Dubuque Regional Airport Conservation EasementMasterpiece on the Mississippi
TO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
SUBJECT: Dubuque Regional Airport Conservation Easement
DATE: July 25, 2011
Dubuque
katel
All-America City
'
2007
During the design process for the New Terminal Facility project at the Dubuque
Regional Airport, constructing a new stream channel relocation was determined
necessary to replace an existing stream located within the proposed building and paving
limits.
The Airport is required to restrict the use and development of the mitigation area with
the restrictions being recorded with the County Recorder. The proposed restriction
does not allow future development or land use conversion of the mitigation area (all or a
portion) for any purpose which may be detrimental to stream functions without prior
written approval from the Iowa Department of Natural Resources or the Army Corps of
Engineers.
Airport Manager Robert Grierson recommends that the City Council set a public hearing
for August 15, 2011, to dispose of an interest in City property as set forth in the
Declaration of Conservation Covenants and Restrictions Conservation Easement on the
specified property at the Dubuque Regional Airport.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
Mich /el C. Van Milligen
MCVM:jh
Attachment
cc: Barry Lindahl, City Attorney
Cindy Steinhauser, Assistant City Manager
Robert A. Grierson, Airport Manager
DUBUQUE REGIONAL AIRPORT
MEMORANDUM
To: Michael C. Van Milligen, City Manager
From: Robert A. Grierson, Airport Manager
Date: July 22, 2011
Subject: Dubuque Regional Airport Conservation Easement
INTRODUCTION
The attached Declaration of Conservation Covenants and Restrictions is to place
restrictions to serve as the formal site protection instrument to assure that the
designated airport property remains protected in its restored condition as a
natural feature and to prevent any use of the property that will significantly impair
or interfere with the conservation value.
DISCUSSION
During the design process for the New Terminal Facility project at the Dubuque
Regional Airport, constructing a new stream channel relocation was determined
necessary to replace an existing stream located within the proposed building and
paving limits.
As a result of this relocation and additional site improvements, the Airport was
required to apply for a Section 404 Permit from the Army Corps of Engineers
(COE) and a Section 401 Water Quality Certification (Iowa Department of
Natural Resources).
To adequately offset the permanent impacts to the site, the Airport prepared and
submitted a stream mitigation plan for review and approval by the COE.
As a condition of the 404 & 401 Permits, the Airport is required to restrict the use
and development of the mitigation area with the restrictions being recorded with
the County Recorder.
The proposed restriction does not allow future development or land use
conversion of the mitigation area (all or a portion) for any purpose which may be
detrimental to stream functions without prior written approval from the Iowa DNR
or the COE.
RECOMMENDATION
I recommend that the City Council approve the attached resolution setting a
public hearing for August 15, 2011 to dispose of an interest in city property as set
for in the attached Declaration of Conservation Covenants and Restrictions
Conservation Easement on the specified property at the Dubuque Regional
Airport.
ACTION STEP
The action step is to approve the attached resolution.
BUDGET IMPACT
None
ACTION TO BE TAKEN
I respectfully request that the City Council adopt the attached resolution
approving the Conservation Easement on the Dubuque Regional Airport.
cc: Jenny Larson, Budget Director
2
RESOLUTION
NO. 246-11
INTENT TO DISPOSE
OF AN INTEREST IN
CITY OF DUBUQUE
REAL ESTATE
AND
FIXING THE DATE
FOR A PUBLIC
HEARING OF " THE
CITY COUNCIL OF
THE CITY OF DUBU-
QUE, IOWA ON THE
PROPOSED DISPOSI-
TION OF CITY OWNED
PROPERTY IN THE
FORM, OF A DECLAR-
ATION OF CONSER-
VATION COVENANTS
AND RESTRICTIONS
AND PROVIDING FOR.
THE PUBLICATION OF
NOTICE THEREOF
Whereas, the City of
Dubuque, Iowa (City) is
the owner of the real
property described in
the attached Declara-
tion of Conservation
Covenants and Restric-
tions; and
Whereas, the City
Council has deter-
mined that it would be
in the best interests of
the City to restrict the
use of the property
described in the
Declaration of Conser-
vation Covenants and
Restrictions.
NOW THEREFORE, BE
IT RESOLVED BY THE
CITY COUNCIL OF THE
CITY OF DUBUQUE,
IOWA:
Section 1. The City of
Dubuque intends to
dispose of an interest
in the foregoing -
described Property as
described in the
attached Declaration of
Conservation Cove-
nants and Restrictions.
Section 2. The City
Clerk is hereby author-
ized and directed to
cause this Resolution
and a notice to be
published as pre-
scribed 'by Iowa Code
Section 364.7 of a
public hearing on the
City's intent to dispose
of the foregoing -
described Property, to
be held on the 15th day
of August, 2011, at 6:30
o'clock p.m. in the City
Council Chambers at
the Historic Federal
Building, 350 W. 6th
Street, Dubuque, Iowa_
Section 3. The Clerkis`
hereby directed to
cause at least one '
publication to be made
of a notice of said
meeting, in a
newspaper, printed
wholly in the English
'language, published at
least once weekly, and
having general circu-
lation in said City, said
publication to be not
less than four days nor
more than twenty days
before the date of'said
meeting on the
issuance of said
obligations.
Passed, approved and
adopted this 1st day of
August, 2011.
Roy D. Buol, Mayor
Attest:
Kevin S. Firnstahl,
Acting City Clerk
1t 8/5
STATE OF IOWA {SS:
DUBUQUE COUNTY
CERTIFICATION OF PUBLICATION
I, Suzanne Pike, a Billing Clerk for Woodward Communications, Inc., an Iowa
corporation, publisher of the Telegraph Herald,a newspaper of general circulation
published in the City of Dubuque, County of Dubuque and State of Iowa; hereby
certify that the attached notice was published in said newspaper on the following
dates: August 05, 2011, and for which the charge is $27.88.
Subscribed to before me, a Notary Public in and for Dubuque County, Iowa,
this day of , 20 // -
Notary Public in and for Dubuque County, Iowa.
MARY K. WESTERMEY
Commission Number 154
Q'r J
NOTICE OF A PUBLIC
HEARING OF THE
CITY COUNCIL OF
THE CITY OF
DUBUQUE, IOWA, ON
DISPOSING OF THE
CITY'S INTEREST IN
CERTAIN REAL
ESTATE AT THE
DUBUQUE REGIONAL
AIRPORT AS SET
FORTH IN A
DECLARATION OF
CONSERVATION
COVENANTS AND
RESTRICTIONS
PUBLIC NOTICE is
hereby given that the
City Council of the City
of Dubuque, Iowa, will
hold a public hearing
on the 15th day of
August, 2011, at 6:30
p.m. in the City Council
Chambers at the
Historic Federal Build-
ing, 350 W. 6th Street,
Dubuque, Iowa, at
which meeting the City
Council proposes to
take action disposing
of the City's interest by
Conservation Cove-
nants and Restrictions
in the following
described real estate:
A tract of land located
in the Southwest
quarter (SW ' /e) of the
Southwest quarter (SW
' /a) of the Section 26,
and in the Northwest
quarter (NW /1/) of the
Northwest quarter (NW -
'A) of Section 35,
Township 88 North,
Range 2 East of the 5th
Principal Meridian in
Dubuque County, Iowa
A copy of the
Conservation Cove-
nants and Restrictions
is on file at the Office
of the City Clerk, City
Hall, 50 West 13th
Street, Dubuque Iowa
52001.
At the meeting, the
City Council will
receive oral and
written objections from
any resident or proper-
ty owner of said City to
the above action. After
all objections have
been received and
considered, the City
Council may at this
meeting or at any
adjournment thereof,
take additional action
for the disposition of
the City's interest in
such real estate above.
This notice is given by
order of the City
Council of the City of
Dubuque, Iowa, as
provided by Iowa Code
§ 364.7.
Dated this 5th day of
August, 2011.
Kevin 5. Firnstahl,
Acting City Clerk of
Dubuque, lowa
it 8/5
STATE OF IOWA {SS:
DUBUQUE COUNTY
CERTIFICATION OF PUBLICATION
I, Suzanne Pike, a Billing Clerk for Woodward Communications, Inc., an Iowa
corporation, publisher of the Telegraph Herald,a newspaper of general circulation
published in the City of Dubuque, County of Dubuque and State of Iowa; hereby
certify that the attached notice was published in said newspaper on the following
dates: August 05, 2011, and for which the charge is $23.74.
R AQ,
Subscribed to before me, a Notary Public in and for Dubuque County, Iowa,
this day of �� , 20 7/
Notary Public in and for Dubuque County, Iowa.
MARY K. WESTERMEYL j
Commission Number 154,: ,,
11 I'
Prepared by: James A. O'Brien, Esq. 300 Main Street Suite 330, Dubuque IA 52001 563 583 -4381
Return to: James A. O'Brien, Esq. 300 Main Street Suite 330, Dubuque IA 52001 563 583 -4381
RESOLUTION No. 246 -11
INTENT TO DISPOSE OF AN INTEREST IN CITY OF DUBUQUE REAL ESTATE
AND
FIXING THE DATE FOR A PUBLIC HEARING OF THE CITY COUNCIL OF THE CITY OF
DUBUQUE, IOWA ON THE PROPOSED DISPOSITION OF CITY OWNED PROPERTY IN
THE FORM OF A DECLARATION OF CONSERVATION COVENANTS AND
RESTRICTIONS AND PROVIDING FOR THE PUBLICATION OF NOTICE THEREOF
Whereas, the City of Dubuque, Iowa (City) is the owner of the real property described in
the attached Declaration of Conservation Covenants and Restrictions; and
Whereas, the City Council has determined that it would be in the best interests of the
City to restrict the use of the property described in the Declaration of Conservation
Covenants and Restrictions.
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
DUBUQUE, IOWA:
Section 1. The City of Dubuque intends to dispose of an interest in the foregoing -
described Property as described in the attached Declaration of Conservation Covenants
and Restrictions.
Section 2. The City Clerk is hereby authorized and directed to cause this Resolution
and a notice to be published as prescribed by Iowa Code Section 364.7 of a public hearing on
the City's intent to dispose of the foregoing- described Property, to be held on the 15 day of
August, 2011, at 6:30 o'clock p.m. in the City Council Chambers at the Historic Federal
Building, 350 W. 6 Street, Dubuque, Iowa.
Section 3. The Clerk is hereby directed to cause at least one publication to be
made of a notice of said meeting, in a newspaper, printed wholly in the English language,
published at least once weekly, and having general circulation in said City, said publication
to be not less than four days nor more than twenty days before the date of said meeting on
the issuance of said obligations.
Passed, approved and adopted this 1 st day of August, 2011.
Attest:
Kevin S. Firnst.' I, Acting City Cler
Roy D. BijoI, Mayor
F:\USERS\tsteckle \O' Brien\ Resolutions\ IntentToDispose_ DeclarationOfConservationCovenants _Airport_072111.doc
DECLARATION OF CONSERVATION COVENANTS AND RESTRICTIONS
This Declaration of Conservation Covenants and Restrictions ( "Declaration ") is hereby made by
the City of Dubuque ( "Declarant ") which owns and operates the Dubuque Regional Airport and the
property on which the airport operates. The Declarant is the owner of the parcel of real property
described in this Declaration and is located in Dubuque County, Iowa. Declarant comes now and, for
good and valuable consideration, declares conservation use restrictions on a portion of the property
hereinafter described. A legal description of the specific parcel of Property subject to this Declaration is
more particularly described in "Exhibit A" hereto attached and made a part hereof. The Declaration
hereinafter stated shall apply to Property described in "Exhibit A" and is incorporated by reference
herein for a description and for all other legal purposes.
PREMISES
WHEREAS, Declarant was issued a permit by the U.S. Army Corps of Engineers ( "USACE ") Action
Number CEMVR -OD -P- 2010 -310 pursuant to Section 404 of the Clean Water Act (33 U.S.C. 1344) under
the administrative regulatory authority of the USACE Rock Island District, Regulatory Branch, setting
forth authorization for certain dredge and /or discharge of fill materials in Waters of the United States;
and,
WHEREAS, said permit dated June 13, 2011 is attached hereto as "Exhibit B" and by this reference
is made part hereof; and
WHEREAS, dredge and /or discharge of fill material in jurisdictional Waters of the United States
including wetlands and streams pursuant to the Clean Water Act, Section 404, and /or Rivers and
Harbors Act of 1899, Section 10, requires compensatory mitigation and perpetual protection of the
mitigation property; and,
WHEREAS, a dated platted survey with seal affixed by an Iowa registered surveyor of the bearings
and distances and coordinate values of the boundary of the Property is referenced in Exhibit A. The
survey shows the planned stream and buffer areas within the Property. The property contains 7.23 acres
in one parcel of land. The survey is made a part of this Declaration and is incorporated by reference;
and,
WHEREAS, the Property is approved as a stream and upland buffer tract for use by the Dubuque
Regional Airport as compensatory mitigation in full for where stream impacts have been determined
unavoidable after consideration of avoidance and minimization pursuant to the Clean Water Act, Section
404. The Declarant agrees to certain restoration, establishment, and preservation actions on the
Property pursuant to the mitigation plan approved by the USACE.
NOW, THEREFORE, in consideration of the mutual benefits to be derived by the Declarant and
each and every subsequent owner and occupant of the real property, and as required mitigation for
dredge and /or discharge of fill material in Waters of the United States including wetlands and streams,
Declarant has promised to place certain restrictions on the Property exclusively for conservation
purposes, in order that it shall remain substantially in its restored condition, in perpetuity.
Conservation _Easement_Language_J u1y22- 2011_1.doc
1. Transfers, Amendments, & Extinguishment. Declarant does hereby declare that all of the Property
described in Exhibit A shall be held, transferred, sold, conveyed and occupied subject to the
terms and conditions of the covenants, easements and affirmative obligations all of which shall
run with the Property and will be binding on all persons, firms, associations, corporations or
governmental entities having or hereafter acquiring any right, title or interest in said Property,
or any part thereof, their heirs, executors, administrators, successors and assigns. The terms and
conditions of this Declaration of Covenants and Restrictions shall be both implicitly and explicitly
included in any subsequent transfer, conveyance, or encumbrance affecting all or any part of
the conservation property. It shall set forth the terms and conditions of this document either by
reference to this document and its recorded location or by attachment and incorporation by
reference. The covenant shall not be amended or extinguished except by written approval of the
USACE, or its successor in administration of the Clean Water Act or the Rivers and Harbors Act of
1899.
2. Purpose. It is the purpose of the restriction to assure the property remain protected in its restored
condition as a natural feature; and prevent any use of the property that will significantly impair
or interfere with the conservation value.
3. Prohibited Uses. Except as necessary (1) to carry out stream and /or buffer restoration, enhancement
and /or establishment in keeping with the mitigation plan of the permit as approved by USACE;
or, (2) to fence the property to keep out trespassers, or for protection or enhancement of the
property; or, (3) to carry out management and maintenance of the property as approved by the
USACE; the actions encompassed as prohibited by this covenant shall include, but shall not be
limited to the following:
A) Earthmoving, grading, removal of topsoil, cultivation, filling or changes in the topography of the
land in any manner;
B) Placement of any structures, utilities, driveways, or walkways;
C) Placement of refuse, wastes, sewage, dredged spoil, solid waste, incinerator residue, garbage,
sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat,
wrecked or discarded equipment, rock, sand, cellar dirt, industrial, municipal, or agricultural
waste on the Property;
D) Draining, ditching, diking, dredging, channelizing, pumping, impounding, excavating;
E) Use of off -road vehicles and used of motorized vehicles except on existing roadways is
prohibited;
F) Grazing or use by domesticated animals;
G) Display of billboards, signs, or advertisements on or over the Property, except for the posting of
no trespassing signs, temporary signs indicating the property is for sale, signs identifying the
conservation values of the property and /or signs identifying the owner of the property.
Conservation_Easement_La nguage_July22- 2011_1.doc
4. Easements. The protected property is free and clear of any and all liens, loans, claims, easements and
encumbrances, except as otherwise identified in this document and its exhibits. Should an
easement or legal right of use of the Property, not identified in this document, and not meeting
the criteria of this restrictive covenant, be exercised in such a manner that it conflicts with the
prohibited uses of the Property set out in this restrictive covenant, then the owners of the
Property, whether the Declarant of this covenant or any heirs, executors, administrators,
successors or assigns, shall be responsible for providing alternative conservation mitigation in
such amounts and of such service and function as the USACE or any enforcer of this covenant
shall determine in accordance with the terms of the permit /banking instrument and with
Section 404 of the Clean Water Act or Section 10 of the Rivers and Harbors Act of 1899 and their
implementing regulations.
5. Affirmative Duties. Declarant and its successors shall be responsible for management of the property
for its conservation duties. Adequate financial resources shall be allocated by owner of the
mitigation property for protection of the property. Declarant shall take immediate action to cure
violations of this restrictive covenant.
6. Exclusive Possession. Declarant, its (personal representatives, heirs, executors, administrators)
(successors and assigns), reserve all other rights accruing from its ownership of the Property
including but not limited to the exclusive possession of the property, the right to transfer or
assign their interest in the same, the right to take action necessary to prevent erosion on the
Property, to protect the property from losing its conservation functions and services, or to
protect public health or safety; and the right to use the property in any manner not prohibited
by this Declaration and which would not defeat or diminish the conservation purpose of this
Declaration.
7. Right of Ingress and Egress. The USACE, and /or their respective agents, their assigned agents and
contractors, shall at reasonable times and upon notice to the owner, have an access easement
for the right of ingress and egress to inspect the property in order to monitor and to ascertain
whether there has been compliance with this Declaration.
8. Enforcement. The USACE or their successor, as third party beneficiaries hereof, are hereby specifically
granted the authority to enforce the provisions of this Declaration pursuant to the Clean Water
Act Section 404 and the Rivers & Harbors Act of 1899, Section 10, and implementing regulations.
Appropriate remedy for violation of this section is contemplated to include injunctive relief to
restrain such violation. However, no violation of this covenant shall result in a forfeiture or
reversion of title. It shall not be a defense, for purposes of this covenant, that the conservation
functions and services of the property were impacted without the owner's knowledge or
consent. The property was offered and accepted as mitigation and is therefore subject to the
contractual terms of the permitting instrument and this Declaration. Loss of conservation
functions and services shall not be required to be replaced if damage is due to "acts of God" as is
generally referenced, so long as there has been completion of the mitigation requirements of
the permitting instrument as to restoration, enhancement, establishment and monitoring. In
any enforcement action, an enforcing agency shall be entitled to a complete restoration for any
violation, as well as an award of agency attorneys' fees.
9. Written Notice of Legal Action against Property. Pursuant to the Clean Water Act the District
Engineer, c/o Office of Counsel, United States Department of the Army, Corps of Engineers, Rock
Conservation_ Easement _Language_July22- 2011_1.doc
Island District, Rock Island, Illinois, shall be provided with a 60 -day advance written notice of any
legal action concerning this covenant, or of any action to extinguish, void or modify this
covenant, in whole or in part. The restrictive covenant is intended to survive foreclosure, tax
sales, bankruptcy proceedings, zoning changes, adverse possession, abandonment,
condemnation and similar doctrines or judgments affecting the property. A copy of this
recorded document shall accompany said notice.
10. Eminent Domain. It is the intent of this conservation covenant that the aquatic resources it protects
shall not be altered or impacted by eminent domain. However, if any or part of the protected
property is taken by exercise of the power of eminent domain, so as to terminate this covenant,
in whole or in part, USACE shall be given 60 -day notification for the purpose of providing the
condemnor and the court authorizing the action, with the value and cost of the consequential
damages or the costs of replacement in kind of the ecological units and the conservation
functions, services and values of Clean Water Act jurisdictional or non - jurisdictional mitigation
on the property. Subject to approval by the USACE, options for replacement of consequential
environmental impacts due to eminent domain are governed by the CWA Section 404 or the
Rivers & Harbors Act of 1899 Section 10 and their implementing regulations. Options for
payment of consequential damages to waters of the United States impacted by the eminent
domain taking may include: (1) Re- recordation of the USACE model Declaration of Conservation
Covenants and Restrictions on the property signed by the new owner thereby preserving the
existing waters of the U.S and their buffers on the site without impact; (2) payment of funds
sufficient for the acquisition and protection of alternative real property providing equivalent
conservation functions, services and values of wetlands, streams, creeks, shorelines, other
waters of the U.S. and their buffers; or (3) if available, the option to fund the purchase of
conservation mitigation credits from an authorized wetland /stream mitigation bank sufficient to
replace the conservation mitigation functions, services and values of the wetlands, streams,
creeks, shorelines, and other waters of the U.S. and their buffers; (4) payment of funds to an in-
lieu fee mitigation wetlands /streams trust account approved by the USACE in an amount
sufficient to purchase and protect alternative real property in the same hydrologic watershed
that would provide the equivalent mitigation conservation functions, services and values, as the
property impacted by eminent domain; or (5) Any other alternative consequential damages
aquatic conservation mitigation as may be approved by USACE in compliance with the
regulations and requirements. Failure for the proponent to provide consequential damages
through alternative mitigation due to impact to aquatic resources protected under the CWA
associated with eminent domain shall be referred to the U.S. Justice Department for action.
11. Recordation of Instrument. Declarant shall execute and record this instrument in timely fashion in
the official records of the Office of the Clerk of the County in which this Property lies and shall
provide the USACE with a copy of the recorded covenant and exhibits. Declarant may re- record
this instrument at any time as may be required to preserve its rights.
12. Severability Provision. Should any separable part of these Restrictive Covenants be held contrary to
law, the remainder shall continue in full force and effect.
Conservation_ Easement _Language_July22- 2011_1.doc
IN THE PRESENCE OF:
Printed Name:
State of Iowa
County of Dubuque
On this day of
ss.:
By:
Printed Name:
Title:
, Declarant
in the year , before me personally
appeared personally known to me or proved to me on the basis of
satisfactory evidence to be the individual whose name is subscribed in the within
instrument and acknowledged to me that he executed the same in his capacity,
and that by his signature on the instrument, the individual, or the person upon
behalf of which the individual acted, executed the instrument.
Notary Public
Conservati on_Easem a nt_La nguage_J u ly22- 2011_1. d oc
NORTH
0 200 ADD
EXISTING
TAXIWAY C
PROPOSED
WEST APRON
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PROPOSED
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PROPOSED
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PARALLEL
TAXIWAY F i
BER
REVISIONS
DATE
FUTURE
RENTAL CAR
PARKING LOT
PROPOSED
TERMINAL
APRON
PROPOSED
SHORT TERM —
PARKING LOT
e
PROPOSED
UNDERGROUND
FIRE STORAGE
TANK
EXISTING
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PROPOSED
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LONG TERM
PARKING LOT
EXISTING
RUNWAY
18/35
EXISTING ‘s\
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PROPOSED
'— RUNWAY 31
SERVICE ROAD
EXISTING
LYTLE CREEK
EXISTING FARM
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MITIGATION AREA DESCRIPTION
A TRACT OF LAND LOCATED IN THE SOUTHWEST QUARTER (SW 1/4) OF THE
SOUTHWEST QUARTER (SW 1/4) OF SECTION 26, AND IN THE NORTHWEST QUARTER
(NW 1/4) OF THE NORTHWEST QUARTER (NW 1/4) OF SECTION 35, TOWNSHIP 86
NORTH, RANGE 2 EAST OF THE 5'^ PRINCIPAL MERIDIAN IN DUBUQUE COUNTY, IOWA,
MORE COMPLETELY DESCRIBED AS FOLLOWS:
PROPOSED
ENTRANCE ROAD
Commencing at the Northwest (NM Corner of the of said Section 35; thence N 88 °05'11" E
495.17 feet along the North Line of said Section 35 to the Point of Beginning; thence
N 46 °57'09" W 437.97 feet; thence N 11°09'30"W 189.98 feet; thence N 83°4508" E 213.55
feet; thence S 46 °57'09" E 889.98 feet; thence S 35 °41'12" E 110.96 feet, thence S 22 °08'04" W
309.46 feet; thence N 62 °28'28" W 124.92 feet, N 26 °51'27" W 151.55 feet, thence 110.13 feet
along a 314.00 foot radius curve concave Southwesterly, having a 109.56 foot chord bearing
N 36 °5416" W, and tangent to the preceding course, thence N 46 °57'09" W 285.91 feet to the
Point of Beginning Said tract contains 7.23 acres.
_ EXISTING
MERLI
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PROPOSED
U5 61
INTERSECTION
DESIGN BY
DRAWN
CHECMED BY
APPROVED BP
DATE /,
GE No
SHEET OF n', SHEETS
REPLY TO
ATTENTION OF
DEPARTMENT OF THE ARMY
CORPS OF ENGINEERS, ROCK ISLAND DISTRICT
PO BOX 2004 CLOCK TOWER BUILDING
ROCK ISLAND, ILLINOIS 61204 -2004
June 13, 2011
Operations Division
SUBJECT: CEMVR -OD -P- 2010 -310
Mr. Todd Dalsing
Dubuque Regional Airport
11000 Airport Road
Dubuque, Iowa 52003 -9555
Dear Mr. Dalsing:
Our office reviewed all of your available information concerning the proposed Dubuque
Regional Airport Improvement project, consisting of a new terminal building and apron, new
taxiways, parking lots, utility improvements, and new entrance road, which will impact a
tributaries to Lytle Creek and Lytle Creek in Sections 26, 27, 34, 35, Township 88 North, Range
2 East, Dubuque County, Iowa. We have determined the proposal to construct approximately
1380 feet of new stream channel (including natural channel meanders) and plant a 35 feet native
plant buffer along both sides of the new stream, and the construction of 12 rock riffle structures
within the stream corridor, and the filing of a deed restriction with Dubuque County will
adequately offset the permanent impacts to 1,635 feet of ephemeral stream, and additional stream
impacts of 440 feet from the construction of two culverts along Lytle Creek and 325 feet of
stream impact from the realigmnent of a tributary to Lytle Creek, caused by your project.
Your project is covered under Nationwide Permit No. 39, as published in the enclosed Fact
Sheet No. 6 (IA), provided you meet the permit conditions for the nationwide permits which are
also included in the Fact Sheet. Due to federal funds being provided for this project by the
Federal Aviation Administration, this permit verification is contingent upon the FAA completion
of environmental clearances for Cultural Resources, T & E species and other NEPA issues
utilizing FAA procedures to ensure compliance with NWP General Conditions 16, 17, and 18.
The Corps waived the 300 -foot length limit for this project since the Iowa Department of
Natural Resources agreed to issue Section 401 Individual Water Quality Certification for this
nationwide permit with special conditions. A copy of the certification has been attached to this
permit letter. The conditions of the Section 401 IWQC are considered special conditions of this
permit. The decision regarding this action is based on information found in the administrative
record, which documents the District's decision - making process, the basis for the decision, and
the final decision.
Special Conditions:
1. Prior to construction, the permittee is responsible for securing and for compliance with
such other permits or approvals as may be required by the IDNR, federal, state, or local
governmental agencies for the project activities described.
2. You are encouraged to conduct your construction activities during a period of low flow.
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3. Clearing of vegetation, including trees located in or immediately adjacent to waters of the
state, shall be limited to that which is absolutely necessary for construction of the project.
All vegetative clearing material shall be removed to an upland, non - wetland disposal site.
4. All construction debris shall be disposed of on land in such a manner that it cannot enter
a waterway or wetland. Construction equipment, activities, and materials shall be kept
out of the water to the maximum extent possible. Equipment for handling and conveying
materials during construction shall be operated to prevent dumping or spilling the
material into waterbodies, streams or wetlands except as approved herein. Care shall be
taken to prevent any petroleum products, chemicals, or other deleterious materials from
entering waterbodies, streams or wetlands.
5. Erosion control features (i.e., silt fences, silt ditches, silt dikes, silt basins, etc.) must be
installed to provide continuous erosion control throughout the construction and post
construction period as well as the revegetation of all disturbed areas upon project
completion. Where siltation control features have been reduced in capacity by 50% or
more, the features shall be restored to their original condition with a minimum of delay.
6. All disturbed areas not covered with riprap shall be seeded with native grasses, excluding
Reed Canarygrass (Phalaris arundinacea) or any aggressive or invasive species, during
an optimal seeding period. If excavation and construction are completed outside an
optimal seeding period, temporary erosion control protection shall be implemented
immediately upon completion of excavation and construction and shall be maintained
until such time as seeding can be completed during an optimal period. The applicant
shall monitor revegetated areas continuously to assure success of revegetation. If rye is
initially planted to stabilize the soil then native warm season grasses shall be planted
during the following growing season.
7. Riprap shall consist of clean native fieldstone, clean quarry run rock or clean broken
concrete. If broken concrete is used all reinforcement material shall be completely
removed from it; if removal is not possible, said reinforcement material shall be cut flush
with the flat surface of the concrete. It shall be the applicant's responsibility to maintain
the riprap such that any reinforcement material that becomes exposed in the future is
removed. The concrete pieces shall be appropriately graded and no piece shall be larger
than 3 feet across the longest flat surface. No asphalt or petroleum based material shall
be used as or included in riprap material.
MITIGATION CONDITIONS
1. The mitigation plan involves realignment of the stream to the east and will connect with
Lytle Creek about 1,000 feet upstream from the existing confluence. The realigned
channel will be 1,380 feet (the shorter distance is a result of the angle of Lytle Creek
placing the upstream portion closer). The relocated channel will incorporate natural
channel meanders, 12 rock riffle structures, and 35 foot native grass buffer on both sides
of the new channel. A deed restriction will be filed with Dubuque County for the stream
mitigation site.
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2. Mitigation shall be completed within one year from the date that the first fill is placed in
any water of the United States. An as -built plan shall be submitted to the IDNR and to
the Corps upon completion. The relocated stream, riffles and buffer shall be monitored
annually and managed to confirm whether it has successfully replaced the function and
values of the impacted stream after a five -year period. If, at the end of the fifth year, the
attached performance standards are not achieved, annual maintenance is not being
performed, or if evidence exists that the replacement stream is becoming less effective,
then additional monitoring and /or corrective actions shall be taken to achieve the
compensation ratio as originally approved. Annual monitoring reports shall be submitted
to the IDNR and to the Corps' office by December 31 for at least five years following
planting.
3. Future development or land -use conversion of the stream mitigation area, or any part
thereof, for any purpose which may interfere with or be detrimental to stream functions,
is prohibited without prior written approval from the IDNR and the Corps. Prior to
commencement of project construction the applicant shall, with the knowledge and
approval of the property owner of record, file a copy of this certification in its entirety
with the County Recorder for entry into the property records, thereby notifying all parties
of this restriction. Further, prior to commencement of construction, said applicant shall
provide the IDNR and the Corps with a "Filed" stamped copy of this certification. If the
certification cannot be filed in the manner indicated, the applicant shall provide the Corps
and IDNR with documentation of agreements, contracts, etc., demonstrating to the
IDNR's satisfaction that the stream mitigation site will be protected from future activities
that may interfere with or be detrimental to stream functions and values to a level of
assurance equivalent to that provided by the aforementioned filing process.
4. The annual site surveys of the mitigation site shall be documented in an annual
monitoring report. Annual monitoring reports shall be submitted to the IDNR and to the
Corps by December 31 for at least five years following planting. The results of the
annual monitoring will be documented on the Rock Island District Standard Mitigation
Reporting Form available at: http: / /www2.mvr.usace.army.mil /Regulatory - then click
on "Wetland Mitigation ", then click on "Wetland Mitigation Monitoring Reports ". All
annual monitoring reports shall be readable and formatted for 8,5" x 11" paper. The
Dubuque Regional Airport shall assume all liability for accomplishing any needed
corrective work.
5. Monitoring of all of the rock checks dams should take place after every significant rain
event, to determine if any maintenance needs to be done to the dams. All structures
should be designed and constructed to withstand the streams strongest flows and still be
fish passable.
6. You are required to construct the stream mitigation and buffer area prior to or
concurrently with the construction of your project. Drawings /photographs /location map
of the constructed stream mitigation and buffer area will be submitted to the District
Engineer (DE) within 30 days of completing construction and planting of the stream
mitigation and buffer area. The drawings must include details of any structures built at
the stream mitigation and buffer area, a list of species planted, the location of all
plantings, cross- sectional drawings of any fill or excavation and the boundaries of the
stream mitigation and buffer area;
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7. The reports must include photos taken at established photo points, a list of dominant plant
species, the average percent cover for each dominant species, the success rate of
plantings, an assessment of any structures (i.e. rock check dams, weirs, dikes, etc.), and
details of any corrective actions taken or needed;
8. You are required to submit stream mitigation and buffer area monitoring reports of both
the stream mitigation area and buffer area on an annual basis for a minimum period of
five years. Monitoring reports will be submitted to this office by December 31 of each
year;
9. Monitoring must begin the first full growing season after the construction and planting of
the stream mitigation and buffer area and must occur during the growing season; annual
monitoring should be performed during the growing season.
10. Monitoring Report Outline
a. Project Overview (1 page)
1. Corps Permit Number;
2. Name and contact information of permittee and consultant;
3. Name of party responsible for conducting the monitoring and the date(s) the
inspection was conducted;
4. a summary paragraph defining the purpose of the approved project, acreage and type
of aquatic resources impacted, and mitigation acreage and type of aquatic resources
authorized to compensate for the aquatic impacts;
5. Written description on the location and any identifiable landmarks of the
compensatory mitigation project including information to locate the site perimeter(s);
6. Directions to the mitigation site;
7. Dates compensatory mitigation commenced and /or was completed;
8. A brief statement on whether the performance standards are being met;
9. Dates of any recent corrective or maintenance activities conducted since the previous
report submission;
10. Specific recommendations for any additional corrective or remedial actions.
b. Requirements (1 page)
List the monitoring requirements and performance standards, as specified in the
approved mitigation plan and special conditions of the permit, and evaluate whether the
compensatory mitigation project site is successfully achieving the approved performance
standards or trending towards success. A table is one option for comparing the
performance standards to the conditions and status of the developing mitigation site.
1
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c. Summary Data (maximum of 4 pages)
Summary data must be provided to substantiate the success and/or potential
challenges associated with the compensatory mitigation project. Photo documentation
may be provided to support the findings and recommendations referenced in the
monitoring report and to assist the project manager (PM) in assessing whether the
compensatory mitigation project is successful for the monitoring period. Submitted
photos must fit on a standard 8 %z x 11" piece of paper, dated, and clearly labeled with the
direction from which the photo was taken. The photo sites must also be identified on the
appropriate maps.
d Maps (maximum of 3 pages)
Maps must be provided to show the location of the compensatory mitigation site
relative to other landscape features, habitat types, locations of photographic reference
points, transects, sampling data points, and /or other features pertinent to the mitigation
plan. In addition, the submitted maps must clearly delineate the mitigation site
perimeter(s), which will assist the PM with locating the mitigation area(s) during
subsequent site inspections. Each map or diagram must fit on a standard 8 '/2 x 11" piece
of paper and include a legend and the location of any photos submitted for review.
e. Conclusions (1 page)
A general statement must be included describing the conditions of the compensatory
mitigation project. If performance standards are not being met, a brief explanation of the
difficulties and potential remedial actions proposed by the permittee, including a
timetable, must be provided. The District Engineer will ultimately determine if the
mitigation site is successful for a given monitoring period.
11. Nationwide Permit General Condition No. 12 of the attached Federal Register states
"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.
12. Any unaffected portions of the stream channel, ponds, and wetlands must be protected
during grading and construction activities. The jurisdictional wetlands and stream
channels may not be graded or used as staging areas, temporary crossings, temporary fill
sites, etc. without prior authorization from the Corps of Engineers.
13. To increase the diversity of native herbaceous plants at the mitigation and buffer site, a
minimum of 10 different native species shall be seeded or planted into the buffer site at a
rate of 20 lbs. of pure live seed per acre. Native plant plugs may also be used in
conjunction or in substitution of seed.
14. Non - native plants and aggressive native cultivars such as switch grass shall not be used in
the seed mixes, and invasive species such as reed canary grass, purple loosestrife, brome
grass, crown vetch, bird's -foot trefoil, and white and yellow sweet clovers will be
controlled;
15. Vegetation shall be monitored with a goal of 85% survival of herbaceous vegetation
achieved at the end of the 5 -year monitoring period.
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16. Any land use conversion within the stream mitigation and buffer area which may
interfere with or be detrimental to the functions and values of these aquatic resources, is
prohibited;
17. The perrnittee will perform any corrective measures deemed necessary by the DE to
insure the success of the stream mitigation and buffer area
18. The stream mitigation and buffer areas shall not be farmed or grazed during the five -year
monitoring period. If adjacent upland sites are used as pasture, the stream mitigation and
buffer areas must be fenced to prevent livestock access.
19. The deed restriction, which specifically addresses the stream area and buffers, shall serve
as the formal site protection instrument for this project. Any future grading, excavation,
etc. within the mitigation/buffer areas will need to be approved by the USACE.
Mitigation signage will be utilized to demarcate the protected area and provide
educational opportunities.
If you discover any previously unknown historic or archaeological remains while
accomplishing the activity authorized by this permit, you must immediately stop any land
disturbance activities and notify this office of what you have found. We will initiate the Federal
and state coordination required to determine if the remains warrant a recovery effort or if the site
is eligible for listing in the National Register of Historic Places.
This verification is valid for two years from the date of this letter, unless the nationwide
permit is modified, reissued or revoked. It is your responsibility to remain informed of changes
to the nationwide permit program. We will issue a public notice announcing any changes if and
when they occur. Furthermore, if you commence or are under contract to commence this activity
before the date the nationwide permit is modified or revoked, you will have twelve months from
this date to complete your activity under the present terms and conditions of this nationwide
permit.
Although an individual Department of the Army permit will not be required for this project,
this does not eliminate the requirement that you must still acquire other applicable federal, state,
and local permits. If you have not already coordinated your project with the IADNR, please
contact Mr. Kelly Stone in writing or telephone 515/281 -8693 to determine if a floodplain
development permit is required for your project. You should also contact Kelly Poole at the
IADNR Sovereign Lands Division in writing or telephone 515/281 -8967 to determine if a
sovereign lands construction permit is required or if this project may adversely impact Iowa
threatened or endangered species or their habitat.
You are required to complete and return the enclosed "Completed Work Certification" form
upon completion of your project in accordance with General Condition No. 26 of the nationwide
permits.
Our office has completed a Preliminary Jurisdictional Determination concerning your
project area. A copy of our Preliminary Jurisdictional Determination is enclosed. A
Preliminary Jurisdictional Determination is not appealable.
The Rock Island District Regulatory Branch is committed to providing quality and timely
service to our customers. In an effort to improve customer service, please take a moment to
complete the attached postcard and return it or go to our Customer Service Survey found on our
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web site at http: // pert. nwp.usace.army.mil /survey.html. (Be sure to select "Rock Island District"
under the area entitled: Which Corps office did you deal with ?)
Should you have any questions, please contact our Regulatory Branch by letter, or telephone
Mr. Jim Kelley at 309/794 -5373.
Sincerely,
ouna M. Jones, P.E,
Chief, Enforcement Section
Regulatory Branch
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 are still in
existence at the time the property is transferred, the terms and 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
Enclosures
Copy Furnished: (w /o enclosures)
Ms. Christine Schwake (3)
Iowa Department of Natural Resources
Water Quality Section
Wallace State Office Building
Des Moines, Iowa 50319 -0034
Mr. Matt Powell, P.E.
Crawford, Murphy & Tilly, Inc.
Gateway Tower
One Memorial Drive, Suite 500
St. Louis, Missouri 63102
Mr. Randy Vogel
Crawford, Murphy & Tilly, Inc.
2750 West Washington Street
Springfield, Illinois 62702
Permit Number:
Name of Permittee:
Date of Issuance:
COMPLETED WORK CERTIFICATION
CEMVR -OD -P- 2010 -310
Dubuque Regional Airport
June 13, 2011
Upon completion of the activity authorized by this permit and any mitigation required by the
permit, sign this certification and return it to the following address:
U.S. Army Engineer District,
Rock Island
ATTN: Regulatory Branch
Clock Tower Building
Post Office Box 2004
Rock Island, Illinois 61204 -2004
Please note that your permitted activity is subject to a compliance inspection by a U.S. Army
Corps of Engineers representative. If you fail to comply with this permit, you are subject to
permit suspension, modification, or revocation.
I hereby certify that the work authorized by the above reference permit has been completed in
accordance with the terms and conditions of the said permit, and required mitigation was
completed in accordance with the permit conditions.
Signature of Permittee Date
1t *11
US Army Corps
or Engineers
• Rock island District
FACT SHEET NO. 6(IA)
NATIONWIDE PERMITS IN IOWA
EFFECTIVE DATE: MARCH 19, 2007
MODIFIED DECEMBER 10, 2007 •
On March 12, 2007, the Corps of Engineers published in the Federal Register (72 FR 11092),
the Final Rule for the Nationwide Permits Program under the Rivers and Harbors-Act of 1899; the
Clean Water Act; and the Marine Protection, Research and Sanctuaries Act. These rules became
effective on March.19, 2007.
The Nationwide Permit Program is an integral part of the Corps' Regulatory Program.. The
Nationwide Permits are a form of general permits issued by the Chief of Engineers and are
intended to apply throughout the entire United States and.its territories. A listing of the
nationwide permits and general conditions is included herein. We encourage prospective permit
applicants to consider-the advantages of nationwide permit authorization during the preliminary
design of their projects. Assistance and further information regarding all aspects of the Corps
of Engineers Regulatory Program may be obtained by contacting the appropriate Corps of Engineers
District at the address and /or telephone - number listed below.
To ensure projects authorized by a Nationwide Permit will result in minimal adverse effects
to the aquatic environment, :the following Regional Conditions were developed for - projects
proposed within the state of Iowa:
1. Side slopes of a newly constructed channel will be no steeper than 2:1 and planted to
permanent, perennial, native vegetation if not armored.
2. Nationwide permits with mitigation may require recording of the nationwide permit and
pertinent drawings with the Registra -r of Deeds or other appropriate official charged with the
responsibility for maintaining records of title to, or interest in, real property and may also
require the permittee to provide proof of that recording to the Corps.
3. Mitigation shall be scheduled for construction prior to, or concurrent with, the discharge of
dredged or fill material into waters of the United States.
4. For newly - constructed channels through areas that are unvegetated, native grass filter .
strips, or a riparian buffer with native trees or shrubs a minimum of 35 feet wide from the top
of the bank must be planted along both sides of the new channel.- A survival rate of 80 percent
of desirable species shall be achieved within 3 years of establishment of the buffer strip.
5. For single family residences authorized under Nationwide Permit No. 29, the permanent loss of
waters of the United States (including jurisdictional wetlands) must not- exceed 1/4 acre.
6. For Nationwide Permit 46, the discharge of dredged or fill material into ditches that would
sever the jurisdiction of an upstream water of the United States from a downstream water of the
United States is not allowed.
Permits, issued by the Corps of Engineers, under the authority of Section 404 of the Clean
Water Act may not be issued until the state (where the discharge will occur) certifies, under
Section 401 of the Act, that the discharge will comply with the water quality standards of the
State.- The Iowa Department of Natural Resources issued Section 401 Water Quality•Certification
with the following conditions for all nationwide permits (effective May 30, 2007):
1. For projects that impact fens, bogs, seeps, or sedge meadows, an individual Section 401 Water
Quality Certification will be required.
2. For nationwide permits when the Corps' District Engineer has issued a waiver to allow the
permittee to exceed the limits of the nationwide permit, an individual Section 401 Water Quality
Certification will be required.
For projects within the Meskwaki Nation of Iowa, the U.S. Environmental Protection Agency
(USEPA) has denied Section 401 Water Quality Certification (WQC) for certainin activities. For
all other projects authorized bye Nationwide Permit, the USEPA has issued Section 401 WQC with
conditions. The full text of the decision is available on our website under the Nationwide
Permit section at: http: / /www2.mvr.usace.army.mil /Regulatory /,.
Nationwide Permits 3, 7, 8, 12, 11, 14, 17, 18, 21, 22, 27, 29, 31, 33, 34, 36, 37, 38, 39,
40, 41, 42, 43, 44, 45, 46, 48, 49, and 50 require that the permittee notify the District
Engineer at least 45 days prior t� performing the discharge under certain circumstances.
Specific instructions for these notifications are contained in General Condition 27, a copy of
which is included.
COMMENTS
The nationwide permits provide a simplified, expeditious means of project authorization under
the various authorities of the Corps of Engineers. We encourage prospective permit applicants to
consider the advantages of nationwide permit authorization during the preliminary design of their
projects.. Assistance and further information regarding all aspects of the Corps of Engineers
Regulatory Program may be obtained by contacting the appropriate Corps of Engineers District (The
Omaha District has regulatory jurisdiction'over the - Missouri River, its contiguous wetlands, and
Carter Lake. The Rock Island District'regulates the remainder of the projects occurring in
Iowa.):
US Army Engineer District, Rock Island
.Clock Tower Building .
Post•Office Box 2004
Rock Island,- Illinois 6±204 -2004
Telephone: (309) 794-5370
US Army Engineer District, Omaha
Wehrspann Regulatory Office
8901 South 154th Street
Omaha, Nebraska 68138 -3635
Telephone: (402) 896 -0896
Nationwide Permits and Conditions
The following is a list of the nationwide permits, authorized by the Chief of Engineers, and
published in the Federal Register (72 FR 11092) and (7.2 FR 26082). Permittees wishing to conduct
activities under the nationwide permits must - comply with the conditions published in Section C.
The Nationwide Permit General Conditions found in Section C have been reprinted at the end of
this Fact Sheet. The parenthetical references (Section'10, Section 404) following each
nationwide permit indicate the specific authorities under which that permit is issued.
B. Nationwide permits
1. Aids to Navigation. The placement of aids to navigation and regulatory markers which
are approved by and installed in accordance' with the requirements of the U.S. Coast Guard (see
33 CFR, dhapter I, subchapter C, part 66). (Section 10)
2. Structures in Artificial Canals. Structures constructed in artificial canals within
principally residential developments where the connection of-the canal to a navigable water of
the United States has been previously authorized (see 33 CFR 322.5(g)). (Section 10)
3. Maintenance. (a) The repair, rehabilitation, or replacement of any previously
_authorized, currently serviceable, structure, or fill, or of any currently serviceable structure
or fill authorized by 33 CFR 330.3, provided that the'structure or fill is not to be put:to uses
differing from those uses specified or contemplated for it in the original permit or the.most
recently authorized modification. Minor deviations in the structure's configuration or filled
area, including those due to changes in materials, construction techniques, or current
construction codes or safety standards that are necessary to make the repair, rehabilitation, or
replacement are authorized. This NWP authorizes the repair, rehabilitation, or replacement of
those structures or fills destroyed or damaged by storms, floods, fire or other discrete events,
provided the repair, rehabilitation, or replacement is commenced, or is under contract to
commence, within two years of the date of their destruction or damage. In cases of catastrophic
events, such as hurricanes or tornadoes, this two -year limit may be waived by the district
engineer, provided the permittee can demonstrate funding, contract, or,other similar delays.
(b) This NWP also authorizes the removal of accumulated sediments and debris in the
vicinity of and within existing structures (e.g., bridges, culverted road crossings, water intake
structures, etc.) and the placement of new or additional riprap to protect the structure. The
removal of sediment i -s limited to the minimum necessary to restore the waterway in the immediate .
vicinity of the structure to the approximate dimensions that existed when the structure-was
built, but cannot extend further than 200 feet in any direction from the structure. This 200 foot
limit does not apply to maintenance dredging to remove accumulated sediments blocking -or
restricting outfall and intake structures or to maintenance dredging to remove accumulated
sediments from canals associated with outfall and intake structures. All dredged or excavated
materials must be deposited and•retained in an upland area unless otherwise specifically approved
by the district engineer under separate authorization. The placement of riprap must be the
minimum necessary to protect the structure or to ensure the safety of the structure. Any bank
stabilization measures not directly associated with the structure will require a separate
•authorization from the district engineer.
(c) This NWP also authorizes temporary structures, fills, and work necessary to conduct the
maintenance activity. Appropriate measures must be taken to maintain normal downstream flows and
minimize flooding to the maximum extent practicable, when temporary structures, work, and
discharges, including cofferdams, are necessary for construction activities, access fills, or
dewatering of construction sites. Temporary fills must consist of materials, and be placed in a
manner, that will not be eroded by expected high flows. Temporary fills must he removed in their
entirety and the affected areas returned to pre- construction elevations. The areas affected by
temporary fills must be revegetated, as appropriate.
(d) This NWP does not authorize maintenance dredging for the primary purpose of navigation
or beach restoration. This NWP does not authorize new stream.channelization or stream relocation
projects.
Notification: For activities authorized by paragraph (b) of this NWP,.the petmittee must
submit a pre - construction notification to the district engineer prior to commencing the activity
(see general condition 27). Where maintenance dredging is proposed, the pre - construction
notification must include information regarding the original design capacities and configurations
of the outfall's, intakes, small impoundments, and canals. (Sections 10 and 404)
2
Note: This NWP authorizes the repair, rehabilitation, or replacement of any previously
authorized structure or fill that does not qualify for the Clean Water Act Section 404(f)
exemption for maintenance.
4. Fish and Wildlife Harvesting, Enhancement, and Attraction Devices and Activities.
Fish and wildlife harvesting devices and activities such as pound nets, crab traps, crab
dredging, eel pots, lobster traps, duck blinds, and clam and oyster digging, and small fish
attraction devices. such as open water fish concentrators (sea kites, etc.). This NWP does not
authorize artificial reefs.or impoundments and semi - .impoundments of waters of the United States
for the culture or holding of motile species such as lobster, or the use of covered oyster trays
or clam racks. (Sections.10 and 404)
5. Scientific Measurement Devices. Devices, whose purpose is to measure and record
scientific data,, such as staff gages,.tide gages, water recording devices, water quality testing
and improvement devices, and.similaz structures. Small weirs and flumes constructed primarily to
record water quantity and velocity are also authorized provided the discharge is limited to 25
cubic yards. (Sections 10 and 404)
6. Survey Activities. Survey activities, such as core sampling, seismic exploratory
operations, plugging of seismic shot holes and other exploratory -type bore holes, exploratory
trenching, soil surveys, sampling, and historic resources surveys. For the purposes of this NWP,
the term "exploratory trenching" means mechanical land clearing of the upper soil profile to
expose bedrock or substrate, for the purpose of mapping or sampling•the exposed material. The
area in which the exploratory trench is dug must be restored to.its•pre- construction elevation
upon completion of the work. In wetlands, the top 6 to 12 inches of the trench should normally
be backfilled with topsoil from the trench. This NWP authorizes the construction of temporary
pads, provided the discharge does not exceed 25 cubic yards. Discharges and structures associated
with the recovery.of historic resources are not authorized by this NWP. Drilling and the
discharge of excavated material from test wells for oil and gas exploration are not authorized
by this NWP; the plugging of such wells is authorized. Fill placed.for roads and other similar
activities is not authorized by this NWP. The NWP'does not authorize any permanent structures.
The discharge of drilling mud and cuttings may require a permit under Section 402 of the Clean
Water Act. (Sections 10 and 404) .
7. Outfall Structures and Associated Intake Structures. Activities related to the '
construction or modification of outfall structures and associated intake structures, where the
effluent from the outfall is authorized, conditionally authorized, or specifically exempted by,
or that are otherwise in compliance with regulations issued.under the National Pollutant
Discharge Elimination System Program (Section 402 of the Clean Water Act). The construction of
intake structures is not authorized by this NWP, unless they are directly associated with an
authorized outfall structure. .
Notification: The.permittee must submit a pre- construction notification to the district
engineer prior to commencing the activity. (See general condition 27.) (Sections 10 and 404)
8. Oil and Gas Structures on .the Outer Continental Shelf. Structures for the exploration,
production, and transportation of oil, gas, and minerals on the outer continental' shelf within
areas leased for such purposes by the Department of the Interior, Minerals Management Service.
Such structures shall not be placed within the .limits of any designated shipping safety fairway .
or traffic separation scheme, except temporary anchors that comply with the fairway regulations
in 33 CFR 322.5(1). The district engineer will review such proposals to ensure compliance with
the provisions of the fairway regulations in 33 CFR 322.5(1). Any Corps review under this NWP
will be limited to the effects on navigation and national security in accordance with 33 CFR
322.5(f).-Such structures will not be placed in established danger zones or restricted areas as
designated in 33 CFR part 334, nor will such structures be permitted in EPA or Corps designated
dredged material disposal areas.
Notification: The permittee must submit a pre- construction notification to the district
engineer prior to commencing the activity. (See general condition 27.) (Section 10)
• 9. Structures in Fleeting and Anchorage Areas. Structures, buoys, floats and other devices
placed within anchorage or fleeting areas to facilitate moorage of vessels were the U.S. Coast
Guard has established such areas for that purpose. (Section 10)
10. Mooring Buoys. Non - commercial, single -boat, mooring buoys. '(Section 10)
11. Temporary Recreational Structures. Temporary buoys, markers, small floating docks, and
similar structures placed for recreational use during specific events such as water skiing •
competitions and boat races or seasonal use, provided that such structures are removed within 30
days after use has been discontinued. At•Corps of Engineers reservoirs, the reservoir manager
must approve each buoy or marker individually. (Section 10)
12. Utility Line Activities. Activities required for the construction, maintenance, repair,
and removal of utility lines and associated facilities in waters of the United States, provided
the activity does not result in the loss of greater than 1/2 acre of waters of the United States.
Utility lines: -This NWP authorizes the construction, maintenance, or repair of utility
lines, including outfall and intake structures, and the associated excavation, backfill, or
bedding for the.utility lines, in all waters of the United States, provided there is no change in
pre - construction contours. A •"utility line" is defined as any pipe or pipeline for :the
transportation of any gaseous, liquid, liquescent, or slurry substance, for any purpose, and any
cable, line, or wire for the transmission for any purpose of electrical energy, telephone, and
telegraph messages, and radio and television communication. The term "utility line" does not .
include activities that drain a water of the United States, such as drainage tile or french
drains, but it does apply to pipes conveying drainage from another area.
3
Material resulting from trench excavation may be temporarily sidecast into waters of the
United States for no more than three months, provided the material is not placed in such a
manner that it is dispersed by currents or other forces. The district engineer may extend the
period of temporary side casting for no more than a total of 180 days, where appropriate. In
wetlands, the top 6 to 12 inches of the trench should normally be backfilled with topsoil from
the trench. The trench cannot be constructed or backfilled in such a manner as to drain waters of
the United States (e.g., backfilling with extensive gravel layers, creating a french drain
effect): Any exposed slopes and stream banks must be stabilized immediately upon completion of
the utility line crossing of each waterbody.
Utility line substations: This NWP authorizes the construction, maintenance, or expansion
of substation facilities associated with a power line or utility line in non -tidal waters of the
United States, provided-the activity, in combination with all other activities included in one
single and complete project, does not result in the loss of greater than 1/2 acre of waters of
the United States. This NWP does not authorize discharges into non -tidal wetlands adjacent to
tidal waters of the United States to construct, maintain,'or 'expand substation facilities.
Foundations for overhead utility.line towers, poles, and anchors: This NWPauthorizes the
construction or maintenance.of foundations for overhead utility line towers, poles, and anchors
in all waters. of the United States, provided the foundations are the minimum size necessary and
separate footings for each tower leg (rather than a .larger single pad) are used where feasible.
Access roads': This NWP authorizes the construction of access roads for the construction and
maintenance of utility lines, including overhead power lines and utility.line substations, in
non -tidal waters of the United States, provided the total discharge from a single and complete
project does not cause the loss of greater than 1/2 -acre of non -tidal waters of the United
States. This NWP does not authorize discharges into non -tidal wetlands adjacent to tidal waters
for access roads. Access roads must be the minimum width necessary (see Note 2, below). Access
roads must be constructed so that the length of the road minimizes any adverse effects on waters
of the United States and must be as near as possible to pre - construction contours and elevations
(e.g., at grade corduroy roads or geotextile /gravel roads). Access roads constructed above pre -
construction contours. and elevations in waters of the United States must be properly bridged or
culverted to maintain surface flows. •
This NWP may authorize utility lines in or affecting navigable waters of the United States
even if there is no associated discharge of dredged or fill.material (See 33.CFR Part 322).
Overhead utility lines constructed over section 10 waters and utility lines that are routed in or
under section 10 waters without a.discharge of dredged or fill material require a section 10
permit.
This NWP also authorizes temporary structures, fills, and work necessary to conduct the
utility line activity. Appropriate measures must be taken to maintain normal downstream flows and
minimize flooding to the maximum extent practicable, when temporary structures, work, and
discharges, including cofferdams, are necessary for construction activities, access fills, or
dewatering of construction sites. Temporary fills must consist of materials, and be placed in a.
manner, that will not be eroded by expected high flows. Temporary fills must be removed in their
entirety and the affected areas returned to pre- construction elevations. The areas affected by
temporary fills must be revegetated, as appropriate.
Notification: The permittee must submit a pre - construction notification to the district
. engineer prior to commencing the activity if any of the following criteria are met: (1) the
activity involves mechanized land cleaning in a.forested wetland for the utility line right -of-
. way; (2)- a section 10 permit is required; (3) the utility line in waters of the united States,
excluding overhead lines, exceeds 500 feet; (4) the utility line is placed within a
jurisdictional area (i.e., water of the United States), and it runs parallel to a stream bed that
is within that jurisdictional area; (5) discharges that result in the loss of greater than 1/10 -
acre of waters of the United States;- (6) permanent access roads are constructed above grade in
waters of the United States for a distance of more than 500 feet; or (7) permanent access roads
are constructed in waters-of the United States with impervious materials.
(See general condition 27.) (Sections 10 and 404)
Note 1: Where the proposed utility line is const- ructed or installed in navigable waters of
the United States (i.e., section 10 waters), copies of the pre- construction notification and NWP
verification will be sent by the Corps to the National Oceanic and Atmospheric Administration
(NOAA),_National Ocean Service (NOS), for charting the utility line to protect navigation.
Note 2: Access roads used for both construction and maintenance may be authorized,
provided they meet the terms and conditions of this NWP. Access roads used solely for
construction of.the utility line must be removed upon completion of the work, accordance with
the requirements for temporary fills.
Note 3: Pipes or pipelines used to transport gaseous, liquid, liquescent, or slurry
substances over navigable waters of the United States are considered to be bridges, not utility
lines, and may require a permit from the U.S. Coast Guard pursuant to Section 9 of the Rivers
and Harbors Act of 1899. However, any discharges of dredged or fill material into waters of the
United States associated with such pipelines will require a section 404 permit"(see NWP 15).
13. Bank Stabilization. Bank stabilization activities necessary for erosion prevention,
provided the activity meets all of the following criteria:
(a) No material is placed in excess of the minimum needed for erosion protection; .
(b) The activity is no more than 500 feet in length along the bank, unless this criterion
is waived in writing by the district engineer;
(c) The activity will not exceed an average of one cubic yard per running fobt placed
along the bank below the plane of the ordinary high water mark or the high tide line, unless this
criterion is waived in writing by the district engineer;
• (d) The activity does not involve discharges of dredged or fill material into special
aquatic sites, unless this criterion is waived in writing by the district engineer;
(e) No material is of the type, or is placed in any location, or in any manner, to impair .
surface water flow into or out of any water of the United States;
(f) No material is placed in a manner that will be eroded by normal or expected high
flows (properly anchored trees and treetops may be used in low energy areas); and,
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(g) The activity is not a stream channelization activity.
Notification: The permittee must submit a pre - construction notification to the district
engineer prior to commencing the activity if the bank stabilization.activity: (1) involves
discharges into special aquatic sites; (2) is in excess of 500 feet in length; or (3) will
involve the discharge of greater than an average of one cubic yard per running foot along the
bank below the plane of the ordinary high water mark or the high tide line., (See general
condition 27.) (Sections 10 and 404)
14. Linear Transportation Projects. Activities required for the construction, expansion, .
modification, or improvement of linear transportation projects (e.g,, roads, highways, railways,
trails, airport runways, and taxiways) in waters of the'United States. For linear transportation
projects in non -tidal waters, the discharge cannot cause the loss of greater than 1/2 -acre of
waters of. the United States, For linear transportation projects in tidal waters, the discharge
cannot 'cause the loss of greater than 1/3 -acre of waters of.the United States. Any stream channel
modification, including bank stabilization, is limited to the minimum necessary to construct or
protect the linear transportation project; such modifications must be in the immediate vicinity
of the project.
This NWP also authorizes temporary structures, fills, and work necessary to construct the
linear transportation project'. Appropriate measures must.be taken to maintain normal - downstream
flows and minimize flooding to the maximum extent practicable, when temporary structures, work,
and discharges, including cofferdams, are necessary for construction activities, access fills, or
dewatering of construction sites.. Temporary fills must consist of materials, and be placed in a
manner, that will not be.eroded by expected high flows. Temporary fills must be removed in their
entirety and the affected areas returned to pre - construction elevations. The areas affected by
temporary fills must be revegetated,. as appropriate.
This NWP cannot be used to authorize non - linear features commonly associated with
transportation projects, such as vehicle maintenance or storage buildings, parking lots, train
stations; or-aircraft hangars. -
Notification: The permittee must submit a pre - construction notification to the district
engineer prior to commencing the activity if: (1) the loss.of waters of -the .United States exceeds
1 /10 acre; or (2) there is a discharge in a special aquatic site, including wetlands. (See
general condition 27.) (Sections 10 and 404)
Note: Some discharges for the construction of farm roads or forest roads,,or temporary
roads for moving mining equipment,. may qualify for an- exemption under Section 404(f)' of the
Clean Water Act (see 33 CFR 323.4).
15. U.S. Coast Guard Approved Bridges. Discharges of dredged or fill material incidental
to the construction-of bridges across navigable waters of the United States, including
cofferdams, abutments, foundation seals, piers, and temporary construction and access fills,
provided such discharges have been authorized by the U.S. Coast Guard as part of the bridge
permit. Causeways and approach fills are not included in this NWP and will require a separate.
section 404 permit. (Section 404)
16. Return Water.From Upland Contained Disposal Areas. Return water from an upland
contained dredged material disposal area. The return water from a contained disposal area is
administratively defined as a discharge of dredged material by 33 CFR 323.2(d), even though the
disposal itself occurs on the upland and does not require a section 404 permit. This NWP•
satisfies the technical requirement for a section 404 permit for the return water where the
quality of the return water is controlled by the state through the section 401 certification
procedures. The dredging activity may require a section 404 permit (33 CFR 323.2(d)), and will
require a section 10 permit if located in navigable waters of the United States. (Section 404)
17. Hydropower Projects. Discharges of dredged or fill material associated with hydropower
projects having: (a) Less than 5000,kW of total generating capacity at existing - reservoirs, where
the project, inc- luding the fill, is licensed by the Federal Energy Regulatory Commission (FERC)
under the. Federal Power Act of 1920, 58 amended; or (b) a licensing exemption granted by the FERC
pursuant to Section 408 of the Energy Security Act of 1980 (16 U.S.C. 2705 and 2708) and Section
30 of the Federal Power Act, as amended.
Notification: The permittee must submit a pre- construction notification to the district
engineer prior to commencing the activity. (See general condition 27.) (Section 404)
18. Minor Discharges. Minor discharges of dredged or fill material into all waters of the
United States, provided the activity meets all of the following criteria:
• (a) The quantity of discharged material and the volume of area excavated do not exceed -
25 cubic yards below the plane of the ordinary high water mark or the high tide line;
(b) The discharge will not cause the loss of more than 1/10 acre of waters of the United
States; and
(c) The discharge is not placed for the purpose of a stream diversion.
Notification: The permittee must submit a pre- construction notification to the district
engineer prior to commencing the activity if: (1) The discharge or the volume of area excavated
exceeds 10 cubic yards below the plane of the ordinary high water mark or the high tide line, or
(2) the discharge is in a special aquatic site, including wetlands. (See general condition 27.) -
(Sections 10 and 404)
19. Minor Dredging. Dredging of no more than 25 cubic yards below the plane of the ordinary
high water mark or the.mean high water mark from navigable waters of the United States (i.e.,
section 10 waters). This NWP does not authorize the dredging or degradation through siltation of
coral reefs, sites that support submerged aquatic vegetation (including sites where submerged
aquatic vegetation is documented to exist but may not be present in a given year), anadromous
fish spawning areas, or wetlands, or the connection of canals or other artificial waterways to
navigable waters of the United states (see 33 CFR 322.5(g)), (Sections 10 and 404)
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•20. oil Spill Cleanup. Activities required for the containment and cleanup of oil and
hazardous substances that are subject to the National Oil and Hazardous Substances Pollution
Contingency Plan (40 CFR part 300) provided that the work is done in accordance with the Spill
Control and Countermeasure Plan required by 40 CFR 112.3 and. any existing state contingency
plan and provided that the Regional Response Team (if one exists in the area) concurs with the
proposed containment and cleanup action. This NWP also authorizes activities required for the
cleanup of oil releases in waters of the United States from electrical equipment that are
governed by EPA's polychlorinated biphenyl spill response regulations at 40 CFR Part 761.
(Sections 10 and 404) .
' 21. Surface Coal Mining Operations. Discharges of dredged or fill material into waters of
the United States associated with surface coal mining and reclamation operations provided-the
activities are already authorized, or are currently being .processed as part of an integrated'
permit processing procedure, by the Department of Interior (DOI), Office of Surface Mining (OSM),
or by states with approved programs under Title V of the Surface Mining Control and Reclamation
Act of 1977.
Notification: The permittee must submit a pre - construction notification to the district
engineer and receive written.authorization prior to commencing the activity. (See general
condition 27.) (Sect•ions 10 and 404)
22. Removal of Vessels. Temporary structures or minor discharges of dredged or fill
material required for the removal of wrecked, abandoned, .or disabled vessels, or:the removal of
man -made obstructions to navigation. This, NWP does not authorize maintenance dredging, shoal
removal, or riverbank snagging. • •
• Notification: The permittee must submit a pre - construction notification to the district
engineer prior to commencing the activity if: (1) The vessel is listed or-eligible for listing in
• the National Register of Historic Places; or (2) the activity is conducted in a special aquatic
site, including coral reefs-and wetlands. (See general condition 27.) If condition 1 above is
triggered, the permittee cannot commence the activity until informed by the district engineer
that compliance with the "Historic Properties" general condition is completed. (Sections 10 and
404)
' Note 1: If a removed vessel is disposed of in waters of the United States, a permit frost
the U.S. EPA may be required (see 40 CFR 229.3). If a Department of the Army permit i5 required
for vessel disposal in waters of the United States, separate authorization will be required.
Note 2: Compliance with general condition 17, Endangered Species, and general condition
18, Historic Properties, is required for all NWPs. The concern with historic properties is
emphasized in the notification requirements-for this NWP because of the likelihood that submerged
vessels may be historic properties.
23. Approved Categorical Exclusions. Activities undertaken, assisted, authorized,
regulated, funded, or financed, in whole or in part, by another Federal agency or department
where:
(a) That agency or department has determined, pursuant to the Council on Environmental
Quality's implementing regulations for the National Environmental Policy Act (40 CFR part
1500 et seq.), that the activity is categorically excluded 'from environmental documentation,
because it is included within a category of actions which neither individually nor cumulatively
have a significant effect on the human environment; and .
(b) The Office of the Chief of Engineers (Attn: CECW -CO) has concurred with that agency's
or department's determination that the activity is categorically excluded and approved the
activity for authorization under NWP 23.
. The Office of the Chief of Engineers may require additional conditions, including pre -
construction notification, for authorization of an agency's categorical exclusions under this
NWP.
Notification: Certain categorical exclusions approved for-authorization under this NWP
require the permittee to submit a pre- construction notification to the district engineer prior to
commencing the activity (see general condition 27). The activities that require pre- construction
notification are listed in the appropriate Regulatory Guidance Letters. (Sections 10 and 404)
Note: The agency or-department may submit an application for an activity believed to be
categorically excluded to the Office of the Chief of Engineers (Attn: CECW -CO). Prior to approval
for authorization under this NWP of any agency's activity, the Office of the Chief of:Engineers
will solicit public comment. As of the date of issuance of this NWP, agencies with approved
categorical exclusions are the: Bureau of Reclamation; Federal Highway Administration, and U.S.
Coast Guard. Activities approved for authorization under this NWP as of the date of this notice
are found in Corps Regulatory Guidance Letter 05 -07, which is available at: •
http : / /Www,usace.army.mil /inet/ functions /cw /cecwo /reg /rglsindx.htm. Any future approved
categorical exclusions will be announced in Regulatory Guidance Letters and posted on this same
web site.
24. Indian Tribe :or State Administered Section 404 Programs. Any activity permitted by a
state or Indian Tribe administering its own section 404 permit program pursuant to 33 U.S.C.
•1344(8) -(1) is permitted pursuant to Section 10 of the Rivers and Harbors Act of 1899.
(Section 10) '
Note 1: As of the date of the promulgation of this NWP, only New Jersey and Michigan
administer their own section 404 permit programs. -
Note 2: Those activities that do not involve an Indian Tribe or State section 404 permit
are not included in this NWP, but certain structures will be exempted by Section 154 of Pub. L.
94 -587, 90 Stat. 2917 (33 U.S.C.. 591) (see 33 CFR 322.4(b)). '
25. Structural Discharges. Discharges of material such as concrete, sand, rock, etc., into
tightly sealed forms or cells where the material will be used as a structural member for standard
6
pile supported structures, such as bridges, transmission line footings, and walkways, or for
general navigation, such as mooring cells, including'the excavation of bottom material from
within the form prior to the discharge of concrete, sand, rock, etc. This NWP does not authorize
filled structural members that would support buildings, building pads, homes, house pads, parking
areas, storage areas and other such structures. The structure itself may require a section 10
permit if located in navigable waters of the United States. (Section 404)
26. (Reserved)
27,'Aquatic Habitat Restoration, Establishment, and,En_hancement Activities. Activities in
waters of the United States associated with the restoration, enhancement, and establishment of
tidal and non =tidal wetlands and riparian areas and the restoration and enhancement of .non -tidal
streams and other non -tidal open waters; provided those activities result in net increases in
aquatic resource functions and services.
To the extent that a Corps permit is required, activities authorized by this NWP include,
but are not limited to: the removal of accumulated sediments; the installation, removal, and
maintenance of small water control structures, dikes, and berms; the installation of current
deflectors; the enhancement, restoration, or establishment of riffle and pool stream structure;
the placement of in- stream habitat structures;Imodifications of the stream bed and /or banks to
restore or establish stream meanders; the backfilling of artificial channels and drainage
ditches; the removal of existing drainage structures; 'the construction of small nesting islands;
the construction of open water areas; the construction of oyster habitat over unvegetated bottom
in tidal waters; shellfish seeding';.activities - needed to reestablish vegetation, including .
plowing or discing for seed bed preparation and the planting of appropriate wetland species;
mechanized land clearing to remove non - native invasive, exotic, or nuisance vegetation; and other
related activities. only native plant species should he 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.,
stream to wetland or vice versa) or uplands. 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. •
Reversion. For enhancement, restoration, and establishment activities conducted: (1) In
accordance with the terms and conditions of a binding wetland enhancement, restoration, or
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), 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 OSM 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, 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 that has not been abandoned
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 result 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 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
wetland restoration, enhancement, or establishment action; or (3) the SMCRA permit issued by OSM
or the applicable state agency. 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 the activity (see general condition 27), 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 wetland enhancement, restoration, ar establishment
agreement between the landowner and the U.S. FWS, NRCS, .FSA, NMFS, NOS, or their designated state
cooperating agencies;
7
(2) 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) The reclamation of surface coal mine lands, in accordance with an SMCRA permit issued
by the OSM or the applicable state agency. • '
.However, the permittee must submit a copy of the appropriate documentation.
(Sections 10 and 404)
Note: This NWP can be used to authorize compensatory mitigation projects, including
mitigation banks and in -lieu fee programs. 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.
28. Modifications of Existing Marinas. Reconfiguration'of existing docking facilities
within an authorized marina area. No dredging, additional slips, dock spaces, or expansion of any
kind within waters of the United States is authorized by this NWP. (Section 10)
29. Residential Developments. Discharges of dredged or fill material into non -tidal waters
of the United States for the construction or expansion of a single residence, a multiple unit
residential development, or a residential subdivision, This NWP authorizes the construction of
building foundations and building pads and attendant features that are necessary for the use of
the residence or residential development. Attendant features may include but are not limited to
goads, parking lots, garages, yards, utility lines, storm water management facilities, septic
fields, and recreation facilities such as playgrounds, playing fields, and golf courses (provided
the golf course is 'an integral part of the residential development).
. The discharge must not cause the loss of greater than 1/2 -acre of non -tidal waters of the
United States, including the loss of no more than 300 linear feet of stream bed, unless for
intermittent and ephemeral stream beds this 300 linear foot limit is waived in writing by the
district engineer. This NWP does not authorize discharges into non - tidal wetlands adjacent to
tidal waters.
Subdivisions: For residential subdivisions, the aggregate total loss of waters of United'
States authorized by this NWP cannot exceed 1/2 acre. This includes any loss of waters of.the
United States associated with development of individual subdivision lots.
Notification: The permittee must submit a pre - construction notification to the district
engineer prior to commencing the activity. (See general condition 27'.) (Sections-10 and 404)
30. Moist Soil Management for Wildlife. Discharges of dredged or fill material into non -
tidal waters of the United States and maintenance activities that are associated with moist soil
management for wildlife for the purpose of continuing ongoing,' site-specific, wildlife management
activities where soil manipulation is used to manage habitat and feeding areas for wildlife. Such
activities include, but are not limited to, plowing or discing to-impede succession, preparing
Seed beds, or establishing fire breaks. Sufficient riparian areas must be maintained adjacent to
all open water bodies, including streams'to preclude water quality degradation due to erosion and
sedimentation. This NWP does not authorize the construction of new dikes, roads, water control .
structures, or similar features associated with the management areas. The activity must not
result in a net loss of aquatic resource functions and services. This NWP does not authorize the
conversion of wetlands to uplands, impoundments, or other open water bodies. (Section 404)
Note: The repair,.maintenance, or replacement of existing water control structures or the
repair or maintenance of dikes may be authorized by NWP 3. Some such activities may qualify for
an exemption under Section 404(f) of the Clean Water Act (see 33 CFR 323,4).
31. Maintenance of Existing Flood Control Facilities.. Discharges of dredged or fill
material resulting from activities associated with the maintenance of existing flood control
facilities, including debris basins, retention /detention basins, levees, and-channels that: (i)
were previously authorized by the Corps by individual permit, general permit, by 33 CFR 330.3, or
did not require a permit at the time they were constructed, or (ii) were constructed by the Corps
and transferred to a non - Federal sponsor for operation and maintenance. Activities authorized by.
this NWP are limited to those resulting from maintenance activities that are conducted within the
"maintenance baseline," as described in the definition below: Discharges of-dredged or fill
materials associated with maintenance activities in flood control facilities in any watercourse
that have previously been determined to be within the maintenance baseline are authorized under
this NWP. This -NWP does not authorize the removal of sediment and associated vegetation from
natural water courses except when these activities have been included in the maintenance
baseline. All dredged material must be placed in an upland site or an authorized disposal site in
waters of the United States, and proper siltation controls must be used.'
Maintenance Baseline: The maintenance baseline is a description.of the physical
characteristics. (e.g., depth, width, length, location, configuration, or design flood capacity,
etc.) of a flood control' project within which maintenance activities are normally authorized by
NWP 31, subject to any case- specific conditions required by the district engineer. The district
engineer will approve the maintenance baseline based on the approved or constructed capacity of
the flood control facility, whichever is smaller, including any areas where there are no
constructed channels, but which are part of the facility. The prospective permittee will provide
documentation of the physical characteristics of the flood control facility (which will normally
consist of as -built or approved drawings) and documentation of the approved and constructed
design capacities of the flood control facility. If no evidence of the constructed capacity
exists, the approved capacity will be used. The documentation will also include best Management
practices to ensure that the impacts to the aquatic environment are minimal, especially in
maintenance areas where there areno constructed channels. (The Corps may request maintenance
records in areas where there has not been recent maintenance.) Revocation or modification of the
final determination of the maintenance baseline can only be done in accordance with 33 CFR 330.5.
Except in emergencies as described below, this NWP cannot be used until the district engineer
approves the maintenance baseline and determines the need for mitigation and any regional or
activity - specific conditions. Once determined, the maintenance baseline will remain valid for any
subsequent reissuance of this NWP. This NWP does not authorize maintenance of a flood control
8
facility that has been abandoned. A flood control facility will be considered abandoned it it has
operated at a significantly reduced capacity without needed maintenance being accomplished in a
timely manner,
Mitigation; The district engineer will determine any required mitigation one -time only for
impacts associated with maintenance work at the same time that the maintenance baseline is
approved. Such one -time mitigation will be required when necessary to ensure that adverse -
environmental impacts are no more than minimal, both individually and cumulatively. Such
mitigation will only be required once for any specific reach of a flood control project. However,
if one -time mitigation is required for impacts associated with maintenance activities, the
district engineer will not delay needed maintenance, provided the district engineer and the
permittee establish a schedule for identification, approval; development, construction and
completion of any such required mitigation. Once the one -time mitigation described above has been
completed, or a determination made that mitigation is not required,'no further mitigation will be
required for maintenance activities within the maintenance baseline. In determining appropriate
mitigation, the district engineer will give special consideration•to natural water courses that
have been included in. the' maintenance baseline and require compensatory mitigation and /or best
management. practices as appropriate.
Emergency Situations: In emergency situations, this NWP may be used Lo authorize
maintenance activities in flood control facilities for which no maintenance baseline has been
approved. Emergency situations are those which would result in an unacceptable hazard to life, a
significant loss of property, or an immediate, unforeseen,. and significant economic hardship if
. action is not taken before a maintenance baseline can be approved. In such situations, the
determination of mitigation requirements, if any, may be deferred until the emergency has been -
resolved. Once the emergency has ended, a maintenance baseline must be established expeditiously,
and mitigation, including mitigation for maintenance conducted during the emergency, must be
required as appropriate.
Notification: The permittee must submit a pre - construction notification to the district
engineer before any maintenance work is conducted (see general condition 27).• The pre -
constructioh notification may be for activity - specific maintenance or for maintenance of the
entire flood control facility by submitting a five -year (or less) maintenance plan. The pre -
construction notification must include a description of the maintenance baseline and the dredged
material disposal site. (Sect -ions 10 and 404) _
32. Completed Enforcement Actions. Any structure, work, or discharge of dredged or fill
material remaining in place or undertaken for mitigation, restoration, or environmental benefit
in compliance with either:.
(i) The terms of a final written Corps non - judicial settlement agreement resolving a
violation of Section 404 of the Clean Water Act and /or Section 10 of the Rivers and Harbors Act
of 1899; or the terms of an EPA 309(a) order on consent resolving a violation of Section 404 of
. the Clean Water Act,•provided that:
. (a) The unauthorized activity affected no more than 5 acres of non -tidal waters or 1 acre
of tidal waters; .
• (b) The settlement agreement.provides for environmental benefits, to an equal or greater
degree, than the environmental detriments caused by the unauthorized activity that is authorized .
by this NWP; and -
(c) The district engineer issues a verification letter authorizing the activity subject to
the terms and conditions of this NWP and the settlement agreement, including a specified
completion date; or • - •
(ii) The terms of a final Federal court decision, consent decree, or settlement'agreement
resulting from an enforcement action brought by the United States under Section 404 of the Clean
Water Act and /or Section 10 of the Rivers and Harbors Act of 1899; or
(iii) The terms of a final court decision, consent decree, settlement agreement, or non -
judicial settlement agreement resulting from a natural resource damage claim brought by.a trustee
or trustees for natural resources (as defined by the National Contingency Plan at 40 CFR subpart'
G) under Section 311 of the Clean Water Act, Section 107 of the Comprehensive Environmental
Response,.Compensation and Liability Act, Section 312 of the National Marine Sanctuaries Act,
Section 1002 of the Oil 'Pollution Act of 1990, or the Park System Resource Protdction Act at 16
U.S.C. 19jj, to the extent that a Corps permit is'required.
Compliance is a condition of the NWP itself. Any authorization under this NWP is •
automatically revoked if the permitted does not comply with the terms of this NWP or the terms of
the court decision, consent decree, or judicial /non - judicial settlement agreement. This NWP does
not apply to any activities occurring after the date of, the decision, decree, or agreement that
are not for the purpose of mitigation, restoration, or environmental benefit. Before reaching any
settlement agreement, the Corps will ensure compliance with the provisions of 33 CFR part 326 and
33 CFR 330.6(d)(2) and (e). (Sections 10 and 404)
33. Temporary Construction, Access, and Dewatering. Temporary structures, work, and •
discharges, including cofferdams, necessary for construction activities or access fills or
dewatering of construction sites, provided that the associated primary activity is authorized by
the Corps of Engineers or the U.S. Coast Guard. This NWP also authorizes temporary structures,
work, and discharges, including cofferdams, necessary for construction activities not otherwise
subject to the Corps or U.S. Coast Guard permit requirements. Appropriate measures must be taken
to maintain near normal downstream flows and to minimize' flooding. Fill must consist of
materials, .and be placed in a manner, that will not be eroded by expected high flows. The use of
dredged material may be allowed if the district engineer determines. that it will not cause more
than minimal adverse effects on aquatic resources. Following completion of construction,
temporary fill must be entirely removed to upland areas, dredged material must be returned to its
original location, and the affected areas must be restored to pre - construction elevations. The
affected areas must also be revegetated, as appropriate. This permit does not authorize the use
of cofferdams to dewater wetlands or other aquatic areas to change their use. Structures left in
place after construction is completed require a section 10 permit if located in navigable waters
of the United States. (See 33 CFR part 322.)
Notification: The permittee must submit a pre- construction notification to the. district
9
engineer prior to commencing the activity (see general condition 27). The pre- construction
notification must include a restoration plan showing how all temporary fills and structures will
be removed and the area restored to pre - project conditions. (Sections 10 and 404)
34. Cranberry Production Activities. Discharges of dredged or fill material for dikes,
berms, pumps, water control structures or leveling of cranberry beds associated with expansion,
enhancement, or modification activities at existing cranberry production operations. The
cumulative total acreage of disturbance per cranberry production operation, including but not
limited to, filling, flooding, ditching, or clearing, must not exceed 10-acres of waters of the
United States,.including wetlands. The activity must not result in a net loss of wetland acreage.
This NWP does not authorize any discharge of dredged or fill material related to other cranberry
production activities such as warehouses, processing facilities, or parking areas. For the
purposes of this NWP, the cumulative total of 10 acres will be measured over the period'that this
NWP is valid.
Notification: The permittee must submit a pre- construction notification to the district
engineer once during the period that this NWP is valid, and the NWP will then authorize
discharges of dredge or fill material at an existing operation for the permit term, provided the
10 -acre limit is not exceeded. (See general condition 37.) (Section 404)
35. Maintenance Dredging of Existing Basins. Excavation and removal of accumulated sediment
for maintenance of existing marina basins, access channels to marinas or boat slips, and boat
slips to previously authorized depths or controlling depths for ingress /egress, whichever is
less,-provided the dredged material is deposited at an upland site and proper siltation controls
are used. (Section 10)
• 36. Boat Ramps. Activities required for the construction of boat ramps, provided the
activity, meets all of the following criteria:
(a) The discharge into waters of the United States does not exceed 50 cubic yards of
concrete, rock, crushed stone or gravel into forms, or in the form of pre -cast concrete planks or
slabs, unless the 50 cubic yard.limit is waived in writing by the district engineer; •
(b) The boat ramp does'not exceed 20 feet in width, unless this criterion is waived in
writing by the district engineer;
(c) The base material is crushed stone, gravel or other suitable material;
(d) The excavation is limited to the area necessary for site preparation and all excavated
• 'material is removed to the upland; and,
(e) No material is placed in special aquatic sites, including wetlands. •
• The use of unsuitable material that is structurally, unstable is not authorized. If dredging
in navigable waters of the United States.is necessary to provide access to the boat ramp, the
dredging may be authorized by another NWP, a regional general permit, or an individual permit.
Notification: The permittee must submit a pre - construction notification to the district
engineer prior to commencing the activity if: (1) The discharge into waters of the United States
exceeds 50 cubic yards, or (2) the boat ramp exceeds 20 .feet in width. (See general
condition 27.) (Sections 10 and 404)
•
37.. Emergency Watershed Protection and Rehabilitation. Work done by or funded by:
(a) The Natural Resources Conservation Service for a'situation requiring immediate action
under its emergency Watershed Protection Program (7 CFR.part 629);
(b) The U.S. Forest Service under its Burned -Area Emergency Rehabilitation Handbook
(FSH 509.13); -
(c) The Department of the Interior for wildland fire management burned area emergency
stabilization and rehabilitation (DOI Manual part 620, Ch. 3);
(d) The Office of Surface Mining, or states with approved programs, for abandoned mine
land reclamation activities uhder Title IV of the Surface Mining Control and Reclamation Act
(30 CFR Subchapter R), where the activity does not involve coal extraction; or
(e) The Farm_Service Agency under its Emergency Conservation Program (7 CFR part 701).
In general, the prospective permittee should wait until the district engineer issues an NWP
verification before proceeding with the watershed protection and rehabilitation activity.
However, in cases where there is an unacceptable hazard to life or a significant loss of property
or economic- hardship will occur, the emergency watershed protection' and rehabilitation activity
may proceed immediately and the district engineer will consider the information in'the pre -
construction notification any comments received as a result of agency coordination to decide
whether the NWP 37 authorization should be modified, suspended, or revoked in accordance with the
'procedures at 33 CFR.330.5.
Notification: The permittee must submit a pre- construction notification to the district
engineer•prior to commencing the activity (see general condition'27). (Sections 10 and 404)
38. Cleanup of Hazardous and Toxic Waste. Specific activities required to effect the
containment, stabilization, or removal of hazardous or toxic waste materials that are performed,
ordered, or sponsored by a government agency with established legal or regulatory, authority.
Court ordered remedial action plans or related settlements are also authorized•by this NWP. This
NWP does not authorize the establishment of new disposal sites or the expansion of existing sites
used for the disposal of hazardous or toxic waste.
Notification: The permittee must submit a pre - construction notification to the district
engineer prior to commencing the activity. (See general condition 27.) '(Sections 10 and 404)
Note: Activities undertaken entirely on a Comprehensive Environmental Response,
Compensation, and Liability Act ( CERCLA). site by authority of CERCLA as approved or required by
EPA, are not required to obtain permits under Section 404 of the Clean Water Act or Section 10 of
the Rivers and Harbors Act. •
39. Commercial and Institutional Developments. Discharges of dredged or fill material into
non -tidal waters of the United States for the construction or expansion of commercial and
institutional building foundations and building pads and attendant features that are necessary
10
for the use and maintenance of the structures. Attendant features may include, but are not
limited to, roads, parking lots, garages, yards, utility lines, storm water management
facilities, and recreation facilities such as playgrounds and playing fields. Examples of
commercial developments include retail stores, industrial facilities, restaurants, business
parks, and shopping centers. Examples of institutional developments include schools, fire
stations, government office buildings, judicial buildings, public works buildings, libraries,
hospitals, and places of worship. The construction of new golf courses, new ski areas, or oil and
gas wells is not authorized by this NWP.
The discharge must not cause the loss of. greater than 1/2 -acre of non -tidal waters of the
United States, including the loss of no more than 300 linear feet of stream bed, unless for
intermittent and ephemeral stream beds this 300 linear foot limit is waived in writing by the
district engineer. This NWP does not authorize discharges into non -tidal wetlands adjacent to
tidal waters.
Notification: The permittee must submit a pre- construction notification to the district
engineer prior to commencing the activity. (See general condition 27.) (Sections 10 and 404)
40. Agricultural Activities, pischarges of dredged or fill material into non -tidal waters
of the United States for agricultural activities, including the construction of building pads for
farm buildings. Authorized activities include-the installation, placement, or construction of
drainage tiles, ditches, or levees;'mechanized land clearing; land leveling; the relocation of
existing serviceable•drainage ditches constructed in waters of the United states; and similar
activities
This NWP•also authorizes the construction of farm ponds in non -tidal waters of the United
States, excluding perennial streams; provided the farm pond is used solely for agricultural
purposes. This NWP does not authorize the construction of aquaculture ponds.
This NWP also authorizes discharges of dredged or fill material into non -tidal waters of
the United States to relocate existing serviceable drainage ditches constructed in non -tidal
streams. •
The discharge must not cause the loss of greater than 1/2 -acre of non -tidal waters of the
United States. This NWP does not authorize discharges into non -tidal wetlands adjacent to tidal
waters. This-NWP does not authorize the relocation of greater than 300 linear feet of existing
serviceable drainage ditches constructed in non -tidal streams, unless for drainage ditches .
constructed in intermittent and ephemeral streams, this 300 linear foot limit is waived in
writing by the district engineer.
Notification:. The permittee must submit a pre - construction notification to the district
engineer prior to commencing the activity. (See general condition 27.) (Section 404)
Note: Some discharges for agricultural activities may qualify.for an exemption under
Section 404(f) of the Clean Water Act (see 33 CFR 323.4). This NWP authorizes the construction of
farm ponds that do not qualify for the Clean Water Act Section 404(f) (1)(C) exemption because of
the recapture provision at Section 404(f) (2).
41. Reshaping Existing Drainage Ditches. Discharges of dredged or fill material into non -
tidal waters of the United States, excluding non tidal wetlands adjacent to tidal waters, to
modify the cross - sectional configuration of currently serviceable drainage ditches constructed in
waters of the United States, for the purpose of improving water quality by regrading the drainage
ditch with-gentler slopes, which can reduce erosion, increase growth of vegetation, and increase -
uptake of nutrients and "other substances by vegetation. The reshaping of the ditch cannot
increase drainage capacity beyond" the original as -built capacity nor can it expand the area
drained by the ditch as originally constructed (i.e., the capacity of the ditch must be the same'
as originally constructed and it cannot drain additional wetlands or other waters of the United
States). Compensatory mitigation is not required because the work is designed to improve water
quality.
• This NWP does not. authorize the relocation of drainage ditches constructed in waters of the
United States; the location of the centerline of the reshaped drainage ditch must be •
approximately.the same as the location of the'aenterline of the original drainage ditch. This NWP
does not authorize stream channelization or stream relocation projects.
Notification: The permittee must submit a pre - construction notification to the district
engineer prior to commencing the activity, if more than 500 linear feet of drainage ditch will be
reshaped. (See general condition 27.) (Section 404)
. 42. Recreational Facilities. Discharges of dredged or fill material into non -tidal waters
of the United States for the construction or expansion of recreational facilities. Examples of
recreational facilities that may be authorized by this NWP include playing fields (e.g. -, football
fields, baseball fields), basketball courts, tennis courts, hiking trails, bike paths, golf
courses, ski areas, horse paths, nature centers, and campgrounds (excluding recreational vehicle
parks). This NWP also authorizes the construction or expansion of small support facilities, such
as maintenance and storage buildings and stables that are directly related to the recreational
activity, but it does not authorize the construction of hotels, restaurants, racetracks,
stadiums, arenas, or similar facilities. •
The discharge must not cause the loss of greater than 1/2 -acre of non -tidal waters of the
United States, including the loss of no more than 300 linear feet of stream bed, unless for
intermittent and ephemeral stream beds this 300 linear foot limit is waived in writing by the
district engineer. This NWP does not authorize discharges -into non -tidal wetlands adjacent to
tidal waters.
Notification: The permittee must submit a pre - construction notification to the district
engineer prior to commencing the activity. (See general condition 27.) (Section 404)
43. Stormwater Management Facilities. Discharges of•dredged or'fill material into non -tidal
waters of the United States for the construction and maintenance of stormwater management
facilities, including the excavation of stormu)ater ponds /facilities, detention basins, and
retention basins; the installation and maintenance of water control structures, outfall
structures and emergency spillways; and the maintenance dredging of existing stdrmwater
management ponds /facilities and detention and retention basins.
11
The discharge must not cause the loss of greater than 1/2 -acre of non -tidal waters of the
United States, including the loss of no more than 300 linear feet of stream bed, unless for
intermittent and ephemeral stream beds'this 300 linear foot limit is waived in writing by the
district engineer. This. NWP does not authorize discharges into non -tidal wetlands adjacent to
tidal waters. This NWP does not authorize discharges of dredged or fill material for the
construction of new stormwater management facilities in perennial streams.
Notification: For the construction of new stormwater management facilities, or the
expansion of existing stormwater management facilities, the permittee must submit a pre -
construction notification-to the district engineer prior to commencing the activity. (See general
condition 27.) Maintenance activities do not.require pre- construction notification if they are
limited to restoring the original design capacities of the stormwater management facility.
(Section 404)
44. Mining Activities. Discharges of dredged or fill material into non -tidal waters of the
United States for mining activities, except for coal mining activities. The discharge must not
cause the loss of greater than 1/2 -acre of non -tidal waters of the United States. This NWP does
not authorize discharges .into non -tidal wetlands adjacent.to tidal waters.
Notification: The permittee must submit a pre - construction notification to the district
engineer prior to commencing the activity. (see general condition 27.) if reclamation is required
by other statutes, then a copy of the reclamation plan must be submitted with the pre -
construction notification. (Sections 10 and 404)
_ 45. Repair of Uplands Damaged by discrete Events. This, NWP authorizes discharges of dredged
or fill material, including dredging or excavation,-into all waters of the United States for
-activities associated with the restoration of upland areas. damaged by storms, floods, or other
discrete events. This NWP authorizes bank stabilization to protect the restored uplands. The
restoration of the damaged areas, including any bank stabilization, must not exceed the contours,
br.ordinary high water mark, that existed before'the, damage occurred. The district engineer
retains the right to determine the extent of the pre - existing conditions and the extent-of any
restoration work authorized by this NWP. The work must commence, or be under contract to
commence, within two years of the date of damage, unless this condition is waived in writing by
the district engineer. This NWP cannot be used to reclaim lands lost to normal erosion processes
over an extended period.
Minor dredging is limited to the amount necessary to restore the damaged upland area and
should not significantly alter the pre - existing bottom contours of.the waterbody.
Notification: The permittee must submit a pre- construction notification to the district
engineer (see general condition 27) within 12- months of the date of the damage. The pre -
construction notification should include documentation, such as a recent topographic survey or
photographs, to justify the extent of the proposed restoration. (Sections 10 and 404)
Note: Uplands lost as a result of a storm, flood, or other discrete event can be replaced
without a section 404 permit, if the uplands are restored to the ordinary high water mark (in
non -tidal waters) or high tide line (in tidal waters). (See also 33 CFR 328:5.)
46. Disdharges,in Ditches. Discharges of dredged or fill material into non -tidal ditches
that are: (1) constructed in uplands, (2) receive water from an area determined to be a water of
the United States prior to the construction of the ditch, (3) divert water to an area determined
to be a water of the United States prior to the construction of the ditch, and (4) are determined
to be waters of the United States. The discharge must not cause the loss of-greater than one acre
of waters of'the United States. • .
This NWP-does not authorize discharges of dredged or fill material into ditches constructed
in streams or other waters of the United States, or in streams that have been relocated in'
uplands. This NWP does not authorize discharges of dredged or fill• material that increase the
capacity of.the ditch and drain those areas determined to b'e waters of the United States prior to
construction of the ditch.
Notification: The permittee_ must submit a pre - construction notification to the district
engineer prior to commencing the activity. (See general condition 27.) (Section 404)
47. Pipeline Safety Program Designated Time Sensitive Inspections and Repairs.
Activities required for the inspection, repair, rehabilitation, or replacement of any'currently
serviceable structure or fill for pipelines that have been identified by the Pipeline and
Hazardous Materials Safety Administration's Pipeline.Safety'Program (PHP) within the U.S.
Department of Transportation as time - sensitive (see 49 CFR parts 192 and 195) and additional
maintenance activities done in conjunction with the time - sensitive inspection and repair
activities.,All activities must meet the following criteria:
(a) Appropriate measures must be taken to maintain normal downstream flows and minimize
flooding to the maximum extent practicable when temporary structures, work and discharges,
including cofferdams, are necessary for construction activities or access fills or dewatering of
construction sites;
(b) Material resulting from trench excavation may be temporarily sidecast into waters of
the United States for no more than three months, provided that the material is not placed in such
a manner that it is dispersed by currents or other forces. The district engineer may extend the
period of temporary side casting for no more than a total of 180 days, where appropriate. The
trench cannot be constructed or backfilled in such a manner as to drain waters of the United.
States (e.g., backfilling with extensive gravel layers, creating a french drain effect);
(c) Temporary fill must consist of materials, and be placed in a manner, that will not be
eroded by expected high flows. Temporary fills must be removed in their entirety and the affected
areas returned to pre- construction elevations. The affected areas must be revegetated, as
appropriate;
(d) In wetlands, the top 6 to 12 inches of the trench should normally be backfilled with
topsoil from the trench so that there is no change in preconstruction contours;
(e) To the maximum extent practicable, the restoration of open waters must be to the pre -
construction course, condition, capacity, and location of the waterbody;
12
(f) Any exposed slopes and stream banks must be stabilized immediately upon completion of
' the project;
(g) Additional maintenance activities done in conjunction with the time - sensitive '
inspection or repair must not result in additional losses of waters of the .United States; and,
(h) The permittee is a participant in the Pipeline Repair and Environmental Guidance
System (DREG$),
Reporting: The permittee must submit a post construction report to the PHP within seven
days after completing the work. The report must be submitted electronically to PHP via PREGS. The
report must contain the following information: project sites located in waters of the United
States, temporary access routes, stream dewatering sites, temporary fills and temporary tructures
identified on a map of the pipeline corridor; photographs of the pre- and post - construction work
areas located in waters of the United States; and a list of best management practices employed
for each pipeline segment shown on the map. (Sections.l0 and 404)
Note: Division engineers may modify this NWP by adding regional conditions to protect the
aquatic environment, as long as those regional conditions do not require pre - construction
notification or other actions that would delay time sensitive inspections and repairs. Examples
of appropriate regional conditions include best management practices.
48. Existing Commercial Shellfish Aquaculture Activities. This NWP authorizes the
installation of buoys, floats, racks, trays, nets, lines, tubes, containers, and other structures
necessary for the continued operation of the existing commercial aquaculture activity. This NWP
also authorizes discharges of dredged or fill- material necessary for shellfish seeding, rearing,
cultivating, transplanting,. and harvesting activities. Rafts and other floating structures must
be securely anchored and clearly marked. • '
This NWP does not authorize new operations or the expansion of the project area'for an
existing commercial shellfish aquaculture' activity. This NWP does not authorize "the cultivation
of new species (i.e., species not previously cultivated in the waterbody). This NWP does not
authorize attendant features such as docks, piers, boat ramp's, stockpiles, staging areas, or the
deposition of shell material back into waters of the United States as waste.
Reporting: For those activities that do not require pre- construction notification, the
permittee must submit a report to the district engineer that includes the following information:
(1) the size of the project area for the commercial shellfish aquaculture activity (in acres);
(2) the location of the activity; (3) a brief description of the culture method and harvesting
method(s); (4) the name(s) of the cultivated species; and (5) whether canopy .predator nets are
being used This is a subset of the information that would be required for pre- construction
notification. This report may be provided by letter or using an optional-reporting form provided
by the Corps. Only one report needs to be submitted during the period this NWP is valid, as long
as there are no changes to the operation that require pre- construction notification. The report
must be submitted to the distric -t engineer within 90 days of the effective date of this NWP.
Notification: The permittee must submit a pre - construction notification to the district
engineer if: (1) the project area is greater than 100 acres; or (2) there is any reconfiguration
of the aquaculture activity, such as relocating existing operations into portions of the project
area not previously used for aquaculture activities; or (3) there is a change in species being
cultivated; or- (4) there is a change in.culture methods (e.g., from bottom culture to off - bottom
culture); or (5) dredge harvesting, tilling, or harrbwing is conducted in areas inhabited by
submerged aquatic vegetation. (See general condition 27.) (Sections TO and 404)
Note: The permittee should notify the applicable U.S. Coast Guard office regarding the
project.
• 49. Coal Remining Activities. Discharges of dredged or fill material into non -tidal waters
of the United States associated with the remining and reclamation of lands that were previously
mined for coal, provided the activities are already authorized, or are currently being processed
as part of an integrated permit processing procedure, by the Department of Interior (DOI) Office
of Surface Mining (OSM), or by states with approved programs under Title IV or Title V of the
Surface Mining Control and Reclamation'Act of.1977. Areas previously mined include reclaimed mine
sites, abandoned mine land areas, or lands under bond forfeiture contracts. The permittee must
clearly demonstrate to the district engineer that the reclamation plan will result in a net
increase in aquatic resource functions. As part of the project, the permittee may .conduct coal
mining activities in an adjacent area, provided the newly mined area is less than 40 percent of
the area being remined plus any unmined area necessary for the reclamation of the remined area.
Notification: The permittee must submit a pre - construction notification to the district
engineer and receive written authorization prior to commencing the activity.' (See general
condition 27.) (Sections 10 and 404) •
50. Underground Coal Mining Activities. Discharges of dredged or fill material into non -
tidal waters of the United States associated with underground coal mining and reclamation
operations provided the activities are authorized, or are currently being processed as part of an
integrated permit processing procedure, by the Department of Interior (DOI), Office of Surface
Mining (OSM), or by states with approved programs under Title v of the Surface Mining Control and
Reclamation Act of 1977.
This NWP does not authorize discharges into non -tidal wetlands adjacent to tidal waters.
This NWP does not authorize coal preparation and processing activities outside of the mine site,
Notification: The permittee must submit a pre - construction notification to the district
engineer and receive written authorization prior to commencing the'activity. (See general
condition 27.),If reclamation is required by other statutes, then a copy of the reclamation plan
must be submitted with the pre - construction notification. (Sections 10 and 404) •
Note: Coal preparation and processing activities outside of the mine site may be authorized
by NWP 21,
C. Nationwide Permit General Conditions
13
Note; To qualify for NWP authorization, the-prospective permittee must comply with the following
general conditions, as appropriate, in addition to any regional or case - specific conditions
imposed by the division engineer or district engineer. Prospective permittees should contact the
appropriate Corps district office to determine if regional conditions have been imposed on an
NWP. Prospective permittees should also contact the appropriate Corps district office to
determine the status of Clean Water Act Section 401 water quality certification and /or Coastal
Zone Management Act consistency for an NWP.
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 remdval or
alteration.
•
• 2. Aquatic. Life MovemenEs. 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. Culverts placed in streams must be installed to maintain low flow conditions.
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 haters 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.
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 estricting
its flow must be minimized to the maximum extent practicable.
9. Management of Water Flows. To the maximum extent practicable, the pre- construction
course, condition, capacity, and location of open waters must be maintained for each activity,
including stream channelization and storm water management activities, except as provided below.
The activity must be constructed to withstand expected high flows. The activity must not restrict
or impede the passage of normal or.high flows, unless the primary purpose of the activity is to
impound water or manage high flows. The activity may alter the pre- construction course,
condition, capacity, and location of open waters if it benefits the aquatic environment
(e.g., stream restoration or relocation activities).
10. Fills Within 100 -Year Floodplains. The activity must comply with applicable FEMA-
approved state or local floodplain management requirements.
11. Equipment. Heavy equipment working in wetlands or mudflate must be placed on mats, or
other measures must be taken to minimize soil disturbance.
12. Soil Erosion and Sediment Controls. Appropriate soil erosion and sediment controls must
be used and maintained in effective operating condition during construction, and all exposed soil
and other fills, as well as any work below the ordinary high water mark or high tide line, must
be permanently stabilized at the earliest practicable date. Permittees are encouraged to perform
work within waters of the United States during periods of low -flow or no -flow.
•13. Removal of Temporary Fills. Temporary fills must be removed in their entirety and the
affected areas returned to pre- construction elevations. The affected areas must be revegetated,
as appropriate.
14. Proper Maintenance. Any authorized structure or fill shall be properly maintained,
including maintenance to ensure public safety.
15. Wild and Scenic Rivers. No activity may occur in a component of the National Wild and
Scenic River System, or in a river officially designated by Congress as a "study river" for
possible inclusion in the system while the river is in an official study status, unless the
14
appropriate Federal agency with direct management responsibility for such river, has determined
in writing that the proposed activity will not adversely affect the Wild and Scenic River
designation or study status. Information on Wild and Scenic Rivers may be obtained from the
appropriate Federal land management agency in the area (e.g., National Park Service, U.S. Forest
Service, Bureau of Land Management, U.S. Fish and Wildlife Service).
. 16. Tribal Rights. No activity or its operation may impair reserved tribal rights,
including,• but not limited to, reserved water rights and treaty fishing and hunting rights.
17. Endangered Species. (a) No activity is authorized under any NWP which is likely to
jeopardize the continued existende of a threatened or endangered species or a species proposed
for such designation, as identified under the .Federal Endangered Species Act (ESA), or which will
destroy or adversely modify the critical habitat of such species. No activity is authorized under
any NWP which "may affect" a listed species or critical habitat, unless Section 7 consultation
addressing the effects of the proposed activity has been completed.
(b) Federal agencies should follow their own procedures for complying with the requirements
of the ESA. Federal permittees must provide the district engineer with the appropriate
documentation to demonstrate compliance with those requirements.
(c) Non- federal permittees shall notify the district engineer'if any listed species or •
designated critical habitat might be affected or is in the vicinity of the project, or if the
project, is located in designated critical habitat, and shall not begin work on the activity until
notified by the district engineer that the requirements of the ESA have been satisfied and that
. ' the activity is authorized. For activities that might 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 may be affected by the proposed.work or
that utilize the designated critical habitat that may be affected by the proposed work. The
district engineer will determine whether the proposed activity "may affect" or will have "no
effect" to listed'species and designated critical habitat and will notify the non- Federal
applicant of the Corps' determination within 45 days of receipt of a complete pre - construction
notification. In cases where the non - Federal applicant has identified listed species or'critical
habitat that might be affected or is in the vicinity of the project, and has so notified the
Corps, the applicant shall not begin work until the Corps.has provided notification the proposed
activities will have "no effect" on'listed species or critical habitat, or until Section 7
consultation has been completed: .
(d) AS a result of formal or informal consultation with the FWS or NMFS the district
engineer may add species- specific regional endangered species conditions to the NWPS.
(e) Authorization of an activity by a NWP does not authorize the "take" of a threatened or
endangered species as defined under the ESA. In the absence of separate authorization (e:g., an
ESA Section.10 Permit, a Biological Opinion with "incidental take" provisions; etc.) from the
U.S. FWS or the NMFS, both lethal and non - lethal "takes" of protected species are in violation of
the ESA. Information on the location of threatened and endangered species and their critical .
habitat can be obtained directly from the offices of the U.S. FWS and NMFS or their world wide
Web pages at http: / /www.fwa.gov/ and http : / /www.noaa.gov /fisheries.html respectively. .
18. Historic Properties. (a) In cases where the district engineer determines that the
activity may affect properties listed, or eligible for listing, in the National Register of
Historic Places, the activity is not authorized,- until the requirements of Section .106 of the
National Historic Preservation Act (NHPA) have been satisfied.
. (b) Federal permittees should follow their own procedures for complying with the
requirements of Section 106 of the National Historic Preservation Act. Federal permittees must
provide the district engineer with the appropriate documentation to demonstrate compliance with
th_ose.requirements.
(c) Non - federal permittees must submit a pre - construction notification to the district
engineer if the authorized activity may have the potential to cause effects to'any historic•
properties listed, determined to be eligible for listing on, or potentially eligible for listing
on the National Register of Historic Places, including previously unidentified properties. For
such - activities, the pre- construction notification must state which historic properties may be
affected by the proposed work or include a vicinity map indicating the location of the historic
properties or the potential for the presence of historic properties. Assistance regarding
information on the location of or potential for the presence of historic resources can be sought
from the State Historic Preservation. Officer or Tribal Historic Preservation Officer, as
appropriate, and the National Register of Historic Places (see 33 CFR 330:4(g)). The district
engineer shall make a reasonable and good faith effort to carry out appropriate identification
efforts, which may include background research, consultation, oral history interviews, sample
field investigation, and field survey. Based on the information submitted and these efforts, the
district engineer shall determine whether the proposed activity has the potential to cause an
effect on the historic properties. Where the non - Federal applicant has identified historic
properties which the activity may have the potential to cause effects and so notified the Corps,
the non - Federal applicant shall not begin the activity until notified by the district engineer
either that the activity has no potential to cause effects or that consultation under Section 106
of the NHPA has been completed.
(d) The district engineer will notify the prospective permittee within 45. days of receipt
of a complete pre - construction notification whether NHPA Section 106 consultation is required.
Section 106 consultation is not required when the Corps determines that the activity does not
have the potential to cause effects on historic' properties (see 36 CFR 800.3(a)). If NHPA
Section 106 consultation is required and will occur, the district engineer will notify the non -
Federal applicant that he or she cannot begin work until Section 106 consultation is completed.
(e) Prospective permittees should be aware that section llok of the NHPA (16 U.S :C.
470h -2(k)) prevents the Corps from granting a permit or other assistance• to an applicant who,
with intent to avoid the requirements of Section 106 of the NHPA, has intentionally significantly
adversely affected a historic property to which the permit would relate, or having legal power to
prevent it, allowed such significant adverse effect to occur, unless the Corps, after
consultation with the Advisory Council on Historic Preservation (ACHP), determines that
circumstances justify granting such assistance despite the adverse effect created or permitted by
15
the applicant. If circumstances justify granting the assistance, the corps is required to notify
the ACHP and provide documentation specifying the circumstances, explaining the degree of'damage
to the integrity of any historic properties affected, and .proposed mitigation. This
documentation must include any'views obtained from the applicant, 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.
19. Designated Critical Resource Waters. Critical resource waters include, NOAA - designated
marine sanctuaries, National Estuarine Research Reserves, state natural heritage sites, and
outstanding national resource waters or other waters officially designated by a state as having
particular environmental or ecological significance and identified by the district engineer after
notice and opportunity for public comment. The district engineer may also designate additional
critical resource waters after notice and opportunity for comment.
(a) Discharges of dredged or fill material into waters of the United States are not
.authorized by NWPs 7, 12, 14, 16, 17, 21 -, 29, 31, 35, 39, .40, 42, 43, 44, 49, and 50 for any
activity within, or directly affecting, critical resource_ waters, including wetlands adjacent to
such waters.
•(b) For NWPs 3, 8, 10, 13, 15, 18, 19, 22, 23, 25, 27, 28, 30, 33., 34, 36, 37, and 38,
notification is required in accordance with general condition. 27, 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.
20. Mitigation. The district engineer will consider the following factors when determining
.appropriate and practicable mitigation necessary td ensure that adverse effects on the aquatic
environment are minimal:
(a) The activity must be designed and constructed to avoid and minimize adverse effects, .
both temporary and permanent, to waters of the United States to the maximum extent practicable at
the project site (i.e., on site).
(b) Mitigation in all its forms (avoiding-, minimizing, rectifying, reducing, or
compensating) will be required to the extent necessary to ensure that the adverse effects to the
aquatic environment are minimal.
(c) Compensatory mitigation at a minimum one - for -one ratio will be required for all wetland
losses that exceed 1/10 acre and require pre - construction notification, unless the district
engineer determines in writing that some other form of mitigation would be more environmentally
appropriate and provides a project - specific waiver of this requirement. For wetland losses of
1 /10 acre or less that require pre - construction notification, the district engineer may determine
on a case -by -case basis that compensatory mitigation is required to ensure that the activity
results in minimal adverse effects' on the aquatic environment. Since the likelihood of success is
greater and the impacts to potentially valuable uplands are reduced, .wetland restoration should
be the first compensatory mitigation option considered. -
(d). For losses of streams or other open waters that require pre - construction notification,
the district engineer may require compensatory mitigation, such as stream restoration, to ensure
that the activity results in minimal adverse effects on the aquatic environment.
(e) Compensatory mitigation will not be used to increase the acreage losses allowed by the
acreage limits of the NWPs. For example, if an NWP'has an acreage limit of 1/2 acre, it cannot be
used to authorize any project resulting in the loss of greater than 1/2 acre-of waters of the
United States, even if compensatory mitigation is provided-that replaces or restores some of the
lost waters. However, compensatory mitigation can and should be used, as necessary, to ensure
that a. project already meeting the established acreage limits also satisfies the minimal impact
requirement associated with the NWPs. .
(f) Compensatory mitigation plans for projects in or near streams or other open waters will
normally include a requirement for the establishment, Maintenance, and legal protection
(e.g., conservation easements) of riparian areas next to Open waters. In some cases, riparian
areas- may be the only compensatory mitigation required. Riparian areas should consist of native
species. The width of the required riparian area -will address documented water'quality or aquatic
habitat loss concerns. Normally, the riparian area will be 25 to 50 feet wide on.each side of the
stream, but the district engineer may require slightly wider riparian areas to address documented
water quality or habitat loss concerns. 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 compensatory mitigation, the district engineer may waive or reduce-the
- requirement to provide wetland compensatory mitigation for wetland losses.
(g) Permittees may propose the use of mitigation banks, in -lieu fee arrangements or
separate activity - specific compensatory mitigation. In all cases, the mitigation provisions will
specify the party responsible for accomplishing and /or complying with the mitigation plan.
(h) Where certain functions and services of waters of the United States are permanently
adversely affected, such as the conversion of a forested or scrub -shfub wetland to a herbaceous
wetland in a permanently maintained utility line right -of -way, mitigation may be required to
reduce the adverse effects of the project to the minimal level.
21. 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.
22. 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
16
'(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.'
23. 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.
•
24. 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 constrdcted under NWP 14,
with associated bank stabilization authorized by NWP 13, the maximum acreage loss of waters of
the United States for the total project cannot exceed 1/3 -acre.
25. 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 d'i'strict
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).
26. Compliance Certification. Each permittee who received an NWP verification from the
Corps must submit a signed certification regarding the completed work-and any required
mitigation. The certification form must be forwarded by the Corps with the NWP verification
letter and will include: •
(a) A statement that the authorized work was done in accordance with the NWP authorization,'
including any general or specific conditions;
(b) A statement that any required mitigation was completed in accordance with the permit
conditions; and
(c) The signature of the permittee certifying the completion- of the work and mitigation.
27. Pre - Construction Notification. (a) Timing. Where required by the terms of the -NWP, the
prospective permittee must notify the district engineer by submitting a pre - construction
notification (PCN) as early as. possible. The district engineer must determine if the PCN is -
complete within 30 calendar days of the date of receipt and,'as a general rule, will request
additional information necessary to make the PCN complete only once. However, if the prospective
permittee does not provide all of the requested information,. then the district engineer will
notify the prospective permittee that the PCN is still incomplete and the PCN review process will
not commence until all of the requested information has been received by the district engineer.
The prospective permittee shall not begin the activity until either:
(1) He or she is notified in writing by the district engineer that the activity may proceed
under the NWP with any special conditions imposed by the district or division engineer; or -.
. (2) -Forty -five calendar days have passed from the district engineer's receipt of the
complete PCN and the prospective permittee has not received written notice from the district or
division engineer. However, if the permittee was required to notify the Corps pursuant to general
• condition 17 that listed species or critical habitat might affected or in the vicinity of the
project, or to notify the Corps pursuant to general condition 18 that the activity may have the
potential to cause effects to historic properties, the permittee cannot begin the activity until
receiving written notification from the Corps that is 'no effect" on listed species or "no '
potential to cause effects" on historic properties, or that any consultation required under
Section 7 of the Endangered Species Act (see 33 CFR 330.4(f))' and /or Section 106 of the National
Historic Preservation (see 33 CFR 330.4(g)) is completed. Also, work cannot begin under NWPs 21,
49, or 50 until the permittee has received written approval from the Corps. If the proposed
activity requires a written waiver to exceed specified limits of an NWP, the permittee cannot
begin the activity until the district engineer issues the waiver. If the district or division
engineer notifies the permittee in writing that an individual permit is required within 45
calendar days -of receipt of a complete PCN, the permittee cannot begin the activity until an
individual permit has been obtained.' Subsequently, the permittee's right to proceed under the NWP
may be- modified, suspended, or revoked only in accordance with the procedure set forth in 33 CFR
330.5(d) (2). -
(b) Contents of Pre - Construction Notification: The PCN must be in writing and include
the following information:
(1) Name, address and telephone numbers of the prospective permittee;
(2) Location of the proposed project;
(3) A description of the proposed project; the project's purpose; direct and indirect
adverse environmental effects the project would cause; any other NWP(s), regional general
permit(s), or individual permit(s) used or intended to be used to authorize any part of the
17
proposed project or any related activity. The description should be sufficiently detailed to
allow the district engineer to determine that the adverse effects of the project will be minimal
and to determine the need for compensatory mitigation. Sketches should be provided when necessary
to show that the activity complies with the terms of the NWP. (Sketches usually clarify the
project and when provided result in a quicker decision.);
(4) The'PCN must include a delineation of special aquatic sites and other waters of the
United States on the project site. Wetland delineations must be prepared in accordance with the
current method required by the Corps. The permittee may ask the Corps to delineate the special
aquatic sites and other waters of the United States, but there may be a delay if the Corps does
the delineation, especially if the project site is large or contains many waters of the United
States. Furthermore, the 45 day period will not start until the delineation has been submitted to
or completed by the Corps, where appropriate;
(5) If the proposed activity will result in the loss of greater than 1/10 acre of wetlands
and a PCN is required, the prospective permittee must submit a statement describing how the
mitigation requirement will be satisfied. As an alternative, the prospective permittee may submit
a conceptual or detailed mitigation plan. -
(6) If any listed species or designated critical habitat might be affected or is in the
vicinity of the project, or if the project is located in designated.critical habitat, for non -
Federal applicants the PCN must include the name(s) of those endangered or threatened species
that might be affected by the proposed work or utilize the designated critical - habitat that may
be affected by the proposed work. Federal applicants must provide documentation. demonstrating
compliance with the Endangered Species Act; and
(7) For an activity'that may affect a historic property listed ori, determined to be
eligible for listing op, or'potentially eligible for listing on, the National Register of
Historic Places, for non - Federal applicants the PCN must state which historic property may be
affected by the proposed work or include a vicinity.map indicating the location of the historic
property. Federal applicants must provide documentation demonstrating compliance with Section 106
of the National Historic Preservation Act.
(c) Form 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
a PCN and must include all of the information required in paragraphs (b)(1) through (7) of-this
general condition. A letter containing the required information may also be used.
(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 project's adverse environmental effects to a -
minimal level. . •
(2) For all-NWP 48 activities requiring pre- construction notification and for other NWP
activities requiring pre - construction notification to the district engineer that result in the
loss of greater than 1/2 -acre of waters of the United States, the district engineer will
immediately provide (e.g., via facsimile transmission, overnight mail, or other expeditious
Manner) a copy of the PCN to the appropriate Federal or state offices (U.S. FWS, state natural
resource or water quality agency, EPA, State Historic Preservation Officer (SHPO) -or Tribal
Historic Preservation Office (THPO), and, if appropriate, the NMFS). With the exception of NWP
37, these agencies will then Have 10 calendar. days from the date the material is transmitted to
telephone or fax the district engineer notice that they intend to provide substantive, site -
specific comments. If so contacted by an agency, the district engineer will wait an additional 15
calendar days before making a decision on the pre - construction notification. The district
engineer will fully consider agency comments received within the specified time frame, but 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.
(3) 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.
(4) Applicants are encouraged to provide the Corps multiple copies of pre - construction
notifications to expedite agency coordination.
. (5) For NWP 48 activities that require reporting, the district engineer will provide a copy
of each report within 10 calendar days of receipt to the appropriate regional .office of the NMFS.
(e) District Engineer's Decision: 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 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 projects with smaller impacts.
The district engineer will consider any proposed compensatory mitigation the applicant has
included in the proposal in determining whether the net adverse environmental effects to the
aquatic environment of the proposed work are 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 effects on the aquatic environment
are minimal, after considering mitigation, the district engineer will notify the permittee and
include any conditions the district engineer deems necessary. The district engineer must approve
any compensatory mitigation proposal before the permittee commences work. 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 plan within,45 calendar days of receiving a complete PCN and determine whether the
proposed mitigation would ensure no more than minimal adverse effects on the aquatic environment..
If the net adverse effects of the project on the aquatic environment .(after consideration of the
compensatory mitigation proposal) are determined by the district engineer to be minimal, the
18
district engineer will provide a timely written response to the applicant. The response will
state that the project can proceed under the terms and conditions of the NWP.
If the district engineer determines that the adverse effects of the proposed work are more
than minimal, then the district engineer will notify the applicant either: (1) That the project
does not qualify for authorization under the NWP and instruct the applicant on the procedures to
seek authorization under an individual permit; (2) that the project is authorized under the NWP
subject to the applicant's submission of a'mitigation plan that would reduce the adverse effects
on'the aquatic environment to the minimal level; or (3) that the project 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 effects occur to the aquatic
environment, the activity will be authorized within the 45 -day PCN period. The authorization will
include the necessary conceptual or specific mitigation or a - requirement that the applicant
submit a mitigation plan that would reduce the adverse effects on the aquatic environment to the
minimal level. When mitigation is required, no work.in waters of the United States may occur
until the district engineer has approved a specific mitigation plan.
28. 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.
D. 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.
E. Definitions
Best management practices (BMPS): Policies, practices, procedures, or structures
implemented to mitigate the adverse environmental' effects on surface water quality resulting from
development. HMPs are categorized as structural or non - structural.
Compensatory mitigation: The restoration, establishment (creation), enhancement, or
preservation of aquatic resources for the purpose of compensating for unavoidable adverse impacts
which remain after all appropriate and practicable avoidance and minimization has been 'achieved.
Currently serviceable: Useable.as is or with some maintenance, but not so degraded as to
essentially require' reconstruction.
Discharge: The term "discharge" means any discharge of dredged or fill material.
Enhancement: The manipulation of the physical, chemical, or biological characteristics of
an aquatic resource to heighten, intensify, or improve a specific aquatic resource function(s).
Enhancement results-in the gain of selected aquatic resource function(s),.but may also lead to a
decline in other aquatic resource function(s). Enhancement does not result in a gain in.aquatic
resource area. .
Ephemeral stream: An ephemeral stream has flowing water only during, and for a short
duration after, precipitation events in a typical year. Ephemeral stream beds are located above
the water table year - round. Groundwater is not a source of water for the stream. Runoff from
rainfall is the primary source of water for stream flow.
•
Establishment (creat- ion) :.The manipulation of the physical, chemical, or biological
characteristics present to develop an aquatic resource that did not previously exist at.an upland
site. Establishment results in'a gain in aquatic resource area. .
Historic Property: Any prehistoric or historic district, site (including archaeological
site), building, structure, or other object included in, or eligible for inclusion in, the
National Register of Historic Places maintained by the Secretary of the Interior. This term
includes artifacts, records, and remains that are related to and located within such properties.
The term includes properties of traditional religious and cultural importance to an-Indian tribe
or Native Hawaiian organization and that meet the National Register criteria (36 CFR'part 60).
Independent utility: A test to determine what constitutes a single and complete project in
the Corps regulatory program. A project is considered to have independent utility if it would be
constructed absent the construction of other projects in the project area. Portions of a multi-
phase project that depend upon other phases of the project do not have independent utilityy.•
Phases of a project that would be constructed even if the other phases were not built can be
considered as separate single and complete projects with independent utility.
Intermittent stream: An intermittent stream has flowing water during certain times of the
year, when groundwater provides water for stream flow. During dry periods, intermittent streams
may not have flowing water. Runoff from rainfall is a supplemental source of water for stream
flow.
Loss of waters of the United States: Waters of the United States that are permanently
adversely affected by filling, flooding, excavation, or drainage because of the regulated
activity. Permanent adverse. effects include permanent discharges of dredged or fill material that
change an aquatic area to dry land, increase the bottom elevation of a waterbody, or change the
19
use of a waterbody. The acreage of loss of waters of the United States is a threshold measurement
of the impact to .jurisdictional'waters for determining whether a project may qualify foi an NWP;
it is not a net threshold that is calculated after considering compensatory mitigation that may
be used to offset losses of aquatic functions and services. The loss of stream bed includes the
linear feet of stream bed that is filled or excavated. Waters-of the United States temporarily
filled, flooded, excavated, or drained, but restored to pre - construction contours and elevations
after construction, are not included in the measurement of loss of waters of the United States.
Impacts resulting from activities eligible for exemptions under Section 404(f) of the Clean Water
Act are not considered when calculating the loss of waters -of the United States.
Non -tidal wetland: A non -tidal wetland is a wetland that is not subject to the ebb and flow
of tidal waters. The definition of a wetland can be found at 33 CFR 328.3(b). Non -tidal wetlands
contiguous' to tidal waters are located landward of the high tide line (i.e., spring high tide
line).
Open water: 'For purposes.of the NWPs, an open water is any area that in a year with normal
patterns of precipitation has water flowing or standing above ground to the extent that an
ordinary high water mark can be determined. Aquatic vegetation within the area of standing or
flowing water is either non - emergent, sparse, or absent. Vegetated shallows are considered to be
open waters. Examples of "open waters" include rivers, streams, lakes, and ponds. •
. Ord'inary.High Water Mark: An ordinary high water mark-is a line on the shore established by
the 'fluctuations of. water and indicated -by physical characteristics, or by other appropriate
means that consider the characteristics of the surrounding- areas (see 33 CFR• 32O.3(e)).
Perennial stream: A perennial stream has flowing water year -round during a typical year.
The water table is located above the stream bed for most of the year. Groundwater is the primary
source of water for stream flow. Runoff from rainfall is a supplemental source of water for
stream flow.
Practicable: Available and capable of being done after taking into consideration cost,
existing technology, and logistics in light of overall project purposes:
Pre- construction notification: A request submitted by the project proponent'to the Corps
for confirmation that a particular activity.is authorized by nationwide permit. The request may
be a permit application, letter, or similar document that includes information about the proposed
work and its anticipated environmental effects. Pre-construction notification may be required by
the terms and conditions of a nationwide permit, -or by regional conditions. A pre- construction
notification may be-voluntarily submitted in cases where pre- construction notification is not
required'and the project proponent wants confirmation that the activity is authorized by
nationwide permit.
Preservation: The removal of a threat to, or preventing the decline of, aquatic resources
by an action in or near those aquatic resources.. This term includes activities commonly
associated with the protection and maintenance of aquatic resources through the implementation of
appropriate legal and physical mechanisms. Preservation does not result in a gain of aquatic
resource area or functions. -
Re- establishment: The manipulation of the physical, chemical, or biological characteristics
of a site with the goal of returning natural /historic functions to a former aquatic resource. Re-
establishment results in rebuilding a former aquatic resource and results in a gain in aquatic
resource area.
Rehabilitation: The manipulation of the physical, chemical, or biological characteristics
of a site with the goal of repairing natural /historic functions to a degraded aquatic resource.
Rehabilitation results in a gain in aquatic resource function, but does not result in a gain in
aquatic resource area. -
Restoration: The manipulation of the physical; chemical, or biological characteristics of a
site with the goal of returning natural /historic functions to a former or degraded aquatic
resource. For the purpose of tracking net gains in aquatic resource area, restoration is divided
into two categories: re- establishment and rehabilitation.
Riffle and pool complex: Riffle and pool complexes are special aquatic sites under the
404(b)(1) Guidelines. Riffle and pool complexes sometimes characterize steep gradient sections of
streams. Such stream sections are recognizable by their hydraulic characteristics. The rapid
movement of water over a course substrate in riffles results in a rough flow, a turbulent
surface, and high dissolved oxygen levels in the water. Pools are deeper areas associated with
riffles. A slower stream velocity, a streaming flow, a smooth surface, and a finer• substrate
characterize pools.
. Riparian areas: Riparian areas are lands adjacent to streams, lakes, and estuarine - marine
shorelines. Riparian areas are transitional between terrestrial and aquatic ecosystems, through
.which surface and subsurface hydrology connects waterbodies with their adjacent uplands. Riparian
areas provide a variety of ecological functions and services and help improve or maintain local
water quality. (See general condition 20.)
Shellfish seeding: The placement of shellfish seed and /or suitable substrate to' increase
shellfish production. Shellfish seed consists of immature individual shellfish or individual
shellfish attached to shells or shell fragments (i.e., spat on shell). Suitable substrate may
consist of shellfish shells, shell fragments, or other appropriate materials placed into waters
for shellfish habitat.
20
Single and complete- project: The term "single and complete' project" is defined at
33 CFR 330.2(i) as the total project proposed or accomplished by one owner /developer or
partnership or other association of owners /developers. A single and complete project must have
independent utility (see definition). For linear projects, a "single and complete project" is all
crossings of a single water of the United States (i,e., a single waterbody) at.a specific
location. For linear projects crossing a single waterbody several times-at separate and distant
locations, each crossing is considered a single and complete project. However, individual
channels in a braided stream or river, or individual arms of a large, irregularly shaped wetland
or lake, etc., are not separate waterbodies, and crossings of such features cannot be considered
separately: -
Stormwater management:'Stormwater management is the mechanism for controlling stormwater
runoff for the purposes -of reducing downstream erosion, water quality degradation, and flooding
and mitigaEing the adverse effects of changes in land use on the aquatic environment.
Stormwater management facilities: Stormwater management facilities are those facilities,
including but not limited to, stormwater retention and detention ponds and best management
practices, which retain water for a-period of time to control runoff and /or improve the quality
(i.e., by reducing the.concentration of nutrients, sediments, hazardous - substances and other
pollutants) of stormwater runoff -.
Stream bed: The substrate of the stream channel between the ordinary high water marks.
The substrate may be bedrock or inorganic particles that range in'size from clay to boulders.
Wetlands contiguous to the stream bed, but outside of the ordinary high water marks, are not
considered part of the stream bed.
Stream channelization: The manipulation of a stream's course, condition, capacity, or
location that causes more than minimal interruption of normal stream processes. A channelized
stream remains a water of the United States.
Structure: An object that is arranged in a definite pattern of organization. Examples of
structures include, without limitation, any pier, boat dock, boat ramp,- wharf, dolphin, weir,
boom, breakwater, bulkhead, revetment, riprap, jetty, artificial island, artificial reef,
permanent mooring structure, power transmission line, permanently moored floating vessel, piling,
aid to navigation, or any other manmade obstacle or obstruction.
Tidal wetland: A tidal wetland is a wetland (i.e., water of the United States) that is
inundated by tidal waters. The definitions of a wetland and tidal- waters can be found at •
33 CFR 328.3(b) and 33 CFR 328.3(f), respectively. Tidal waters rise and fall in a predictable
and measurable rhythm or cycle due to the gravitational pulls of the moon and sun. Tidal waters
end where the rise and fall of the water surface can no longer be practically measured in a
predictable rhythm due to masking by other waters, wind, -or other effects. Tidal wetlands are
located channelward of the high tide line, which is defined at 33 CFR 328.3(d).
Vegetated shallows: Vegetated shallows are special aquatic sites under the 404(b)(1)
Guidelines. They are areas that are permanently'inundated and under normal circumstances have
rooted aquatic vegetation, such as seagrasses in marine and estuarine systems and a variety of
vascular rooted plants in freshwater systems.
Waterbody: For purposes of the NWPs, a waterbody is a jurisdictional water of the United
States that, during a year with normal patterns of precipitation, has water flowing or standing
above ground to the extent that an ordinary high water mark (OHWM) or other indicators of
jurisdiction can be determined, as well as any wetland area (see 33 CFR 328.3(b)). If a
jurisdictional wetland is adjacent -- meaning bordering, contiguous, or neighboring - -to a
jurisdictional waterbody displaying an OHWM or other indicators Of jurisdiction, that waterbody
and its adjacent wetlands are considered together as a single aquatic unit (see 33 CFR
328.4(c)(2)). Examples of " waterbodies" include streams, rivers, lakes, ponds, and wetlands.
21
PRELIMINARY JURISDICTIONAL DETERMINATION FORM
This preliminary JD finds that there "array be "waters of the United States on the subject project site, and identifies
all aquatic features on the site that could be affected by the proposed activity, based on the following information:
District Office
(Rock Island District File /ORM /1 12010 -310
,
P.1D Date: 'Jun 13, 2011
Name/
Address of
Person
Requesting
PJD
State 11A City/County
Nearest Waterbody:
Location: TRS,
LatLong or UTM:
'Dubuque
Mr. Todd Dalsing
Dubuque Regional Airport
11000 Airport Road
Dubuque, Iowa 52003 -9555
Trib. to Lytle Creek, Lytle Creek
See Appendix A
Identify (Estimate) Amount of Waters in the Review Area:
Non - Wetland Waters; Stream Flow:
Name of Any Water Bodies
on the Site Identified as
Section 10 Waters: Non-
Tidal:
Tidal:
14460 linear 11 I— width I acres Perennial
17 Office (Desk) Detennination
r Field Determination:
Wetlands' I
acre(s) Cowardin IN /A
Class:
Date of Field Trip:
I
SUPPORTING DATA:
and requested, appropriately
17 Maps, plans,
F Data sheets
I—Office
r Office
E Data sheets
r Corps navigable
r U.S. Geological
r.USGS
r USGS
17- U.S. Geological
17 USDA Natural
17 National wetlands
r State /Local
r FEMA /FIRM
r 100 -year Floodplain
i7 Photographs:
r Previous determination(s).
F. Other information
Data reviewed for preliminary JD (check all that apply - checked items
reference sources below):
plots or plat submitted by or on behalf of the applicant/consultant:
prepared /submitted by or on behalf of the applicant /consultant.
concurs with data sheets /delineation report.
does not concur with data sheets /delineation report.
prepared by the Corps
should be included in case file and, where checked
1
waters' study:
Survey Hydrologic Atlas:
NHD data.
8 and 12 digit HUC maps.
Survey map(s). Cite quad name: (Dubuque Souh!, Iowa
Resources Conservation Service Soil Survey. Citation:
(Dubuque County Soil Survey
inventory map(s). Cite name: (Dubuque South, Iowa
wetland inventory map(s): I
maps:I
Elevation is:
17 Aerial (Name & Date):I
r Other (Name & Date): I
File no. and date of response
letter: I
(please specify): 1
IMPORTANT NOTE: The information recorded on this form has not necessarily been verified by the Corns and should not be relied upon for later jurisdictional determinations,
4.4 - A., /./ Id. (/3
Signs ire and Date of Regulatory Project V, anager Signature and Date of Person Requesting Preliminary JD
(REQUIRED) (REQUIRED, unless obtaining the signature is impracticable)
EXPLANATION OF PRELIMINARY AND APPROVED JURISDICTIONAL DETERMINATIONS:
I. The Corps of Engineers believes that there may be jurisdictional waters of the United Slates on the subject site, and the pcnnit applicant or other affected party who requested this preliminary JD is
hereby advised of his or her option to request and obtain an approved jurisdictional determination (JD) for that site. Nevertheless, the permit applicant or other person who requested This preliminary JD
has declined to exercise the option to obtain an approved JD in this instance and at this lime.
2. In any circumstance where a permit applicant obtains an individual permit, or a Nationwide General Permit (NWP) or other general permit verification requiring "preconstruction notification' (PCN),
or requests verification for a non - reporting NWP or other general permit, and the penult applicant has not requested an approved JD for the activity, the pcnnit applicant is hereby made aware of the
following: (1) the permit applicant has elected to seek a permit authorization based on a preliminary JD, which does not make an official determination ofjurisdiclional waters; (2) that the applicant has
the option to request an approved JD before accepting the tenns and conditions of the pennil authorization, and that basing a permit authorization an an approved JD could possibly result in less
compensatory, mitigation being required or different special conditions; (3) that the applicant has the right to request an individual pennd rather than accepting the terms and conditions of the NWP or
other general permit authorization; (4) that the applicant can accept a penult authorization and thereby agree to comply with all the terms and conditions of that permit, including whatever mitigntion
requirements the Corps has dctemmined to be necessary; .(5) that undertaking any activity in reliance upon the subject pennil authorization without requesting an approved JD constitutes the applicant's
acceptance of the use of the preliminary JD, but that either form of JD will be processed as soon as is practicable; (6) accepting a permit authorization (e.g., signing a proffered individual permit) or
undertaking any activity in reliance on any font of Corps permit authorization based on a preliminary 1D constitutes agreement that all wetlands and other water bodies on the site affected in any way by
that activity are jurisdictional waters of the United States, and precludes any challenge to such jurisdiction in any administrative or judicial compliance or enforcement action, or in any administrative
appeal or in any Federal court; and (7) whether the applicant elects to use either an approved JD or a preliminary 1D, that JD will be processed as soon as is practicable. Further, an approved JD, a
proffered individual permit (and all terms and conditions contained therein), or individual permit denial can be administratively appealed pursuant to 33 C.F.R. Part 331, and that in any administrative
appeal, jurisdictional issues can be raised (see 33 C.P.R. 331.5(a)(2)). If, during that administrative appeal, it becomes necessary to make an oflicial determination whether CWA jurisdiction exists over a
site, or to provide an official delineation ofjurisdictional waters on the site, the Corps will provide an approved JD to accomplish that result, as soon as is practicable.
PRELIMINARY JURISDICTIONAL DETERMINATION FORM
This preliminary JD finds that there "may be" waters of the United States on the subject project site, and identifies all
aquatic features on the site that could be affected by the proposed activity, based on the following information:
Appendix A - Sites
District Office (Rock Island District File /ORM # 12010 -310
State
IA
PJD Date:
City /County (Dubuque Person Requesting PJD Todd Da!sing
Jun 13, 2011
Site
Number Latitude Longitude Cowardin Class
10 -310A 142.3969 1- 90.7058 Riverine 11635 feet non -tidal
10 -3106 142.3951 (0.7041 Riverine 12500 feet
10 -310C 42.3942 1- 90.7044 Rivcrine 1325 feet
1 1 n/a 1
( 1 n/a
1 1 1
Est. Amount of
Aquatic Resource Class of
in Review Area Aquatic Resource
Notes:
non -tidal
non -tidal
Project will permanently impacts to 1,635 feet of ephemeral stream, and additional impacts to 440 feet of
stream from the construction of two culverts along Lytle Creek and 325 feet of stream impact from the
realignment of a tributary to Lytle Creek,