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Dubuque Regional Airport_Disposal of Property by Conservation Easement_RemovedMasterpiece 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: August 10, 2011 Dubuque heill NI- America City 1111 , 2007 Airport Manager Robert Grierson is recommending disposal of an interest in City property in the form of a Declaration of Conservation Covenants and Restrictions. 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. 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 2 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' 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 _Language_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_La nguage_J uIy22- 2011_1.doc IN THE PRESENCE OF: Printed Name: By: Printed Name: Title: , Declarant State of Iowa ) ss.: County of Dubuque ) On this day of 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 Conservation_ Easement _Language_July22- 2011_1.doc NORTH Too ADD OcALENAFET EXISTING TAXIWAY C PROPOSED WEST APRON ACCESS TXY N PROPOSED DITCH "Z" FUTURE — TERMINAL APRON PROPOSED EAST APRON ACCESS TXY 6 FUTURE HOLD APRON PROPOSED . PARALLEL TAXIWAY F FUTURE /� RENTAL GAR / `./PARKINS LOT \ EXISTING RUNWAY ' 18/36 PROPOSED TERMINAL APRON \ PROPOSED \SHORT TERM — � PARKING LOT PROPOSED UNDERGROUND FIRE STORAGE TANK EXISTING AIRTRANCPORT ENE ROAD \ �\1 EXISTING \ x RW3 13/31 T EXISTING �- TXY A \OLIDAAWy\BT+GJIADAA mi;N \GB:_clr 07 :1_ FILE P PLOT :ADE 7 /52,20`1, 111 AlA LDUJ_ppg;r,,.s DBy oo•o T;eo9<I.PN s C BASE oRDP_GEL DB AIion REVISIONS 1UM BER By DATE PROPOSED TERMINAL BUILDING TKO BAP IS OD, TO AT FPI Sr. L t:;). PROPOSED DITCH "N" ALIGNMENT PROPOSED WASTEWATER TREATMENT AREA 'L /—�__ PROPOSED / CIRCULATION ROAD EXISTING PARALLEL TAXIWAY E EXISTING SOUTH HOUSE ACCESS ROAD PROPOSED DITCH "1" PROPOSED LONG TERM PARKING LOT EXISTING LYTLE CREEK EXISTING FARM ACCESS ROAD - RUNWAY 31 RSA RUNWAY 31 OFA 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 88 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 (NR 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 °45'08" E 213.55 feet; thence S 46 °57'09" E 869.98 feet, thence S 35 °41'12" E 110.98 feet, thence S 22 °08'04" W 309.46 feet, thence N 62 °2828" W 124.92 feet; N 26 °5127" 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 °5418" 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 MERLIN LANE DESIGN BY DRAWN HT. CHECKED BY APPROVED Elf JOB No SHEET OF 01 SHEET 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 realignment 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. -2- 3. Clearing of vegetation, including trees located in or immediately adjacent to waters of the state, shall he 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. -3- 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 animal 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; -4- 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 arca 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. -5- 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 1/2 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. -6- 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 pennittee 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 -7- web site at http: / /per2. 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, onna 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 I I (•gym( I US Army Corps a(' 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 minisial 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 waders 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 by'a 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: htlp: / /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 to performing the discharge under certain circumstances. Specific instructions for these notifications are contained in General Condition 27, a copy of which is included. 1 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 61204 -2004 Telephone: (309) 794-5370 • Nationwide US Army Engineer District, Omaha Wehrspann Regulatory Office 8901 South 154" Street Omaha, Nebraska 68138 -3635 Telephone: (402) 896 -0896 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 (72 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, chapter 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 sediment's 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 -is 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 be removed in their entirety and the affected areas returned to pre- construction elevations. The areas affected by temporary fills must be revegetated, as appropriate. (d) This NWP does not authorize maintenance dredging for the primary purpose of navigation 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 permittee 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 outfall5, 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 similar 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 Depaktment 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 where 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 o "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 NWP authorizes 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, providedthe 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 cdnduct.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 clearing 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 constructed 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 o-f"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 foot 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, 4 (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 lifie.. (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 5000.104 of total generating capacity at existing - reservoirs, where the project, including the fill, is licensed by the Federal Energy Regulatory Commission (FERC) under the•Federal Power Act of 1920, as "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) 5 -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 (10 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 - constructi -on notification to the district engineer and receive written.authorization prior to commencing the activity. (See general condition 27.) (Sections 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 from the U.S. EPA may be required (see 40 CFR 229.3). If a Department of the Army permit is 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 re qu ire the permittee to submit a p re- construction noti f' cation 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(g) -(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,Enhancement 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; modifications 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 be planted at the site. This NWP authorizes the relocation of non -tidal waters, including non -tidal wetlands and streams, on the project site provided there are net increases in aquatic resource functions and services. Except for the relocation of non -tidal waters on the project site, this NWP does not authorize the conversion of a stream or natural wetlands to another aquatic habitat type (e.g., 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, or 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 roads, 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 upland's, 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 baselihe 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 are no 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 if 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 to 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 - construction 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. (Sections 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 Protection Act at 16 U.S.C. l9jj, 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 permittee 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 »wP 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 b'e 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 water's 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 624); (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 (DOT Manual part 620, Ch. 3); (d) The Office of Surface Mining, or states with approved programs, for abandoned mine land reclamation activities under 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 CFP.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 store -s, 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. Discharges 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•centerline 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 stormwater 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 stormwater 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 tp 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. Diseharges.in Ditches. Discharges of dredged of 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'Prdgram (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 ( PREGS): 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•10 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 district 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 harrowing is conducted in areas inhabited by submerged aquatic vegetation. (See general condition 27.) (Sections 10 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 removal or alteration. • 2. Aquatic.Life Movements. No activity may substantially disrupt the necessary life cycle movements of those species of aquatic life indigenous to the waterbody, including those species that normally migrate through the area, unless the activity's primary purpose is to impound water. 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 waters of the United States that serve as breeding areas for migratory birds must be avoided to the maximum extent practicable. 5. Shellfish Beds. No activity may occur in areas of_ concentrated shellfish populations, Unless the activity is directly related to a shellfish harvesting activity authorized by NWPs 4 and 48. 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 mudflats must be placed on mats, or other measures must be taken to minimize soil disturbance. 12. Soil Erosion and Sediment Controls. Appropriate soil erosion and sediment controls must be used and maintained in effective operating condition during construction, and all exposed soil and other fills, as well as any work below the ordinary high water mark or high tide line, must be permanently stabilized at the earliest practicable date. Permittees are encouraged to perform work within waters of the United States during periods of low-flow or no -flow. .13. Removal of Temporary Fille. 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 ecistende 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 names) 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.fws.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 those 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-acti.Vities, 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 110k of the NHPA (16 U.S :C. 470h -2(k)) prevents the Corps from granting a permit or other assistance• to an applicant who, with intent to avoid the requirements of Section 106 of the NHPA, has intentionally significantly adversely affected a historic property to which the permit would relate, or having legal power to prevent it, allowed such significant adverse effect to occur, unless the Corps, after consultation with the Advisory Council on Historic Preservation (ACHP), determines that circumstances justify granting such assistance despite the adverse effect created or permitted by 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 to ensure that adverse effects on the aquatic environment are minimal: (a) The activity must be designed and constructed to avoid and minimize adverse effects, both temporary and permanent, to waters of the United States to the maximum extent practicable at the project site (i.e., on site). (b) Mitigation in all its forms (avoiding) minimizing, rectifying, reducing, or compensating) 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 kequire 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 bf waters of the United States are permanently adversely affected, such as the conversion of a forested or scrub -shrub wetland to a herbaceous wetland in a permanently maintained utility line right -of -way, mitigation may be required to reduce the adverse 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 constructed under NWP 14, with associated bank stabilization authorized by NWP 13, the maximum acreage loss of waters of the United States for the total project cannot exceed 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 district office to validate the transfer. A copy of the nationwide permit verification must be attached to the letter, and the letter must contain the following statement and signature: - "When the structures or work authorized by this nationwide permit are still in existence at the time the property is transferred, the terms and conditions of this nationwide permit, including any special conditions, will continue to be binding on the new owner(s) of. the property. To validate the transfer of this nationwide permit and the associated liabilities associated with compliance with its terms'and conditions, have the transferee sign and date below." • (Transferee) (Date) 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 on, determined Co 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 zesource 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)(5) 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 Beet management practices (BMPB): Policies, practices, procedures, or structures implemented to mitigate the adverse environmental' effects on surface water quality resulting from development. BMPs are categorized as structural or non - structural. Compensatory mitigation: The restoration, establishment (creation), enhancement, or preservation of aquatic resources for the purpose of compensating for unavoidable adverse impacts which remain after all appropriaEe 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 utility.• Phases of a project that would be constructed even if the other phases were not built can be considered as separate single and complete projects with independent utility. 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. Lose 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 for an NWP; it is not a net threshold that is calculated after considering compensatory mitigation that may be used to offset losses of aquatic functions and services. 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 tidk 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. • . Ordinary.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 328.3(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). Fox 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 waterbqdies, 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 mitigating the adverse effects of changes in land use on the aquatic environment. Stormwater management facilities: Stormwater management facilities are those facilities, including but not limited to, stormwater retention and detention ponds and best management practices, which retain water for a-period of time to control runoff and /or improve the quality (i.e., by reducing the.concentration of nutrients, sediments, hazardous-substances and other pollutants) of stormwater runoff -. • Stream bed: The substrate of the stream channel between the ordinary high water marks. The substrate may be bedrock or inorganic particles that range in'size from clay to boulders. Wetlands contiguous to the stream bed, but outside of the ordinary high water marks, are not . considered part of the stream bed. ' Stream channelization: The manipulation of a stream's course, condition, capacity, or location that causes more than minimal interruption of normal stream processes. A channelized 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 seagra.sses 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 3.28.4(c)(2)). Examples of "waterbodies" include streams, rivers, lakes, ponds, and wetlands. 21 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: District Office +Rock island District File/OR/v1# 12010 -310 P.1D Date: 'Jun 13, 2011 Name/ Address of Person Requesting PJD State IIA City Nearest Walerbody: Location: TRS, LatLong or UTM: /County (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 1 acres (Perennial 17 Office (Desk) Detennination r Field Determination: Wetlands' 1 acre(s) Coward in Class: N/A Date of Field Trip: SUPPORTING DATA: and requested, appropriately r Maps, plans, r Data sheets r Office r Office r Data sheets r Corps navigable r U.S. Geological IT.USGS r- USGS 17 U.S. Geological r USDA Natural r National wetlands r State /Local r FEMA /FIRM r 100 -year Floodplain t7 Photographs: r Previous deterinination(s). r 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 snaps. Survey map(s). Cite quad name: 'Dubuque South, Iowa Resources Conservation Service Soil Survey. Citation: 'Dubuque County Soil Survey inventory map(s). Cite name:lDubuque South, Iowa wetland inventory map(s): 1 maps:1 Elevation is:1 17 Aerial (Name & Date):' r Other (Name & Date): 1 File no. and date of response letter: 1 (please specify): 1 IMPORTANT NOTE; The information recorded on this form has not necessarily been verified by the Corns and should not be relied soon for later jurisdictional determinations, ,0-1//4.4 - .- f � Id • h ( 3 Signs (re and Date of Regulatory Project v onager Signature and Date of Person Requesting Preliminary JD (REQUIRED) (REQUIRED, unless obtaining the signature is impracticable) EXPLANATION OF PRELIMINARY AND APPROVED JURISDICTIONAL DETERMINATIONS; 1. The Corps of Engineers believes that there may be jurisdictional waters of the United States on the subject site, and the permit 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 pennil 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 time. 2. In any circumstance where a permit applicant obtains an individual permit, or o Nationwide General Permit (NWP) or other general permit verification requiring "preconstruction notification" (PCN), or requests verification for a non - reporting NWP or other general pennil, and the permit applicant has not requested an approved 1D for the activity, the pennil applicant is hereby made aware of the following: (I) the permit applicant has elected to seek a permit authorization based on a preliminary JD, which does not make an official determination of jurisdictional 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 on 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 permit rather than accepting the terns and conditions of the NWP or other general permit authorization; (4) that the applicant can accept a permit authorization and thereby agree to comply with all the terms and conditions of that permit, including whatever mitigation requirements the Corps has determined to be necessary; .(5) that undertaking any activity in reliance upon the subject permit authorization without requesting an approved JD constitutes the applicant's acceptance of the use of the preliminary 1D, but that either form of JD will be processed as soon as is practicable; (6) accepting a pennil authorization (e.g., signing a proffered individual pennil) or undertaking any activity in reliance on any form of Corps permit authorization based on a preliminary JD 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 JD, 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 official determination whetter CWA jurisdiction exists over a site, or to provide an official delineation of jurisdictional 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 he" 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 IRock Island District State IIA File /ORM # F2010 -310 PJD Date: IJun 13, 2011 City /County !Dubuque Person Requesting PJD [Todd Dalsing Site Number Latitude 110 -310A 142.3969 110 -31013 142.3951 110 -310C 142.3942 1 I 1 1 Notes: Longitude Cowardin Class - 90.7058 - 90.7041 - 90.7044 Riverine Riverine Riverine Est. Amount of Aquatic Resource Class of in Review Area Aquatic Resource 11635 feet non -tidal 12500 feet 1325 feet non -tidal non -tidal n/a n/a 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,