HomeMy WebLinkAbout62-08 RESOLUTIONRESOLUTION NO. 62-08
A RESOLUTION APPROVING A DEED RESTRICTION
COVENANT FOR THE WEST SIDE WASTEWATER TREATMENT
PLANT OUTFALL SITE AS REQUIRED BY THE U. S. ARMY
CORPS OF ENGINEERS SECTION 404 NATIONWIDE PERMIT
NUMBER 14207-1.
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
FAYETTEVILLE, ARKANSAS:
Section 1. That the City Council of the City of Fayetteville, Arkansas
hereby approves a deed restriction covenant for the West Side Wastewater
Treatment Plant Outfall Site as required by the U. S. Army
Section 404 Nationwide Permit Number 14207-1.
Corps of Engineers
PASSED and APPROVED this 18th day of March, 2008.
APPROVE
By:
DAN COODY Mayor
ATTEST:
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RA E. SMITH, City Clerk/Treasurer
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NOTICE OF DEED RESTRICTION
STATE OF ARKANSAS
COUNTY OF WASHINGTON
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KNOW ALL MEN BY THESE PRESENTS THAT: City of Fayetteville is the owner of
that real property more particularly described in the attached legal description and shown in the
attached map of the mitigation site based on a survey performed by a registered professional land
surveyor; the legal description and the map are both made a part hereof. For all purposes
throughout this document, that real property will be referred to as the "Property". As of the date
executed, the Property has been designated as a mitigation site associated with U.S. Army Corps
of Engineers Section 404 Permit No. 14207-1, or a revision thereof. A copy of the permit is
attached. The permit grants authorization to the City of Fayetteville for the placement of fill
material in waters of the United States. Any purchaser of all or any part of the Property or any
person having an interest in or proposing to acquire an interest in all or any part of the Property,
or any person proposing to develop or improve al] or any part of the Property, is hereby notified
of the following development restriction affecting the Property.
Any activity on the Property must comply with the terms and special conditions described in U.S.
Army Corps of Engineers Section 404 Permit No. 14207-1, or a revision thereof. It should be
noted that the Property has been designated to be preserved for riparian buffer and wildlife habitat
Mitigation, and may not be converted to another use, including but not limited to: clearing,
logging, bushhogging, mowing, spraying with herbicides, filling, leveling, draining, dumping,
construction of any structure (other than for wildlife enhancement), or any other activity that
would adversely impact the natural state of the area. Natural resource management or wildlife
enhancement activities involving alteration of the Property would require prior approval from the
Little Rock District Corps of Engineers.
EXECUTED this 02 (MI day of q r 1 ova yl , 2008.
BY: / A _IL
Dan Coody, Mayor
SUBSCRIBED AND SWORN TO BEFORE ME by ID_ y C r � on this the
day of Mareah , 2008, to certify which witness my hand and seal of office.
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R orded 04 7/2008 at 01:01 00 PM
F e Amt: $130 00,Paae 1 of 24
M hinaton County. AR
Bette Stamps Circuit C erk
Fe2008-00012587
WATER AND WASTEWATER DEPARTMENT
Attached are all documents required per Corps of Engineers Section 404 Permit Number
14207 pertaining to the deed restriction requirements for the Wetlands Mitigation site,
including the following:
• Notarized Deed Restrictive Covenant
• Site Map with Legal Description
• Copy of executed 404 permit
• City Council Resolution
City of Fayetteville 113 West Mountain Fayetteville, Arkansas 72701 479-575-8330 fax 479-575-8257
•
oc ID: 012197
Recorded: 04/11/2008 at
Fee Amt: $20.00 Paae
NOTICE OF DEED RESTRICTION BettenStamasoCnty
STATE OF ARKANSAS
COUNTY OF WASHINGTON
File
011907;
KNOW ALL MEN BY THESE PRESENTS THAT: City of Fayetteville is the owner of
that real property more particularly described in the attached legal description and shown n the
attached map of the mitigation site based on a survey performed by a registered professional land
surveyor; the legal description and the map are both made a part hereof. For all purposes
throughout this document, that real property will be referred to as the "Property". As of the date
executed, the Property has been designated as a mitigation site associated with U.S. Army Corps
of Engineers Section 404 Permit No. 14207-1, or a revision thereof. A copy of the permit is
attached. The permit grants authorization to the City of Fayetteville for the placement of fill
material in waters of the United States. Any purchaser of all or any part of the Property or any
person having an interest in or proposing to acquire an interest in all or any part of the Property,
or any person proposing to develop or improve all or any part of the Property, is hereby notified
of the following development restriction affecting the Property:
Any activity on the Property must comply with the teens and special conditions described in U.S.
Army Corps of Engineers Section 404 Permit No. 14207-1, or a revision thereof. It should be
noted that the Property has been designated to be preserved for riparian buffer and wildlife habitat.
niitigation, and may not be converted to another use, including but not limited to: clearing,
logging, bushhogging, mowing, spraying with herbicides, filling, leveling, draining, dumping,
construction of any structure (other than for wildlife enhancement), or any other activity that
would adversely impact the natural state of the area Natural resource management or wildlife
enhancement activities involving alteration of the Property would require prior approval from the
Little Rock District Corps of Engineers.
EXECUTED this o2 (itti t day of q r aid yl , 2008.
BY:
Danoody, Mayor
SUBSCRIBED AND SWORN TO BEFORE ME by 0. Ci � W, on this the
,0441 day of j/YIQ,C`ch , 2008, tp certify which witness my hand and seal of office.
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Regulatory Office
Bruce Shackleford
1313 Highway 229-5A
Benton, Arkansas 72015
Dear Mr. Shackleford:
LITTLE ROCK DISTRICT, CORPS OF ENGINEERS
ROGERS FIELD OFFICE
2260 NORTH SECOND STREET
ROGERS, ARKANSAS 72766
October 30, 2007
NATIONWIDE PERMIT NO. 14207-1
Please refer to your letter dated April 6, 2007, on behalf of the City of Fayetteville,
concerning Department of the Army permit requirements pursuant to Section 404 of the Clean
Water Act. You requested authorization for the placement of dredged and fill material in waters
of the United States associated with relocating approximately 130 linear feet of Goose Creek for
better alignment for an outfall structure associated with a new sewer plant. The project is located
in Goose Creek, in section 14, T. 16 N., R. 31 W., Fayetteville, Washington County, Arkansas.
The proposed activity IS authorized by Department of the Army Nationwide Pernik (NWP)
No. 39 (copy enclosed), provided that the conditions therein, and the following added special
conditions, are met. You should become familiar with the conditions and maintain a copy of the
permit at the worksite for ready reference. If changes are proposed in the design or location of
the facilities, you should submit revised plans to this office for approval before construction of
the change begins.
Special Condition:
1. To mitigate for unavoidable impacts of approximately 0.02 acres of waters of the UI iced
States, you shall accomplish the following mitigation:
a. You shall implement the creation of approximately 0.084 acres of riparian buffer
zone along the new channel of Goose Creek. This area is identified on Sheet 2 of 2. The
vegetated buffer should consist of undisturbed vegetation and the plantings of trees and
shrubs, as outlined in an e-mail from you dated September 20, 2007. The riparian buffer
shall be considered successful if there are sufficient densities (70%) of trees and shrubs
established after the 3rd growing season. If adequate vegetation cover is not obtained, then
you shall be responsible for any corrective work determined necessary by the Corps of
Engineers. The corrective work may include replanting the area.
b. The mitigation area shall remain in its natural state and shall be preserved in
perpetuity. The area may not be converted to another use, including, but not limited to:
clearing, logging, mowing, bushhogging, spraying with herbicides, filling, leveling,
draining, dumping, construction of any structure, or any other activity that would
adversely impact the natural state of the area without obtaining a revision of this
Department of the Army permit. Proposed resource management activities involving
alteration of the mitigation site must have prior approval from the Little Rock District
Corps of Engineers.
c. The planting of the mitigation area must be completed no later than 180 days
the issuance date of this permit.
rom
d. A perpetual deed restriction (copy enclosed), including the restrictions specified in
lb shall be placed on the riparian buffer zone to guarantee its preservation A certified
copy of the deed restriction, as well as a copy of this Department of the Army permit shall
be recorded with the Registrar of Deeds hi Washington County. It is your responsib lity to
attach to the deed restriction a clear map and legal description of the mitigation site based
on a survey performed by a registered professional land surveyor. Documentation of the
deed restriction recording shall be provided to the Corps no later than 120 days following
the issuance date of this permit.
e. The boundary of the riparian buffer zone shall be surveyed by a registered land
surveyor and a copy submitted to the Corps no later than 120 days of the issuance date of
this permit. Surveyed corners and boundaries shall be clearly and permanently marked in
the field for easy identification. Survey drawings shall identify a reference point, bul ding,
or other object so that the site can be easily located. The boundaries shall be marked with
white metal fence posts placed at every survey corner point and signs shall be placed on
each fence post stating that it is a protected upland buffer zone and no activities shall be
conducted beyond this point.
f. You shall monitor the mitigation site for a period of 3 years. A total of two annual
reports with photos will be prepared for submittal to the Little Rock District Corps of
Engineers Regulatory Office on the 1" and 3rd years.
g. The monitoring for this nationwide permit may be include with the monitoring
report required for the mitigation on Standard Permit No. 14207.
Please refer to NWP Condition No. 12, which stipulates that appropriate erosion and sil ation
controls be used during construction and all exposed soil be permanently stabilized. Erosion
control measures must be implemented during and after construction of the proposed project to
comply with this permit condition.
•
In order to fully comply with the conditions of the NWP, you must submit the enclosed
compliance certification within 30 days of completion of the project. This is required pursuant to
General Condition No. 26 of the permit.
This permit action is based upon a Corps of Engineers determination that the subject work is
within the jurisdiction of the Department of the Army regulatory program. You may contact the
Little Rock District Regulatory Office if you wish to discuss your options for appealing this
determination.
The NWP determination will be valid for two years unless the NWP is modified, suspended,
or revoked within the two year period. If NWP No. 39 is modified, suspended, or revoked during
this period, your project may not be authorized unless you have begun or are under contrac to
begin the project. If work has started or the work is under contract, you would then have twelve
months to complete the work.
The authorization of this work by a NWP does not relieve you of complying with other
applicable local, state, and Federal laws.
If you have any questions about this permit or any of its provisions, please contact me a
(479) 636-1210 ext. 321 and refer to Permit No. 14207-1.
Enclosures
Sincerely,
Kyle Clark
Project Manager
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• ACTION NO. 14207-1
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♦♦♦ Sec 14, T. 2 N., R. 13 W.
October 30, 2007 SHEET 1 OF 2
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ACTION NO. 14207-1
City of Fayetteville
STREAM RELOCATION
Sec 14, T. 2 N., R. 13 W.
October 30, 2007 SHEET 2 OF 2
• •
PERMITTEE COMPLIANCE CERTIFICATION
PERMIT NO.: 14702-1
PERMITTEE NAME: City of Fayetteville
DATE OF ISSUANCE: October 30, 2007
PROJECT MANAGER: Kyle Clark
NWPNO.: 39
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:
US Army Corps of Engineers
ATTENTION: Kyle Clark
2260 North Second Street
Rogers, AR 72756
Please note that your permitted activity is subject to a compliance inspection by a US 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 referenced 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.
DATE WORK COMPLETED:
SIGNATURE OF PERMITTEE DATE
4
Nationwide Permits and Conditions
Nationwide Permit No. 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
cdmmercial and institutional building foundations and building pads
and attendant features that are necessary for the use and maintenance
of the structures. Attendant features may include, but are not limited
to, roads, parking lots, garages, yards, utility lines, stone water
management facilities, and recreation facilities such as playgrounds
and playing fields. Examples of commercial developments include
retail stores, industrial facilities, restaurants, business parks, and
shopping centers. Examples of institutional developments include
schools, fire stations, government office buildings, judicial buildings,
public works buildings, libraries, hospitals, and places of worship.
The construction of new golf courses, new ski areas, or oil and gas
wells is not authorized by this NWP.
The discharge must not cause the loss of greater than I/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 subunit a pre -construction
notification to the district engineer prior to commencing the activity.
(See general condition 27.) (Sections 10 and 404)
Nationwide Permit General Conditions:
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.
I. 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 pennittee 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
obstnretions caused thereby, without expense to the United States.
No claim shall be made against the United State 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!speciesthat
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
oust 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 (c.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. f the activity
creates an impoundment of water, adverse effects to the aquatic
system due to accelerating the passage of water, and/or restricting its
Flow must be minimized to the maximum extent practicable.
9. Management of Water FIows. 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 ma nagement
activities, except as provided below. The activity rut st be constructed
to withstand expected high Bows. The activity must not restrict or
impede the passage of normal or high Bows, 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 (c.g., stream restoration or relocation activities).
10. Fills Within 100 -Year Floodolnins. The activity must
comply with applicable FEMA -approved state or local floodplain
management requirements.
1 1. Equpmenr. Heavy equipment working in wetlands or
mudflats must be placed on oats, 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 ai the earliest
practicable date. Permittees are encouraged to perform work within
waters of thc United States during periods of low -flow or no -flow.
13.Removal ofTemporry Fills. Tcmporaty fills must be
removed in their entirety and the affected areas retuned to pre -
construction elevations. The affected areas oust be revegetatcd, us
appropriate.
14. Proper Maintenance. Any authorized structure or fill
shall be properly maintained, including maintenance to ensurc 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 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 existence of a
threatened or endangered species or a species proposed for such
designation, as identified under the Federal Endangered Species Act
(ESA), or which will 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 permiuces 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 thc project is located in
designated critical habitat, and shall not begin work on the activity
until notified by the district engineer that the requirements of the
ESA have been satisfied and that the activity is authorized. For
activities that might affect Federally -listed endangered or threatened
species or designated critical habitat, the pre -construction notification
must include the name(s) of the endangered or threatened species that
may be affected by the proposed work or that utilize the designated
critical habitat that may be affected by the proposed work. The
district engineer will determine whether the proposed activity "may
affect" or will have "no effect" to listed species and designated
critical habitat and will notify the non -Federal applicant of the Corps'
determination within 45 days of receipt of a complete pre -
construction notification. In cases where the non -Federal applicant
has identified listed species or critical habitat that might be affected
or is in the vicinity of the project, and has so notified the Corps, the
applicant shall not begin work until the Corps has provided
notification the proposed activities will have "no effect' on listed
species or critical habitat, or until Section 7 consultation has been
completed.
(d) As a result of formal or informal consultation with the
FWS or NMFS the district engineer may add species-specific
regional endangered species conditions to the NWPs.
(e) Authorization of an activity by a NWP does not
authorize the "take" of a threatened or endangered species as defined
under the ESA. In the absence of separate authorization (e.g., an ESA
Section 10 Permit, a Biological Opinion with "incidental take"
provisions, etc.) from the U.S. FWS or the NMFS, both lethal and
non -lethal "takes" of protected species are in violation of the ESA.
Information on the location of threatened and endangered species and
their critical habitat can be obtained directly from the offices of the
U.S. FWS and NMFS or their world wide Web pages at
http://www.fws.gov/ and http://www.noaa.gov/frsheries.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 activities, the pre -
construction notification must statc which historic properties may be
affected by the proposed wolir or include a vicinity map indicating
the location of the historic propcnies 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 Presentation Officer or Tribal Historic
Preservation Officer, as appropriate, and the National Register of
Historic Places (see 33 CFR 330.4(a. 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 infommtion submitted and these efforts,
the district engineer shall detennine 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 NI -IPA has been completed.
(d) The district engineer will notify the prospective
permittee within 45 days of receipt ofa 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 pemnittees should be aware that section
110k of the NIPA (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 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/11-1P0, 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 Critic& 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
detemtines 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 prc-construction notification, the district engineer may
determine on a case-by-case basis that compensatory mitigation is
required to ensure that the activity results in minimal adverse effects
on the aquatic environment. Since the likelihood of success is greater
and the impacts to potentially valuable uplands are reduced, wetland
restoration should be the first compensatory mitigation option
considered.
(d) For losses of streams or other open waters that require
pre -construction notification, the district engineer may require
compensatory mitigation, such as stream restoration, to ensure that
the activity results in minimal adverse effects on the aquatic
environment.
(e) Compensatory mitigation will not be used to increase
the acreage losses allowed by the acreage limits of the NWPs. For
example, if an NWP has an acreage limit of 1/2 acre, it cannot be
used to authorize any project resulting in the loss of greater than 1/2
acre of waters of the United States, even if compensatory mitigation
is provided that replaces or restores some of the lost waters.
However, compensatory mitigation can and should be used, as
necessary, to ensure that a project already meeting the established
acreage limits also satisfies the minimal impact requirement
associated with the NWPs.
(0 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 (c.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 fomn 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 end services of 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 (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 note
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 thc 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 end date below."
(Transferee)
(Date)
26. Compliance Certification. Each permittee who received
an NWP verification front 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 pemrittcc certifying the completion
of the work and mitigation.
27. Pre -Construction Notification. (a) Timfng. 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
infomtation, 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:
(1) Until 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) If 45 calendar days have passed from the district
engineer's receipt of time 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 thc 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 tinder Section
7 of the Endangered Species Act (see 33 CFR 330.4(0) and/or
Section 106 of the National Historic Preservation (see 33 CFR
330.4(8)) 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 pennittee'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 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 detemmine
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 w 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 night 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 to be eligible for listing on, 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)(I) 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 12 -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-constmction
notification That the resource agencies' concerns were considered.
For NWP 37, the emergency watershed protection and rehabilitation
activity inay proceed immediately in cases where there is an
unacceptable hazard to life or a significant Toss of property or
economic hardship will occur. The district engineer will consider any
comments received to decide whether the NWP 37 authorization
should be nnodified, suspended, or revoked in accordance with the
procedures at 33 CFR 330.5.
(3) In cases of where the prospective permittee is not a
Federal agency, the district engineer will provide a response to
NMFS within 30 calendar days of receipt of any Essential Fish
Habitat conservation recommendations, as required by Section
305(b)(4)(B) of the Magnuson -Stevens Fishery Conservation and
Management Act.
(4) Applicants arc 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 W calendar days
of receipt to the appropriate regional office of the NMFS.
(c) 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. lithe 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 penniace 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 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: (I) That the project does not qualify
for authorization under the NWP and instruct theapplicant 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 detennines 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 Icvcl. 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 Proiect. 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.
Further Information
I. 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.
•
•
•
Nationwide Permits and Conditions
Nationwide Permit No. 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 arc necessary for the use and maintenance
of the stnmmres. Attendant features may include, but arc not limited
ro, roads, parking lots, garages, yards, utility lines, storm water
management facilities, and recreation facilities such as playgrounds
and playing fields. Examples of commercial developments include
retail stores, industrial facilities, restaurants, business parks, and
shopping centers. Examples of institutional developments include
schools, fire stations, government once 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 rhon 1/2 -
acre of non -tidal waters of the United States, including the loss of no
more than 300 linear feet of stream bcd, 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-constnletion
notification to the district engineer prior to commencing the activity.
(See general condition 27.) (Sections 10 and 404)
Nationwide Permit General Conditions:
Note: To qualify for NWP authorization, the prospective pcmnittee
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.
I. 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 pemnittee understands and agrees that, if ftmre
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 arca, 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 Slates that serve as breeding areas for migratory birds
must be avoided to the maximum extent practicable.
5. Shellfish Beds. No activity may occur in arcas 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 Snppiv Intakes. No activity may occur in the
proximity of a public water supply intake, except where the activity is
for the repair or improvement of public water supply intake structures
or adjacent bank stabilization.
8. Adverse Effects From Impoundments. If the activity
creates an impoundment of water, adverse effects to the aquatic
system due to accelerating the passage of water, and/or restricting its
flow must be minimized to the maximum extent practicable.
9.ane emcnt 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 char nelization and storm water management
activities, except as provided below. The activity must be constructed
to withstand expected high flows. The activity mast 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).
O. Fills Within 100 -Year Floodolains. 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. $oil Erosion and Sediment Controls. Appropriate soil
erosion and sediment controls must be used and maintained in
effective operating condition during constniction, 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. Pennittees are encouraged to perform work within
waters of the United States during periods of low -flow or no -flow.
13. Removal of Temporary Fills. Temporary fills must be
removed in their entirety and the affected areas returned to pre -
construction elevations. The affected areas must be revcgetated, as
appropriate.
14. Froner Maintenance. Any authorized structure or fill
shall be properly maintained, including maintenance to ensure public
safety.
15. Wild and Scenic Rivet;. 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 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. Endanecred Species. (a) No activity is authorized under
any NWP which is likely to jeopardize the continued existence ofa
threatened or endangered species or a species proposed for such
designation, as identified under the Federal Endangered Species Act
(ESA), or which will destroy or adversely modify the critical habitat
of such species. No activity is authorized under any NWP which
"may affect" a listed species or critical habitat, unless Section 7
consultation addressing the effects of the proposed activity has been
completed.
(b) Federal agencies should follow their own procedures
for complying with the requirements of the ESA. Federal permittees
must provide the district engineer with the appropriate
documentation to demonstrate compliance with those requirements.
(c) Non-federal permittees shall notify the district engineer
if any listed species or designated critical habitat might be affected or
is in the vicinity of the project. or if the project is located in
designated critical habitat, and shall not begin work on the activity
until notified by the district engineer that the requirements of the
ESA have been satisfied and that the activity is authorized. For
activities that might affect Federally -listed endangered or threatened
species or designated critical habitat, the pre -construction notification
must include the name(s) of the endangered or threatened species that
may be affected by the proposed work or that utilize the designated
critical habitat that may be affected by the proposed work. The
district engineer will determine whether the proposed activity "may
affect" or will have "no effect" to listed species and designated
critical habitat and will notify the non -Federal applicant of the Cops'
determination within 45 drys 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, time
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" ofa 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/Avww.noaa.govaisheries.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-consauction
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