond to the Corps regarding the preliminary JD. The Preliminary JD is not appealable. If you wish,you may request an approved JD(which may be appealed),by contacting the Corps district for further instruction. Also you may provide new information for further consideration by the Corps to reevaluate the JD. SECTION II - REQUEST FOR APPEAL or OBJECTIONS TO AN INITIAL PROFFERED PERMIT REASONS FOR APPEAL OR OBJECTIONS: (Describe your reasons for appealing the decision or your objections to an initial proffered permit in clear concise statements. You may attach additional information to this form to clarify where your reasons or objections are addressed in the administrative record.) ADDITIONAL INFORMATION:The appeal is limited to a review of the administrative record,the Corps memorandum for the record of the appeal conference or meeting,and any supplemental information that the review officer has determined is needed to clarify the administrative record. Neither the appellant nor the Corps may add new information or analyses to the record. However, you may provide additional information to clarify the location of information that is already in the administrative record. POINT OF CONTACT FOR QUESTIONS OR INFORMATION: If you have questions regarding this decision and/or the appeal If you only have questions regarding the appeal process you may process you may contact: also contact: U.S.Army Corps of Engineers,Norfolk District Mr.James W.Haggerty ATTN: Regulatory Program Manager Vinny Pero(CENAO-WRR-W) U.S.Army Corps of Engineers 920 Gardens Boulevard,Suite 103-B CENAD-PD-OR Charlottesville,Virginia 22901 Fort Hamilton Military Community Vincent.d.pero@usace.army.mil 301 General Lee Avenue Brooklyn,NY 11252-6700 Telephone: (347)370-4650 Email:james.w.haggertygusace.army.mil RIGHT OF ENTRY: Your signature below grants the right of entry to Corps of Engineers personnel,and any government consultants,to conduct investigations of the project site during the course of the appeal process. You will be provided a 15 day notice of any site investigation,and will have the opportunity to participate in all site investigations. Date: Telephone number: Signature of appellant or agent. Nationwide Permit (27) Aquatic Habitat Restoration, Enhancement, and Establishment Activities Effective 3/19/2017 Expires 3/18/2022 Activities in waters of the United States associated with the restoration, enhancement, and establishment of tidal and non -tidal wetlands and riparian areas, the restoration and enhancement of non -tidal streams and other non -tidal open waters, and the rehabilitation or enhancement of tidal streams, tidal wetlands, and tidal open waters, provided those activities result in net increases in aquatic resource functions and services. To be authorized by this NWP, the aquatic habitat restoration, enhancement, or establishment activity must be planned, designed, and implemented so that it results in aquatic habitat that resembles an ecological reference. An ecological reference may be based on the characteristics of an intact aquatic habitat or riparian area of the same type that exists in the region. An ecological reference may be based on a conceptual model developed from regional ecological knowledge of the target aquatic habitat type or riparian area. To the extent that a Corps permit is required, activities authorized by this NWP include, but are not limited to: the removal of accumulated sediments; the installation, removal, and maintenance of small water control structures, dikes, and berms, as well as discharges of dredged or fill material to restore appropriate stream channel configurations after small water control structures, dikes, and berms, are removed; the installation of current deflectors; the enhancement, rehabilitation, or re-establishment of riffle and pool stream structure; the placement of in -stream habitat structures; modifications of the stream bed and/or banks to enhance, rehabilitate, or re-establish stream meanders; the removal of stream barriers, such as undersized culverts, fords, and grade control structures; the backfilling of artificial channels; the removal of existing drainage structures, such as drain tiles, and the filling, blocking, or reshaping of drainage ditches to restore wetland hydrology; the installation of structures or fills necessary to restore or enhance wetland or stream hydrology; the construction of small nesting islands; the construction of open water areas; the construction of oyster habitat over unvegetated bottom in tidal waters; shellfish seeding; activities needed to reestablish vegetation, including plowing or discing for seed bed preparation and the planting of appropriate wetland species; re-establishment of submerged aquatic vegetation in areas where those plant communities previously existed; re-establishment of tidal wetlands in tidal waters where those wetlands previously existed; mechanized land clearing to remove non-native invasive, exotic, or nuisance vegetation; and other related activities. Only native plant species should be planted at the site. This NWP authorizes the relocation of non -tidal waters, including non -tidal wetlands and streams, on the project site provided there are net increases in aquatic resource functions and services. Except for the relocation of non -tidal waters on the project site, this NWP does not authorize the conversion of a stream or natural wetlands to another aquatic habitat type (e.g., the conversion of a stream to wetland or vice versa) or uplands. Changes in wetland plant communities that occur when wetland hydrology is more fully restored during wetland rehabilitation activities are not considered a conversion to another aquatic habitat type. This NWP does not authorize stream channelization. This NWP does not authorize the relocation of tidal waters or the conversion of tidal waters, including tidal wetlands, to other aquatic uses, such as the conversion of tidal wetlands into open water impoundments. Compensatory mitigation is not required for activities authorized by this NWP since these activities must result in net increases in aquatic resource functions and services. Reversion. For enhancement, restoration, and establishment activities conducted: (1) In accordance with the terms and conditions of a binding stream or wetland enhancement or restoration agreement, or a wetland establishment agreement, between the landowner and the U.S. Fish and Wildlife Service (FWS), the Natural Resources Conservation Service (NRCS), the Farm Service Agency (FSA), the National Marine Fisheries Service (NMFS), the National Ocean Service (NOS), U.S. Forest Service (USFS), or their designated state cooperating agencies; (2) as voluntary wetland restoration, enhancement, and establishment actions documented by the NRCS or USDA Technical Service Provider pursuant to NRCS Field Office Technical Guide standards; or (3) on reclaimed surface coal mine lands, in accordance with a Surface Mining Control and Reclamation Act permit issued by the Office of Surface Mining Reclamation and Enforcement (OSMRE) or the applicable state agency, this NWP also authorizes any future discharge of dredged or fill material associated with the reversion of the area to its documented prior condition and use (i.e., prior to the restoration, enhancement, or establishment activities). The reversion must occur within five years after expiration of a limited term wetland restoration or establishment agreement or permit, and is authorized in these circumstances even if the discharge occurs after this NWP expires. The five-year reversion limit does not apply to agreements without time limits reached between the landowner and the FWS, NRCS, FSA, NMFS, NOS, USFS, or an appropriate state cooperating agency. This NWP also authorizes discharges of dredged or fill material in waters of the United States for the reversion of wetlands that were restored, enhanced, or established on prior -converted cropland or on uplands, in accordance with a binding agreement between the landowner and NRCS, FSA, FWS, or their designated state cooperating agencies (even though the restoration, enhancement, or establishment activity did not require a section 404 permit). The prior condition will be documented in the original agreement or permit, and the determination of return to prior conditions will be made by the Federal agency or appropriate state agency executing the agreement or permit. Before conducting any reversion activity the permittee or the appropriate Federal or state agency must notify the district engineer and include the documentation of the prior condition. Once an area has reverted to its prior physical condition, it will be subject to whatever the Corps Regulatory requirements are applicable to that type of land at the time. The requirement that the activity results in a net increase in aquatic resource functions and services does not apply to reversion activities meeting the above conditions. Except for the activities described above, this NWP does not authorize any future discharge of dredged or fill material associated with the reversion of the area to its prior condition. In such cases a separate permit would be required for any reversion. Reporting. For those activities that do not require pre -construction notification, the permittee must submit to the district engineer a copy of: (1) The binding stream enhancement or restoration agreement or wetland enhancement, restoration, or establishment agreement, or a project description, including project plans and location map; (2) the NRCS or USDA Technical Service Provider documentation for the voluntary stream enhancement or restoration action or wetland restoration, enhancement, or establishment action; or (3) the SMCRA permit issued by OSMRE or the applicable state agency. The report must also include information on baseline ecological conditions on the project site, such as a delineation of wetlands, streams, and/or other aquatic habitats. These documents must be submitted to the district engineer at least 30 days prior to commencing activities in waters of the United States authorized by this NWP. Notification: The permittee must submit a pre -construction notification to the district engineer prior to commencing any activity (see general condition 32), except for the following activities: (1) Activities conducted on non -Federal public lands and private lands, in accordance with the terms and conditions of a binding stream enhancement or restoration agreement or wetland enhancement, restoration, or establishment agreement between the landowner and the FWS, NRCS, FSA, NMFS, NOS, USFS or their designated state cooperating agencies; (2) Voluntary stream or wetland restoration or enhancement action, or wetland establishment action, documented by the NRCS or USDA Technical Service Provider pursuant to NRCS Field Office Technical Guide standards; or (3) The reclamation of surface coal mine lands, in accordance with an SMCRA permit issued by the OSMRE or the applicable state agency. However, the permittee must submit a copy of the appropriate documentation to the district engineer to fulfill the reporting requirement. Note: This NWP can be used to authorize compensatory mitigation projects, including mitigation banks and in -lieu fee projects. However, this NWP does not authorize the reversion of an area used for a compensatory mitigation project to its prior condition, since compensatory mitigation is generally intended to be permanent. Authority: Section 10 of the Rivers and Harbors Act of 1899 and section 404 of the Clean Water Act (Sections 10 and 404) REGIONAL CONDITIONS: Conditions for 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, 25, 27, 28, 29, 31, 32, 33, 35, 36, 37, 38, 39, 44, 45, 48, 52, 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 http://web.vims.edu/bio/sav/. Additional avoidance and minimization measures, such as relocating a structure or time -of -year restrictions (TOYR), may be required to reduce impacts to SAV habitat. 2. Conditions for Anadromous Fish Use Areas: To ensure that activities authorized by any NWP do not impact documented spawning habitat or a migratory pathway for anadromous fish, a check for anadromous fish use areas must be conducted via the Norfolk District's Regulatory GIS (for reporting permits) and/or the Virginia Department of Game and Inland Fisheries (VDGIF) Information System (by applicant for non -reporting permits) at http://vafwis.org/fwis/ . For any proposed NWP, if the project is located in an area documented as an anadromous fish use area (confirmed or potential), a time -of -year restriction (TOYR) prohibiting all in -water work will be required from February 15 to June 30 of any given year or any TOYR specified by VDGIF and/or Virginia Marine Resources Commission (VMRC). For permits requiring a PCN, if the Norfolk District determines that the work is minimal and the TOYR is unnecessary, informal consultation will be conducted with NOAA Fisheries Service (NOAH) to obtain concurrence that the TOYR would not be required for the proposed activity. For dredging in the Elizabeth River upstream of the Mid - Town Tunnel on the mainstem and the West Norfolk Bridge (Route 164, Western Freeway) on the Western Branch of the Elizabeth River, a TOYR is not required. 3. Conditions for Designated Critical Resource Waters, which include National Estuarine Research Reserves: Notification 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, 21, 29, 31, 35, 39, 40, 42, 43, 44, 49, 50, 51, and 52 cannot be used to authorize the discharge of dredged or fill material in the Chesapeake Bay National Estuarine Research Reserve in Virginia. 4. Conditions for Federally Listed Species and Designated Critical Habitat: For ALL NWPs, notification 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 is named "Information, Planning and Conservation System," (IPaC), and is located at: http://ecos.fws.gov/ipac/ . The applicant may use IPaC to determine if any federally listed species or designated critical habitat may be affected by their proposed project. If your Official Species List from IPaC identifies any federally listed endangered or threatened 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. b. When countersinking culverts, permittees must ensure reestablishment of If you are unsure about whether your project will impact listed species, please a surface water channel (within 15 days post construction) that allows for submit a PCN, so the Norfolk District may review the action. Further information the movement of aquatic organisms and maintains the same hydrologic about the Virginia Field Office "Project Review Process" may be found at: regime that was present pre -construction (i.e. the depth of surface water http://www.fws.gov/northeast/virginiafield/endangered/proiectreviews.html. through the permit area should match the upstream and downstream Additional consultation may also be required with National Marine Fisheries depths). This may require the addition of finer materials to choke the Service for species or critical habitat under their jurisdiction, including sea turtles, larger stone and/or placement of riprap to allow for a low flow channel. marine mammals, shortnose sturgeon, and Atlantic sturgeon. For additional C. Exemption for extensions and certain maintenance: The requirement to information about their jurisdiction in Virginia, please see countersink does not apply to extensions of existing pipes or culverts that https://www.greateratlantic.fisheries.noaa.gov/protected/index.html . Additional are not countersunk, or to maintenance to pipes/culverts that does not resources to assist in determining compliance with this condition can be found on involve replacing the pipe/culvert (such as repairing cracks, adding our webpage: http://www.nao.usace.army.miI/Missions/Regulatory/USFWS.aspx material to prevent/correct scour, etc.). d. Floodplain pipes: The requirement to countersink does not apply to pipes 5. Conditions Regarding Invasive Species: Plant species listed by the most or culverts that are being placed above ordinary high water, such as current Virginia Department of Conservation and Recreation's Invasive Alien those placed to allow for floodplain flows. The placement of pipes above Plant List shall not be used for re -vegetation for activities authorized by any ordinary high water is not jurisdictional (provided no fill is discharged into NWP. The list of invasive plants in Virginia may be found at: wetlands). http://www.dcr.virginia.gov/natural-heritage/invsppdflist. DCR recommends the e. Hydraulic opening: Pipes should be adequately sized to allow for the use of regional native species for re -vegetation as identified in the DCR Native passage of ordinary high water with the countersinking and invert Plants for Conservation, Restoration and Landscaping brochures for the coastal, restrictions taken into account. piedmont and mountain regions http://www.dcr.virginia.gov/natural- f. Pipes on bedrock or above existing utility lines: Different procedures will heritage/nativeplants#brochure . 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, 6. Conditions Pertaining to Countersinking of Pipes and Culverts: This depending on whether the work is for replacement of an existing condition applies to: NWPs 3, 7, 12, 14, 17, 18, 21, 23, 25, 27, 29, 32, 33, 37, 38, pipe/culvert or a new pipe/culvert: 39, 40, 41, 42, 43, 44, 45, 46, 49, 50, 51, and 52. NOTE: COUNTERSINKING IS i. Replacement of an existing pipe/culvert: Countersinking is not NOT REQUIRED IN TIDAL WATERS. However, replacement pipes/culverts in required provided the elevations of the inlet and outlet ends of the tidal waters must be installed with invert elevations no higher than the existing replacement pipe/culvert are no higher above the stream bottom pipe/culvert invert elevation, and a new pipe/culvert must be installed with the than those of the existing pipe/culvert. Documentation invert no higher than the stream bottom elevation. For Nontidal Waters: Following (photographic or other evidence) must be maintained in the consultation with the Virginia Department of Game and Inland Fisheries (VDGIF), permittee's records showing the bedrock condition and the the Norfolk District has determined that fish and other aquatic organisms are existing inlet and outlet elevations. That documentation will be most likely present in any stream being crossed, in the absence of site-specific available to the Norfolk District upon request, but notification or evidence to the contrary. Although prospective permittees have the option of coordination with the Norfolk District is not otherwise required. providing such evidence, extensive efforts to collect such information is not ii. A pipe/culvert is being placed in a new location: If the prospective encouraged, since countersinking will in most cases be required except as permittee determines that bedrock or an existing buried utility line outlined in the conditions below. The following conditions will apply in nontidal that is not practicable to relocate prevents countersinking, he/she waters: should evaluate the use of a bottomless pipe/culvert, bottomless a. All pipes: All pipes and culverts placed in streams will be countersunk at utility vault, span (bridge) or other bottomless structure to cross both the inlet and outlet ends, unless indicated otherwise by the Norfolk the waterway, and also evaluate alternative locations for the new District on a case-by-case basis (see below). Pipes that are 24" or less in pipe/culvert that will allow for countersinking. If the prospective diameter shall be countersunk 3" below the natural stream bottom. Pipes permittee determines that neither a bottomless structure nor an that are greater than 24" in diameter shall be countersunk 6" below the alternative location is practicable, then he/she must submit a pre - natural stream bottom. The countersinking requirement does not apply to construction notification (PCN) to the Norfolk District in bottomless pipes/culverts or pipe arches. All single pipes or culverts (with accordance with General Condition 32 of the NWPs. In addition bottoms) shall be depressed (countersunk) below the natural streambed to the information required by General Condition 32, the at both the inlet and outlet of the structure. In sets of multiple pipes or prospective permittee must provide documentation of measures culverts (with bottoms) at least one pipe or culvert shall be depressed evaluated to minimize disruption of the movement of aquatic life (countersunk) at both the inlet and outlet to convey low flows. as well as documentation of the cost, engineering factors, and site conditions that prohibit countersinking the pipe/culvert. Options 9• 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. The PCN must also include photographs documenting site conditions. The prospective permittee may find it helpful to contact the regional fishery biologist for the VDGIF, for recommendations about the measures to be taken to allow for fish movements. When seeking advice from VDGIF, the prospective permittee should provide the VDGIF biologist with all available information such as location, flow rates, stream bottom features, description of proposed pipe(s), slopes, etc. Any recommendations from VDGIF should be included in the PCN. The Norfolk District will notify the prospective permittee whether the proposed work qualifies for the nationwide permit within 45 days of receipt of a complete PCN. NOTE: Blasting of stream bottoms through the use of explosives is not acceptable as a means of providing for countersinking of pipes on bedrock. 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 prospective permittee not want to countersink the pipe/culvert for other reasons, he/she must submit a PCN to the Norfolk District in accordance with General Condition 32 of the Nationwide Permits. In addition to the information required by General Condition 32, the prospective 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 prospective 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. The prospective permittee may find it helpful to contact the regional fishery biologist for the VDGIF for recommendations about the measures to be taken to allow for fish movements. When seeking advice from DGIF, the prospective permittee should provide the DGIF biologist with all available information such as location, flow rates, stream bottom features, description of proposed pipe(s), slopes, etc. Any recommendations from DGIF should be included in the PCN. The Norfolk District will notify the prospective permittee whether the proposed work qualifies for the nationwide permit within 45 days of receipt of a complete PCN. 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 nationwide permit. i. 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 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 (g) and/or (h) above. Conditions for the Repair of Pipes: This condition applies to: NWPs 3, 7, 12, 14, 17, 18, 21, 23, 25, 27, 29, 32, 33, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 49, 50, 51, and 52. NOTE: COUNTERSINKING IS NOT REQUIRED IN TIDAL WATERS. However, replacement pipes/culverts in tidal waters must be installed with invert elevations no higher than the existing pipe/culvert invert elevation, and a new pipe/culvert must be installed with the invert no higher than the stream bottom elevation. 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: L As long as the inlet and outlet invert elevations of at least one for VDOT projects) or an Individual Permit. However, it is anticipated pipe located in the low flow channel are not being altered, and that the prospective permittee will still be required to perform the work provided that no concrete apron is being constructed, then the such that the waterway is not blocked or restricted more so than its work may proceed under the NWP for the other pipes, provided it current conditions. complies with all other NWP General Conditions, including d. In emergency situations, if conditions or timeframes do not allow for Condition 9 for Management of Water Flows. In such cases, compliance with the procedure outlined herein, then the pipe can be notification to the Norfolk District Commander is not required, temporarily repaired to the condition before the washout. If the unless specified in the NWP Conditions for other reasons, and the temporary repair would require a PCN by the above procedures, the permittee may proceed with the work. permittee must submit the PCN at the earliest practicable date, but no ii. Otherwise, the prospective permittee must submit a pre- longer than 15 days after the temporary repair. construction notification (PCN) to the Norfolk District Commander prior to commencing the activity. For all such projects, the 8. Condition for Impacts Requiring a Mitigation Plan: When a PCN is required, following information should be provided: a mitigation plan needs to be submitted when the permanent loss of wetlands 1) Photographs of the existing inlet and outlet; exceeds 1/10 acre and/or 300 linear feet of waters of the U.S., unless otherwise 2) A measurement of the degree to which the work will stated in the Regional Conditions. raise the invert elevations of both the inlet and outlet of the existing pipe; 9. Condition for Temporary Impacts: All temporarily disturbed waters and 3) The reasons why other methods of pipe maintenance wetlands must be restored to their pre -construction contours within 12 months of are not practicable (such as metal sleeves or a countersunk commencing the temporary impacts' construction. Impacts that will not be pipe replacement); restored within 12 months (calculated from the start of the temporary impacts' 4) A vicinity map showing the pipe locations. construction) will be considered permanent, unless otherwise approved by the Depending on the specific case, the Norfolk District may discuss Corps, and mitigation may be required. Once restored to their natural contours, potential fish usage of the waterway with the Virginia Department soil in these areas must be mechanically loosened to a depth of 12 inches and of Game and Inland Fisheries. wetland areas must be seeded or sprigged with appropriate native vegetation. The Norfolk District will assess all such pipe repair proposals in accordance with guidelines that can be found under "Pipe Repair 10. Condition for Transportation Projects Funded in Part or in Total by Local, Guidelines" at: State or Federal Funds: For all impacts associated with transportation projects http://www.nao.usace.army.miI/Missions/Regulatory/GuidanceDoc funded in part or in total by local, state or federal funds and requiring a PCN, uments.aspx compensatory mitigation will generally be required for all permanent wetland iii. If the Norfolk District determines that the work qualifies for the impacts (including impacts less than 1/10 acre). Therefore, the PCN must NWP, additional conditions will be placed on the verification. include a mitigation plan addressing the proposed compensatory mitigation. 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 11. Condition for Projects Requiring Coordination Under Section 408: General for the NWP, the applicant will be directed to apply for either Condition 31 of the NWPs requires that prospective permittees submit a pre - Regional Permit 01 (applicable only for Virginia Department of construction notification (PCN) if an NWP activity also requires permission from Transportation projects) or an Individual Permit. However, it is the Corps pursuant to 33 U.S.C. 408 because it will alter or temporarily or anticipated that the applicant will still be required to perform the permanently occupy or use a US Army Corps of Engineers (USAGE) federally work such that the waterway is not blocked or restricted to a authorized civil works project. For information on the location of Norfolk District greater degree than its current conditions. projects, prospective permittees are directed to the maps showing the locations b. If the existing pipe or at least one pipe in the multi -barrel array of pipes of Norfolk District projects located at: IS countersunk and at least one pipe located in the low flow channel http://www.nao.usace.army.miI/Portals/31/docs/regulatory/RPSPdocs/RP- will continue to be countersunk, and no concrete aprons are proposed: 17 Corps Project Maps.pdf. If the prospective permittee is uncertain whether No PCN to the Norfolk District is required, unless specified in the NWP the proposed activity might alter or temporarily or permanently occupy or use a Conditions for other reasons, and the permittee may proceed with the Norfolk District federally authorized civil works project, the prospective permittee work. shall submit a PCN. 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 12. Aquatic Habitat Restoration, Establishment, and Enhancement Activities: flow channel: 1. For all projects proposing stream restoration, when notification is required This work cannot be performed under the NWPs. The prospective proponents must provide a completed Natural Channel Design Review Checklist permittee must apply for either a Regional Permit 01 (applicable only and Selected Morphological Characteristics form, including the name and location of the reference reach, if applicable. These forms and the associated manual can be located at: https://www.fws.gov/chesapeakebav/Stream Reports/NCD%20Review%20Checkl ist/Natural%20Channel%20Design%20Checklist%20Doc%20V2%20Final%2011 -4-11.pdf. 2. Proponents must provide a monitoring plan in accordance with the 401 certificate conditions for NWP 27. GENERAL CONDITIONS: Note: To qualify for NWP authorization, the prospective permittee must comply with the following general conditions, as applicable, in addition to any regional or case - specific conditions imposed by the division engineer or district engineer. Prospective permittees should contact the appropriate Corps district office to determine if regional conditions have been imposed on an NWP. Prospective permittees should also contact the appropriate Corps district office to determine the status of Clean Water Act Section 401 water quality certification and/or Coastal authorization under one or more NWPs, or who is currently relying on an existing or prior permit authorization under one or more NWPs, has been and is on notice that all of the provisions of 33 CFR §§ 330.1 through 330.6 apply to every NWP authorization. Note especially 33 CFR § 330.5 relating to the modification, suspension, or revocation of any NWP authorization. 1. Navigation. (a) No activity may cause more than a minimal adverse effect on navigation. (b) Any safety lights and signals prescribed by the U.S. Coast Guard, through regulations or otherwise, must be installed and maintained at the permittee's expense on authorized facilities in navigable waters of the United States. (c) The permittee understands and agrees that, if future operations by the United States require the removal, relocation, or other alteration, of the structure or work herein authorized, or if, in the opinion of the Secretary of the Army or his authorized representative, said structure or work shall cause unreasonable obstruction to the free navigation of the navigable waters, the permittee will be required, upon due notice from the Corps of Engineers, to remove, relocate, or alter the structural work or obstructions caused thereby, without expense to the United States. No claim shall be made against the United States on account of any such removal or alteration. 2. Aquatic Life Movements. No activity may substantially disrupt the necessary life cycle movements of those species of aquatic life indigenous to the waterbody, including those species that normally migrate through the area, unless the activity's primary purpose is to impound water. All permanent and temporary crossings of waterbodies shall be suitably culverted, bridged, or otherwise designed and constructed to maintain low flows to sustain the movement of those aquatic species a bottomless culvert cannot be used, then the crossing should be designed and constructed to minimize adverse effects to aquatic life movements. 3. Spawning Areas. Activities in spawning areas during spawning seasons must be avoided to the maximum extent practicable. Activities that result in the physical destruction (e.g., through excavation, fill, or downstream smothering by substantial turbidity) of an important spawning area are not authorized. 4. Migratory Bird Breeding Areas. Activities in waters of the United States that serve as breeding areas for migratory birds must be avoided to the maximum extent practicable. 5. Shellfish Beds. No activity may occur in areas of concentrated shellfish populations, unless the activity is directly related to a shellfish harvesting activity authorized by NWPs 4 and 48, or is a shellfish seeding or habitat restoration activity authorized by NWP 27. 6. Suitable Material. No activity may use unsuitable material (e.g., trash, debris, car bodies, asphalt, etc.). Material used for construction or discharged must be free from toxic pollutants in toxic amounts (see section 307 of the Clean Water Act). 7. Water Supply Intakes. No activity may occur in the proximity of a public water supply intake, except where the activity is for the repair or improvement of public water supply intake structures or adjacent bank stabilization. 8. Adverse Effects from Impoundments. If the activity creates an impoundment of water, adverse effects to the aquatic system due to accelerating the passage of water, and/or restricting its flow must be minimized to the maximum extent practicable. 9. Management of Water Flows. To the maximum extent practicable, the pre - construction course, condition, capacity, and location of open waters must be maintained for each activity, including stream channelization, storm water management activities, and temporary and permanent road crossings, except as provided below. The activity must be constructed to withstand expected high flows. The activity must not restrict or impede the passage of normal or high flows, unless the primary purpose of the activity is to impound water or manage high flows. The activity may alter the pre -construction course, condition, capacity, and location of open waters if it benefits the aquatic environment (e.g., stream restoration or relocation activities). 10. Fills Within 100 -Year Floodplains. The activity must comply with applicable FEMA - approved state or local floodplain management requirements. 11. Eguipment. Heavy equipment working in wetlands or mudflats must be placed on mats, or other measures must be taken to minimize soil disturbance. 12. Soil Erosion and Sediment Controls. Appropriate soil erosion and sediment controls must be used and maintained in effective operating condition during construction, and all exposed soil and other fills, as well as any work below the ordinary high water mark or high tide line, must be permanently stabilized at the earliest practicable date. Permittees are encouraged to perform work within waters of the United States during periods of low -flow or no -flow, or during low tides. 13. Removal of Temporary Fills. Temporary fills must be removed in their entirety and the affected areas returned to pre -construction elevations. The affected areas must be revegetated, as appropriate. 14. Proper Maintenance. Any authorized structure or fill shall be properly maintained including maintenance to ensure public safety and compliance with applicable NWP general conditions, as well as any activity -specific conditions added by the district engineer to an NWP authorization. 15. Single and Complete Project. The activity must be a single and complete project. The same NWP cannot be used more than once for the same single and complete project. 16. Wild and Scenic Rivers. (a) No NWP activity may occur in a component of the National Wild and Scenic River System, or in a river officially designated by Congress as a "study river' for possible inclusion in the system while the river is in an official study status, unless the appropriate Federal agency with direct management responsibility for such river, has determined in writing that the proposed activity will not adversely affect the Wild and Scenic River designation or study status. (b) If a proposed NWP activity will occur in a component of the National Wild and Scenic River System, or in a river officially designated by Congress as a "study river' for possible inclusion in the system while the river is in an official study status, the permittee must submit a pre -construction notification (see general condition 32). The district engineer will coordinate the PCN with the Federal agency with direct management responsibility for that river. The permittee shall not begin the NWP activity until notified by the district engineer that the Federal agency with direct management responsibility for that river has determined in writing that the proposed NWP activity will not adversely affect the Wild and Scenic River designation or study status. (c) Information on Wild and Scenic Rivers may be obtained from the appropriate Federal land management agency responsible for the designated Wild and Scenic River or study river (e.g., National Park Service, U.S. Forest Service, Bureau of Land Management, U.S. Fish and Wildlife Service). Information on these rivers is also available at: http://www.rivers.gov/. 17. Tribal Rights. No NWP activity may cause more than minimal adverse effects on tribal rights (including treaty rights), protected tribal resources, or tribal lands. 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 effects of the proposed activity has been completed. Direct effects are the immediate effects on listed species and critical habitat caused by the NWP activity. Indirect effects are those effects on listed species and critical habitat that are caused by the NWP activity and are later in time, but still are reasonably certain to occur. (b) Federal agencies should follow their own procedures for complying with the requirements of the ESA. 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. In cases where the non -Federal applicant has identified listed species or critical habitat that might be affected or is in the vicinity of the 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. (e) Authorization of an activity by an NWP does not authorize the "take' of a threatened or endangered species as defined under the ESA. In the absence of separate authorization (e.g., an ESA Section 10 Permit, a Biological Opinion with "incidental take" provisions, etc.) from the FWS or the NMFS, the Endangered Species Act prohibits any person subject to the jurisdiction of the United States to take a listed species, where "take" means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. The word "harm" in the definition of "take" means an act which actually kills or injures wildlife. Such an act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering. (f) If the non-federal permittee has a valid ESA section 10(a)(1)(B) incidental take permit with an approved Habitat Conservation Plan for a project or a group of projects that includes the proposed NWP activity, the non-federal applicant should provide a copy of that ESA section 10(a)(1)(B) permit with the PCN required by paragraph (c) of this general condition. The district engineer will coordinate with the agency that issued the ESA section 10(a)(1)(B) permit to determine whether the proposed NWP activity and the associated incidental take were considered in the internal ESA section 7 consultation conducted for the ESA section 10(a)(1)(B) permit. If that coordination results in concurrence from the agency that the proposed NWP activity and the associated incidental take were considered in the internal ESA section 7 consultation for the ESA section 10(a)(1)(B) permit, the district engineer does not need to conduct a separate ESA section 7 consultation for the proposed NWP activity. The district engineer will notify the non-federal applicant within 45 days of receipt of a complete pre -construction notification whether the ESA section 10(a)(1)(B) permit covers the proposed NWP activity or whether additional ESA section 7 consultation is required. (g) Information on the location of threatened and endangered species and their critical habitat can be obtained directly from the offices of the FWS and NMFS or their World Wide Web pages at http://www.fws.gov/ or http://www.fws.gov/ipac and http://www.nmfs.noaa.gov/pr/species/esa/ respectively. 19. Migratory Birds and Bald and Golden Eagles. The permittee is responsible for ensuring their action complies with the Migratory Bird Treaty Act and the Bald and Golden Eagle Protection Act. The permittee is responsible for contacting appropriate local office of the U.S. Fish and Wildlife Service to determine applicable measures tc reduce impacts 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) In cases where the district engineer determines that the activity may have the potential to cause effects to properties listed, or eligible for listing, in the National Register of Historic Places, the activity is not authorized, until the requirements of Section 106 of the National Historic Preservation Act (NHPA) have been satisfied. (b) Federal permittees should follow their own procedures for complying with the requirements of section 106 of the National Historic Preservation Act. If pre - construction notification is required for the proposed NWP activity, the Federal permittee must provide the district engineer with the appropriate documentation to demonstrate compliance with those requirements. The district engineer will verify that the appropriate documentation has been submitted. If the appropriate documentation is not submitted, then additional consultation under section 106 may be necessary. The respective federal agency is responsible for fulfilling its obligation to comply with section 106. (c) Non-federal permittees must submit a pre -construction notification to the district engineer if the NWP activity might have the potential to cause effects to any historic properties listed on, determined to be eligible for listing on, or potentially eligible for listing on the National Register of Historic Places, including previously unidentified properties. For such activities, the pre -construction notification must state which historic properties might have the potential to be affected by the proposed NWP activity or include a vicinity map indicating the location of the historic properties or the potential for the presence of historic properties. Assistance regarding information on the location of, or potential for, the presence of historic properties can be sought from the State Historic Preservation Officer, Tribal Historic Preservation Officer, or designated tribal representative, as appropriate, and the National Register of Historic Places (see 33 CFR 330.4(g)). When reviewing pre -construction notifications, district engineers will comply with the current procedures for addressing the requirements of section 106 of the National Historic Preservation Act. The district engineer shall make a reasonable and good faith effort to carry out appropriate identification efforts, which may include background research, consultation, oral history interviews, sample field investigation, and 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. Where the non -Federal applicant has identified historic properties on which the activity might have the potential to cause effects and so notified the Corps, the non - Federal applicant shall not begin the activity until notified by the district engineer either that the activity has no potential to cause effects to historic properties or that NHPA section 106 consultation has been completed. (d) For non-federal permittees, the district engineer will notify the prospective permittee within 45 days of receipt of a complete pre -construction notification whether NHPA section 106 consultation is required. If NHPA section 106 consultation is required, the district engineer will notify the non -Federal applicant that he or she cannot begin the activity until section 106 consultation is completed. If the non -Federal applicant has not heard back from the Corps within 45 days, the applicant must still wait for notification from the Corps. (e) Prospective permittees should be aware that section 110k of the NHPA (54 U.S.C. 306113) prevents the Corps from granting a permit or other assistance to an applicant who, with intent to avoid the requirements of section 106 of the NHPA, has intentionally significantly adversely affected a historic property to which the permit would relate, or having legal power to prevent it, allowed such significant adverse effect to occur, unless the Corps, after consultation with the Advisory Council on Historic Preservation (ACHP), determines that circumstances justify granting such assistance despite the adverse effect created or permitted by the applicant. If circumstances justify granting the assistance, the Corps is required to notify the ACHP and provide documentation specifying the circumstances, the degree of damage to the integrity of any historic properties affected, and proposed mitigation. This documentation must include any views obtained from the applicant, SHPO/THPO, appropriate Indian tribes if the undertaking occurs on or affects historic properties on tribal lands or affects properties of interest to those tribes, and other parties known to have a legitimate interest in the impacts to the permitted activity on historic properties. 21. Discovery of Previously Unknown Remains and Artifacts. If you discover any previously unknown historic, cultural or archeological remains and artifacts while accomplishing the activity authorized by this permit, you must immediately notify the district engineer of what you have found, and to the maximum extent practicable, avoid construction activities that may affect the remains and artifacts until the required coordination has been completed. The district engineer will initiate the Federal, Tribal, and state coordination required to determine if the items or remains warrant a recovery effort or if the site is eligible for listing in the National Register of Historic Places. 22. Designated Critical Resource Waters. Critical resource waters include, NOAA- managed marine sanctuaries and marine monuments, and National Estuarine Research Reserves. The district engineer may designate, after notice and opportunity for public comment, additional waters officially designated by a state as having particular environmental or ecological significance, such as outstanding national resource waters or state natural heritage sites. The district engineer may also designate additional critical resource waters after notice and opportunity for public comment. (a) Discharges of dredged or fill material into waters of the United States are not authorized by NWPs 7, 12, 14, 16, 17, 21, 29, 31, 35, 39, 40, 42, 43, 44, 49, 50, 51, and 52 for any activity within, or directly affecting, critical resource waters, including wetlands adjacent to such waters. (b) For NWPs 3, 8, 10, 13, 15, 18, 19, 22, 23, 25, 27, 28, 30, 33, 34, 36, 37, 38, and 54, notification is required in accordance with general condition 32, for any activity proposed in the designated critical resource waters including wetlands adjacent to those waters. The district engineer may authorize activities under these NWPs only after it is determined that the impacts to the critical resource waters will be no more than minimal. 23. Mitigation. The district engineer will consider the following factors when determining appropriate and practicable mitigation necessary to ensure that the individual and cumulative adverse environmental effects are no more than minimal: (a) The activity must be designed and constructed to avoid and minimize adverse effects, both temporary and permanent, to waters of the United States to the maximum extent practicable at the project site (i.e., on site). (b) Mitigation in all its forms (avoiding, minimizing, rectifying, reducing, or compensating for resource losses) will be required to the extent necessary to ensure that the individual and cumulative adverse environmental effects are no more than minimal. (c) Compensatory mitigation at a minimum one-for-one ratio will be required for all wetland losses that exceed 1/10 -acre and require pre -construction notification, unless the district engineer determines in writing that either some other form of mitigation would be more environmentally appropriate or the adverse environmental effects of the proposed activity are no more than minimal, and provides an activity -specific waiver of this requirement. For wetland losses of 1/10 -acre or less that require pre - construction notification, the district engineer may determine on a case-by-case basis that compensatory mitigation is required to ensure that the activity results in only minimal adverse environmental effects. (d) For losses of streams or other open waters that require pre -construction notification, the district engineer may require compensatory mitigation to ensure that the activity results in no more than minimal adverse environmental effects. Compensatory mitigation for losses of streams should be provided, if practicable, through stream rehabilitation, enhancement, or preservation, since streams are difficult -to -replace resources (see 33 CFR 332.3(e)(3)). (e) Compensatory mitigation plans for NWP activities in or near streams or other open waters will normally include a requirement for the restoration or enhancement, maintenance, and legal protection (e.g., conservation easements) of riparian areas next to open waters. In some cases, the restoration or maintenance/protection of riparian areas may be the only compensatory mitigation required. Restored riparian areas should consist of native species. The width of the required riparian area will address documented water quality or aquatic habitat loss concerns. Normally, the riparian area will be 25 to 50 feet wide on each side of the stream, but the district engineer may require slightly wider riparian areas to address documented water quality or habitat loss concerns. If it is not possible to restore or maintain/protect a riparian area on both sides of a stream, or if the waterbody is a lake or coastal waters, then restoring or maintaining/protecting a riparian area along a single bank or shoreline may be sufficient. Where both wetlands and open waters exist on the project site, the district engineer will determine the appropriate compensatory mitigation (e.g., riparian areas and/or wetlands compensation) based on what is best for the aquatic environment on a watershed basis. In cases where riparian areas are determined to be the most appropriate form of minimization or compensatory mitigation, the district engineer may waive or reduce the requirement to provide wetland compensatory mitigation for wetland losses. (f) Compensatory mitigation projects provided to offset losses of aquatic resources must comply with the applicable provisions of 33 CFR part 332. (1) The prospective permittee is responsible for proposing an appropriate compensatory mitigation option if compensatory mitigation is necessary to ensure that the activity results in no more than minimal adverse environmental effects. For the NWPs, the preferred mechanism for providing compensatory mitigation is mitigation bank credits or in -lieu fee program credits (see 33 CFR 332.3(b)(2) and (3)). However, if an appropriate number and type of mitigation bank or in -lieu credits are not available at the time the PCN is submitted to the district engineer, the district engineer may approve the use of permittee -responsible mitigation. (2) The amount of compensatory mitigation required by the district engineer must be sufficient to ensure that the authorized activity results in no more than minimal individual and cumulative adverse environmental effects (see 33 CFR 330.1(e)(3)). (See also 33 CFR 332.3(f)). (3) Since the likelihood of success is greater and the impacts to potentially valuable uplands are reduced, aquatic resource restoration should be the first compensatory mitigation option considered for permittee -responsible mitigation. (4) If permittee -responsible mitigation is the proposed option, the prospective permittee is responsible for submitting a mitigation plan. A conceptual or detailed mitigation plan may be used by the district engineer to make the decision on the NWP verification request, but a final mitigation plan that addresses the applicable requirements of 33 CFR 332.4(c)(2) through (14) must be approved by the district engineer before the permittee begins work in waters of the United States, unless the district engineer determines that prior approval of the final mitigation plan is not practicable or not necessary to ensure timely completion of the required compensatory mitigation (see 33 CFR 332.3(k)(3)). (5) If mitigation bank or in -lieu fee program credits are the proposed option, the mitigation plan only needs to address the baseline conditions at the impact site and the number of credits to be provided. (6) Compensatory mitigation requirements (e.g., resource type and amount to be provided as compensatory mitigation, site protection, ecological performance standards, monitoring requirements) may be addressed through conditions added to the NWP authorization, instead of components of a compensatory mitigation plan (see 33 CFR 332.4(c)(1)(ii)). (g) Compensatory mitigation will not be used to increase the acreage losses allowed by the acreage limits of the NWPs. For example, if an NWP has an acreage limit of 1/2 -acre, it cannot be used to authorize any NWP activity resulting in the loss of greater than 1/2 -acre of waters of the United States, even if compensatory mitigation is provided that replaces or restores some of the lost waters. However, compensatory mitigation can and should be used, as necessary, to ensure that an NWP activity already meeting the established acreage limits also satisfies the no more than minimal impact requirement for the NWPs. (h) Permittees may propose the use of mitigation banks, in -lieu fee programs, or permittee -responsible mitigation. When developing a compensatory mitigation proposal, the permittee must consider appropriate and practicable options consistent with the framework at 33 CFR 332.3(b). For activities resulting in the loss of marine or estuarine resources, permittee -responsible mitigation may be environmentally preferable if there are no mitigation banks or in -lieu fee programs in the area that have marine or estuarine credits available for sale or transfer to the permittee. For permittee -responsible mitigation, the special conditions of the NWP verification must clearly indicate the party or parties responsible for the implementation and performance of the compensatory mitigation project, and, if required, its long-term management. (i) Where certain functions and services of waters of the United States are permanently adversely affected by a regulated activity, such as discharges of dredged or fill material into waters of the United States that will convert a forested or scrub - shrub wetland to a herbaceous wetland in a permanently maintained utility line right- of-way, mitigation may be required to reduce the adverse environmental effects of the activity to the no more than minimal level. 24. Safety of Impoundment Structures. To ensure that all impoundment structures are safely designed, the district engineer may require non -Federal applicants to demonstrate that the structures comply with established state 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. Where States and authorized Tribes, or EPA where applicable, have not previously certified compliance of an NWP with CWA section 401, individual 401 Water Quality Certification must be obtained or waived (see 33 CFR 330.4(c)). The district engineer or State or Tribe 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)). 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 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 prohibited, except when the acreage loss of waters of the United States authorized by the NWPs does not 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 10 NWP 13, the maximum acreage loss of waters of the United States for the total project cannot exceed 1/3 -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 is not authorized by NWP until the appropriate Corps office issues the section 408 (4) A description of the proposed activity; the activity's purpose; direct and permission to alter, occupy, or use the USACE project, and the district engineer issues indirect adverse environmental effects the activity would cause, including the a written NWP verification. anticipated amount of loss of wetlands, other special aquatic sites, and other waters expected to result from the NWP activity, in acres, linear feet, or other 32. Pre -Construction Notification. appropriate unit of measure; a description of any proposed mitigation (a) Timing. Where required by the terms of the NWP, the prospective permittee measures intended to reduce the adverse environmental effects caused by the must notify the district engineer by submitting a pre -construction notification (PCN) as proposed activity; and any other NWP(s), regional general permit(s), or early as possible. The district engineer must determine if the PCN is complete within individual permit(s) used or intended to be used to authorize any part of the 30 calendar days of the date of receipt and, if the PCN is determined to be incomplete, proposed project or any related activity, including other separate and distant notify the prospective permittee within that 30 day period to request the additional crossings for linear projects that require Department of the Army authorization information necessary to make the PCN complete. The request must specify the but do not require pre -construction notification. The description of the information needed to make the PCN complete. As a general rule, district engineers proposed activity and any proposed mitigation measures should be sufficiently will request additional information necessary to make the PCN complete only once. detailed to allow the district engineer to determine that the adverse However, if the prospective permittee does not provide all of the requested environmental effects of the activity will be no more than minimal and to information, then the district engineer will notify the prospective permittee that the determine the need for compensatory mitigation or other mitigation measures. PCN is still incomplete and the PCN review process will not commence until all of the For single and complete linear projects, the PCN must include the quantity of requested information has been received by the district engineer. The prospective anticipated losses of wetlands, other special aquatic sites, and other waters for permittee shall not begin the activity until either: each single and complete crossing of those wetlands, other special aquatic (1) He or she is notified in writing by the district engineer that the activity may sites, and other waters. Sketches should be provided when necessary to show proceed under the NWP with any special conditions imposed by the district or that the activity complies with the terms of the NWP. (Sketches usually clarify division engineer; or the activity and when provided results in a quicker decision. Sketches should (2) 45 calendar days have passed from the district engineer's receipt of the contain sufficient detail to provide an illustrative description of the proposed complete PCN and the prospective permittee has not received written notice activity (e.g., a conceptual plan), but do not need to be detailed engineering from the district or division engineer. However, if the permittee was required to plans); notify the Corps pursuant to general condition 18 that listed species or critical (5) The PCN must include a delineation of wetlands, other special aquatic habitat might be affected or are in the vicinity of the activity, or to notify the sites, and other waters, such as lakes and ponds, and perennial, intermittent, Corps pursuant to general condition 20 that the activity might have the and ephemeral streams, on the project site. Wetland delineations must be potential to cause effects to historic properties, the permittee cannot begin the prepared in accordance with the current method required by the Corps. The activity until receiving written notification from the Corps that there is "no permittee may ask the Corps to delineate the special aquatic sites and other effect" on listed species or "no potential to cause effects" on historic properties, waters on the project site, but there may be a delay if the Corps does the or that any consultation required under Section 7 of the Endangered Species delineation, especially if the project site is large or contains many wetlands, Act (see 33 CFR 330.4(f)) and/or section 106 of the National Historic other special aquatic sites, and other waters. Furthermore, the 45 day period Preservation Act (see 33 CFR 330.4(g)) has been completed. Also, work will not start until the delineation has been submitted to or completed by the cannot begin under NWPs 21, 49, or 50 until the permittee has received Corps, as appropriate; written approval from the Corps. If the proposed activity requires a written (6) If the proposed activity will result in the loss of greater than 1/10 -acre of waiver to exceed specified limits of an NWP, the permittee may not begin the wetlands and a PCN is required, the prospective permittee must submit a activity until the district engineer issues the waiver. If the district or division statement describing how the mitigation requirement will be satisfied, or engineer notifies the permittee in writing that an individual permit is required explaining why the adverse environmental effects are no more than minimal within 45 calendar days of receipt of a complete PCN, the permittee cannot and why compensatory mitigation should not be required. As an alternative, begin the activity until an individual permit has been obtained. Subsequently, the prospective permittee may submit a conceptual or detailed mitigation plan. the permittee's right to proceed under the NWP may be modified, suspended, (7) For non -Federal permittees, if any listed species or designated critical or revoked only in accordance with the procedure set forth in 33 CFR habitat might be affected or is in the vicinity of the activity, or if the activity is 330.5(d)(2). located in designated critical habitat, the PCN must include the name(s) of (b) Contents of Pre -Construction Notification: The PCN must be in writing and those endangered or threatened species that might be affected by the include the following information: proposed activity or utilize the designated critical habitat that might be affected (1) Name, address and telephone numbers of the prospective permittee; by the proposed activity. For NWP activities that require pre -construction (2) Location of the proposed activity; notification, Federal permittees must provide documentation demonstrating (3) Identify the specific NWP or NWP(s) the prospective permittee wants to compliance with the Endangered Species Act; use to authorize the proposed activity; (8) For non -Federal permittees, if the NWP activity might have the potential to cause effects to a historic property listed on, determined to be eligible for M listing on, or potentially eligible for listing on, the National Register of Historic Places, the PCN must state which historic property might have the potential to be affected by the proposed activity or include a vicinity map indicating the location of the historic property. For NWP activities that require pre - construction notification, Federal permittees must provide documentation demonstrating compliance with section 106 of the National Historic Preservation Act; (9) For an activity that 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 PCN must identify the Wild and Scenic River or the "study river' (see general condition 16); and (10) For an activity that 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 federally authorized civil works project, the pre - construction notification must include a statement confirming that the project proponent has submitted a written request for section 408 permission from the Corps office having jurisdiction over that USACE project. (c) Form of Pre -Construction Notification: The standard individual permit application form (Form ENG 4345) may be used, but the completed application form must clearly indicate that it is an NWP PCN and must include all of the applicable information required in paragraphs (b)(1) through (10) of this general condition. A letter containing the required information may also be used. Applicants may provide electronic files of PCNs and supporting materials if the district engineer has established tools and procedures for electronic submittals. (d) Agency Coordination: (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 1/2 -acre of waters of the United States; (ii) NWP 21, 29, 39, 40, 42, 43, 44, 50, 51, and 52 activities that require pre -construction notification and will result in the loss of greater than 300 linear feet of stream bed; (iii) 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 (iv) 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 e-mail, 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 e-mail 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 12 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 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 individual crossings of waters of the United States 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 authorized by NWP. If an applicant requests a waiver of the 300 linear foot limit on impacts to streams or of an otherwise applicable limit, as provided for in NWPs 13, 21, 29, 36, 39, 40, 42, 43, 44, 50, 51, 52, 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. For those NWPs that have a waivable 300 linear foot limit for losses of intermittent and ephemeral stream bed and a 1/2 -acre limit (i.e., NWPs 21, 29, 39, 40, 42, 43, 44, 50, 51, and 52), the loss of intermittent and ephemeral stream bed, plus any other losses of jurisdictional waters and wetlands, cannot exceed 1/2 -acre. 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 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 1/10 - acre of wetlands, 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 (e.g., streams). 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 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 activity -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 13 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, or to evaluate PCNs for activities authorized by NWPs 21, 49, and 50), with activity -specific conditions that state the mitigation requirements. The 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. Further Information: 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). SECTION 401 WATER QUALITY CERTIFICATION (4/7/17): The State Water Control Board issued conditional §401 Water Quality Certification for NWP 27 as meeting the requirements of the Virginia Water Protection Permit Regulation, which serves as the Commonwealth's §401 Water Quality Certification, provided that: (1) when used to permit a wetland or stream mitigation bank or in -lieu fee mitigation site, compensation for any surface water impacts shall be debited from the bank or in -lieu fee credits; (2) natural stream channel design shall be used for stream restoration projects; (3) monitoring for performance of these sites shall be conducted and reports 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 post -construction monitoring will be required. 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. Each post -construction monitoring report may include comparison of as -built to monitoring year surveys (plan, profile, and cross sections, as appropriate, and approved by DEQ), vegetation surveys (as appropriate and approved by DEQ), site photographs/ and a discussion of project performance; (4) temporary diversions of surface water associated with "pump arounds" during the construction of stream or wetland restoration and/or creation areas are specifically allowed; (5) any compensatory mitigation meets the requirements in the Code of Virginia, Section 62. 1-44. 15:23 A through C. COASTAL ZONE MANAGEMENT ACT CONSISTENCY DETERMINATION (4/5/17): Based on the comments submitted by the agencies administering the enforceable policies of the Virginia CZM Program, DEQ concurs that the 2017 NWPs and Virginia Regional Conditions as proposed, are consistent with the Virginia CZM Program provided the following conditions, discussed below, are satisfied: 1) Prior to construction, applicants shall obtain all required permits and approvals for activities to be performed that are applicable to the Virginia CZM Program's enforceable policies, and that applicants adhere to all the conditions contained therein. The Virginia Marine Resources Commission's (VMRC) concurrence of consistency with regard to the fisheries management, subaqueous lands management, wetlands management, and dunes management enforceable policies is based on the recognition that prospective permittees may be required to obtain additional state and/or local approvals from the VMRC and/or the local wetlands board prior to commencement of work in both tidal and nontidal waters under the agency's jurisdiction. Such approvals must precede implementation of the projects. 2) The DEQ Office of Wetlands and Stream Protection (OWSP) has provided §401 Clean Water Act (CWA) Water Quality Certification for the 2017 NWPs and Regional Conditions, applicable to the wetlands management and point source pollution control enforceable policies of the Virginia CZM Program. The activities that qualify for the NWPs must meet the requirements of DEQ's Virginia Water Protection Permit Regulation (9 VAC 25-210-130) and the permittee must abide by the conditions of the NWP. DEQ-OWSP has identified specific NWP exceptions. DEQ will process an individual application for a permit or a certificate or otherwise take action pursuant to 9 VAC 25-210-80 et seq. for those activities covered by an NWPs that have not received blanket §401 CWA Water Quality Certification. The Corps should forward pre -construction notifications to DEQ for applicants that do not comply with or cannot meet the conditions of the §401 CWA Water Quality Certification. Further, the Commonwealth reserves its right to require an individual application for a permit or a certificate or otherwise take action on any specific project that could otherwise be covered under any of the NWPs when it determines on a case-by-case basis that concerns for water quality and the aquatic environment so indicate. In accordance with the Federal Consistency Regulations at 15 CFR Part 930, section 930. 4, this conditional concurrence is based on the applicants demonstrating to the Corps that they have obtained, or will obtain, all necessary authorizations prior to implementing a project which qualifies for a NWP. If the requirements of section 930. 4, sub -paragraphs (a)(1) through (a)(3) are not met, this conditional concurrence becomes an objection under 15 CFR Part 930, section 940.43. 14