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Emergency Processing Procedures

Below is information regarding NWPs that will likely be used for Hurricane Sandy repairs in New Jersey.  A summary of the most commonly expected NWPs is given below, along with the applicable regional and general permits.   Other NWPs or SPGPs listed above may be applicable for the proposed work.   The links above contain more complete information on permit requirements, general conditions, and regional conditions. 

Nationwide Permit 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, requirements of other regulatory agencies, or current construction codes or safety standards that are necessary to make the repair, rehabilitation, or replacement are authorized. Any stream channel modification is limited to the minimum necessary for the repair, rehabilitation, or replacement of the structure or fill; such modifications, including the removal of material from the stream channel, must be immediately adjacent to the project or within the boundaries of the structure or fill. This NWP also authorizes the repair, rehabilitation, or replacement of those structures or fills destroyed or damaged by storms, floods, fire or other discrete events, provided the repair, rehabilitation, or replacement is commenced, or is under contract to commence, within two years of the date of their destruction or damage. In cases of catastrophic events, such as hurricanes or tornadoes, this two-year limit may be waived by the district engineer, provided the permittee can demonstrate funding, contract, or other similar delays.

(b) This NWP also authorizes the removal of accumulated sediments and debris in the vicinity of existing structures (e.g., bridges, culverted road crossings, water intake structures, etc.) and/or 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 vicinity of the structure to the approximate dimensions that existed when the structure was built, but cannot extend farther 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 area that has no waters of the United States unless otherwise specifically approved by the district engineer under separate authorization. The placement of new or additional 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. This NWP does not authorize 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 31).

The pre-construction notification must include information regarding the original design capacities and configurations of the outfalls, intakes, small impoundments, and canals. (Sections 10 and 404). 

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.

 

NEW JERSEY REGIONAL CONDITIONS FOR NWP (3) MAINTENANCE:

Condition (a): Any dredging on the Delaware River associated with this NWP shall comply with the dredging windows previously developed in conjunction with the Delaware Basin Fish and Wildlife Management Cooperative and approved by the Corps of Engineers.

Condition (b): Any in-water work in other waters of the United States shall comply with the following seasonal restrictions unless otherwise specifically approved by the Corps of Engineers:

March 1 – June 30 for all Atlantic coastal waters and Delaware River tributaries up to and including the Delaware Memorial Bridge and above the Delaware Memorial Bridge from March 15 – June 30.

Condition (c): A complete copy of any PCN submitted to the Corps of Engineers shall also be forwarded directly to the National Marine Fisheries Service Habitat Conservation Division, 74 Magruder Road, Sandy Hook, Highlands, New Jersey 07732. The applicant must provide evidence that this has been accomplished. The Corps of Engineers will coordinate review of the PCN with the National Marine Fisheries Service pursuant to the requirements of the Magnuson Stevens Fishery Conservation and Management Act.

 

Nationwide Permit 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 31.) 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 18, Endangered Species, and general condition 20, 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.

 

NEW JERSEY REGIONAL CONDITION FOR NWP (22) REMOVAL OF VESSELS

Condition (a): A PCN must be submitted to the Corps of Engineers under certain circumstances. A complete copy of any PCN submitted to the Corps of Engineers shall also be forwarded directly to the National Marine Fisheries Service Habitat Conservation Division, 74 Magruder Road, Sandy Hook, Highlands, New Jersey 07732. The applicant must provide evidence that this has been accomplished. The Corps of Engineers will coordinate review of the PCN with the National Marine Fisheries Service pursuant to the requirements of Magnuson Stevens Fishery Conservation and Management Act.

Condition (a): A PCN must be submitted to the Corps of Engineers under certain circumstances. A complete copy of any PCN submitted to the Corps of Engineers shall also be forwarded directly to the National Marine Fisheries Service Habitat Conservation Division, 74 Magruder Road, Sandy Hook, Highlands, New Jersey 07732. The applicant must provide evidence that this has been accomplished. The Corps of Engineers will coordinate review of the PCN with the National Marine Fisheries Service pursuant to the requirements of Magnuson Stevens Fishery Conservation and Management Act.

Condition (b): Any activities on the Delaware River associated with this NWP shall comply with the dredging windows previously developed in conjunction with the Delaware Basin Fish and Wildlife Management Cooperative and approved by the Corps of Engineers. Any in-water work in other waters of the United States shall comply with the following seasonal restrictions unless otherwise specifically approved by the Corps of Engineers:

March 1 – June 30 for all Atlantic coastal waters and Delaware River tributaries up to and including the Delaware Memorial Bridge and above the Delaware Memorial Bridge from March 15 – June 30.

Nationwide Permit 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, or 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.

This NWP does not authorize beach restoration or nourishment.

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 31) 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

The uplands themselves that are 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.) This NWP authorizes discharges of dredged or fill material into waters of the United States associated with the restoration of uplands. 

 

NEW JERSEY REGIONAL CONDITIONS FOR NWP (45) REPAIR OF UPLANDS DAMAGED BY DISCRETE EVENTS

Condition (a)

A PCN must be submitted to the Corps of Engineers for all activities in waters of the United States under the terms of this NWP. A complete copy of any PCN to the Corps of Engineers shall also be forwarded directly to the National Marine Fisheries Service Habitat Conservation Division, 74 Magruder Road, Sandy Hook, Highlands, New Jersey 07732. The applicant must provide evidence that this has been accomplished. The Corps of Engineers will coordinate review of the PCN with the National Marine Fisheries Service pursuant to Magnuson Stevens Fishery Conservation and Management Act.

A PCN must be submitted to the Corps of Engineers for all activities in waters of the United States under the terms of this NWP. A complete copy of any PCN to the Corps of Engineers shall also be forwarded directly to the National Marine Fisheries Service Habitat Conservation Division, 74 Magruder Road, Sandy Hook, Highlands, New Jersey 07732. The applicant must provide evidence that this has been accomplished. The Corps of Engineers will coordinate review of the PCN with the National Marine Fisheries Service pursuant to Magnuson Stevens Fishery Conservation and Management Act.

Condition (b)

On the Delaware River, any dredging or excavation associated with this NWP shall comply with the dredging windows previously developed in conjunction with the Delaware Basin Fish and Wildlife Management Cooperative and approved by the Corps of Engineers. Any in-water work in other waters of the United States shall comply with the following seasonal restrictions unless otherwise specifically approved by the Corps of Engineers:

March 1 – June 30 for all Atlantic coastal waters and Delaware River tributaries up to and including the Delaware Memorial Bridge and above the Delaware Memorial Bridge from March 15 – June 30.

NWP Regional Conditions for New Jersey

REGIONAL GENERAL CONDITION - 1(G-1).

This regional condition is applicable to all nationwide permits (NWPs) where a preconstruction notification (PCN) is submitted to the District Engineer. This includes the following: (a) those NWPs requiring notification to the District Engineer pursuant to the language of the specific nationwide permit ; (b) those NWPs requiring notification to the District Engineer pursuant nationwide permit general conditions (conditions 16, 18, 21, 20, 22 and 31), and (c) those NWPs requiring notification to the District Engineer pursuant to a regional condition. The NWPs that require a PCN include NWPs *3, 7, 8, *10, *11, 12, *13, 14, *15, 17, *18, 19, 21, *22, 23, *25, *27, 28, 29, *30, 31, 33, 34, 35, *36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 48, 49, 50, 51 and 52). *These NWP activities require notification under certain circumstances. Review the terms of the individual NWP authorization, general condition 22, or the regional conditions to identify these circumstances.

 

Condition G-1: All preconstruction notifications (PCNs) to the District Engineer shall describe all activities that the applicant plans to undertake that are reasonably related to the same project. All PCNs to the District Engineer shall include the following information, where applicable, in addition to any other information specified in the nationwide permit itself or general conditions: Plan(s) of the proposed work on 8-1/2 by 11 inch paper and full-sized scaled engineering drawings, if available; a location map; longitude and latitude; formal property identification such as lot and block or tax parcel number, representative photographs of the project site; a delineation of areas within Federal jurisdiction, including wetlands, for the entire project area; existing water depths; depth of any cables or pipelines below mean low water; height of any cables, pipelines or other structures above mean high water; the maximum distance that any structure(s) would extend channelward of the mean high water line or ordinary high water in non- tidal areas; the maximum distance that any fill would extend channelward of the high tide line or ordinary high water in non-tidal areas; the width of the waterway at the project site; the location of any mapped floodplain areas; the location of any dredged material disposal area; the distance from the edge of any navigation channel; the location of any temporary work, structures, vessels, or fills required for the construction; a copy of any previous Federal or State approvals; and, the location and nature of any submerged aquatic vegetation (e.g., eel grass Zostera, marina) or shellfish beds. All work in areas of Federal jurisdiction shall be identified on a scaled plan of the project site. Further, at the discretion of the District Engineer, the Corps may consider a PCN incomplete if it is determined that field verification of a wetland delineation is required.

All preconstruction notifications (PCNs) to the District Engineer shall describe all activities that the applicant plans to undertake that are reasonably related to the same project. All PCNs to the District Engineer shall include the following information, where applicable, in addition to any other information specified in the nationwide permit itself or general conditions: Plan(s) of the proposed work on 8-1/2 by 11 inch paper and full-sized scaled engineering drawings, if available; a location map; longitude and latitude; formal property identification such as lot and block or tax parcel number, representative photographs of the project site; a delineation of areas within Federal jurisdiction, including wetlands, for the entire project area; existing water depths; depth of any cables or pipelines below mean low water; height of any cables, pipelines or other structures above mean high water; the maximum distance that any structure(s) would extend channelward of the mean high water line or ordinary high water in non- tidal areas; the maximum distance that any fill would extend channelward of the high tide line or ordinary high water in non-tidal areas; the width of the waterway at the project site; the location of any mapped floodplain areas; the location of any dredged material disposal area; the distance from the edge of any navigation channel; the location of any temporary work, structures, vessels, or fills required for the construction; a copy of any previous Federal or State approvals; and, the location and nature of any submerged aquatic vegetation (e.g., eel grass ) or shellfish beds. All work in areas of Federal jurisdiction shall be identified on a scaled plan of the project site. Further, at the discretion of the District Engineer, the Corps may consider a PCN incomplete if it is determined that field verification of a wetland delineation is required.

The PCN shall also include the following information:

(1) Documentation that the applicant has followed the consultation guidance published on the U.S. Fish and Wildlife Service New Jersey Field Office website http://www.fws.gov/northeast/njfieldoffice/Endangered/consultation.html to determine if a proposed NWP activity may affect a listed species. The information presented on this web site provides a list of federally listed species by county and municipality and the habitat requirements for each federally listed threatened and endangered species found in New Jersey. If review of the above information reveals that the proposed activity is within a municipality that supports a federally listed species and that the project site supports habitat for a federally listed species, the applicant shall follow the guidance provided on the website and, if necessary, contact the U.S. Fish and Wildlife Service New Jersey Field Office for further coordination prior to applying to the Corps for an NWP verification. If the review of the U.S. Fish and Wildlife Service New Jersey Field Office municipal and habitat information indicate that no federally listed species or their habitats are present, it can be concluded that the proposed activity will not adversely affect any federally listed species under the jurisdiction of the U.S. Fish and Wildlife Service. Additional information on State and federally listed threatened and endangered species can be found at the following websites: http://www.nj.gov/dep/gis/newmapping.htm and http://www.nj.gov/dep/fgw/ensphome.htm

(2) Documentation from the State agency(s) indicating whether the proposed project is located on a property listed or eligible for listing on the National Register of Historic Places. The appropriate address for this program is also provided below (See Addresses in Special Note 3 below). (For further information see NWP general conditions 20 and 21)

(3) A written statement that clearly describes the following: (1) what measures have been taken to avoid impacts on aquatic resources, (2) what measures have been taken to avoid and/or minimize any discharges into wetlands or waters of the United States, and (3) what measures have been developed to compensate for any impacts to wetlands or waters of the United States.

 

REGIONAL GENERAL CONDITION - 2(G-2).

This regional condition is applicable to those nationwide permit activities that require coordination by the District Engineer with the Federal and State resource agencies under the terms of general condition 30. This would include any NWP activities where the loss of wetlands or waters of the United States would exceed 0.5 acres. It should be further noted that certain NWPs have been regionally conditioned to require coordination with the National Marine Fisheries Service only.

Condition G-2: As a part of the PCN to the District Engineer, the applicant shall provide evidence that a duplicate copy of the PCN has been submitted to and received by the other concerned Federal and State resource agencies (e.g., copy of certified/registered mail receipt). The addresses for these agencies are provided below. (See Addresses in Special Note 4 below.)

Special Note (3) The following address shall be used for contacting the appropriate State agency to obtain information relating to historicresources that are described above in Regional General Conditions G-1.

The following address shall be used for contacting the appropriate State agency to obtain information relating to historicresources that are described above in .

New Jersey Department of Environmental Protection
Historic Preservation Office
5 Station Plaza
501 East State Street, 4th Floor
Trenton, New Jersey 08625

 

(4) The following addresses shall be used for notification to those Federal and State agencies, where the review of the PCN must be coordinated by the District Engineer. These addresses are required for Regional General Conditions G-2.

 

National Marine Fisheries Service
Habitat Conservation Division
74 Magruder Road, Sandy Hook
Highlands, New Jersey 07732

 

Field Supervisor
U.S. Fish and Wildlife Service
927 North Main Street (Building D) Pleasantville, New Jersey 08232

 

U.S. Environmental Protection Agency, Region II Water Programs Branch
290 Broadway
New York, New York 10007-1866

 

Administrator
Land Use Regulation Program
NJ Department of Environmental Protection
5 Station Plaza
501 East State Street, 2nd. Floor
Trenton, New Jersey 08625

 

NJ Department of Environmental Protection
Historic Preservation Office
5 Station Plaza
501 East State Street
Trenton, New Jersey 08625

 

REGIONAL GENERAL CONDITION - 3(G-3).

This regional condition is applicable to all nationwide permit activities located in waters of the United States that are a component of the National Wild and Scenic River System, or have been officially designated as a "study river" for possible inclusion in the system. (For further information see General Condition 16.)Condition G-3: The applicant shall provide written notification to the National Park Service prior to performing the activity, and shall not begin work until notified by the National Park Service in writing that the proposed activity will not adversely affect the Wild and Scenic River designation, or study status. A copy of this approval from the National Park Service shall be forwarded to the District Engineer. All notifications to the National Park Service required by this regional general condition shall include the information identified in regional condition G-1 above. The appropriate addresses for the National Park Service are provided below.

The applicant shall provide written notification to the National Park Service prior to performing the activity, and shall not begin work until notified by the National Park Service in writing that the proposed activity will not adversely affect the Wild and Scenic River designation, or study status. A copy of this approval from the National Park Service shall be forwarded to the District Engineer. All notifications to the National Park Service required by this regional general condition shall include the information identified in regional condition G-1 above. The appropriate addresses for the National Park Service are provided below.

(i) For all projects, the applicant shall notify: Mr. Chuck Barscz, National Rivers Program, Northeast Region, National Park Service, 200 Chestnut Street, Third Floor, Philadelphia, Pennsylvania 19106.

(ii) If the proposed project is located in the Upper Delaware River, notification shall also be sent to Mr. Don Hamilton, Upper Delaware National Scenic and Recreational River, R.R. 2, Box 2428, Beach Lake, Pennsylvania, 18405-9737.

The following list includes the waterway locations that are currently subject to this regional condition.

(1) Upper Delaware River; from the confluence of the East and West Branches (below Hancock, New York) downstream to Cherry Island near Millrift in Westfall Township, Pike County (Sparrow Bush, New York), approximately five miles above Port Jervis).

(2) Delaware Water Gap National Recreation Area; Pennsylvania and New Jersey; within the boundaries of the National Recreation Area, beginning approximately four miles below Port Jervis, extending downstream approximately to the boundary between Monroe and Northampton Counties in Pennsylvania (just below the Interstate 80 bridge).

(3) Lower Delaware River; Pennsylvania and New Jersey; from the town of Washington Crossing in Bucks County, Pennsylvania, upstream to Upper Mount Bethel Township in Northampton County, Pennsylvania, plus Tinicum, Paunacussing, and Tohickon Creeks (tributaries). The towns of Belvidere, Phillipsburg, and Easton, as well as existing power plants, water supply intakes and wastewater outfalls are not included in the designated area.

(4) Great Egg Harbor River; New Jersey; from the mouth of Patcong Creek upstream approximately 40 miles plus several tributaries, in Atlantic, Cape May, Gloucester and Camden Counties. This includes Patcong Creek extending upstream from its confluence with Great Egg Harbor River to the Garden State parkway bridge, approximately 2.8 miles.

(5) Maurice River; New Jersey; the Maurice River, from Shell Pile approximately 17 miles upstream to the Millville sewage treatment plant, and portions of Menantico Creek, Manumuskin River and Muskee Creek, in Cumberland and Atlantic Counties.

(6) White Clay Creek; Pennsylvania and Delaware; from the headwaters in Pennsylvania to the confluence with the Christina River in Delaware and all tributaries, including the East, West and Middle Branches, Middle Run, Pike Creek, Mill Creek, and other main branches and tributaries.

 

REGIONAL GENERAL CONDITION - 4(G-4).This regional condition is applicable to any nationwide permit (NWP) activities in New Jersey where a preconstruction notification (PCN) is not required or submitted to the District Engineer.

Condition G-4: Prior to conducting any work, the applicant shall follow the consultation guidance published on the U.S. Fish and Wildlife Service New Jersey Field Office website http://www.fws.gov/northeast/njfieldoffice/Endangered/consultation.html to determine if a proposed NWP activity may affect a listed species. The information presented on this web site provides a list of federally listed species by county and municipality and the habitat requirements for each federally listed threatened and endangered species found in New Jersey. If review of the above information reveals that the proposed activity is within a municipality that supports a federally listed species and that the project site supports habitat for a federally listed species, the applicant shall follow the guidance provided on the website and, if necessary, contact the U.S. Fish and Wildlife Service New Jersey Field Office for further coordination prior to applying to the Corps for an NWP verification. If the review of the U.S. Fish and Wildlife Service New Jersey Field Office municipal and habitat information indicate that no federally listed species or their habitats are present, it can be concluded that the proposed activity will not adversely affect any federally listed species under the jurisdiction of the U.S. Fish and Wildlife Service. The NWPs that do not require a PCN to the District Engineer include NWPs 1,

Prior to conducting any work, the applicant shall follow the consultation guidance published on the U.S. Fish and Wildlife Service New Jersey Field Office website to determine if a proposed NWP activity may affect a listed species. The information presented on this web site provides a list of federally listed species by county and municipality and the habitat requirements for each federally listed threatened and endangered species found in New Jersey. If review of the above information reveals that the proposed activity is within a municipality that supports a federally listed species and that the project site supports habitat for a federally listed species, the applicant shall follow the guidance provided on the website and, if necessary, contact the U.S. Fish and Wildlife Service New Jersey Field Office for further coordination prior to applying to the Corps for an NWP verification. If the review of the U.S. Fish and Wildlife Service New Jersey Field Office municipal and habitat information indicate that no federally listed species or their habitats are present, it can be concluded that the proposed activity will not adversely affect any federally listed species under the jurisdiction of the U.S. Fish and Wildlife Service. The NWPs that do require a PCN to the District Engineer include NWPs 1, 2, *3, 4, 5, 6, 9, *10, *11, *13, *15, 16, *18, 20, *22, 24, *25, *27, *30, and *36, *These NWP activities require notification to the District Engineer under certain circumstances, and under those circumstances this regional condition is not applicable. Review the NWP authorization, general condition 22, or regional conditions to identify these circumstances.

 

REGIONAL GENERAL CONDITION – 5 (G-5) This regional condition is applicable to all NWP activities within the State of New Jersey that would occur in designated shellfish habitat, as defined in the State of New Jersey Department of Environmental Protection "Coastal Permit Program Rules" N.J.A.C. 7:7E-3.2(a)(1-4).

Condition G-5: All permanent structures, including piers and docks (piles, stringers, whalers and decking), utility poles, boat lifts, mooring piles, breakwaters, and replacement bulkheads must be constructed with non-polluting material, such as plastic, natural cedar or other untreated wood, polymer coated pressure-treated wood, concrete or other inert products in those cases where the proposed activity would occur in designated shellfish habitat, as defined in State of New Jersey Department of Environmental Protection "Coastal Permit Program Rules" N.J.A.C. 7:7E-3.2(a)(1-4) . Creosote and pressure-treated lumber (i.e. preservative treatment such as CCA-C, ACZA, CC, ACQ, etc.)(wolmanized) which is susceptible to leaching are considered polluting materials and are not acceptable for the purpose of this permit.

General Condition 31: Pre-Construction Notification (permit application)

 

(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, if the PCN is determined to be incomplete, notify the prospective permittee within that 30 day period to request the additional information necessary to make the PCN complete. The request must specify the information needed to make the PCN complete. As a general rule, district engineers 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) 45 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 18 that listed species or critical habitat might be affected or in the vicinity of the project, or to notify the Corps pursuant to general condition 20 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 there 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)) has been 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  may not 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, including the anticipated amount of loss of water of the United States expected to result from the NWP activity, in acres, linear feet, or other appropriate unit of measure; 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 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 results in a quicker decision. Sketches should contain sufficient detail to provide an illustrative description of the proposed activity (e.g., a conceptual plan), but do not need to be detailed engineering plans);

(4) The PCN must include a delineation of wetlands, other special aquatic sites, and other  waters, such as lakes and ponds, and perennial, intermittent, and ephemeral streams, 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 on the project site, 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, as 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, or explaining why the adverse effects are minimal and why compensatory mitigation should not be required. 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 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)(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 activities that require pre-construction notification and result in the loss of greater than 1/2-acre of waters of the United States, for NWP 21, 29, 39, 40, 42, 43, 44, 50, 51, and 52 activities that require pre-construction notification and will result in the loss of greater than 300 linear feet of intermittent and ephemeral stream bed, and for all NWP 48 activities that require pre-construction notification, the district engineer will immediately provide (e.g., via e-mail, facsimile transmission, overnight mail, or other expeditious manner) a copy of the complete PCN to the appropriate Federal or state offices (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 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. The comments must explain why the agency believes the adverse effects will be more than minimal. If so contacted by an agency, the district engineer will wait an additional 15 calendar days before making a decision on the pre-construction notification. The district engineer will fully consider agency comments received within the specified time frame concerning the proposed activity’s compliance with the terms and conditions of the NWPs, including the need for mitigation to ensure the net adverse environmental effects to the aquatic environment of the proposed activity are minimal. The district engineer will provide no response to the resource agency, except as provided below. The district engineer will indicate in the administrative record associated with each pre-construction notification that the resource agencies’ concerns were considered. For NWP 37, the emergency watershed protection and rehabilitation activity may proceed immediately in cases where there is an unacceptable hazard to life or a significant loss of property or economic hardship will occur. The district engineer will consider any comments received to decide whether the NWP 37 authorization should be modified, suspended, or revoked in accordance with the procedures at 33 CFR 330.5.

(3) In cases of where the prospective permittee is not a Federal agency, the district engineer will provide a response to NMFS within 30 calendar days of receipt of any Essential Fish Habitat conservation recommendations, as required by Section 305(b)(4)(B) of the Magnuson-Stevens Fishery Conservation and Management Act. 

(4) Applicants are encouraged to provide the Corps with either electronic files or multiple copies of pre-construction notifications to expedite agency coordination.

D. District Engineer’s Decision

1. In reviewing the PCN for the proposed activity, the district engineer will determine whether the activity authorized by the NWP will result in more than minimal individual or cumulative adverse environmental effects or may be contrary to the public interest.  For a linear project, this determination will include an evaluation of the individual crossings to determine whether they individually satisfy the terms and conditions of the NWP(s), as well as the cumulative effects caused by all of the crossings authorized by NWP. If an applicant requests a waiver of the 300 linear foot limit on impacts to intermittent or ephemeral streams or of an otherwise applicable limit, as provided for in NWPs 13, 21, 29, 36, 39, 40, 42, 43, 44, 50, 51 or 52, the district engineer will only grant the waiver upon a written determination that the NWP activity will result in minimal adverse effects.  When making minimal effects determinations the district engineer will consider the direct and indirect effects caused by the NWP activity.  The district engineer will also consider site specific factors, such as the environmental setting in the vicinity of the NWP activity, the type of resource that will be affected by the NWP activity, the functions provided by the aquatic resources that will be affected by the NWP activity, the degree or magnitude to which the aquatic resources perform those functions, the extent that aquatic resource functions will be lost as a result of the NWP activity (e.g., partial or complete loss), the duration of the adverse effects (temporary or permanent), the importance of the aquatic resource functions to the region (e.g., watershed or ecoregion), and mitigation required by the district engineer. If an appropriate functional assessment method is available and practicable to use, that assessment method may be used by the district engineer to assist in the minimal adverse effects determination. The district engineer may add case-specific special conditions to the NWP authorization to address site-specific environmental concerns. 

2.  If the proposed activity requires a PCN and will result in a loss of greater than 1/10­acre 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 activity 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 activity-specific conditions in the NWP verification the district engineer deems necessary. Conditions for compensatory mitigation requirements must comply with the appropriate provisions at 33 CFR 332.3(k). The district engineer must approve the final mitigation plan before the permittee commences work in waters of the United States, unless the district engineer determines that prior approval of the final mitigation plan is not practicable or not necessary to ensure timely completion of the required compensatory mitigation. If the prospective permittee elects to submit a compensatory mitigation plan with the PCN, the district engineer will expeditiously review the proposed compensatory mitigation plan. The district engineer must review the proposed compensatory mitigation plan within 45 calendar days of receiving a complete PCN and determine whether the proposed mitigation would ensure 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, including any activity-specific conditions added to the NWP authorization by the district engineer.

3. 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: (a) 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; (b) 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 (c) 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, with activity-specific conditions that state the mitigation requirements. The authorization will include the necessary conceptual or detailed 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 or has determined that prior approval of a final mitigation plan is not practicable or not necessary to ensure timely completion of the required compensatory mitigation.

General Condition 18: Endangered Species

(a) No activity is authorized under any NWP which is likely to directly or indirectly jeopardize the continued existence of a threatened or endangered species or a species proposed for such designation, as identified under the Federal Endangered Species Act (ESA), or which will directly or indirectly destroy or adversely modify the critical habitat of such species. No activity is authorized under any NWP which “may affect” a listed species or critical habitat, unless 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. The district engineer will review the documentation and determine whether it is sufficient to address ESA compliance for the NWP activity, or whether additional ESA consultation is necessary.

(c) Non-federal permittees must submit a pre-construction notification to the district engineer if any listed species or designated critical habitat might be affected or is in the vicinity of the 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 might be affected by the proposed work or that utilize the designated critical habitat that might 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. If the non-Federal applicant has not heard back from the Corps within 45 days, the applicant must still wait for notification from the Corps.

(d) As a result of formal or informal consultation with the FWS or NMFS the district engineer may add species-specific 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, The Endangered Species Act prohibits any person subject to the jurisdiction of the United States to take a listed species, where "take" means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. The word “harm” in the definition of “take'' means an act which actually kills or injures wildlife. Such an act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering.

(f) 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/ or http://www.fws.gov/ipac and http://www.noaa.gov/fisheries.html respectively.

General Condition 20: 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. The district engineer will review the documentation and determine whether it is sufficient to address section 106 compliance for the NWP activity, or whether additional section 106 consultation is necessary.

(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 on, determined to be eligible for listing on, or potentially eligible for listing on the National Register of Historic Places, including previously unidentified properties.  For such activities, the pre-construction notification must state which historic properties 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)). When reviewing pre-construction notifications, district engineers will comply with the current procedures for addressing the requirements of Section 106 of the National Historic Preservation Act. The district engineer shall make a reasonable and good faith effort to carry out appropriate identification efforts, which may include background research, consultation, oral history interviews, sample field investigation, and field survey.  Based on the information submitted 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 on 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. If the non-Federal applicant has not heard back from the Corps within 45 days, the applicant must still wait for notification from the Corps.

(e) Prospective permittees should be aware that section 110k of the NHPA (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, 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.