3. Maintenance. (Modified in 2000) Activities related to: (i) 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 the structure or fill is not to be put to uses differing from those uses specified or contemplated for it in the original permit or the most recently authorized modification. Minor deviations in the structure’s configuration or filled area, including those due to changes in materials, construction techniques, or current construction codes or safety standards which are necessary to make repair, rehabilitation, or replacement, are permitted, provided the adverse environmental effects resulting from such repair, rehabilitation, or replacement are minimal. Currently serviceable means useable as is or with some maintenance, but not so degraded as to essentially require reconstruction. This nationwide permit 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.

(ii) Discharges of dredged or fill material, including excavation, into all waters of the United States to remove accumulated sediments and debris in the vicinity of, and within, existing structures (e.g., bridges, culverted road crossings, water intake structures, etc.) and the placement of new or additional rip rap to protect the structure, provided the permittee notifies the District Engineer in accordance with General Condition 13. The removal of sediment is limited to the minimum necessary to restore the waterway in the immediate vicinity of the structure to the approximate dimensions that existed when the structure was built, but cannot extend further than 200 feet in any direction from the structure. The placement of rip rap must be the minimum necessary to protect the structure or to ensure the safety of the structure. All excavated materials must be deposited and retained in an upland area unless otherwise specifically approved by the District Engineer under separate authorization. Any bank stabilization measures not directly associated with the structure will require a separate authorization from the District Engineer.

(iii) Discharges of dredged or fill material, including excavation, into all waters of the United States for activities associated with the restoration of upland areas damaged by a storm, flood, or other discrete event, including the construction, placement, or installation of upland protection structures and minor dredging to remove obstructions in waters of the United States. (Uplands lost as a result of a storm, flood, or other discrete event can be replaced without a Section 404 permit provided the uplands are restored to their original pre-event location. This NWP is for the activities in waters of the United States associated with the replacement of the uplands.) The permittee must notify the District Engineer, in accordance with General Condition 13, within 12 months of the date of the damage and the work must commence, or be under contract to commence, within two years of the date of the damage. The permittee should provide evidence, such as a recent topographic survey or photographs, to justify the extent of the proposed restoration. The restoration of the damaged areas cannot exceed the contours, or ordinary high water mark, that existed prior to the damage. 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 permit. Minor dredging to remove obstructions from the adjacent waterbody is limited to 50 cubic yards below the plane of the ordinary high water mark, and is limited to the amount necessary to restore the pre-existing bottom contours of the waterbody. The dredging may not be done primarily to obtain fill for any restoration activities. The discharge of dredged or fill material and all related work needed to restore the upland must be part of a single and complete project. This permit cannot be used in conjunction with NWP 18 or NWP 19 to restore damaged upland areas. This permit does not authorize the replacement of lands lost through gradual erosion processes.

7. Outfall Structures and Maintenance. (Modified in 2000)Activities related to: (i) construction of outfall structures and associated intake structures where the effluent from the outfall is authorized, conditionally authorized, or specifically exempted, or is otherwise in compliance with regulations issued under the National Pollutant Discharge Elimination System program (Section 402 of the Clean Water Act), and (ii) maintenance excavation, including dredging, to remove accumulated sediments blocking or restricting outfall and intake structures, accumulated sediments from small impoundments associated with outfall and intake structures, and accumulated sediments from canals associated with outfall and intake structures, provided the activity meets all of the following criteria:

a. The permittee notifies the District Engineer in accordance with General Condition 13;

b. The amount of excavated or dredged material must be the minimum necessary to

restore the outfalls, intakes, small impoundments, and canals to original design capacities

and design configurations (i.e., depth and width);

c. The excavated or dredged material is deposited and retained at an upland site, unless

otherwise approved by the District Engineer under separate authorization; and

d. Proper soil erosion and sediment control measures are used to minimize reentry of

sediments into waters of the United States. The construction of intake structures is not authorized by this NWP, unless they are directly associated with an authorized outfall structure. For maintenance excavation and

dredging to remove accumulated sediments, the notification must include information

regarding the original design capacities and configurations of the facility and the presence

of special aquatic sites (e.g., vegetated shallows) in the vicinity of the proposed work. (Sections 10 and 404)

8. Oil and Gas Structures. Structures for the exploration, production, and transportation of oil, gas, and minerals on the outer continental shelf within areas leased for such purposes by the Department of the Interior, Minerals Management Service. Such structures shall not be placed within the limits of any designated shipping safety fairway or traffic separation scheme, except temporary anchors that comply with the fairway regulations in 33 CFR 322.5(l). (Where such limits have not been designated, or where changes are anticipated, District Engineers will consider asserting discretionary authority in accordance with 33 CFR 330.4(e) and will also review such proposals to ensure they comply with the provisions of the fairway regulations in 33 CFR 322.5(l). Any Corps review under this permit will be limited to the effects on navigation and national security in accordance with 33 CFR 322.5(f)). Such structures will not be placed in established danger zones or restricted areas as designated in 33.

9. Structures in Fleeting and Anchorage Areas. Structures, buoys, floats and other devices placed within anchorage or fleeting areas to facilitate moorage of vessels where such areas have been established for that purpose by the U.S. Coast Guard. (Section 10)

10. Mooring Buoys. Non-commercial, single-boat, mooring buoys. (Section 10)

11. Temporary Recreational Structures. Temporary buoys, markers, small floating docks, and similar structures placed for recreational use during specific events such as water skiing competitions and boat races or seasonal use provided that such structures are removed within 30 days after use has been discontinued. At Corps of Engineers reservoirs, the reservoir manager must approve each buoy or marker individually. (Section 10)

12. Utility Line Activities. (Modified in 2000) Activities required for the construction, maintenance, and repair of utility lines and associated facilities in waters of the United States as follows:

(i) Utility lines: The construction, maintenance, or repair of utility lines, including outfall and intake structures and the associated excavation, backfill, or bedding for the utility lines, in all waters of the United States, provided there is no change in preconstruction contours. A “utility line” is defined as any pipe or pipeline for the transportation of any gaseous, liquid, liquefiable, or slurry substance, for any purpose, and any cable, line, or wire for the transmission for any purpose of electrical energy, telephone, and telegraph messages, and radio and television communication (see Note 1, below). Material resulting from trench excavation may be temporarily sidecast (up to three months) into waters of the United States, provided the material is not placed in such a manner that it is dispersed by currents or other forces. The District Engineer may extend the period of temporary side casting not to exceed a total of 180 days, where appropriate. In wetlands, the top 6" to 12" of the trench should normally be backfilled with topsoil from the trench. Furthermore, the trench cannot be constructed in such a manner as to drain waters of the United States (e.g., backfilling with extensive gravel layers, creating a french drain effect). For example, utility line trenches can be backfilled with clay blocks to ensure that the trench does not drain the waters of the United States through which the utility line is installed. Any exposed slopes and stream banks must be stabilized immediately upon completion of the utility line crossing of each waterbody.

Bank stabilization activities in excess of 500 feet in length or greater than an average of one cubic yard per running foot may be authorized if the permittee notifies the District Engineer in accordance with the "Notification" general condition and the District Engineer determines the activity complies with the other terms and conditions of the NWP and the adverse environmental effects are minimal both individually and cumulatively. This NWP may not be used for the channelization of a water of the United States. (Sections 10 and 404)

14. Linear Transportation Projects. (Modified in 2000 and 2002) Activities required for the construction,expansion, modification, or improvement of linear transportation crossings (e.g.,

highways, railways, trails, airport runways, and taxiways) in waters of the US, includingwetlands, if the activity meets the following criteria:

a. This NWP is subject to the following acreage limits:

(1) For linear transportation projects in non-tidal waters, provided the discharge does not cause the loss of greater than 1/2-acre of waters of the US; or

(2) For linear transportation projects in tidal waters, provided the discharge does not cause the loss of greater than 1/3-acre of waters of the US.

b. The permittee must notify the District Engineer in accordance with General Condition 13 if any of the following criteria are met:

(1) The discharge causes the loss of greater than 1/10-acre of waters of the US; or

(2) There is a discharge in a special aquatic site, including wetlands;

c. The notification must include a compensatory mitigation proposal to offset permanent losses of waters of the US to ensure that those losses result only in minimal adverse effects to the aquatic environment and a statement describing how temporary losses will be minimized to the maximum extent practicable;

d. For discharges in special aquatic sites, including wetlands, and stream riffle and pool complexes, the notification must include a delineation of the affected special aquatic sites;

e. The width of the fill is limited to the minimum necessary for the crossing;

f. This permit does not authorize stream channelization, and the authorized activities must not cause more than minimal changes to the hydraulic flow characteristics of the stream, increase flooding, or cause more than minimal degradation of water quality of any stream (see General

Conditions 9 and 21);

g. This permit cannot be used to authorize non-linear features commonly associated with transportation projects, such as vehicle maintenance or storage buildings, parking lots, train stations, or aircraft hangars; and

h. The crossing is a single and complete project for crossing waters of the US. Where a road segment (i.e., the shortest segment of a road with independent utility that is part of a larger project) has multiple crossings of streams (several single and complete projects) the Corps will consider whether it should use its discretionary authority to require an Individual Permit. (Sections 10 and 404)

15. U.S. Coast Guard Approved Bridges. Discharges of dredged or fill material incidental to the construction of bridges across navigable waters of the United States, including cofferdams, abutments, foundation seals, piers, and temporary construction and access fills provided such discharges have been authorized by the U.S. Coast Guard as part of the bridge permit. Causeways and approach fills are not included in this NWP and will require an individual or regional Section 404 permit. (Section 404)

16. Return Water From Upland Contained Disposal Areas. Return water from an upland, contained dredged material disposal area. The dredging itself may require a Section 404 permit (33 CFR 323.2(d)), but will require a Section 10 permit if located in navigable waters of the United States. The return water from a contained disposal area is administratively defined as a discharge of dredged material by 33 CFR 323.2(d) even though the disposal itself occurs on the upland and thus does not require a Section 404 permit. This NWP satisfies the technical requirement for a Section 404 permit for the return water where the quality of the return water is controlled by the state through the Section 401 certification procedures. (Section 404)

17. Hydropower Projects. Discharges of dredged or fill material associated with (a) small hydropower projects at existing reservoirs where the project, which includes the fill, are licensed by the Federal Energy Regulatory Commission (FERC) under the Federal Power Act of 1920, as amended; and has a total generating capacity of not more than 5000 KW; and the permittee notifies the District Engineer in accordance with the "Notification" general condition; or (b) hydropower projects for which the FERC has granted an exemption from licensing pursuant to Section 408 of the Energy Security Act of 1980 (16 U.S.C. 2705 and 2708) and Section 30 of the Federal Power Act, as amended; provided the permittee notifies the District Engineer in accordance with the "Notification" general condition. (Section 404)

18. Minor Discharges. Minor discharges of dredged or fill material into all waters of the United States provided that the activity meets all of the following criteria:

a. The quantity of discharged material and the volume of excavated area does not exceed 25 cubic yards below the plane of the ordinary high water mark or the high tide line;

b. The discharge, including any excavated area, will not cause the loss of more than 1/10 acre of a special aquatic site, including wetlands. For the purposes of this NWP, the acreage limitation includes the filled area and excavated area plus special aquatic sites that are adversely affected by flooding and special aquatic sites that are drained so that they would no longer be a water of the United States as a result of the project;

c. If the discharge, including any excavated area, exceeds 10 cubic yards below the plane of the ordinary high water mark or the high tide line or if the discharge is in a special aquatic site, including wetlands, the permittee notifies the District Engineer in accordance with the "Notification" general condition. For discharges in special aquatic sites, including wetlands, the notification must also include a delineation of affected special aquatic sites, including wetlands (Also see 33 CFR 330.1(e)); and

d. The discharge, including all attendant features, both temporary and permanent, is part of a single and complete project and is not placed for the purpose of a stream diversion.

e. This NWP can not be used in conjunction with NWP 26 for any single and complete project. (Sections 10 and 404)

19. Minor Dredging. Dredging of no more than 25 cubic yards below the plane of the ordinary high water mark or the mean high water mark from navigable waters of the United States (i.e., Section 10 waters) as part of a single and complete project. This NWP does not authorize the dredging or degradation through siltation of coral reefs, sites that support submerged aquatic vegetation (including sites where submerged aquatic vegetation is documented to exist, but may not be present in a given year), anadromous fish spawning areas, or wetlands, or the connection of canals or other artificial waterways to navigable waters of the United States. (Sections 10 and 404)

20. Oil Spill Cleanup. Activities required for the containment and cleanup of oil and hazardous substances which are subject to the National Oil and Hazardous Substances Pollution Contingency Plan (40 CFR Part 300) provided that the work is done in accordance with the Spill Control and Countermeasure Plan required by 40 CFR Part 112.3 and any existing State contingency plan and provided that the Regional Response Team (if one exists in the area) concurs with the proposed containment and cleanup action. (Sections 10 and 404)

21. Surface Coal Mining Activities. (Modified in 2002) Discharges of dredged or fill material into waters of the US associated with surface coal mining and reclamation operations provided the coal mining activities are authorized by the DOI, Office of Surface Mining (OSM), or by states with approved programs under Title V of the Surface Mining Control and Reclamation Act of 1977 and provided the permittee notifies the District Engineer in accordance with the “Notification” General Condition. In addition, to be authorized by this NWP, the District Engineer must determine that the activity complies with the terms and conditions of the NWP and that the adverse environmental effects are minimal both individually and cumulatively and must notify the project sponsor of this determination in writing. The Corps, at the discretion of the District Engineer, may require a bond to ensure success of the mitigation, if no other Federal or state agency has required one. For discharges in special aquatic sites, including wetlands, and stream riffle and pool complexes, the notification must also include a delineation of affected special aquatic sites, including wetlands. (also, see 33 CFR 330.1(e)) Mitigation: In determining the need for as well as the level and type of mitigation, the District Engineer will ensure no more than minimal adverse effects to the aquatic environment occur. As such, District Engineers will determine on a case-by-case basis

the requirement for adequate mitigation to ensure the effects to aquatic systems are minimal. In cases where OSM or the state has required mitigation for the loss of aquatic habitat, the Corps may consider this in determining appropriate mitigation under Section 404. (Sections 10 and 404)

22. Removal of Vessels. Temporary structures or minor discharges of dredged or fill material required for the removal of wrecked, abandoned, or disabled vessels, or the removal of man-made obstructions to navigation. This NWP does not authorize the removal of vessels listed or determined eligible for listing on the National Register of Historic Places unless the District Engineer is notified and indicates that there is compliance with the "Historic Properties" general condition. This NWP does not authorize maintenance dredging, shoal removal, or river bank snagging. Vessel disposal in waters of the United States may need a permit from EPA. (Sections 10 and 404)

23. Approved Categorical Exclusions. Activities undertaken, assisted, authorized, regulated, funded, or financed, in whole or in part, by another Federal agency or department where that agency or department has determined, pursuant to the Council on Environmental Quality Regulation for Implementing the Procedural Provisions of the National Environmental Policy Act (40 CFR Part 1500 et seq.), that the activity, work, or discharge is categorically excluded from environmental documentation because it is included within a category of actions which neither individually nor cumulatively have a significant effect on the human environment, and the Office of the Chief of Engineers (ATTN: CECW-OR) has been furnished notice of the agency's or department's application for the categorical exclusion and concurs with that determination. Prior to approval for purposes of this NWP of any agency's categorical exclusions, the Chief of Engineers will solicit public comment. In addressing these comments, the Chief of Engineers may require certain conditions for authorization of an agency's categorical exclusions under this NWP. (Sections 10 and 404)

24. State Administered Section 404 Program. Any activity permitted by a state administering its own Section 404 permit program pursuant to 33 U.S.C. 1344(g)-(l) is permitted pursuant to Section 10 of the Rivers and Harbors Act of 1899. Those activities which do not involve a Section 404 state permit are not included in this NWP, but certain structures will be exempted by Section 154 of Public Law 94-587, 90 Stat. 2917. (Section 10)

25. Structural Discharges. Discharges of material such as concrete, sand, rock, etc. into tightly sealed forms or cells where the material will be used as a structural member for standard pile supported structures, such as bridges, transmission line footings, and walkways or for general navigation, such as mooring cells, including the excavation of bottom material from within the form prior to the discharge of concrete, sand, rock, etc. This NWP does not authorize filled structural members that would support buildings, homes, parking areas, storage areas and other such structures. Housepads or other building pads are also not included in this NWP. The structure itself may require a Section 10 permit if located in navigable waters of the United States. (Section 404)

26. This NWP no longer exists as of March, 2000 Headwaters and Isolated Wetlands Discharges. This NWP was the initial main concern for re-issuance and modification of permits released in March, 2000. The Corps of Engineers issued 5 new NWPs and modified 6 existing NWPs to replace NWP 26 which expired on June 5, 2000. The Corps also modified nine NWP general conditions and added two new NWP general conditions. The replacement of NWP 26 was done to ensure more activity-specific NWPs that result in minimal adverse effects on the aquatic environment. Therefore this NWP is no longer valid and has been replaced by other NWPs.

27. Stream and Wetland Restoration Activities. (Modified in 2000 and 2002). Activities in waters of the US associated with the restoration of former waters, the enhancement of degraded tidal and non-tidal wetlands and riparian areas, the creation of tidal and non-tidal wetlands and riparian areas, and the restoration and enhancement of non-tidal streams and non-tidal open water areas as follows:

(a) The activity is conducted on:

(1) Non-Federal public lands and private lands, in accordance with the terms and conditions of a binding wetland enhancement, restoration, or creation agreement between the landowner and the U.S. Fish and Wildlife Service (FWS) or the Natural Resources Conservation Service (NRCS), the National Marine Fisheries Service, the National Ocean Service, or voluntary wetland restoration, enhancement, and creation actions documented by the NRCS pursuant to NRCS regulations; or

(2) Reclaimed surface coal mine lands, in accordance with a Surface Mining Control and Reclamation Act permit issued by the OSM or the applicable state agency (the future reversion does not apply to streams or wetlands created, restored, or enhanced as mitigation for the mining impacts, nor naturally due to hydrologic or topographic features, nor for a mitigation bank); or

(3) Any other public, private or tribal lands;

(b) Notification: For activities on any public or private land that are not described by paragraphs (a)(1) or (a)(2) above, the permittee must notify the District Engineer in accordance with General Condition 13; and

(c) Planting of only native species should occur on the site. Activities authorized by this NWP include, to the extent that a Corps permit is required, but are not limited to: the removal of accumulated sediments; the installation, removal, and maintenance of small water control structures, dikes, and berms; the installation of current deflectors; the enhancement, restoration, or creation of riffle and pool stream structure; the placement of in-stream habitat structures; modifications of the stream bed and/or banks to restore or create stream meanders; the backfilling of artificial channels and drainage ditches; the removal of existing drainage structures; the construction of small nesting islands; the construction of open water areas; the construction of oyster habitat over unvegetated bottom in tidal waters; activities needed to reestablish vegetation, including plowing or discing for seed bed preparation and the planting of appropriate wetland species; mechanized land clearing to remove non-native invasive, exotic or nuisance vegetation; and other related activities. This NWP does not authorize the conversion of a stream to another aquatic use, such as the creation of an impoundment for waterfowl habitat. This NWP does not authorize stream channelization. This NWP does not authorize the conversion of natural wetlands to another aquatic use, such as creation of waterfowl impoundments where a forested wetland

previously existed. However, this NWP authorizes the relocation of non-tidal waters, including non-tidal wetlands, on the project site provided there are net gains in aquatic resource functions and values. For example, this NWP may authorize the creation of an open water impoundment in a non-tidal emergent wetland, provided the non-tidal emergent wetland is replaced by creating that wetland type on the project site. This NWP does not authorize the relocation of tidal waters or the conversion of tidal waters, including tidal wetlands, to other aquatic uses, such as the conversion of tidal wetlands into open water impoundments.

Reversion. For enhancement, restoration, and creation projects conducted under paragraphs (a)(3), this NWP does not authorize any future discharge of dredged or fill material associated with the reversion of the area to its prior condition. In such cases a separate permit would be required for any reversion. For restoration, enhancement, and creation projects conducted under paragraphs (a)(1) and (a)(2), this NWP also authorizes any future discharge of dredged or fill material associated with the reversion of the area to its documented prior condition and use (i.e., prior to the restoration, enhancement, or creation activities). The reversion must occur within five years after expiration of a limited term wetland restoration or creation agreement or permit, even if the discharge occurs after this NWP expires. This NWP also authorizes the reversion of wetlands that were restored, enhanced, or created on prior-converted cropland that has not been abandoned, in accordance with a binding agreement between the landowner and NRCS or FWS (even though the restoration, enhancement, or creation activity did not require a Section 404 permit). The five-year reversion limit does not apply to agreements without time limits reached under paragraph (a)(1). The prior condition will be documented in the original agreement or permit, and the determination of return to prior conditions will be made by the Federal agency or appropriate state agency executing the agreement or permit. Before any reversion activity the permittee or the appropriate Federal or state agency must notify the District Engineer and include the documentation of the prior condition. Once an area has reverted to its prior physical condition, it will be subject to whatever the Corps Regulatory requirements will be at that future date. (Sections 10 and 404)

Note: Compensatory mitigation is not required for activities authorized by this NWP, provided the authorized work results in a net increase in aquatic resource functions and values in the project area. This NWP can be used to authorize compensatory mitigation projects, including mitigation banks, provided the permittee notifies the District Engineer in accordance with General Condition 13, and the project includes compensatory mitigation for impacts to waters of the US caused by the authorized work. However, this NWP does not authorize the reversion of an area used for a compensatory mitigation project to its prior condition. NWP 27 can be used to authorize impacts at a mitigation bank, but only in circumstances where it has been approved under the Interagency Federal Mitigation Bank Guidelines.

28. Modification of Existing Marinas. Reconfiguration of existing docking facilities within an authorized marina area. No dredging, additional slips or dock spaces, or expansion of any kind within waters of the United States is authorized by this NWP. (Section 10)

29. Single-Family Housing. (Modified in 1999) Discharges of dredged or fill material into non-tidal waters of the United States, including non-tidal wetlands, for the construction or expansion of a single-family home and attendant features (such as a garage, driveway, storage shed, and/or septic field) for an individual permittee provided that the activity meets all of the following criteria:

a. The discharge does not cause the loss of more than 1/4 acre of non-tidal waters of the United States, including non-tidal wetlands;

b. The permittee notifies the District Engineer in accordance with the "Notification" general condition;

c. The permittee has taken all practicable actions to minimize the on-site and off-site impacts of the discharge. For example, the location of the home may need to be adjusted on-site to avoid flooding of adjacent property owners;

d. The discharge is part of a single and complete project; furthermore, that for any subdivision created on or after November 22, 1991, the discharges authorized under this NWP may not exceed an aggregate total loss of waters of the United States of 1/4 acre for the entire subdivision;

e. An individual may use this NWP only for a single-family home for a personal residence;

f. This NWP may be used only once per parcel;

g. This NWP may not be used in conjunction with NWP 14, NWP 18, or NWP 26, for any parcel; and,

h. Sufficient vegetated buffers must be maintained adjacent to all open water bodies, streams, etc., to preclude water quality degradation due to erosion and sedimentation.

For the purposes of this NWP, the acreage of loss of waters of the United States includes the filled area previously permitted, the proposed filled area, and any other waters of the United States that are adversely affected by flooding, excavation, or drainage as a result of the project. Whenever any other NWP is used in conjunction with this NWP, the total acreage of impacts to waters of the United States of all NWPs combined, can not exceed 1/4 acre. This NWP authorizes

activities only by individuals; for this purpose, the term "individual" refers to a natural person and/or a married couple, but does not include a corporation, partnership, or similar entity. For the purposes of this NWP, a parcel of land is defined as "the entire contiguous quantity of land in possession of, recorded as property of, or owned (in any form of ownership, including land owned as a partner, corporation, joint tenant, etc.) by the same individual (and/or that individual's spouse), and comprises not only the area of wetlands sought to be filled, but also all land contiguous to those wetlands, owned by the individual (and/or that individual's spouse) in any form of ownership." (Sections 10 and 404)

30. Moist Soil Management for Wildlife. (Modified in 2002). Discharges of dredged or fill material and maintenance activities that are associated with moist soil management for wildlife performed on non-tidal Federally-owned or managed, state-owned or managed property, and local government agency-owned or managed property, for the purpose of continuing ongoing, site-specific, wildlife management activities where soil manipulation is used to manage habitat and feeding areas for wildlife. Such activities include, but are not limited to: The repair, maintenance or replacement of existing water control structures; the repair or maintenance of dikes; and plowing or discing to impede succession, prepare seed beds, or establish fire breaks. Sufficient vegetated buffers must be maintained adjacent to all open water bodies, streams, etc., to preclude water quality degradation due to erosion and sedimentation. This NWP does not authorize the construction of new dikes, roads, water control structures, etc. associated with the management areas. This NWP does not authorize converting wetlands to uplands, impoundments or other open water bodies. (Section 404)

31. Maintenance of Existing Flood Control Facilities. (Modified in 2002) Discharge of dredge or fill material resulting from activities associated with the maintenance of existing flood control facilities, including debris basins, retention/detention basins, and channels that

(i) were previously authorized by the Corps by Individual Permit, General Permit, by 33 CFR 330.3, or did not require a permit at the time it was constructed, or

(ii) were constructed by the Corps and transferred to a non-Federal sponsor for operation and maintenance. Activities authorized by this NWP are limited to those resulting from maintenance activities that are conducted within the “maintenance baseline,” as described in the definition below. Activities including the discharges of dredged or fill materials, associated with maintenance activities in flood control facilities in any watercourse that has previously been determined to be within the maintenance baseline, are authorized under this NWP. The NWP does not authorize the

removal of sediment and associated vegetation from the natural water courses except to the extent that these have been included in the maintenance baseline. All dredged material must be placed in an upland site or an authorized disposal site in waters of the US, and proper siltation controls must be used. (Activities of any kind that result in only incidental fallback, or only the cutting and removing of vegetation above the ground, e.g., mowing, rotary cutting, and chainsawing, where the activity neither substantially disturbs the root system nor involves mechanized pushing, dragging, or other similar activities that redeposit excavated soil material, do not require a Section

404 permit in accordance with 33 CFR 323.2(d)(2)).

Notification: After the maintenance baseline is established, and before any maintenance work is conducted, the permittee must notify the District Engineer in accordance with the “Notification” General Condition. The notification may be for activity-specific maintenance or for maintenance of the entire flood control facility by submitting a five year (or less) maintenance plan.

Maintenance Baseline: The maintenance baseline is a description of the physical characteristics (e.g., depth, width, length, location, configuration, or design flood capacity, etc.) of a flood control project within which maintenance activities are normally authorized by NWP 31, subject to any case-specific conditions required by the District Engineer. The District Engineer will approve the maintenance baseline based on the approved or constructed capacity of the flood control facility, whichever is smaller, including any areas where there are no constructed channels, but which are part of the facility. If no evidence of the constructed capacity exist, the approved constructed capacity will be used. The prospective permittee will provide documentation of the

physical characteristics of the flood control facility (which will normally consist of as-built or approved drawings) and documentation of the design capacities of the flood control facility. The documentation will also include BMPs to ensure that the impacts to the aquatic environment are minimal, especially in maintenance areas where there are no constructed channels. (The Corps may request maintenance records in areas where there has not been recent maintenance.) Revocation or modification of the final determination of the maintenance baseline can only be done in accordance with 33 CFR 330.5. Except in emergencies as described below, this NWP can not be used until the District Engineer approves the maintenance baseline and determines the need for mitigation and any regional or activity-specific conditions. Once determined, the maintenance baseline will remain valid for any subsequent reissuance of this NWP. This permit does not authorize maintenance of a flood control facility that has been abandoned. A flood control facility will be considered abandoned if it has operated at a significantly reduced capacity without needed maintenance being accomplished in a timely manner.

Mitigation: The District Engineer will determine any required mitigation one-time only for impacts associated with maintenance work at the same time that the maintenance baseline is approved. Such one-time mitigation will be required when necessary to ensure that adverse environmental impacts are no more than minimal, both individually and cumulatively. Such mitigation will only be required once for any specific reach of a flood control project. However, if one-time mitigation is required for impacts associated with maintenance activities, the District Engineer will not delay needed maintenance, provided the District Engineer and the permittee establish a schedule for identification, approval, development, construction and completion of any such required mitigation. Once the one-time mitigation described above has been completed, or a

determination made that mitigation is not required, no further mitigation will be required for maintenance activities within the maintenance baseline. In determining appropriate mitigation, the District Engineer will give special consideration to natural water courses that have been included in the maintenance baseline and require compensatory mitigation and/or BMPs as appropriate.

Emergency Situations: In emergency situations, this NWP may be used to authorize maintenance activities in flood control facilities for which no maintenance baseline has been approved. Emergency situations are those which would result in an unacceptable hazard to life, a significant loss of property, or an immediate, unforeseen, and significant economic hardship if action is not taken before a maintenance baseline can be approved. In such situations, the determination of mitigation requirements, if any, may be deferred until the emergency has been resolved. Once the emergency has ended, a maintenance baseline must be established expeditiously, and mitigation, including mitigation for maintenance conducted during the emergency, must be required as

appropriate. (Sections 10 and 404)

32. Completed Enforcement Actions. (Modified in 2002) Any structure, work or discharge of dredged or fill material, remaining in place, or undertaken for mitigation, restoration, or environmental benefit in compliance with either:

(i) The terms of a final written Corps non-judicial settlement agreement resolving a violation of section 404 of the CWA and/or section 10 of the Rivers and Harbors Act of 1899; or the terms of an EPA 309(a) order on consent resolving a violation of section 404 of the CWA, provided that:

a. The unauthorized activity affected no more than 5 acres of non-tidal wetlands or 1 acre of tidal wetlands;

b. The settlement agreement provides for environmental benefits, to an equal or greater degree, than the environmental detriments caused by the unauthorized activity that is authorized by this NWP; and

c. The District Engineer issues a verification letter authorizing the activity subject to the terms and conditions of this NWP and the settlement agreement, including a specified completion date; or

(ii) The terms of a final Federal court decision, consent decree, or settlement agreement resulting from an enforcement action brought by the U.S. under section 404 of the CWA and/or

section 10 of the Rivers and Harbors Act of 1899; or

(iii) The terms of a final court decision, consent decree, settlement agreement, or non-judicial settlement agreement resulting from a natural resource damage claim brought by a trustee or trustees for natural resources (as defined by the National Contingency Plan at 40 CFR subpart G) under section 311 of the Clean Water Act (CWA), section 107 of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA or Superfund), section 312 of the National Marine Sanctuaries Act (NMSA), section 1002 of the Oil Pollution Act of 1990 (OPA), or the Park System Resource Protection Act at 16 U.S.C. '19jj, to the extent that a Corps permit is required.

For either (i), (ii) or (iii) above, compliance is a condition of the NWP itself. Any authorization under this NWP is automatically revoked if the permittee does not comply with the terms of this NWP or the terms of the court decision, consent decree, or judicial/non-judicial settlement agreement or fails to complete the work by the specified completion date. This NWP does not apply to any activities occurring after the date of the decision, decree, or agreement that are not for the purpose of mitigation, restoration, or environmental benefit. Before reaching any settlement agreement, the Corps will ensure compliance with the provisions of 33 CFR part 326 and 33 CFR 330.6 (d)(2) and (e). (Sections 10 and 404)

33. Temporary Construction, Access and Dewatering. Temporary structures, work and discharges, including cofferdams, necessary for construction activities or access fills or dewatering of construction sites; provided that the associated primary activity is authorized by the Corps of Engineers or the U.S. Coast Guard, or for other construction activities not subject to the Corps or U.S. Coast Guard regulations. Appropriate measures must be taken to maintain near normal downstream flows and to minimize flooding. Fill must be of materials, and placed in a manner, that will not be eroded by expected high flows. The use of dredged material may be allowed if it is determined by the District Engineer that it will not cause more than minimal adverse effects on aquatic resources. Temporary fill must be entirely removed to upland areas, or dredged material returned to its original location, following completion of the construction activity, and the affected areas must be restored to the pre-project conditions. Cofferdams cannot be used to dewater wetlands or other aquatic areas so as to change their use. Structures left in place after

cofferdams are removed require a Section 10 if located in navigable waters of the United States. (see 33 CFR Part 322). The permittee must notify the District Engineer in accordance with the "notification" general condition. The notification must also include a restoration plan of reasonable measures to avoid and minimize adverse effects to aquatic resources. The District Engineer will add special conditions, where necessary, to ensure that adverse environmental effects are minimal. Such conditions may include: Limiting the temporary work to minimum necessary; requiring seasonal restrictions; modifying the restoration plan; and, requiring alternative construction methods (e.g., construction mats, in wetlands, where practicable.). (Sections 10 and 404)

34. Cranberry Production Activities. Discharges of dredged or fill material for dikes, berms, pumps, water control structures or leveling of cranberry beds associated with expansion, enhancement, or modification activities at existing cranberry production operations provided that the activity meets all of the following criteria:

a. The cumulative total acreage of disturbance per cranberry production operation, including but not limited to, filling, flooding, ditching, or clearing, does not exceed 10 acres of waters of the United States, including wetlands;

b. The permittee notifies the District Engineer in accordance with the "Notification" general condition. The notification must include a delineation of affected special aquatic sites, including wetlands; and,

c. The activity does not result in a net loss of wetland acreage. This NWP does not authorize any discharge of dredged or fill material related to other cranberry production activities such as warehouses, processing facilities, or parking areas. For the purposes of this NWP, the cumulative total of 10 acres will be measured over the period that this NWP is valid. (Section 404)

35. Maintenance Dredging of Existing Basins. Excavation and removal of accumulated sediment for maintenance of existing marina basins, access channels to marina basins or boat slips, and boat slips to previously authorized depths or controlling depths for ingress/egress, whichever is less, provided the dredged material is disposed of at an upland site and proper siltation controls are used. (Section 10)

36. Boat Ramps. Activities required for the construction of boat ramps provided:

a. The discharge into waters of the United States does not exceed 50 cubic yards of concrete, rock, crushed stone or gravel into forms, or placement of pre-cast concrete planks or slabs. (Unsuitable material that causes unacceptable chemical pollution or is structurally unstable is not authorized);

b. The boat ramp does not exceed 20 feet in width;

c. The base material is crushed stone, gravel or other suitable material;

d. The excavation is limited to the area necessary for site preparation and all excavated material is removed to the upland; and,

e. No material is placed in special aquatic sites, including wetlands. Dredging to provide access to the boat ramp may be authorized by another NWP, regional general permit, or individual permit pursuant to Section 10 if located in navigable waters of the United States. (Sections 10 and 404)

37. Emergency Watershed Protection and Rehabilitation. (Modified in 2002)Work done by or funded by:

a. The NRCS which is a situation requiring immediate action under its emergency Watershed Protection Program (7 CFR part 624); or

b. The USFS under its Burned-Area Emergency Rehabilitation Handbook (FSH 509.13); or

c. The DOI for wildland fire management burned area emergency stabilization and rehabilitation (DOI Manual part 620, Ch. 3).

For all of the above provisions, the District Engineer must be notified in accordance with the General Condition 13. (Also, see 33 CFR 330.1(e)). (Sections 10 and 404)

38. Cleanup of Hazardous and Toxic Waste. Specific activities required to effect the containment, stabilization, or removal of hazardous or toxic waste materials that are performed, ordered, or sponsored by a government agency with established legal or regulatory authority provided the permittee notifies the District Engineer in accordance with the "Notification" general condition. For discharges in special aquatic sites, including wetlands, the notification must also include a delineation of affected special aquatic sites, including wetlands. Court ordered remedial action plans or related settlements are also authorized by this NWP. This NWP does not authorize the establishment of new disposal sites or the expansion of existing sites used for the disposal of hazardous or toxic waste. Activities undertaken entirely on a CERCLA site by authority of CERCLA as approved or required by EPA, are not required to obtain permits under Section 404 of the Clean Water Act or Section 10 of the Rivers and Harbors Act. (Sections 10 and 404)

39. Residential, Commercial, and Institutional Developments. (Added in 2000 and Modified in 2002) Discharges of dredged or fill material into non-tidal waters of the U.S., excluding non-tidal wetlands adjacent to tidal waters, for the construction or expansion of residential, commercial, 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, stormwater management facilities, and recreation facilities such as playgrounds, playing fields, and golf courses (provided the golf course is an integral part of the residential development). The construction of new ski areas or oil and gas wells is not authorized by this NWP.

Residential developments include multiple and single unit developments. 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 activities listed above are authorized, provided the activities meet all of the following criteria:

a. The discharge does not cause the loss of greater than 1/2-acre of non-tidal waters of the U.S., excluding non-tidal wetlands adjacent to tidal waters;

b. The discharge does not cause the loss of greater than 300 linear-feet of a stream bed, unless for intermittent stream beds this criterion is waived in writing pursuant to a determination by the District Engineer, as specified below, that the project complies with all terms and conditions of this NWP and that any adverse impacts of the project on the aquatic environment are minimal, both individually and cumulatively;

c. The permittee must notify the District Engineer in accordance with General Condition 13, if any of the following criteria are met:

(1) The discharge causes the loss of greater than 1/10-acre of non-tidal waters of the US, excluding non-tidal wetlands adjacent to tidal waters; or

(2) The discharge causes the loss of any open waters, including perennial or intermittent streams, below the ordinary high water mark (see Note, below); or

(3) The discharge causes the loss of greater than 300 linear feet of intermittent stream bed. In such case, to be authorized the District Engineer must determine that the activity complies with the other terms and conditions of the NWP, determine adverse environmental effects are minimal both individually and cumulatively, and waive the limitation on stream impacts in writing before the permittee may proceed;

d. For discharges in special aquatic sites, including wetlands, the notification must include a delineation of affected special aquatic sites;

e. The discharge is part of a single and complete project;

f. The permittee must avoid and minimize discharges into waters of the US at the project site to the maximum extent practicable. The notification, when required, must include a written statement explaining how avoidance and minimization of losses of waters of the US were achieved on the project site. Compensatory mitigation will normally be required to offset the losses of waters of the US. (See General Condition 19.) The notification must also include a compensatory mitigation proposal for offsetting unavoidable losses of waters of the US. If an applicant asserts that the adverse effects of the project are minimal without mitigation, then the applicant may submit justification explaining why compensatory mitigation should not be required for the District Engineer's consideration;

g. When this NWP is used in conjunction with any other NWP, any combined total permanent loss of waters of the US exceeding 1/10-acre requires that the permittee notify the District Engineer in accordance with General Condition 13;

h. Any work authorized by this NWP must not cause more than minimal degradation of water quality or more than minimal changes to the flow characteristics of any stream (see General

Conditions 9 and 21);

i. For discharges causing the loss of 1/10-acre or less of waters of the US, the permittee must submit a report, within 30 days of completion of the work, to the District Engineer that contains the following information: (1) The name, address, and telephone number of the permittee; (2) The location of the work; (3) A description of the work; (4) The type and acreage of the loss of waters of the US (e.g., 1/12-acre of emergent wetlands); and (5) The type and acreage of any compensatory mitigation used to offset the loss of waters of the US (e.g., 1/12-acre of emergent wetlands created on-site);

j. If there are any open waters or streams within the project area, the permittee will establish and maintain, to the maximum extent practicable, wetland or upland vegetated buffers next to those open waters or streams consistent with General Condition 19. Deed restrictions, conservation easements, protective covenants, or other means of land conservation and preservation are required to protect and maintain the vegetated buffers established on the project site.

Only residential, commercial, and institutional activities with structures on the foundation(s) or building pad(s), as well as the attendant features, are authorized by this NWP. The compensatory mitigation proposal that is required in paragraph (f) of this NWP may be either conceptual or detailed. The wetland or upland vegetated buffer required in paragraph (j) of this NWP will be determined on a case-by-case basis by the District Engineer for addressing water quality concerns. The required wetland or upland vegetated buffer is part of the overall compensatory mitigation requirement for this NWP. If the project site was previously used for agricultural purposes and the farm owner/operator used NWP 40 to authorize activities in waters of the US to increase

production or construct farm buildings, NWP 39 cannot be used by the developer to authorize additional activities. This is more than the acreage limit for NWP 39 impacts to waters of the US (i.e., the combined acreage loss authorized under NWPs 39 and 40 cannot exceed 1/2-acre, see General Condition 15).

Subdivisions: For residential subdivisions, the aggregate total loss of waters of US authorized by NWP 39 can not exceed 1/2-acre. This includes any loss of waters associated with development of individual subdivision lots. (Sections 10 and 404)

Note: Areas where wetland vegetation is not present should be determined by the presence or absence of an ordinary high water mark or bed and bank. Areas that are waters of the US based on this criterion would require a PCN although water is infrequently present in the stream channel (except for ephemeral waters, which do not require PCNs).

40. Agricultural Activities. ( Modified in 2000 and 2002) Discharges of dredged or fill material into non-tidal waters of the US, excluding non-tidal wetlands adjacent to tidal waters, for improving agricultural production and the construction of building pads for farm buildings. Authorized activities include the installation, placement, or construction of drainage tiles, ditches, or levees; mechanized land clearing; land leveling; the relocation of existing serviceable drainage ditches constructed in waters of the US; and similar activities, provided the permittee complies with the following terms and conditions:

a. For discharges into non-tidal wetlands to improve agricultural production, the following criteria must be met if the permittee is an United States Department of Agriculture (USDA) Program participant:

(1) The permittee must obtain a categorical minimal effects exemption, minimal effect exemption, or mitigation exemption from NRCS in accordance with the provisions of the Food Security Act of 1985, as amended (16 U.S.C. 3801 et seq.);

(2) The discharge into non-tidal wetlands does not result in the loss of greater than 1/2-acre of non-tidal wetlands on a farm tract;

(3) The permittee must have NRCS-certified wetland delineation;

(4) The permittee must implement an NRCS-approved compensatory mitigation plan that fully offsets wetland losses, if required; and

(5) The permittee must submit a report, within 30 days of completion of the authorized work, to the District Engineer that contains the following information: (a) The name, address, and telephone number of the permittee; (b) The location of the work; (c) A description of the work; (d) The type and acreage (or square feet) of the loss of wetlands (e.g., 1/3-acre of emergent wetlands); and (e) The type, acreage (or square feet), and location of compensatory mitigation (e.g. 1/3-acre of emergent wetland on a farm tract; credits purchased from a mitigation bank);

or b. For discharges into non-tidal wetlands to improve agricultural production, the following criteria must be met if the permittee is not a USDA Program participant (or a USDA Program participant for which the proposed work does not qualify for authorization under paragraph (a) of this NWP):

(1) The discharge into non-tidal wetlands does not result in the loss of greater than 1/2-acre of non-tidal wetlands on a farm tract;

(2) The permittee must notify the District Engineer in accordance with General Condition 13, if the discharge results in the loss of greater than 1/10-acre of non-tidal wetlands;

(3) The notification must include a delineation of affected wetlands; and

(4) The notification must include a compensatory mitigation proposal to offset losses of waters of the US; or

c. For the construction of building pads for farm buildings, the discharge does not cause the loss of greater than 1/2-acre of non-tidal wetlands that were in agricultural production prior to December 23, 1985, (i.e., farmed wetlands) and the permittee must notify the District Engineer in accordance with General Condition 13; and

d. Any activity in other waters of the US is limited to the relocation of existing serviceable drainage ditches constructed in non-tidal streams. This NWP does not authorize the relocation of greater than 300 linear-feet of existing serviceable drainage ditches constructed in non-tidal streams unless, for drainage ditches constructed in intermittent non-tidal streams, the District Engineer waives this criterion in writing, and the District Engineer has determined that the project complies with all terms and conditions of this NWP, and that any adverse impacts of the project on the aquatic environment are minimal, both individually and cumulatively. For impacts exceeding 300-linear feet of impacts to existing serviceable ditches constructed in intermittent

non-tidal streams, the permittee must notify the District Engineer in accordance with the “Notification” General Condition 13; and

e. The term “farm tract” refers to a parcel of land identified by the Farm Service Agency. The Corps will identify other waters of the US on the farm tract. NRCS will determine if a proposed agricultural activity meets the terms and conditions of paragraph

a. of this NWP, except as provided below. For those activities that require notification, the District Engineer will determine if a proposed agricultural activity is authorized by paragraphs b., c., and/or d. of this NWP. USDA Program participants requesting authorization for discharges of dredged or fill material into waters of the US authorized by paragraphs (c) or (d) of this NWP, in addition to paragraph (a), must notify the District Engineer in accordance with General Condition 13 and the District Engineer will determine if the entire single and complete project is authorized by this NWP. Discharges of dredged or fill material into waters of the US associated with completing required compensatory mitigation are authorized by this NWP. However, total impacts, including other authorized impacts under this NWP, may not exceed the 1/2-acre limit of this NWP. This NWP does not affect, or otherwise regulate, discharges associated with agricultural activities when the discharge qualifies for an exemption under section 404(f) of the CWA, even though a categorical minimal effects exemption, minimal effect exemption, or mitigation exemption from NRCS pursuant to the Food Security Act of 1985, as amended, may be required. Activities authorized by paragraphs a. through d. may not exceed a total of 1/2-acre on a single farm tract. If the site was used for agricultural purposes and the farm owner/operator used either paragraphs a., b., or c. of this NWP to authorize activities in waters of the US to increase agricultural production or construct farm buildings, and the current landowner wants to use NWP 39 to authorize residential, commercial, or industrial development activities in waters of the US on the site, the combined acreage loss authorized by NWPs 39 and 40 cannot exceed 1/2-acre (see General Condition 15). (Section 404)

41. Reshaping Existing Drainage Ditches. (Added in 2000) Discharges of dredged or fill material into non-tidal waters of the United States, excluding non-tidal wetlands adjacent to tidal waters, to modify the cross-sectional configuration of currently serviceable drainage ditches constructed in these waters. The reshaping of the ditch cannot increase drainage capacity beyond the original design capacity or expand the area drained by the ditch as originally designed (i.e., the capacity of the ditch must be the same as originally designed and it cannot drain additional wetlands or other waters of the United States). Compensatory mitigation is not required because the work is designed to improve water quality (e.g., by regrading the drainage ditch with gentler slopes, which can reduce erosion, increase growth of vegetation, increase uptake of nutrients and other substances by vegetation, etc.). The permittee must notify the District Engineer in accordance with General Condition 13, if greater than 500 linear feet of drainage ditch will be reshaped. Material resulting from excavation may not be permanently sidecast into waters but may be temporarily sidecast (up to three months) into waters of the United States, provided the material is not placed in such a manner that it is dispersed by currents or other forces. The District Engineer may extend the period of temporary sidecasting not to exceed a total of 180 days, where appropriate. This NWP does not apply to reshaping drainage ditches constructed in uplands, since these areas are not waters of the United States, and thus no permit from the Corps is required, or to the maintenance of existing drainage ditches to their original dimensions and configuration, which does not require a Section 404 permit (see 33 CFR 323.4(a)(3)). This NWP does not authorize the relocation of drainage ditches constructed in waters of the United States; the location of the centerline of the reshaped drainage ditch must be approximately the same as the location of the centerline of the original drainage ditch. This NWP does not authorize stream channelization or stream relocation projects. (Section 404)

42. Recreational Facilities. (Added in 2000 and Modified in 2002) Discharges of dredged or fill material into non-tidal waters of the US, excluding non-tidal wetlands adjacent to tidal waters, for the construction or expansion of recreational facilities, provided the activity meets all of

the following criteria:

a. The discharge does not cause the loss of greater than 1/2-acre of non-tidal waters of the US, excluding non-tidal wetlands adjacent to tidal waters;

b. The discharge does not cause the loss of greater than 300 linear-feet of a stream bed, unless for intermittent stream beds this criterion is waived in writing pursuant to a determination by the

District Engineer, as specified below, that the project complies with all terms and conditions of this NWP and that any adverse impacts of the project on the aquatic environment are minimal, both individually and cumulatively;

c. The permittee notifies the District Engineer in accordance with the “Notification” General Condition 13 for discharges exceeding 300 linear feet of impact of intermittent stream beds. In such cases, to be authorized the District Engineer must determine that the activity complies with the other terms and conditions of the NWP, determine the adverse environmental effects are minimal both individually and cumulatively, and waive this limitation in writing before the permittee may proceed;

d. For discharges causing the loss of greater than 1/10-acre of non-tidal waters of the US, the permittee notifies the District Engineer in accordance with General Condition 13;

e. For discharges in special aquatic sites, including wetlands, the notification must include a delineation of affected special aquatic sites;

f. The discharge is part of a single and complete project; and

g. Compensatory mitigation will normally be required to offset the losses of waters of the US. The notification must also include a compensatory mitigation proposal to offset authorized losses of waters of the US.

For the purposes of this NWP, the term “recreational facility” is defined as a recreational activity that is integrated into the natural landscape and does not substantially change preconstruction grades or deviate from natural landscape contours.

For the purpose of this permit, the primary function of recreational facilities does not include the use of motor vehicles, buildings, or impervious surfaces. Examples of recreational facilities that may be authorized by this NWP include hiking trails, bike paths, horse paths, nature centers, and campgrounds (excluding trailer parks). This NWP may authorize the construction or expansion of golf courses and the expansion of ski areas, provided the golf course or ski area does not substantially deviate from natural landscape contours. Additionally, these activities are designed to minimize adverse effects to waters of the US and riparian areas through the use of such practices as integrated pest management, adequate stormwater management facilities, vegetated buffers,

reduced fertilizer use, etc. The facility must have adequate water quality management measures in accordance with General Condition 9, such as a stormwater management facility, to ensure that the recreational facility results in no substantial adverse effects to water quality. This NWP also authorizes the construction or expansion of small support facilities, such as maintenance and storage buildings and stables that are directly related to the recreational activity. This NWP does not authorize other buildings, such as hotels, restaurants, etc. The construction or expansion of playing fields (e.g., baseball, soccer, or football fields), basketball and tennis courts, racetracks, stadiums, arenas, and the construction of new ski areas are not authorized by this NWP. (Section 404)

43. Stormwater Management Facilities. (Added in 2000 and Modified in 2002) Discharges of dredged or fill material into non-tidal waters of the US, excluding non-tidal wetlands adjacent to tidal waters, for the construction and maintenance of stormwater management facilities, including activities for the excavation of stormwater ponds/facilities, detention basins, and

retention basins; the installation and maintenance of water control structures, outfall structures and emergency spillways; and the maintenance dredging of existing stormwater management ponds/facilities and detention and retention basins, provided the activity meets all of the following criteria:

a. The discharge for the construction of new stormwater management facilities does not cause the loss of greater than 1/2-acre of non-tidal waters of the US, excluding nontidal wetlands adjacent to tidal waters;

b. The discharge does not cause the loss of greater than 300 linear-feet of a stream bed, unless for intermittent stream beds this criterion is waived in writing pursuant to a determination by the District Engineer, as specified below, that the project complies with all terms and conditions of this NWP and that any adverse impacts of the project on the aquatic environment are minimal, both individually and cumulatively;

c. For discharges causing the loss of greater than 300 linear feet of intermittent stream beds, the permittee notifies the District Engineer in accordance with the “Notification” General Condition 13. In such cases, to be authorized the District Engineer must determine that the activity complies with the other terms and conditions of the NWP, determine the adverse environmental effects are minimal both individually and cumulatively, and waive this limitation in writing before the permittee may proceed;

d. The discharges of dredged or fill material for the construction of new stormwater management facilities in perennial streams is not authorized;

e. For discharges or excavation for the construction of new stormwater management facilities or for the maintenance of existing stormwater management facilities causing the loss of greater than 1/10-acre of non-tidal waters, excluding non-tidal wetlands adjacent to tidal waters, provided the permittee notifies the District Engineer in accordance with the “Notification” General Condition 13. In addition, the notification must include:

(1) A maintenance plan. The maintenance plan should be in accordance with state and local requirements, if any such requirements exist;

(2) For discharges in special aquatic sites, including wetlands and submerged aquatic vegetation, the notification must include a delineation of affected areas; and

(3) A compensatory mitigation proposal that offsets the loss of waters of the US. Maintenance in constructed areas will not require mitigation provided such maintenance is accomplished in designated maintenance areas and not within compensatory mitigation areas (i.e., District Engineers may designate non-maintenance areas, normally at the downstream end of the stormwater management facility, in existing stormwater management facilities). (No mitigation will be required for activities that are exempt from Section 404 permit requirements);

f. The permittee must avoid and minimize discharges into waters of the US at the project site to the maximum extent practicable, and the notification must include a written statement to the District Engineer detailing compliance with this condition (i.e. why the discharge must occur in waters of the US and why additional minimization cannot be achieved);

g. The stormwater management facility must comply with General Condition 21 and be designed using BMPs and watershed protection techniques. Examples may include forebays (deeper areas at the upstream end of the stormwater management facility that would be maintained through excavation), vegetated buffers, and siting considerations to minimize adverse effects to aquatic resources. Another example of a BMP would be bioengineering methods incorporated into the facility design to benefit water quality and minimize adverse effects to aquatic resources from storm flows, especially downstream of the facility, that provide, to the maximum extent practicable, for long term aquatic resource protection and enhancement;

h. Maintenance excavation will be in accordance with an approved maintenance plan and will not exceed the original contours of the facility as approved and constructed; and

i. The discharge is part of a single and complete project. (Section 404)

44. Mining Activities. (Added in 2000) Discharges of dredged or fill material into: (i) isolated waters, streams where the annual average flow is 1 cubic foot per second or less, and non-tidal

wetlands adjacent to headwater streams, for aggregate mining (i.e., sand, gravel, and crushed and broken stone) and associated support activities; (ii) lower perennial streams, excluding wetlands adjacent to lower perennial streams, for aggregate mining activities (support activities in lower perennial streams or adjacent wetlands are not authorized by this NWP); and/or (iii) isolated waters and non-tidal wetlands adjacent to headwater streams, for hard rock/mineral mining activities (i.e., extraction of metalliferous ores from subsurface locations) and associated support activities, provided the discharge meets the following criteria:

a. The mined area within waters of the United States, plus the acreage loss of waters of the United States resulting from support activities, cannot exceed 1/2 acre;

b. The permittee must avoid and minimize discharges into waters of the United States at the project site to the maximum extent practicable, and the notification must include a written statement detailing compliance with this condition (i.e., why the discharge must occur in waters of the United States and why additional minimization cannot be achieved);

c. In addition to General Conditions 17 and 20, activities authorized by this permit must not substantially alter the sediment characteristics of areas of concentrated shellfish beds or fish spawning areas. Normally, the mandated water quality management plan should address these impacts;

d. The permittee must implement necessary measures to prevent increases in stream gradient and water velocities and to prevent adverse effects (e.g., head cutting, bank erosion) to upstream and downstream channel conditions;

e. Activities authorized by this permit must not result in adverse effects on the course, capacity, or condition of navigable waters of the United States;

f. The permittee must utilize measures to minimize downstream turbidity;

g. Wetland impacts must be compensated through mitigation approved by the Corps;

h. Beneficiation and mineral processing for hard rock/mineral mining activities may not occur within 200 feet of the ordinary high water mark of any open waterbody. Although the Corps does not regulate discharges from these activities, a Clean Water Act Section 402 permit may be required;

i. All activities authorized by this NWP must comply with General Conditions 9 and 21. Further, the District Engineer may require modifications to the required water quality management plan to ensure that the authorized work results in minimal adverse effects to water quality;

j. Except for aggregate mining activities in lower perennial streams, no aggregate mining can occur within stream beds where the average annual flow is greater than 1 cubic foot per second or in waters of the United States within 100 feet of the ordinary high water mark of headwater stream segments where the average annual flow of the stream is greater than 1 cubic foot per second (aggregate mining can occur in areas immediately adjacent to the ordinary high water mark of a stream where the average annual flow is 1 cubic foot per second or less);

k. Single and complete project: The discharge must be for a single and complete project, including support activities. Discharges of dredged or fill material into waters of the United States for multiple mining activities on several designated parcels of a single and complete mining operation can be authorized by this NWP provided the 1/2 acre limit is not exceeded; and

l. Notification: The permittee must notify the District Engineer in accordance with General Condition 13. The notification must include: (1) A description of waters of the United States adversely affected by the project; (2) A written statement to the District Engineer detailing compliance with paragraph (b), above (i.e., why the discharge must occur in waters of the United States and why additional minimization cannot be achieved);

(3) A description of measures taken to ensure that the proposed work complies with paragraphs (c) through (f), above; and (4) A reclamation plan (for aggregate mining in isolated waters and non-tidal wetlands adjacent to headwaters and hard rock/mineral mining only).

This NWP does not authorize hard rock/mineral mining, including placer mining, in streams. No hard rock/mineral mining can occur in waters of the United States within 100 feet of the ordinary high water mark of headwater streams. The terms “headwaters” and “isolated waters” are defined at 33 CFR 330.2(d) and (e), respectively. For the purposes of this NWP, the term “lower perennial stream” is defined as follows: “A stream in which the gradient is low and water velocity is slow, there is no tidal influence, some water flows throughout the year, and the substrate consists mainly of sand and mud.” (Sections 10 and 404)

Nationwide Permit General Conditions

1. Navigation. No activity may cause more than a minimal adverse effect on navigation.

2. Proper Maintenance. Any structure or fill authorized shall be properly maintained, including maintenance to ensure public safety.

3. Soils Erosion and Sediment Controls. (Modified in 2002). Appropriate soil erosion and sediment controls must be used and maintained in effective operating condition during construction, and all exposed soil and other fills, as well as any work below the ordinary high water mark or high tide line, must be permanently stabilized at the earliest practicable date. Permittees are encouraged to perform work within waters of the United States during periods of low-flow or no-flow.

.

4. Aquatic Life Movements. (Modified in 2002) No activity may substantially disrupt the necessary life-cycle movements of those species of aquatic life indigenous to the waterbody, including those species that normally migrate through the area, unless the activity's primary purpose is to impound water. Culverts placed in streams must be installed to maintain low flow conditions.

5. Equipment. Heavy equipment working in wetlands must be placed on mats, or other measures must be taken to minimize soil disturbance.

6. Regional and Case-by-Case Conditions. The activity must comply with any regional conditions which 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 or tribe in its Section 401 water quality certification and Coastal Zone Management Act consistency determination.

7. 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 effect 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.)

8. 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.

9. Water Quality. (Modified in 2002) (a) In certain states and tribal lands an individual 401 Water Quality Certification must be obtained or waived (See 33 CFR 330.4©)).

(b) For NWPs 12, 14, 17, 18, 32, 39, 40, 42, 43, and 44, where the state or tribal 401 certification (either generically or individually) does not require or approve water quality management measures, the permittee must provide water quality management measures that will ensure that the authorized work does not result in more than minimal degradation of water quality (or the Corps determines that compliance with state or local standards, where applicable, will ensure no more than minimal adverse effect on water quality). An important component of water quality management includes stormwater management that minimizes degradation of the downstream aquatic system, including water quality (refer to General Condition 21 for stormwater management requirements). Another important component of water quality management is the establishment and maintenance of vegetated buffers next to open waters, including streams (refer to General Condition 19 for vegetated buffer requirements for the NWPs). This condition is only applicable to projects that have the potential to affect water quality. While appropriate measures must be taken, in most cases it is not necessary to conduct detailed studies to identify such measures or to require monitoring.

10. Coastal Zone Management. In certain states, an individual state coastal zone management consistency concurrence must be obtained or waived. (See 33 CFR 330.4(d)).

11. Endangered Species. (Modified in 2002) (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. 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 is located in the 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 may affect Federally-listed endangered or threatened species or designated critical habitat, the 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. 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.

(b) 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 USFWS 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 USFWS and NMFS or their world wide web pages at http://www.fws.gov/r9endspp/endspp.html and http://www.nfms.noaa.gov/prot_res/overview/es.html respectively.

12. Historic Properties. No activity which may affect historic properties listed, or eligible for listing, in the National Register of Historic Places is authorized, until the District Engineer has complied with the provisions of 33 CFR 325, Appendix C. The prospective permittee must

notify the District Engineer if the authorized activity may affect any historic properties listed, determined to be eligible, or which the prospective permittee has reason to believe may be eligible for listing on the National Register of Historic Places, and shall not begin the activity until

notified by the District Engineer that the requirements of the National Historic Preservation Act have been satisfied and that the activity is authorized. Information on the location and existence of historic resources can be obtained from the State Historic Preservation Office (SHPO) and the National Register of Historic Places. (See 33 CFR 330.4(g)). For activities that may affect historic properties listed in, or eligible for listing in, the National Register of Historic Places, the notification must state which historic property may be affected by the proposed work or include a vicinity map indicating the location of the historic property.

13. Notification. (Modified in 2002). (a) Timing; where required by the terms of the NWP, the prospective permittee must notify the District Engineer with a preconstruction notification (PCN) as early as possible. The District Engineer must determine if the notification is complete within 30 days of the date of receipt and can 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 notification 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 notified in writing by the District or Division Engineer that an Individual Permit is required; or

(3) Unless 45 days have passed from the District Engineer's receipt of the complete notification and the prospective permittee has not received written notice from the District or Division Engineer. 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 Notification: The notification 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) Brief 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. 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) For NWPs 7, 12, 14, 18, 21, 34, 38, 39, 40, 41, 42, and 43, the PCN must also include a delineation of affected special aquatic sites, including wetlands, vegetated shallows (e.g., submerged aquatic vegetation, seagrass beds), and riffle and pool complexes (see paragraph 13(f));

(5) For NWP 7 (Outfall Structures and Maintenance), the PCN must include information regarding the original design capacities and configurations of those areas of the facility where maintenance dredging or excavation is proposed;

(6) For NWP 14 (Linear Transportation Projects), the PCN must include a compensatory mitigation proposal to offset permanent losses of waters of the US and a statement describing how temporary losses of waters of the US will be minimized to the maximum extent practicable;

(7) For NWP 21 (Surface Coal Mining Activities), the PCN must include an Office of Surface Mining (OSM) or state-approved mitigation plan, if applicable. To be authorized by this NWP, the District Engineer must determine that the activity complies with the terms and conditions of the NWP and that the adverse environmental effects are minimal both individually and cumulatively and must notify the project sponsor of this determination in writing;

(8) For NWP 27 (Stream and Wetland Restoration Activities), the PCN must include documentation of the prior condition of the site that will be reverted by the permittee;

(9) For NWP 29 (Single-Family Housing), the PCN must also include:

(i) Any past use of this NWP by the Individual Permittee and/or the permittee's spouse;

(ii) A statement that the single-family housing activity is for a personal residence of the permittee;

(iii) A description of the entire parcel, including its size, and a delineation of wetlands. For the purpose of this NWP, parcels of land measuring 1/4-acre or less will not require a formal on-site delineation. However, the applicant shall provide an indication of where the wetlands are and the amount of wetlands that exists on the property. For parcels greater than 1/4-acre in size, formal wetland delineation must be prepared in accordance with the current method required by the Corps. (See paragraph 13(f));

(iv) A written description of all land (including, if available, legal descriptions) owned by the prospective permittee and/or the prospective permittee's spouse, within a one mile radius of the parcel, in any form of ownership (including any land owned as a 30 partner, corporation, joint tenant, co-tenant, or as a tenant-by-the-entirety) and any land on which a purchase and sale agreement or other contract for sale or purchase has been executed;

(10) For NWP 31 (Maintenance of Existing Flood Control Facilities), the prospective permittee must either notify the District Engineer with a PCN prior to each maintenance activity or submit a five year (or less) maintenance plan. In addition, the PCN must include all of the following:

(i) Sufficient baseline information identifying the approved channel depths and configurations and existing facilities. Minor deviations are authorized, provided the approved flood control protection or drainage is not increased;

(ii) A delineation of any affected special aquatic sites, including wetlands; and,

(iii) Location of the dredged material disposal site;

(11) For NWP 33 (Temporary Construction, Access, and Dewatering), the PCN must also include a restoration plan of reasonable measures to avoid and minimize adverse effects to aquatic resources;

(12) For NWPs 39, 43 and 44, the PCN must also include a written statement to the District Engineer explaining how avoidance and minimization for losses of waters of the US were achieved on the project site;

(13) For NWP 39 and NWP 42, the PCN must include a compensatory mitigation proposal to offset losses of waters of the US or justification explaining why compensatory mitigation should not be required. For discharges that cause the loss of greater than 300 linear feet of an intermittent stream bed, to be authorized, the District Engineer must determine that the activity complies with the other terms and conditions of the NWP, determine adverse environmental effects are minimal both individually and cumulatively, and waive the limitation on stream impacts in writing before the permittee may proceed;

(14) For NWP 40 (Agricultural Activities), the PCN must include a compensatory mitigation proposal to offset losses of waters of the US. This NWP does not authorize the relocation of greater than 300 linear-feet of existing serviceable drainage ditches constructed in non-tidal streams unless, for drainage ditches constructed in intermittent non-tidal streams, the District Engineer waives this criterion in writing, and the District Engineer has determined that the project complies with all terms and conditions of this NWP, and that any adverse impacts of the project on the aquatic environment are minimal, both individually and cumulatively;

(15) For NWP 43 (Stormwater Management Facilities), the PCN must include, for the construction of new stormwater management facilities, a maintenance plan (in accordance with state and local requirements, if applicable) and a compensatory mitigation proposal to offset losses of waters of the US. For discharges that cause the loss of greater than 300 linear feet of an intermittent stream bed, to be authorized, the District Engineer must determine that the activity complies with the other terms and conditions of the NWP, determine adverse environmental effects are minimal both individually and cumulatively, and waive the limitation on stream impacts in writing before the permittee may proceed;

(16) For NWP 44 (Mining Activities), the PCN must include a description of all waters of the US adversely affected by the project, a description of measures taken to minimize adverse effects to waters of the US, a description of measures taken to comply with the criteria of the NWP, and a reclamation plan (for all aggregate mining activities in isolated waters and non-tidal wetlands adjacent to headwaters and any hard rock/mineral mining activities);

(17) For activities that may adversely affect Federally-listed endangered or threatened species, the PCN must include the name(s) of those endangered or threatened species that may be affected by the proposed work or utilize the designated critical habitat that may be affected by the proposed work; and

(18) For activities that may affect historic properties listed in, or eligible for listing in, the National Register of Historic Places, 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.

(c) Form of Notification: The standard Individual Permit application form (Form ENG 4345) may be used as the notification but must clearly indicate that it is a PCN and must include all of the information required in (b) (1)-(18) of General Condition 13. A letter containing the requisite information may also be used.

(d) 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. The prospective permittee may submit a proposed 31 mitigation plan with the PCN to expedite the process. 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. If the District Engineer determines that the activity complies with the terms and conditions of the NWP and that the adverse effects on the aquatic environment are minimal, after considering mitigation, the District Engineer will notify the permittee and include any conditions the District Engineer deems necessary. The District Engineer must approve any compensatory mitigation proposal before the

permittee commences work. If the prospective permittee is required to submit a compensatory mitigation proposal with the PCN, the proposal may be either conceptual or detailed. If the prospective permittee elects to submit a compensatory mitigation plan with the PCN, the District Engineer will expeditiously review the proposed compensatory mitigation plan. The District Engineer must review the plan within 45 days of receiving a complete PCN and determine whether the conceptual or specific 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: (1) That the project does not qualify for authorization under the NWP and instruct the applicant on the procedures to seek authorization under an Individual Permit; (2) that the project is authorized under the NWP subject to the applicant's submission of a mitigation proposal that would reduce the adverse effects on the aquatic environment to the minimal level; or (3) that the project is authorized under the NWP with specific modifications or conditions. Where the District Engineer determines that mitigation is required to ensure no more than minimal adverse effects occur to the aquatic environment, the activity will be authorized within the 45-day PCN period. The authorization will include the necessary conceptual or specific mitigation or a requirement that the applicant submit a mitigation proposal that would reduce the adverse effects on the aquatic environment to the minimal level. When conceptual mitigation is included, or a mitigation plan is required under

item (2) above, no work in waters of the US will occur until the District Engineer has approved a specific mitigation plan.

(e) Agency Coordination: 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. For activities requiring notification to the District Engineer that result in the loss of greater than 1/2-acre of waters of the US, the District Engineer will provide immediately (e.g., via facsimile transmission, overnight mail, or other expeditious manner) a copy to the appropriate Federal or state offices (USFWS, state natural resource or water quality agency, EPA, State Historic Preservation Officer (SHPO), 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 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 notification that the resource agencies' concerns were considered. As required by section 305(b)(4)(B) of the Magnuson-Stevens Fishery Conservation and Management Act, the District Engineer will provide a response to NMFS within 30 days of receipt of any Essential Fish Habitat conservation recommendations. Applicants are encouraged to provide the Corps multiple copies of notifications to expedite agency notification.

(f) Wetland Delineations: Wetland delineations must be prepared in accordance with the current method required by the Corps (For NWP 29 see paragraph (b)(9)(iii) for parcels less than (1/4-acre in size). The permittee may ask the Corps to delineate the special aquatic site. There may be some delay if the Corps does the delineation. Furthermore, the 45-day period will not start until the wetland delineation has been completed and submitted to the Corps, where appropriate.

14. Compliance Certification: Every permittee who has received nationwide permit verification from the Corps will submit a signed certification regarding the completed work and any required mitigation. The certification will be forwarded by the Corps with the authorization letter and will include:

a. A statement that the authorized work was done in accordance with the Corps authorization, including any general or specific conditions;

b. A statement that any required mitigation was completed in accordance with the permit conditions;

c. The signature of the permittee certifying the completion of the work and mitigation.

15. Use of Multiple Nationwide Permits. The use of more than one NWP for a single and complete project is prohibited, except when the acreage loss of waters of the United States authorized by the NWPs does not exceed the acreage limit of the NWP with the highest specified

acreage limit. For example, if a road crossing over tidal waters is constricted 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 acres.

16. Water Supply Intakes. No activity, including structures and work in navigable waters of the United States or discharges of dredged or fill material, may occur in the proximity of a public water supply intake except where the activity is for repair of the public water supply intake

structures or adjacent bank stabilization.

17. Shellfish Beds. No activity, including structures and work in navigable waters of the United States or discharges of dredged or fill material, may occur in areas of concentrated shellfish populations, unless the activity is directly related to a shellfish harvesting activity authorized by NWP 4.

18. Suitable Material. No activity, including structures and work in navigable waters of the United States or discharges of dredged or fill material, may consist of unsuitable material (e.g., trash, debris, car bodies, asphalt, etc.) and material used for construction or discharged must be free from toxic pollutants in toxic amounts (see Section 307 of the Clean Water Act).

19. Mitigation. (Modified in 2002). The District Engineer will consider the factors discussed below when determining the acceptability of appropriate and practicable mitigation necessary to offset adverse effects on the aquatic environment that are more than minimal.

(a) The project must be designed and constructed to avoid and minimize adverse effects to waters of the US 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 impacts requiring a PCN, unless the District Engineer determines in writing that some other form of mitigation would be more environmentally appropriate and provides a project-specific waiver of this requirement. Consistent with National policy, the District Engineer will establish a preference for restoration of wetlands as compensatory mitigation, with preservation used only in exceptional circumstances.

(d) Compensatory mitigation (i.e., replacement or substitution of aquatic resources for those impacted) will not be used to increase the acreage losses allowed by the acreage limits of some of the NWPs. For example, 1/4-acre of wetlands cannot be created to change a 3/4-acre loss of wetlands to a 1/2-acre loss associated with NWP 39 verification. However, 1/2-acre of created wetlands can be used to reduce the impacts of a 1/2-acre loss of wetlands to the minimum impact level in order to meet the minimal impact requirement associated with NWPs.

(e) To be practicable, the mitigation must be available and capable of being done considering costs, existing technology, and logistics in light of the overall project purposes. Examples of mitigation that may be appropriate and practicable include, but are not limited to: reducing the size of the project; establishing and maintaining wetland or upland vegetated buffers to protect open waters such as streams; and replacing losses of aquatic resource functions and values by creating, restoring, enhancing, or preserving similar functions and values, preferably in the same watershed.

(f) Compensatory mitigation plans for projects in or near streams or other open waters will normally include a requirement for the establishment, maintenance, and legal protection

(e.g., easements, deed restrictions) of vegetated buffers to open waters. In many cases, vegetated buffers will be the only compensatory mitigation required. Vegetated buffers should consist of native species. The width of the vegetated buffers required will address documented water quality or aquatic habitat loss concerns. Normally, the vegetated buffer will be 25 to 50 feet wide on each side of the stream, but the District Engineers may require slightly wider vegetated buffers to address documented water quality or habitat loss concerns. Where both wetlands and open waters exist on the project site, the Corps will determine the appropriate compensatory mitigation (e.g., stream buffers or wetlands compensation) based on what is best for the aquatic environment on a watershed basis. In cases where vegetated buffers are determined to be the most appropriate form of compensatory mitigation, the District Engineer may waive or reduce the requirement to provide wetland compensatory mitigation for wetland impacts.

(g) Compensatory mitigation proposals submitted with the “notification” may be either conceptual or detailed. If conceptual plans are approved under the verification, then the Corps will condition the verification to require detailed plans be submitted and approved by the Corps prior to construction of the authorized activity in waters of the US.

(h) Permittees may propose the use of mitigation banks, in-lieu fee arrangements or separate activity-specific compensatory mitigation. In all cases that require compensatory mitigation, the mitigation provisions will specify the party responsible for accomplishing and/or complying with the mitigation plan.

20. Spawning Areas. Activities, including structures and work in navigable waters of the United States or discharges of dredged or fill material, in spawning areas during spawning seasons must be avoided to the maximum extent practicable. Activities that result in the physical destruction (e.g., excavate, fill, or smother downstream by substantial turbidity) of an important spawning area are not authorized.

21. Management of Water Flows. (Modified in 2002). To the maximum extent practicable, the activity must be designed to maintain preconstruction downstream flow conditions (e.g., location, capacity, and flow rates). Furthermore, the activity must not permanently restrict or impede the passage of normal or expected high flows (unless the primary purpose of the fill is to impound waters) and the structure or discharge of dredged or fill material must withstand expected high flows. The activity must, to the maximum extent practicable, provide for retaining excess flows from the site, provide for maintaining surface flow rates from the site similar to preconstruction conditions, and provide for not increasing water flows from the project site, relocating water, or redirecting water

flow beyond preconstruction conditions. Stream channelizing will be reduced to the minimal amount necessary, and the activity must, to the maximum extent practicable, reduce adverse effects such as flooding or erosion downstream and upstream of the project site, unless the activity is part of a larger system designed to manage water flows. In most cases, it will not be a requirement to conduct detailed studies and monitoring of water flow. This condition is only applicable to projects that have the potential to affect waterflows. While appropriate measures must be taken, it is not necessary to conduct detailed studies to identify such measures or require monitoring to ensure their effectiveness. Normally, the Corps will defer to state and local authorities regarding management of water flow.

22. Adverse Effects From Impoundments. If the activity, including structures and work in navigable waters of the United States or discharge of dredged or fill material, creates an impoundment of water, adverse effects on the aquatic system caused by the accelerated passage of water and/or the restriction of its flow shall be minimized to the maximum extent practicable.

23. Waterfowl Breeding Areas. Activities, including structures and work in navigable waters of the United States or discharges of dredged or fill material, into breeding areas for migratory waterfowl must be avoided to the maximum extent practicable.

24. Removal of Temporary Fills. Any temporary fills must be removed in their entirety and the affected areas returned to their preexisting elevation.

25. Designated Critical Resource Waters. Critical resource waters include, NOAA-designated marine sanctuaries, National Estuarine Research Reserves, National Wild and Scenic Rivers, critical habitat for Federally listed threatened and endangered species, coral reefs, 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) Except as noted below, 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, and 44 for any activity within, or directly affecting, critical resource waters, including wetlands adjacent to such waters. Discharges of dredged or fill materials into waters of the United States may be authorized by the above NWPs in National Wild and Scenic Rivers if the activity complies with General Condition 7. Further, such discharges may be authorized in designated critical habitat for Federally listed threatened or endangered species if the activity complies with General Condition 11 and the U.S. Fish and Wildlife Service or the National Marine Fisheries Service has concurred in a determination of compliance with this condition.

(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 13, 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 he determines that the impacts to the critical resource waters will be no more than minimal.

26. Fills Within 100-Year Floodplains. (Modified in 2002). For purposes of this General Condition, 100-year floodplains will be identified through the existing Federal Emergency Management Agency's (FEMA) Flood Insurance Rate Maps or FEMA-approved local floodplain maps.

(a) Discharges in Floodplain; Below Headwaters. Discharges of dredged or fill material into waters of the US within the mapped 100-year floodplain, below headwaters (i.e. five cfs), resulting in permanent above-grade fills, are not authorized by NWPs 39, 40, 42, 43, and 44.

(b) Discharges in Floodway; Above Headwaters. Discharges of dredged or fill material into waters of the US within the FEMA or locally mapped floodway, resulting in permanent above-grade fills, are not authorized by NWPs 39, 40, 42, and 44.

(c) The permittee must comply with any applicable FEMA-approved state or local floodplain management requirements.

27. Construction Period (Added in 2000). For activities that have not been verified by the Corps and the project was commenced or under contract to commence by the expiration date of the NWP (or modification or revocation date), the work must be completed within 12-months after such date (including any modification that affects the project).

For activities that have been verified and the project was commenced or under contract to commence within the verification period, the work must be completed by the date determined by the Corps.

For projects that have been verified by the Corps, an extension of a Corps approved completion date maybe requested. This request must be submitted at least one month before the previously approved completion date.

Rock Island, St. Louis, Louisville, and Memphis Districts Permits and Conditions

NOTE: None of the regional conditions pertain to paragraph a. of Nationwide Permit Number 40.

NOTE: The Chicago District will be following different procedures for activities in McHenry, Kane, Lake, DuPage, Will & Cook Counties in Illinois.

1. Stream channelization projects exceeding 250 feet will require a PreConstruction Notification to the Corps of Engineers in accordance with the Notification Condition (Number 13).

2. Stream impoundment projects exceeding 250 feet will require a PreConstruction Notification to the Corps of Engineers in accordance with the Notification Condition (Number 13).

3. Bank stabilization projects involving armoring of the streambank with riprap or the construction of retaining walls within Critical Resource Subwatersheds (as defined by the State) or Impaired Waters (as defined by the State) exceeding 250 feet will require a PreConstruction Notification to the Corps of Engineers in accordance with Notification Condition (Number 13).

4. Buffer strips on both sides of a new channel shall be established and planted to permanent, perennial, native vegetation. Buffer strips may also be required around existing and/or mitigation wetlands.

5. A proposed activity to be authorized under Nationwide Permits 12 or 14 within the Cache River Wetlands Areas (Alexander and Pulaski Counties), Kaskaskia River (Clinton, St Clair, and Washington Counties), or Wabash River (Gallatin and White Counties) will require a PreConstruction Notification to the Corps of Engineers in accordance with the Notification Condition (Number 13).

Definitions

Critical Resource Subwatersheds -The state of Illinois has defined these areas through a combination of factors. Various sources of information were used to analyze and rank subwatersheds. Federal Threatened and Endangered Species, % of wetlands in the watershed, Natural Areas Inventory , and Biological Stream Categorization were factors used for Critical Resource designation. A map highlighting these proposed areas is attached.

Impaired Waters -The state of Illinois has proposed waterbodies identified during the Section 303(d) process with the source of the impairn1ent related to a Category 70 activity (Hydrologic/Habitat Modification). This was the only impairment source category that clearly related to Section 404 type activities. A map highlighting these proposed waterbodies is attached.

Chicago District Nationwide Permits

The Chicago district has revoked the following Nationwide Permits:

1. Aids to Navigation

3. Maintenance

7. Outfall Structure

10. Mooring Buoys

11. Temporary Recreational Structures

12. Utility Line Activities

13. Bank Stabilization

14. Road Crossings

18. Minor Discharges

20. Oil Spill Cleanup

22. Removal of Vessels

25. Structural Discharges

26. Headwaters and Isolated Wetlands Discharges

27. Wetland and Riparian Restoration/Creation

29. Single Family Housing

31. Maintenance of Existing Flood Control Structures

32. Completed Enforcement Actions

33. Temporary Construction Access and Dewatering Boat Ramps

36. Boat Ramps

38. Cleanup of Hazardous and Toxic Waste

39. Resdiential, Commercial, and Institutional

41. Drainage Districts

42. Recreational Facilities

Chicago District Regional Permit Process

            The Chicago district has a regional permit process that differs from the rest of the state.

The Army Corps of Engineers, Chicago District, has created a Regional Permit Program (RPP) to authorize the discharges of dredged and fill material into jurisdictional waters of the United States in the Chicago area. The RPP was designed to replace the use of many of the Department of the Army Nationwide Permits (NWPs) in the six-county Chicago region, incorporating Cook, DuPage, Kane, Lake, McHenry and Will Counties in Illinois. The purpose of the RPP is to provide an efficient and predictable program to evaluate projects requiring authorization under Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act of 1899. The

goals of the RPP include, a) providing better protection of the aquatic resource than the replaced NWPs, b) providing straightforward requirements and conditions with a timely review, c) maintaining or reducing the existing District workload, and d) covering practically all activities presently covered under the selected NWPs and three existing general permits.

The Chicago District has undertaken this task in order to develop a program that better meets the needs of the regulated public in this high-growth metropolitan area, while encouraging the protection of wetlands and water quality. The Chicago District is unique among Corps of Engineers districts in that it is the smallest in the United States, one of the most urban, and also possesses many rare and valuable aquatic resources. Given the numerous challenges that developed areas and rapidly urbanizing areas present to improving water quality and sustaining wetland functions and values, the RPP will encourage the use of best management practices and innovative engineering practices to the extent possible.

The RPP includes 13 individual Regional Permits which cover residential, commercial and institutional developments, recreation projects, transportation projects, minor discharges and dredging, wetland/stream restoration/enhancement, completed enforcement actions, temporary construction activities, utility line projects, maintenance, bank stabilization, marine structures and activities, bridge scour protection and cleanup of toxic and hazardous wastes. The terms and conditions of the RPP and each individual RP limit the types of authorized activities to those that require no more than minimal adverse impacts on the aquatic resource. The Illinois Environmental

Protection Agency issued 401 Water Quality Certification for all RP’s except RP13 and certain waterways under RP’s 4 and 8.

Following are the regional permits for the Chicago District:

1. Residential, Commercial and Institutional Developments. RP1 authorizes the construction of residential, commercial and institutional developments and associated infrastructure, such as roads, utilities, detention areas, and recreation areas, subject to the following:

a. The impact to waters of the U.S. shall not exceed 2.0 acres. For projects that impact over 0.25 acres of waters of the U.S., the permittee is required to provide compensatory mitigation.

b. Projects that impact no more than 0.25 acre of waters of the U.S. and do not impact any high-quality aquatic resources will be processed under Category I.

c. Projects that impact over 0.25 acre up to 2.0 acres of waters of the U.S. or impact high-quality aquatic resources will be processed under Category II.

d. The permittee shall establish and/or enhance an upland buffer of native plants (or other appropriate vegetation approved by the District) adjacent to all created, restored, enhanced, or preserved waters of the U.S., including wetlands, rivers, streams, creeks, ponds and lakes etc.. The Following buffer widths shall be required:

1) For a linear body of water (e.g., river, stream, creek, etc.), the buffer shall be a minimum of 50 feet from the Ordinary High Water Mark (OHWM) on both sides of the linear waterbody;

2) For any waters of the U.S., including wetlands, over 0.25 acres and up to 1.0 acre in size, the buffer shall average 30 feet wide (20 foot minimum);

3) For any waters of the U.S. including wetlands, 1.0 acre or larger in size, the buffer shall average 50 feet wide (40 foot minimum); and

4) For any area determined to be a high-quality resource, the buffer shall average 100 feet wide (50 foot minimum);

The above requirements do not apply to linear road crossings. Created buffers should be established on 6:1 or gentler slopes. Waters of the U.S. shall not be filled in order to meet the buffer requirements.

Stormwater retention/detention facilities, and pervious nature trails may be located in the buffer. However, the facility and/or trail shall be setback to a minimum distance of 50% of the required buffer, leaving the remaining buffer footage (adjacent to the regulated area) to consist of native vegetation only (or other appropriate vegetation approved by the District). The District may allow Best Management Practices, small boat launches and houses, and piers/docks to be located

in buffers.

The District may, on a case-by-case basis, give compensatory wetland mitigation credit for buffers (except for area occupied by stormwater detention), following a request from the applicant to receive such a credit. The credit may be applied to 10% of the overall compensatory wetland mitigation required to offset project impacts.

e. All remaining, created, restored or enhanced waters of the U.S. and adjacent buffers on the project site shall be permanently preserved and protected through deed restriction (or conservation easement). A draft deed restriction (or conservation easement) shall be provided with notification.

f. No lot lines shall occur in created, restored, enhanced or preserved waters of the U.S. and adjacent buffer areas on the project site. In instances where there is a demonstrated conflict between this lot line restriction and a local ordinance, other measures, such as the installation of split-rail fencing, posting of signs marking the limits of the protected areas and establishing a party responsible for the long-term management of the protected areas, may be acceptable in lieu of placing such areas in separate outlots.

g. The project shall employ Best Management Practices (BMPs) to protect water quality and minimize impacts of stormwater on aquatic resources. A written narrative shall be included with notification which describes how the BMP hierarchy above was used in determining the water quality protection practices selected for the project site. The following BMP hierarchy shall by used in designing the project: (a) preservation of natural resource features on the project site (e.g., floodplains, wetlands, streams, and other drainageways, prairies, woodlands, and native soils); (b) preservation of natural infiltration and storage characteristics of the site; (c) minimization of impervious surfaces; (d) structural measures that provide water quality and quantity control; and (e) structural measures that provide only quantity control and conveyance. BMPs may be located in upland buffers adjacent to wetlands and other waters of the U.S.

Applicants who protect water quality and minimize run-off by designing and implementing a comprehensive and coordinated use of BMPs throughout the project site may receive partial compensatory wetland mitigation credit. The District may, at its discretion and on a case-by-case basis, reduce the required mitigation ratio to 1:1, following a request from the applicant for such a credit. In order to qualify for the credit, the applicant shall prepare a water quality management plan for the entire project site that identifies priority watershed resources to be protected, water quality goals, the natural and proposed drainage system and details of the projected runoff quality and quantity. The plan shall describe in detail how the BMP hierarchy was used in determining the water quality protection practices selected for the project site. Each BMP selected shall be part of a coordinated system ("treatment train") which provides multiple layers of treatment. The plan shall incorporate the following preventative construction techniques:

Preventative Construction Techniques

Preservation of natural resource features such as floodplains, streams, wetlands, prairies, woodlands and native soils.

Limiting the amount of impervious surface through practices such as reducing road widths and clustering developments designed around open space.

In addition, the plan shall use the following structural BMPs on both individual lots and the overall site to the maximum extent practicable:

Lot Controls                                                                           Site Controls

Grassed swales                                                                       Wetland detention

Underground sand filter                                                         Wet bottom detention

Infiltration trenches                                                                Grassed swales

Vegetated filter strips                                                                         Infiltration basins

Vegetated natural buffers                                                       Vegetated swales

Level spreaders                                                                       Vegetated natural buffers

Dry wells or roof downspout systems                                    Level spreaders

Rubber Rooftops                                                                    Curb Cuts

Furthermore, the plan shall outline how the BMPs will be permanently maintained and the entity responsible for the maintenance. The water quality management plan shall be submitted with notification.

h. No stormwater management facility shall be constructed in any waterway shown as a solid blueline stream on a USGS quadrangle map.

i. The project shall be designed such that stormwater does not directly discharge into waters of the U.S. All water shall be infiltrated or detained and treated prior to discharging into waters of the U.S. In addition, stormwater shall be discharged using methods that promote infiltration and water quality treatment, such as level spreaders, infiltration trenches and vegetated swales.

j. For a project site adjacent to a conservation area, the permittee shall request in writing from the organization responsible for management of the conservation area recommended measures to protect the conservation area from potential adverse impacts resulting from development. A copy of the request and any response received from the organization shall be submitted to the District with notification.

k. The project shall be a single and complete project. For example, if construction of a residential development involves phases, the sum of all impacted areas would be the basis for deciding whether or not the project will be covered by this Regional Permit.

l. All road crossings shall be constructed in accordance with the following:

            1. The width of the discharge is limited to the minimum necessary for the activity.

2. All crossings shall be culverted, bridged or otherwise designed to prevent the restriction of expected high water flows, and shall be designed so as not to impede low water flows or the movement of aquatic organisms.

3. The permittee shall establish and maintain an upland buffer of native plants (or other Corps-approved vegetation) within the right-of-way adjacent to all wetlands not impacted.

m. All utility lines shall be constructed in accordance with the following:

1. The waters of the U.S. to be impacted shall be limited to the minimum necessary to construct the utility line.

2. The construction area for linear utility line projects shall be limited to a width of 75 feet. Any mechanized clearing of vegetation in the utility corridor shall be scheduled no more than seven (7) calendar days preceding installation of the utility line in that segment of the corridor. In no case shall the vegetation of the entire corridor be cleared prior to actual installation of the utility line.

3. For below-ground utility lines, directional drilling or dry crossing techniques, such as fluming, shall be used if the waterbody to be crossed contains perennial flow.

4. If the project involves the use of directional drilling in navigable waters (Section 10 waters only, see note below) notification shall include a contingency plan. A contingency plan is a plan of action to stabilize the work area, to employ alternative construction methods, and to obtain other permits necessary to complete the modified construction plans.

5) Material resulting from trench excavation may be temporarily (up to 30 days) sidecast into waters of the U.S., provided that the material is not placed in such a manner that is dispersed by currents or other forces.

6) Utility lines shall not adversely alter existing hydrology, including the draining of wetlands. In wetland areas, utility line trenches shall be lined with clay, or other impervious materials or structures (such as cut-off walls) to ensure that the trench through which the utility line is installed does not drain waters of the U.S.. In addition, to prevent a french drain effect, gravel cannot be used as backfill material in the top 10 feet of the trench.

7) In wetland areas, the top 12" of the trench shall be backfilled with topsoil excavated from the trench in the same stratification in which it was removed. 8) Excess material shall be removed to upland areas immediately upon completion of utility line construction in any segment of the project containing waters of the U.S. In no case shall the excess material be left in place until the

entire utility line is completed.

9) The construction area, including unprotected slopes and streambanks, shall be stabilized (e.g., blanketed and seeded) immediately upon completion of the utility line construction in any segment of the project. In no case shall soil stabilization be delayed until the entire utility line is completed.

10) The permittee is required to restore the construction area to pre-construction conditions, including grading to original contours and revegetating (with native vegetation or other appropriate vegetation approved by the District) immediately upon completion of the project, except for permanent, above-ground fills. A restoration plan, which includes a 1-foot contour topographic map, shall be submitted with notification.

11) Temporary construction activities, including access roads and cofferdams, are not authorized under this Regional Permit.

Note 1: Overhead utility lines constructed over Section 10 waters and utility lines that are routed in or under Section 10 waters without a discharge of dredged or fill material require a Section 10 permit; except for pipes or pipelines used to transport gaseous, liquid. liquefiable, or slurry substances over navigable waters of the United States, which are considered to be bridges, not utility lines, and may require a permit from the U.S. Coast Guard pursuant to Section 9 of the Rivers and Harbors Act of 1899. However, any discharges of dredged or fill material associated with such pipelines will require a Corps permit under Section 404.

n. This permit shall not be used in conjunction with any other regional permit, except RP7 and RP10.

2. Recreation Projects. RP2 authorizes the construction of recreation projects, including golf courses, sports fields, playgrounds, parks and multi-use trails, and associated infrastructure, such as roads, utilities, and detention areas, subject to the following:

a. The impact to waters of the U.S. from the project shall not exceed 2.0 acres. For projects that impact more than 0.25 acre of waters of the U.S., the permittee is required to provide compensatory mitigation.

b. Projects that impact no more than 0.25 acre of waters of the U.S. and do not impact any high-quality aquatic resources will be processed under Category I.

c. Projects that impact over 0.25 acre up to 2.0 acres of waters of the U.S. or impact high-quality aquatic resources will be processed under Category II.

d. The permittee shall establish and maintain an upland buffer of native plants (or other appropriate vegetation approved by the District) adjacent to all created, restore, enhanced or preserved waters of the U.S., including rivers, streams, creeks, ponds and lakes, etc.. The following buffer widths be required:

1) For a linear body of water (e.g., river, stream, creek, etc.), the buffer shall be a minimum of 50 feet from the Ordinary High Water Mark (OHWM) on both sides of the linear waterbody;

2) For any waters of the U.S., including wetlands, over 0.25 acres and up to 1.0 acre in size, the buffer shall average 30 feet wide (20 foot minimum);

3) For any of the waters of the U.S. including wetlands, 1.0 acre or larger in size, the buffer shall average 50 feet wide (40 foot minimum); and

4) For any area determined to be a high-quality resource, the buffer shall average 100 feet wide (50 foot minimum);

The above requirements do not apply to linear road crossings. Buffers should be established on 6:1 or gentler slopes. Waters of the U.S. shall not be filled in order to meet the buffer requirements, except in extraordinary circumstances. The District may allow Best Management Practices, stormwater detention, small boat launches and houses, piers/docks and unpaved nature trails to be located in buffers.

The District may, on a case-by-case basis, give compensatory wetland mitigation credit for buffers (except for area occupied by stormwater detention), following a request from the applicant to receive such a credit. The credit may be applied to 10% of the overall compensatory wetland mitigation required to offset project impacts.

e. The project shall employ Best Management Practices to protect water quality and minimize impacts of stormwater on aquatic resources. A written narrative shall be included with notification which describes how the BMP hierarchy above was used in determining the water quality protection practices selected for the project site. The following BMP hierarchy shall by used in designing the project: (a) preservation of natural resource features on the project site (e.g., floodplains, wetlands, streams, and other drainageways, prairies, woodlands, and native soils);

(b) preservation of natural infiltration and storage characteristics of the site; (c) minimization of impervious surfaces; (d) structural measures that provide water quality and quantity control; and (e) structural measures that provide only quantity control and conveyance. BMPs may be located in upland buffers adjacent to wetlands and other waters of the U.S.

Applicants who protect water quality and minimize run-off by designing and implementing a comprehensive and coordinated use of BMPs throughout the project site may receive partial compensatory wetland mitigation credit. The District may, at its discretion and on a case-by-case basis, reduce the required mitigation ratio to 1:1, following a request from the applicant for such a credit. In order to qualify for the credit, the applicant shall prepare a water quality management plan for the entire project site that identifies priority watershed resources to be protected, water quality goals, the natural and proposed drainage system and details of the projected runoff quality and quantity. The plan shall describe in detail how the BMP hierarchy was used in determining the water quality protection practices selected for the project site. Each BMP selected shall be part of a coordinated system ("treatment train") which provides multiple layers of treatment. The plan shall incorporate the following preventative construction techniques:

Preventative Construction Techniques

Preservation of natural resource features such as floodplains, streams, wetlands, prairies, woodlands and native soils.

Limiting the amount of impervious surface through practices such as reducing road widths and clustering developments designed around open space.

In addition, the plan shall use the following structural BMPs on both individual lots and the overall site to the maximum extent practicable:

Lot Controls                                                                           Site Controls                           

Grassed swales                                                                       Wetland detention

Underground sand filter                                                         Wet bottom detention

Infiltration trenches                                                                Grassed swales

Vegetated filter strips                                                                         Infiltration basins

Vegetated natural buffers                                                       Vegetated swales

Level spreaders                                                                       Vegetated natural buffers

Dry wells or roof downspout systems                                    Level spreaders

Furthermore, the plan shall outline how the BMPs will be permanently maintained and the entity responsible for the maintenance. The water quality management plan shall be submitted with notification.

f. No stormwater management facility shall be constructed in any waterway shown as a solid blueline stream on a USGS quadrangle map.

g. The project shall be designed such that stormwater does not directly discharge into waters of the U.S. All water shall be infiltrated or detained and treated prior to discharging into waters of the U.S. In addition, stormwater shall be discharged using methods that promote infiltration and water quality treatment, such as level spreaders, infiltration trenches and vegetated swales.

h. For a project site adjacent to a conservation area, the permittee shall request in writing from the organization responsible for management of the conservation area recommended measures to protect the conservation area from potential adverse impacts resulting from development. A copy of the request and any response received from the organization shall be submitted to the District with notification.

i. All road crossings shall be constructed in accordance with the following:

1.The width of the discharge is limited to the minimum necessary for the activity.

2.All crossings shall be culverted, bridged or otherwise designed to prevent the restriction of expected high water flows, and shall be designed so as not to impede low water flows or the movement of aquatic organisms.

3.The permittee shall establish and maintain an upland buffer of native plants (or other Corps-approved vegetation) within the right-of-way adjacent to all wetlands not impacted.

j. All utility lines shall be constructed in accordance with the following:

1.The waters of the U.S. to be impacted shall be limited to the minimum necessary to construct the utility line.

2.The construction area for linear utility line projects shall be limited to a width of 75 feet. Any mechanized clearing of vegetation in the utility corridor shall be scheduled no more than seven (7) calendar days preceding installation of the utility line in that segment of the corridor. In no case shall the vegetation of the entire corridor be cleared prior to actual installation of the utility line.

3) For utility line projects, directional drilling (Section 10 waters only) or dry crossing techniques, such as fluming, shall be used if the waterbody to be crossed contains perennial flow.

4) If the project involves the use of directional drilling in navigable waters (Section 10 waters only, see note below) notification shall include a contingency plan. A contingency plan is a plan of action to stabilize the work area, to employ alternative construction methods, and to obtain other permits necessary to complete the modified construction plans.

5) Material resulting from trench excavation may be temporarily (up to 30 days) sidecast into waters of the U.S., provided that the material is not placed in such a manner that is dispersed by currents or other forces.

6) Utility lines shall not adversely alter existing hydrology, including the draining of wetlands. In wetland areas, utility line trenches shall be lined with clay, or other impervious materials or structures (such as cut-off walls) to ensure that the trench through which the utility line is installed does not drain waters of the U.S.. In addition, to prevent a french drain effect, gravel cannot be used as backfill material in the top 10 feet of the trench.

7) In wetland areas, the top 12" of the trench shall be backfilled with topsoil excavated from the trench in the same stratification in which it was removed.

8) Excess material shall be removed to upland areas immediately upon completion of utility line construction in any segment of the project containing waters of the U.S. In no case shall the excess material be left in place until the entire utility line is completed.

9) The construction area, including unprotected slopes and streambanks, shall be stabilized (e.g., blanketed and seeded) immediately upon completion of the utility line construction in any segment of the project. In no case shall soil stabilization be delayed until the entire utility line is completed.

10) The permittee is required to restore the construction area to pre-construction conditions, including grading to original contours and revegetating (with native vegetation or other appropriate vegetation approved by the District) immediately upon completion of the project, except for permanent, above-ground fills. A restoration plan, which includes a 1-foot contour topographic map, shall be submitted with notification.

11) Temporary construction activities, including access roads and cofferdams, are not authorized under this Regional Permit.

Note 1: Overhead utility lines constructed over Section 10 waters and utility lines that are routed in or under Section 10 waters without a discharge of dredged or fill material require a Section 10 permit; except for pipes or pipelines used to transport gaseous, liquid. liquefiable, or slurry substances over navigable waters of the United states, which are considered to be bridges, not utility lines, and may require a permit from the U.S. Coast Guard pursuant to Section 9 of the Rivers and Harbors Act of 1899. However, any discharges of dredged or fill material associated with such pipelines will require a Corps permit under Section 404.

k. This permit shall not be used in conjunction with any other regional permit, except RP7 and RP10.

3. Transportation Projects. RP3 authorizes the construction of transportation projects, including roads, bridges, runways and taxiways, railroads, and multi-use trails, subject to the following:

a. The impact to waters of the U.S. shall not exceed 0.25 acre or a distance of 200 linear feet for any single crossing. For transportation projects that involve multiple crossings of waters of the U.S., the cumulative impact cannot exceed 2.0 acres, and no single crossing may impact more than 0.25 acre or a distance of 200 linear feet.

b. Projects that impact no more than 0.25 acre of waters of the U.S. and do not impact any high-quality aquatic resources will be processed under Category I.

c. Projects that impact over 0.25 acre up to 2.0 acres of waters of the U.S. or impact high-quality aquatic resources will be processed under Category II.

d. For projects that cause the loss of greater than 0.25 acre of waters of the U.S., the permittee is required to provide compensatory mitigation.

e. The width of the discharge is limited to the minimum necessary for the activity.

f. All crossings shall be culverted, bridged or otherwise designed to prevent the restriction of expected high water flows, and shall be designed so as not to impede low water flows or the movement of aquatic organisms.

g. The permittee shall establish and maintain an upland buffer of native plants (or other appropriate vegetation approved by the District) within the right-of-way adjacent to all wetlands.

h. The activity shall be designed such that surface water does not directly discharge into waters of the U.S. All water shall be infiltrated or detained and treated prior to discharging into waters of the U.S.

i. This permit specifically excludes any discharges used to construct associated building pads or equipment storage areas.

j. For a project site adjacent to a conservation area, the permittee shall request in writing from the organization responsible for management of the conservation area recommended measures to protect the conservation area from potential adverse impacts resulting from development. A copy of the request and any response received from the organization shall be submitted to the District with notification.

k. Temporary construction activities, including access roads and cofferdams, are not authorized under this Regional Permit.

4. Minor Discharges and Minor Dredging. RP4 authorizes: (I) The discharge of up to 25 cubic yards of dredged or fill material, the discharge of materials such as concrete, sand, rock or stone into tightly sealed cells, where such cells will be used as a structural member for a pile-supported structure (such as a bridge, walkway or mooring cell), and the dredging of up to 25 cubic yards of material. The activity, including discharges and/or dredging, shall not exceed 25 cubic yards or impact more than 0.25 acres of waters of the U.S.; and

(II) The discharge of dredged or fill material for construction or expansion of elements of a single-family residence (including house, garage and driveway) provided the activity is a single and complete project, this RP is used only once per residence, and sufficient vegetated buffers are maintained adjacent to all open water, streams and wetlands. The impact to waters of the U.S. shall not exceed 0.25 acres. There is no volumetric limitation for activities processed under (2).

a. All activities will be processed under Category I.

b. This RP does not authorize stream diversions, construction of new channels connected to navigable waters, or discharges/dredging in high-quality aquatic resources.

c. This RP does not authorize pile-supported structures used for houses, decks, buildings, parking lots or equipment

d. Septic fields may not be constructed in waters of the United States.

e. This RP does not authorize residential, commercial and institutional developments, or temporary construction activities.

f. Individual water quality certification under Section 401 of the Clean Water Act is required in the following waters:

1.Chicago Sanitary and Ship Canal

2.Calumet-Sag Channel

3.Little Calumet River

4.Grand Calumet River

5.Calumet River

6.Chicago River (main stem)

7.South Branch of the Chicago River (including South Fork)

8.North Branch of the Chicago River (including East and West Forks and Skokie Lagoons)

9.Lake Calumet

10.Des Plaines River

11.Fox River (including the Fox Chain of Lakes)

12.Lake Michigan

13.Pettibone Creek

14.All Public and Food Processing Water Supplies with surface intake facilities (as specified in the IEPA’s List of Public and Food Processing Water Supplies Utilizing Surface Water)

5. Wetland and Stream Restoration and Enhancement. RP5 authorizes the creation, restoration and enhancement of wetlands and riparian areas, and the restoration and enhancement of rivers, creeks and streams, and open water areas, on any public or private land. Wetland and stream restoration and enhancement activities include the removal of accumulated sediments; installation, removal and maintenance of small water control structures, dikes and berms; installation of current deflectors; enhancement, restoration, or creation of riffle and pool structures; placement of in-stream habitat structures; modifications of the stream bed and/or banks to restore or create stream meanders; backfilling of artificial channels and drainage ditches; removal of existing drainage structures; construction of open water areas; activities needed to reestablish vegetation, including plowing or discing for seed bed preparation; mechanized land-clearing to remove undesirable vegetation; and other related activities. This RP may be used to relocate aquatic habitat types on the project site, provided there are net gains in aquatic resource functions and values. Authorization under RP5 is subject to the following:

a. All projects will be processed under Category II.

b. This permit cannot be used to authorize activities for the conversion of a stream to another aquatic use, such as the creation of an impoundment for waterfowl habitat.

c. This permit cannot be used to channelize a stream.

d. This permit cannot be used to authorize the conversion of natural wetlands to another aquatic use, such as creation of waterfowl impoundments where a forested wetland previously existed.

6. Completed Enforcement Actions. RP6 authorizes any structure, work or discharge of dredged and fill material, remaining in place, or undertaken for mitigation, restoration or

environmental benefit in compliance with:

I. The terms of a final written Corps non-judicial settlement agreement resolving a violation of Section 404 of the Clean Water Act, Section 10 of the Rivers and Harbors Act, or the terms of an EPA 309(a) order or consent decrees resolving a violation of Section 404 of the Clean Water Act. Projects that impact 2.0 acres or less of waters of the U.S. shall be processed under Category !. Projects that impact over 2.0 acres of waters of the U.S. shall be processed under Category II; or

II. The terms of a final Federal court decision, consent decree, or settlement agreement resulting from an enforcement action brought by the United States under Section 404 of the Clean Water Act and/or Section 10 of the Rivers and Harbors Act. Al projects shall be processed under Category !.

7. Temporary Construction Activities. RP7 authorizes temporary structures and discharges necessary for construction activities, access fills and dewatering of construction sites.

Authorization under RP7 is subject to the following:

a. All projects will be processed under Category II.

b. The temporary impact to waters of the U.S. shall not exceed 0.25 acres.

c. Fills shall be of non-erodible materials and shall be constructed to withstand expected high flows.

d. This permit does not authorize the use of earthfill cofferdams, or any practices that would result in a release of sediment into waters of the U.S.

Cofferdams shall be constructed of non-erodible materials. Acceptable practices include pre-fabricated rigid cofferdams, sheet piling, inflatable bladders, sandbags and fabric-lined basins.

e. Heavy equipment working in wetlands shall be placed on mats or other measures, such as low-ground pressure equipment, shall be used to minimize soil disturbance.

f. Materials used for temporary construction activities shall be removed immediately and entirely to upland areas following completion of the construction activity.

g. The permittee is required to restore the construction area to pre-construction conditions, including grading to original contours and revegetating (with native vegetation) all disturbed areas, immediately upon completion of the project. A restoration plan, which includes a 1-foot contour topographic map, shall be submitted with the notification.

8. Utility Line Projects. RP8 authorizes the construction, maintenance, and repair of utility line activities and associated facilities in waters of the United States. This includes trenching and backfilling activities for utility lines and fill activities for construction of substations and related appurtenances (stormwater management facilities, fencing, parking lots, etc.), poles, pads, anchors and foundations for overhead utility line towers, utility lines under (e.g., through directional drilling) or over navigable waters (Section 10 waters only), and outfalls and associated intakes which are authorized, conditionally authorized, specifically exempted, or are otherwise in

compliance with the National Pollutant Discharge Elimination System program (Section 402 of the Clean Water Act). Authorization under RP8 is subject to the following:

I. For the construction of utility line substations and related appurtenances, poles, pads, anchors, foundations and utility line tower projects that result in permanent fill, the impact to waters of the United States shall not exceed 2.0 acres. For project that permanently impact over 0.25 acres of waters of the U.S., the permittee is required to provide compensatory mitigation.

a. Projects that impact no more than 0.25 acres of waters of the U.S. and do not impact any high-quality aquatic resources will be processed under Category I.

b. Projects that impact over 0.25 acres and up to 2.0 acres of waters of the U.S., or impact high-quality aquatic resources, will be process under Category II.

c. Sufficient vegetative buffers shall be constructed adjacent to all open water, streams, and wetland areas. However, the installation of overhead utility line towers, poles, footings and anchors are exempt from the buffer requirement.

d. No stormwater management facility shall be constructed in any waterway shown as a solid blueline stream on a USGS quadrangle map.

e. The project shall be designed such that stormwater does not directly discharge into waters of the U.S. All water shall be infiltrated or detained and treated prior to discharging into waters of the U.S. In addition, stormwater shall be discharged using methods that promote infiltration and water quality treatment, such as level spreaders, infiltration trenches and vegetated swales.

f. For a project site adjacent to a conservation area, the permittee shall request in writing from the organization responsible for management of the conservation area recommended measures to protect the conservation area from potential adverse impacts resulting from development. A copy of the request and any response received from the organization shall be submitted to the District with notification.

II. For construction of utility line activities, all projects will be processed under Category II. Utility line activities include the construction, maintenance and repair of utility lines, including outfall and intake structures and the associated excavation, backfill, or bedding for the utility in all waters of the Untied States, provided there is no change in pre-construction contours. A utility

line is defined as any pipe or pipeline for the transportation of any gaseous, liquid, liquefiable, or slurry substance for any purpose, and any cable, line, or wire for the transmission for any purpose of electrical energy, telephone and telegraph messages, and radio and television communications (see Note 1, below).

a) The waters of the U.S. to be impacted shall be limited to the minimum necessary to construct the utility line.

b) The construction area for linear utility line projects shall be limited to a width of 75 feet, except in farmed wetlands where there is an established Agricultural Impact Mitigation Agreement with the Illinois Department of Agriculture. Any mechanized clearing of vegetation in the utility corridor shall be scheduled no more than seven (7) calendar days preceding installation of the utility line in that segment of the corridor. In no case shall the vegetation of the entire corridor be cleared prior to actual installation of the utility line.

c) For utility line projects, directional drilling (Section 10 waters only) or dry crossing techniques, such as fluming, shall be used if the waterbody to be crossed contains perennial flow.

d) If the project involves the use of directional drilling in navigable waters (Section 10 waters only) notification shall include a contingency plan. A contingency plan is a plan of action to stabilize the work area, to employ alternative construction methods, and to obtain other permits necessary to complete the modified construction plans.

e) Material resulting from trench excavation may be temporarily (up to 30 days) sidecast into waters of the U.S., provided that the material is not placed in such a manner that is dispersed by currents or other forces.

f) Utility lines shall not adversely alter existing hydrology, including the draining of wetlands. In wetland areas, utility line trenches shall be lined with clay, or other impervious materials or structures (such as cut-off walls) to ensure that the trench through which the utility line is installed does not drain waters of the U.S.. In addition, to prevent a french drain effect, gravel cannot be used as backfill material in the top 10 feet of the trench.

g) In wetland areas, the top 12" of the trench shall be backfilled with topsoil excavated from the trench in the same stratification in which it was removed.

h) Excess material shall be removed to upland areas immediately upon completion of utility line construction in any segment of the project containing waters of the U.S. In no case shall the excess material be left in place until the entire utility line is completed.

i) The construction area, including unprotected slopes and streambanks, shall be stabilized (e.g., blanketed and seeded) immediately upon completion of the utility line construction in any segment of the project. In no case shall soil stabilization be delayed until the entire utility line is completed.

j) The permittee is required to restore the construction area to pre-construction conditions, including grading to original contours and revegetating (with native vegetation or other appropriate vegetation approved by the District) immediately upon completion of the project, except for permanent, above-ground fills. A restoration plan, which includes a 1-foot contour topographic map, shall be submitted with notification.

k) For a project site adjacent to a conservation area, the permittee shall request in writing from the organization responsible for management of the conservation area recommended measures to protect the conservation area from potential adverse impacts resulting from development. A copy of the request and any response received from the organization shall be submitted to the District with notification.

l) Temporary construction activities, including access roads and cofferdams, are not authorized under this Regional Permit.

III. Authorization under RP8 is subject to Individual water quality certification

under Section 401 of the Clean Water Act in the following waters:

1.Chicago Sanitary and Ship Canal

2.Calumet-Sag Channel

3.Little Calumet River

4.Grand Calumet River

5.Calumet River

6.Chicago River (main stem)

7.South Branch of the Chicago River (including South Fork)

8.North Branch of the Chicago River (including East and West Forks and Skokie Lagoons)

9.Lake Calumet

10.Des Plaines River

11.Fox River (including the Fox Chain of Lakes)

12.Lake Michigan

13.Pettibone Creek

14.All Public and Food Processing Water Supplies with surface intake facilities (as specified in the IEPA’s List of Public and Food Processing Water Supplies Utilizing Surface Water)

Note 1: Overhead utility lines constructed over Section 10 waters and utility lines are routed in or under Section 10 waters without a discharge of dredged or fill material require a Section 10 permit; except for pipes or pipelines used to transport gaseous, liquid , liquefiable, or slurry substances over navigable waters of the United States, which are considered to be bridges, not utility lines, and may require a permit from the U.S. Coast Guard pursuant to Section 9 of the Rivers and Harbors Act of 1899. However, any discharges of dredged or fill material associated with such pipelines will require a Corps permit under Section 404.

9. Maintenance. RP9 authorizes: I. Repair, rehabilitation or replacement of any previously authorized, currently serviceable, structure or fill, 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 footprint including those due to changes in materials, construction techniques, or current construction codes or safety standards which are necessary to implement the repair, rehabilitation, or replacement are permitted, provided the environmental impacts resulting from such repair, rehabilitation, or replacement are minimal. This permit authorizes the repair, rehabilitation, or replacement of those structures destroyed by storms, floods, fire or other discrete events, provided the repair, rehabilitation, or replacement is commenced or under contract to commence within three years of the date of their destruction or damage. Maintenance dredging and beach restoration are not authorized by this permit; and

II. Maintenance of existing flood control facilities, retention/detention basins, and channels that were constructed by the Corps and transferred to a local sponsor for operation and maintenance. Maintenance is limited to that approved in a maintenance baseline determination made by the District. This determination will be based on the approved plans, the facility actually constructed, maintenance history, present versus original flood control needs, and presence of sensitive/unique functions and values of aquatic resources that may be adversely affected. Applicants are encouraged to meet with the District to establish the maintenance baseline prior to notification. This RP does not authorize the removal of sediment and associated vegetation from natural water courses.

Authorization under RP9 is subject to the following:

a. All projects meeting (1) above will be processed under Category I.

b. All projects meeting (2) above will be processed under Category II.

c. Temporary construction activities, including access roads and cofferdams, are not authorized under this Regional Permit.

10. Bank Stabilization. RP10 authorizes bank stabilization activities in all waters of the U.S., except Lake Michigan, subject to the following:

a. Projects that involve the use of vegetative and biotechnical practices will be processed under Category I and are not subject to length restrictions.

b. Projects that involve the use of structural bank stabilization practices, such as riprap, gabions, steel sheetpiling or fabric-formed concrete, will be processed under Category II. These activities are limited to 500 feet in total length and 1 cubic yard of material per running foot below the ordinary high water mark, and may not be used in a high-quality aquatic resource. Bank stabilization shall conform to the existing shoreline and may not be used to reclaim land lost to erosion. Riprap materials shall not be placed at a steeper slope than 2:1 (2 horizontal to 1 vertical) for dumped riprap and 1.5:1 for hand-placed riprap. Should broken concrete be used as riprap, all reinforcing rods shall be cut flush with the surface of the concrete. [Please note that in Lake County, evidence of compliance with the Lake County Unified Development Ordinance (UDO) shall preclude General Notification Requirements 21 (j through l).

c. Structural and vegetative/biotechnical practices may be combined, but in no case shall structural practices exceed 500 feet in total length.

d. Temporary construction activities, including access roads and cofferdams, are not authorized under this Regional Permit.

11. Marine Structures and Activities. RP11 authorizes the installation, repair and modification of piers, boat docks (non-commercial only), boat ramps, navigational and mooring aids and

temporary recreational structures. This RP also authorizes temporary structures or minor discharges of dredged or fill material necessary for the removal of vessels (wrecked, abandoned, or disabled) or for the removal of man-made obstructions to navigation. In addition, this RP also authorizes the installation, repair and modification of shore protection along Lake Michigan. Certain limitations exist for the use of this RP within the Fox River-Chain O' Lakes waterway system, in accordance with the June 1994 Chicago District permitting policy listed in the Fox Environmental Impact Statement Record of Decision. Authorization under RP11 is subject to the following:

a. All marine structures and activities, except the installation of boat ramps and shore protection along Lake Michigan, will be processed under Category I.

b. The installation of boat ramps and shore protection along Lake Michigan will be processed under Category II.

c. Boat docks shall be constructed in accordance with the following conditions and limitations:

1) The dock shall not project more the 50 feet into a waterway, and in no instance greater than one quarter of the width of the waterway, and shall not extend beyond the navigation limits established by the Illinois Department of Natural Resources, Office of Water Resources (IDNR/OWR) and the District;

2) The width of the dock shall not be greater than 10 feet;

3) For L-shaped or T-shaped docks, the length of that portion parallel to the shoreline shall not exceed 50 percent of the landowner’s shoreline frontage, nor 50 feet;

4) Docks shall be aligned so as not to cross the projection of property lines into the waterway or come within 10 feet of the projection of the property line;

5) Dock posts shall be marked with reflective devices. If the display of lights and signals on any structure or work authorized herein is not otherwise provided for by law, such lights and signals as may be prescribed by the U.S. Coast Guard shall be installed and maintained by and at the expense of the permittee;

6) The boat dock shall be securely anchored to prevent its detachment and becoming a floating hazard during times of high water or winds;

7) Boat mooring buoys and dock flotation units shall be constructed of material that are clean and free of pollutants and will not become waterlogged or sink when punctured. Flotation units and devices shall be composed of low density, closed cell, rigid plastic foam. Foam bead flotation will not be allowed unless commercially encapsulated and designed specifically for flotation purposes. Reconditioned plastic drums and metal barrels are allowed if they are first cleaned and filled with flotation foam. Barrel, drums or containers that previously contained pesticide, herbicide or other hazardous substances are not allowed;

8) Non-floating boat docks shall be constructed in a manner which will minimize obstruction to flow;

9) If, at any future date, the IDNR/OWR or District determines that the dock facility obstructs or impairs navigation, or in any way infringes on the rights or interests of the public or any individual party, the permittee agrees to make necessary modification to the dock, as determined by IDNR/OWR or the District.

d. Boat ramps shall not exceed 60 feet in width and shall be made of crushed stone, concrete, gravel or other suitable material. Boat ramps made of asphalt are not authorized under this Regional Permit.

e. Shore protection in Lake Michigan includes seawalls, revetments, and bulkheads (constructed of wood, concrete, riprap, gabions, steel or fabric-formed concrete) constructed at the existing water line, parallel to the shoreline orientation. Shore protection shall not:

1.Exceed 300 feet in length and 10 feet in width (below the ordinary high water mark);

2.Occur within 200 feet of the mouth of any waterway that flows into or out of Lake Michigan;

3.Be used to reclaim land lost to erosion; and

4.Involve dredging or filling beyond that required to install the shore protection.

f. For repair and/or modification of a marine structure, the date the structure was originally constructed and a copy of the Department of the Army permit for the structure, if one was granted, shall be provided. If the construction of the structure was not authorized by the Corps of Engineers, after-the-fact authorization shall be sought.

g. Temporary construction activities, including access roads and cofferdams, are not authorized under this Regional Permit.

12. Bridge Scour Protection. RP12 authorizes the construction and installation of protective armoring at existing bridge foundations, abutments and/or around bridge piers of Scour

Critical Bridges [Item 113 codes 0 through 4, Scour Critical Bridges, of the Federal Highway Administration (FHWA) document "Recording and Coding Guide for the Structure Inventory and Appraisal of the Nation's Bridges (Coding Guide)] based on the following criteria: bridge owners (State highway agencies, local and Federal agencies) are guided in their evaluation of the bridges by the FHWA Hydraulics Engineering Circulars 18 and 20, titled "Evaluating Scour at Bridges" and "Stream Stability at Highway Structures." Item 113 of the Coding Guide is used by the bridge owner to categorize the scour vulnerability of these bridges. Authorization under RP12 is subject to the following:

a. All projects will be processed under Category I.

b. Temporary construction access may be obtained over the side of the bridge, by use of temporary roads or pads constructed of clean fill, by use of mats, or from barges or floating platforms. All material used for temporary access shall be removed from the site concurrent with completion of work in any segment of the project. All portions of the site shall be restored to preconstruction conditions.

c. Cofferdams are limited to the following practices: pre-fabricated rigid cofferdams, sheet piling, inflatable bladders and fabric lined basins. This regional permit does not authorize the use of earthfill cofferdams, or any practices that would result in a release of sediment into waters of the U.S.

d. Protective armoring may include riprap, broken concrete, formed concrete pieces, concrete filled fabric mats, gabions, or other engineered designs consistent with reasonable engineering standards. Should broken concrete be used, all reinforcing rods shall be cut flush with the surface of the concrete. The protective armoring may extend riverward of the adjacent shoreline or any adjacent existing seawalls, gabion structures, or riprapped banks, but may not extend above the existing streambed. Material excavated for the construction of the protective armoring shall be disposed of in accordance with federal, State and local laws and ordinances, and shall not be placed in a floodway or in any waters of the U.S., including wetlands.

e. Projects in special aquatic sites (e.g., wetlands, mud flats, vegetated shallows, and riffle and pool complexes, etc.) shall be conducted with no more than minimal adverse environmental effects.

f. This permit does not authorize the discharge of fill material into wetlands, except as may be necessary for temporary construction access. Temporary construction activities shall be conducted in accordance with RP 7.

g. If, in the determination of the District, the protective armoring may constitute an undue hazard, obstruction to navigation, or if it is deemed that the project may not be in the public interest, an individual permit may be required for the work.

13. Cleanup of Toxic and Hazardous Materials. RP13 authorizes specific activities required to effect the containment, stabilization and removal of toxic and hazardous materials and petroleum

products that are performed, ordered or sponsored by a government agency with established legal or regulatory authority, or through court-ordered remedial action plans or related settlements. RP13 is subject to the following conditions:

a. All projects will be processed under Category II.

b. This permit does not authorize the establishment of new disposal sites or the expansion of existing disposal sites.

c. Activities undertaken entirely on a site by authority of CERCLA as approved or required by EPA do not require authorization from the U.S. Army Corps of Engineers.

d. Evidence that an activity is performed, ordered or sponsored by a government agency with established legal or regulatory authority, or through court-ordered remedial action plans or related settlements shall be included with notification.

e. Compensatory mitigation is required for any cleanup that adversely impacts more than 0.25 acre of waters of the U.S.

f. Temporary construction activities, including access roads and cofferdams, are not authorized under this Regional Permit.

g. Individual water quality certification under Section 401 of the Clean Water Act is required.

Chicago District Regional Permit Conditions

Permittees shall comply with the terms and conditions of the Regional Permits and the following general conditions for all activities authorized under the RPP:

1. State 401 Water Quality Certification. Water quality certification under Section 401 of the Clean Water Act is required from the Illinois Environmental Protection Agency (IEPA). The District may consider water quality, among other factors, in determining whether to exercise discretionary authority and require an individual permit.

On October 27, 1999, the IEPA granted Section 401 certification, with conditions, for all Regional Permits except RP13 and activities in certain waterways under RPs 4 and 8 (see Appendix D). On November 14, 2000, the IEPA determined that the 401 water quality certification issued on October 27, 1999 is valid for the modified and reissued RPP. The following conditions of the certification are conditions of the RPP:

a. The permittee shall not cause:

1. violation of applicable water quality standards of the Illinois Pollution Control Board Title 35, Subtitle C: Water Pollution Rules and Regulations;

2. water pollution defined and prohibited by the Illinois Environmental Protection Act; or

3. interference with water use practices near public recreation areas or water supply intakes.

b. The permittee shall provide adequate planning and supervision during the project construction period for implementing construction methods, processes and cleanup procedures necessary to prevent water pollution and control erosion.

c. Any spoil material excavated, dredged or otherwise produced must not be returned to the waterway but must be deposited in a self-contained area in compliance with all State statutes, regulations and permit requirements with no discharge to waters of the State unless a permit has been issued by the IEPA. Any backfilling must be done with clean material placed in a manner to prevent violation of applicable water quality standards.

d. All areas affected by construction shall be mulched and seeded as soon after construction as possible. The permittee shall undertake necessary measures and procedures to reduce erosion during construction. Interim measures to prevent soil erosion during construction shall be taken and may include the installation of staked straw bales, sedimentation basins and temporary mulching. All construction within the waterway shall be conducted during zero to low flow conditions. The permittee shall be responsible for obtaining an NPDES Storm Water Permit prior to initiating construction if the construction activity associated with the project will result in the disturbance of five (5) or more acres, total land area. An NPDES Storm Water Permit may be obtained by submitting a properly completed Notice of Intent (NOI) form by certified mail to the IEPA’s Division of Water Pollution Control, Permit Section.

e. The permittee shall implement erosion control measures consistent with the Illinois Urban Manual (IEPA/USDA, NRCS; latest version).

f. The permittee is advised that the following permits(s) must be obtained from the IEPA: the permittee must obtain permits to construct sanitary sewers, water mains, and related facilities prior to construction.

g. Backfill used in the stream crossing trench shall be predominantly sand or larger size material, with <20% passing a #230 U.S. sieve.

h. Channel relocation shall be constructed under dry conditions and stabilized to prevent erosion prior to the diversion of flow. [Applicable only to projects which involve relocating stream channels.]

i. The work shall be constructed with adequate erosion control measures (i.e., silt fences, straw bales, etc.) to prevent transport of sediment and materials to the adjoining wetlands and/or streams.

j. Backfill used within trenches passing through surface waters of the State, except wetland areas, shall be clean course aggregate, gravel or other material which will not cause siltation, pipe damage during placement, or chemical corrosion in place. Excavated material may be used only if:

1. particle size analysis is conducted and demonstrates the material to be at least 80% sand or larger size material, using #230 U.S. sieve; or

2. excavation and backfilling are done under dry conditions.

k. Backfill used within trenches passing through wetland areas shall be clean material that will not cause siltation, pipe damage during placement, or chemical corrosion in place. Excavated material shall be used to the extent practicable, with the upper six (6) to twelve (12) inches backfilled with the topsoil obtained during trench excavation.

l. Any permittee proposing activities in a mined area or previously mined area shall provide determination on sediment and materials used which are considered "acid-producing material" as defined in 35 Il. Adm. Code, Subtitle D. If considered "acid-producing material," the permittee shall obtain a permit to construct pursuant to 35 Il. Adm. Code 404.101.

2. Threatened and Endangered Species. No activity is authorized under the RPP if the activity is likely to jeopardize the continued existence of a threatened or endangered species listed or proposed for listing under the Federal Endangered Species Act (ESA) or destroy, or adversely modify, the critical habitat of such species. Federal agencies should follow their own procedures for complying with the requirements of the ESA. Non-federal applicants shall notify the District if

any Federally listed (or proposed for listing) endangered or threatened species or critical habitat might be affected by the activity or is located in the project area. If the District determines that the activity may affect Federally listed species or critical habitat, the activity shall not be authorized under the RPP. An individual permit will be required and the District will initiate Section 7 consultation in accordance with the ESA. If all issues pertaining to endangered and threatened species have been resolved through the consultation process to the satisfaction of the District and U.S. Fish and Wildlife Service (USFWS), the District may, at its discretion, authorize the activity under the RPP instead of an individual permit. Applicants are encouraged to obtain information on threatened or endangered species and their critical habitats from the USFWS at the earliest stages of project planning. For information, contact:

            U.S. Fish and Wildlife Service

            Chicago Field Office

            1000 Hart Road, Suite 180

            Barrington, Illinois 60010

            (847) 381-2253

3. Historic Properties. No activity is authorized under the RPP if the activity will affect properties listed, or properties eligible for listing, in the National Register of Historic Places, in accordance with the provisions of 33 CFR Part 325, Appendix C and Section 106 of the National Historic Preservation Act. Federal agencies should follow their own procedures for compliance with the requirements of the National Historic Preservation Act and other Federal historic preservation laws. Non-federal applicants should notify the District if the activity may affect historic properties which are listed, determined eligible for listing, or which the applicant has reason to believe may be eligible for listing, on the National Register of Historic Places in the project area. If the District determines that the activity may potentially affect a historic property, or a property eligible for listing, the activity shall not be authorized under the RPP and an individual permit will be required. The District will take into account the effects on such properties in accordance with

33 CFR Part 325, Appendix C. If all issues pertaining to historic properties have been resolved through the consultation process to the satisfaction of the District, Illinois Historic Preservation Agency (IHPA) and Advisory Council on Historic Preservation, the District may, at its discretion, authorize the activity under the RPP instead of an individual permit. Applicants are encouraged to obtain information on historic properties from the IHPA and the National Register of Historic

Places at the earliest stages of project planning. For information, contact:

            Illinois Historic Preservation Agency

            1 Old State Capitol Plaza

            Springfield, Illinois 62701-1507

            (217) 782-4836

4. Soil Erosion and Sediment Control. Measuresshall be taken to control soil erosion and sedimentation at the project site to ensure that sediment is not transported to waters of the U.S. during construction. Soil erosion and sediment control measures shall be constructed before initiating any clearing, grading, excavating or filling activities. All temporary and permanent soil erosion and sediment control measures shall be maintained during the construction period and until the site is stabilized. All exposed soil and other fills, and any work below the ordinary high water mark shall be permanently stabilized at the earliest practicable date.

Applicants are required to prepare a soil erosion and sediment control (SESC) plan. The plan shall be designed in accordance with the Illinois Procedures and Standards for Urban Soil Erosion and Sedimentation Control ("Green Book", latest version, except chapter 6). Practice standards and specifications for measures outlined in the soil erosion and sediment control plans will follow the latest edition of the "Illinois Urban Manual: A Technical Manual Designed for Urban Ecosystem Protection and Enhancement."

At the District’s discretion, an applicant may be required to submit the SESC plan to the local Soil and Water Conservation District (for activities in Cook, DuPage, Kane, McHenry and Will Counties), or the Stormwater Management Commission (for activities in Lake County) for review. When the District does require submission of a SESC plan, the following applies. An

activity may not be commenced until the SESC plan for the project site has been reviewed. The SWCD/SMC will review the plan and provide a written evaluation of its adequacy. A SESC plan is considered acceptable when the SWCD/SMC has found it meets technical standards. Once this determination has been made, the authorized work may commence. The SWCD/SMC may attend

pre-construction meetings with the permittee and conduct inspections during construction to determine compliance with the plans. Applicants are encouraged to begin coordinating with the appropriate SWCD/SMC office at the earliest stages of project planning. For information, contact:

Kane/DuPage SWCD                         Will/South Cook SWCD                    McHenry County SWCD

545 S. Randall Road               1201 Gougar Road                             1143 N. Seminary Road

St. Charles, IL 60174                          New Lenox, IL 60451                        Woodstock, IL 60098

(630) 584-7961                       (815) 462-3106                                   (815) 338-0049

North Cook SWCD                Lake County SMC

899 Jay Street                                     333-B Peterson Road

Streamwood, IL 60120            Libertyville, IL 60048

(847) 608-8302                       (847) 918-5260

5. Floodplain. Discharges of dredged or fill material into waters of the United States within the 100-year floodplain (as defined by the Federal Emergency Management Agency) resulting in permanent above-grade fills shall by avoided and minimized to the maximum extent practicable. When such an above-grade fill would occur, the applicant may need to obtain approval from the Illinois Department of Natural Resources, Office of Water Resources, (IDNR-OWR) which regulates activities affecting the floodway and local government (e.g., Village or County) with jurisdiction over activities in the floodplain. Compensatory storage may be required for fill within the floodplain. Applicants are encouraged to obtain information from the IDNR-OWR and local government with jurisdiction at the earliest stages of project planning. For information on floodway construction, contact:

            IDNR-OWR

            Northeastern Illinois Regulatory Programs Section

            201 W. Center Court, 3rd Floor

            Schaumburg, Illinois 60196

            (847) 705-4341

For information on floodplain construction, please contact the local government and/or the Federal Emergency Management Agency. Pursuant to 33 CFR 320.4 (j), the District will consider the likelihood of the applicant obtaining approval for above-ground permanent fills in floodplains in determining whether to issue authorization under the RPP.

6. Navigation. No activity may cause more than minimal adverse effects on navigation.

7. Proper Maintenance. Any authorized structure or fill shall be properly maintained, including that necessary to ensure public safety.

8. Aquatic Life Movements. No activity may substantially disrupt the movement of those species of aquatic life indigenous to the waterbody, including species that normally migrate through the area, unless the activity's primary purpose is to impound water.

9. Equipment. Heavy equipment working in wetlands shall be placed on mats, or other measures, such as low-ground pressure equipment, shall be taken to minimize soil disturbance.

10. 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. Information on Wild and Scenic Rivers may be obtained from the appropriate land management agency in the area, such as the National Park Service and the U.S. Forest Service.

11. Tribal Rights. No activity or its operation may impair reserved tribal rights, such as reserved water rights, treaty fishing and hunting rights.

12. Water supply intakes. No discharge of dredged or fill material may occur in the proximity of a public water supply intake except where the discharge is for repair of the public water supply intake structures or adjacent bank stabilization.

13. Shellfish production. No discharge of dredged or fill material may occur in areas of concentrated shellfish production.

14. Suitable material. No discharge of dredged or fill material may consist of unsuitable material and material discharged shall be free from toxic pollutants in toxic amounts (see section 307 of the Clean Water Act). Unsuitable material includes trash, debris, car bodies, and asphalt.

15. Spawning areas. Discharges in spawning areas during spawning seasons shall be avoided to the maximum extent practicable.

16. Obstruction of high flows. Discharges shall not permanently restrict or impede the passage of normal or expected high flows. All crossings shall be culverted, bridged or otherwise designed to prevent the restriction of expected high water flows, and shall be designed so as not to impede low water flows or the movement of aquatic organisms.

17. Impacts from impoundments. If the discharge creates an impoundment of water, adverse impacts on aquatic resources caused by the accelerated passage of water and/or the restriction of its flow shall be avoided to the maximum extent practicable.

18. Waterfowl breeding areas. Discharges into breeding areas for migratory waterfowl shall be avoided to the maximum extent practicable.

19. Removal of temporary fills. Any temporary fill material shall be removed in its entirety and the affected area returned to its pre-existing condition.

20. Mitigation. Impacts to waters of the U.S. shall be avoided and minimized to the maximum extent practicable at the project site. Avoidance and minimization shall be attempted before compensatory wetland mitigation is considered. Compensatory mitigation will be accomplished by establishing 1.5 acres for every 1.0 acre of waters of the U.S. impacted by the project (a mitigation ratio of 1.5:1). Furthermore, the District has the discretion to require additional

mitigation to ensure that the impacts are no more than minimal. Mitigation shall be consistent with the Memorandum of Agreement (MOA) between the Department of the Army and the Environmental Protection Agency Concerning the Determination of Mitigation under the Clean Water Act Section 401(b)(1) Guidelines. Mitigation may consist of the following, listed in order of preference: restoration of historic wetlands that are currently non-wetlands because of drainage or other alterations; enhancement of existing aquatic resources through various actions such as modification of hydrology, introduction of appropriate native species, invasive species removal, and other management measures; creation of aquatic resources in historically upland areas; and, preservation of existing aquatic resources through real estate acquisition strategies. Careful consideration shall be given to the likelihood of sustainability, practicability, availability, and reliability of compensatory mitigation. Off-site wetland mitigation may be considered where the long-term success of on-site mitigation is uncertain.

21. Notification. The applicant shall provide written notification (i.e., a complete application) for a proposed activity to be authorized under the RPP prior to commencing a proposed activity. The District’s receipt of the complete application is the date when the District receives all required notification information (see below) from the applicant. If the District does not provide a written response to the applicant within 45 calendar days following receipt of a complete application,

the applicant may presume the proposed activity qualifies for the requested Regional Permit(s), provided the activity complies with the terms and conditions of the RPP. If the District informs the applicant within 45 calendar days that the notification is incomplete (i.e., not a complete application), the applicant shall submit the requested information to be considered for authorization. A new 45-day review period will commence when the District receives the requested information. Applications that involve unauthorized activities that are completed or partially completed by the applicant are not subject to the 45-day review period.

For a Category I activity, notification shall include:

a. A cover letter which provides a clear project purpose and need statement, a brief description of the proposed activity, the Regional Permit(s) to be used for the activity, the area (in acres) of waters of the U.S. to be impacted, and a statement that the terms and conditions of the RPP will be followed;

b. A completed joint application form (NCR Form 426, Protecting Illinois Waters) signed by the applicant or agent. If the agent signs, notification shall include a signed, written statement from the applicant designating the agent as its representative;

c. A delineation of waters of the U.S., including wetlands, for the project area, and for areas adjacent to the project site (off-site wetlands shall be identified through the use of reference materials including review of local wetland inventories, soil surveys and the most recent available

photography), shall be prepared in accordance with the current Corps of Engineers methodology and generally conducted during the growing season.* For sites supporting wetlands, the delineation shall include a Floristic Quality Assessment (Swink and Wilhelm. 1994, latest edition, Plants of the Chicago Region). The delineation shall also include information on the occurrence of any high-quality aquatic resources and a listing of waterfowl and amphibian species observed while at the project area.

d. A map showing the location of the project site;

e. Preliminary engineering drawings (full size and 8 ½” x 11” reduced sized for Category II projects only) showing all aspects of the proposed activity and the location of waters of the U.S. to be impacted and not impacted. The plans shall include grading contours; and proposed and existing structures of work such as buildings footprints, roadways, road crossings, stormwater management facilities, utilities, construction access areas and details of water conveyance structures. The drawings shall also buffer areas, outlots or open space designations, best management practices, deed restricted areas, and restoration areas, if required under the specific RP above;

f. A preliminary soil erosion and sediment control plan;

g. Evidence that USFWS was contacted regarding the presence of any Federally listed (or proposed for listing) endangered or threatened species or critical habitat in the area that may be affected by the proposed activity;

h. A signed statute of limitations tolling agreement (if applicant is after-the-fact);

i. Other items listed under the specific RP(s) above.

For a Category II activity, the notification shall include all materials listed for notification for Category I above, plus:

j. A detailed description of the proposed activity;

k. A discussion of the measures taken to avoid and minimize impacts to aquatic resources on the project site;

l. A compensatory mitigation plan for all impacts to waters of the U.S., if compensatory mitigation is required under the specific RP.

For Category II activities, the District will, upon receipt of a complete application, provide (by facsimile transmission, email or other expeditious means), a pre-construction notice (PCN) which describes the proposed activity to the USFWS, USEPA, Illinois Department of Natural Resources, IEPA, IHPA and U.S. Coast Guard (Section 10 activities only). These agencies will then have ten (10) calendar days from the date the PCN is transmitted to contact the District if they intend to provide substantive, site-specific comments. If so contacted by an agency, the District will wait an additional fifteen (15) calendar days for agency written comments before making a decision on the notification. The District will fully consider agency comments received within the specified time frame. If the District determines the activity complies with the terms and conditions of the RPP and impacts on aquatic resources are minimal, the District will notify the applicant in writing and include any special conditions deemed necessary. If the District determines that the impacts of the proposed activity are more than minimal, the District will notify the applicant that the project does not qualify for authorization under the RPP and instruct the applicant on the procedures to seek authorization under an individual permit.

22. Compliance Certification. Every permittee who has received authorization under the RPP from the District will submit a signed certification regarding the completed work and any required mitigation. The certification will be forwarded by the District with the authorization letter and will include: a) A statement that the authorized work was done in accordance with the District’s authorization, including any general or specific conditions; b) A statement that any required

mitigation was completed in accordance with the permit conditions and; c) The signature of the permittee certifying the completion of the work and mitigation.

23. Multiple use of Regional Permits. In any case where a Regional Permit is combined with any other Regional Permit to cover a single and complete project (except where prohibited under specific Regional Permits), the applicant shall notify the District in accordance with Category II. If multiple Regional Permits are used, the total impact may not exceed the maximum allowed by the Regional Permit with the greatest impact threshold.

24. Other Restrictions. Authorization under the RPP does not obviate the need to obtain other Federal, State or local permits, approvals, or authorizations required by law nor does it grant any property rights or exclusive privileges, authorize any injury to the property or rights of others or authorize interference with any existing or proposed Federal project.