HomeMy WebLinkAboutContracts & Agreements_86-96_CCv0001.pdf AGREEMENT TO FURNISH ENVIRONMENTAL MONITORING SERVICES
FOR THE CALIFORNIA STREET STORM DRAIN
This Agreement is made and entered into this 3rd day of September, 1996 by and between the City
of Redlands, a municipal corporation (hereinafter "City") and Tom Dodson & Associates,
(hereinafter "Consultant").
In consideration of the mutual promises, covenants and conditions hereinafter set forth, City and
Consultant hereby agree as follows:
ARTICLE I - ENGAGEMENT OF CONSULTANT
1.1 City hereby engages Consultant, and Consultant hereby accepts the engagement, to perform
environmental monitoring services (the "Services") for the City's California Street Storm
Drain(the"Project").
1.2 The Services shall be performed by Consultant in a professional manner, and Consultant
represents that it has the skill and the professional expertise necessary to provide high quality
Services for the Project at the level of competency presently maintained by other practicing
professional consultants in the industry providing similar types of services.
ARTICLE 2 - SERVICES OF CONSULTANT
2.1 The specific Services which Consultant shall perform are more particularly described in
Attachment"A,"dated"July 17, 1996,"which is attached hereto and incorporated herein by
this reference. The Consultant's work is to ensure compliance with the Permit issued by the
U.S. Army Corp of Engineers, Attachment "B", and the Agreement with the California
Department of Fish & Game, Attachment "C".
ARTICLE 3 - RESPONSIBILITIES OF CITY
3.1 City shall make available to Consultant information in its possession that is pertinent to the
performance of Consultant's Services.
3.2 City will provide access to and make provisions for Consultant to enter upon City-owned
property as required by Consultant to perform the Services.
3.3 City designates Valorie Shatynski, Solid Waste Manager, to act as its representative with
respect to the Services to be performed under this Agreement.
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ARTICLE 4 - PERIOD OF SERVICE
4.1 Consultant shall perform the Services in a diligent manner and in accordance with the
schedule set forth by the City and City's Contractor for the Storm Drain
Construction
Project.
ARTICLE 5.- PAYMENTS TO THE CONSULTANT
5.1 The total compensation for Consultant's performance of the Services is estimated at $3,200.
City shall pay Consultant on a time and materials basis at the hourly rates shown in
Attachment A.
5.2 Consultant shall bill City within ten days following the close of each month by submitting
an invoice indicating the Services performed,who performed the Services,indirect costs, and
the detailed cost of all Services including backup documentation. Payments by City to
Consultant shall be made within 30 days after receipt and approval of Consultant's invoice,
by warrant payable to Consultant.
5.3 All notices, bills and payments shall be made in writing and shall be given by personal
delivery or by mail. Notices,bills and payments sent by mail shall be addressed as follows:
Ci!Y Consultant
Valorie Shatynski Bill Gatlin, Vice President
Municipal Utilities Department Tom Dodson& Associates
35 Cajon Street 463 N. Sierra Way
P. O. Box 3005 San Bernardino, CA 92410
Redlands, CA 92373
When so addressed, such notices shall be deemed given upon deposit in the United States
Mail. In all other instances,notices, bill and payments shall be deemed given at the time of
actual delivery. Changes may be made in the names and addresses of the person to whom
notices,bills, and payments are to be given by giving notice pursuant to this paragraph.
ARTICLE 6 - INSURANCE AND INDEMNIFICATION
6.1 Consultant shall maintain worker's compensation insurance and, in addition, shall maintain
insurance to protect City from claims for damage due to bodily injury,personal injury and
death, and claims for injury to or destruction of tangible property while performing the
Services required by this Agreement. Said public liability and property damage insurance
shall be in a minimum combined single limit of $1,000,000, and in the aggregate.
Consultant shall maintain comprehensive automobile liability insurance with a combined
single limit of$1,000,000 for bodily injury and property damage. City shall be named as
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an additional insured under all policies for public liability, property damage and
comprehensive automobile liability,and such insurance shall be primary with respect to City
and non-contributing to any insurance or self-insurance maintained by the City. Consultant
shall provide City with certificates of insurance evidencing such insurance coverage prior
to commencing the Services.
6.2 Consultant shall indemnify, hold harmless and defend City and its elected officials, officers,
agents and employees from and against all claims, loss, damage, charges or expense, to
which it or any of them may be put or subjected to the extent that they arise out of or result
from any willful or negligent act or actions, omission or failure to act on the part of the
Consultant, its contractors, its suppliers, anyone directly or indirectly employed by any of
them or anyone for whose acts or omissions any of them maybe liable in the performance of
the Services required by this Agreement.
ARTICLE 7 - GENERAL CONSIDERATIONS
7.1 In the event any action is commenced to enforce or interpret any of the terms or conditions
of this Agreement the prevailing party shall, in addition to any costs and other relief, be
entitled to the recovery of its reasonable attorneys' fees.
7.2 Consultant shall not assign any of the Services required by this Agreement, except with the
prior written approval of City and in strict compliance with the terms, provisions and
conditions of this Agreement.
Any assignment or attempted assignment without such prior consent shall be null, void and
of no force or effect and shall, at the sole discretion of City, result in the immediate
termination of this contract.
7.3 Consultant's key personnel for the Project are Bill Gatlin and Lisa Kegarice. Consultant
agrees that the key personnel shall be made available and assigned to the Project, and that
they shall not be replaced without concurrence from City.
7.4 All documents, records, drawings, designs, costs estimates, electronic data files and
databases and other Project documents developed by the Consultant pursuant to this
Agreement shall become the property of City and shall be delivered to City upon completion
of the Services or upon the request of City. Any reuse of such documents for other projects
and any use of incomplete documents will be at City's sole risk.
7.5 Consultant is for all purposes an independent contractor. All personnel employed by
Consultant are for its account only, and in no event shall Consultant or any personnel
retained by it be deemed to have been employed by City or engaged by City for the account
of or on behalf of City.
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7.6 Unless earlier terminated, as provided for below, this Agreement shall terminate upon
completion and acceptance by City of the Services.
7.7 This Agreement may be terminated by either party,without cause,by providing ten(10)days
prior written notice to the other (delivered by certified mail, return receipt requested) of
intent to terminate.
7.8 If this Agreement is terminated by City, an adjustment to Consultant's compensation shall
be made, but(1) no amount shall be allowed for anticipated profit or unperformed services,
and(2)any payment due Consultant at the time of termination may be adjusted to the extent
of any additional costs to City occasioned by any default by Consultant.
7.9 Upon receipt of a termination notice, Consultant shall (1)promptly discontinue all services
affected,and(2)deliver or otherwise make available to City,copies(in both hard copy and
electronic form, where applicable), of any data, design calculations, drawings,
specifications, reports, estimates, summaries and such other information and materials as
may have been accumulated by Consultant in performing the Services required by this
Agreement.
7.10 Consultant shall maintain books and accounts of all Project related payroll costs and all
expenses. Such books shall be available at all reasonable times for examination by the City
at the office of Consultant.
7.11 This Agreement, including the attachments incorporated herein by reference, represents the
entire agreement and understanding between the parties and any prior negotiations,proposals
or oral agreements are superseded by this Agreement. Any amendment to this Agreement
shall be in writing, approved by the City Council of City and signed by City and Consultant.
7.12 This Agreement shall be governed by and construed in accordance with the laws of the State
of California.
7.13 In the event any legal action is commenced to enforce or interpret other terms or conditions
of this Agreement the prevailing party shall, in addition to any costs and other relief, be
entitled to recover its reasonable attorney's fees.
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IN WITNESS WHEREOF, duly authorized representatives of the City and Consultant have signed
in confirmation of this Agreement.
City of Redlands Tom Dodson& Associates
("Consultant")
By:
SWEN LARSON 6ILL GAIL
Mayor Vice President
ATTEST:
City erk, City -lands
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ATTACHMENT A
ATTACHMENT A
TOM DODSON & ASSOCIATES
463 N. SIERRA WAY
SAN BERNARDINO, CA. 92410
(909) 884-9700 FAX (909) 889-8050
July 17, 1996
Ms. Valorie Shatynski
Municipal Utilities Department
City of Redlands
P.O. Box 3005
Redlands, CA 923373
RE: California Street Storm Drain Project
Dear Ms. Shatynski.
Thank-you for asking Tom Dodson&Associates(TDA)to submit this proposal to assist the City of
Redlands (City) with its regulatory compliance requirements for the California Street storm drain
project. The Section 404 Permit issued by the U.S. Army Corps of Engineers (Corps) and the
Streambed Alteration Agreement issued by the California Department of Fish and Game (DFG)
require that the limits of disturbance within the Santa Ana River be clearly marked in the field prior
to construction. Additionally,the area of disturbance must be surveyed to ensure that no listed biotic
species are affected by the project. Neither the Corps Nationwide Permit of the DFG agreement
authorize the"take"of any listed biotic species. The field survey is necessary to ensure that a 'lake"
does not occur.
The Permit and agreement also require that construction activities be monitored to verify that
construction limits are not exceeded.
To assist the City with these regulatory compliance requirements, TDA proposes to provide the
foil; services:
4-7
•
Task I - TDA will attend all pre-construction meetings with the City and contractor to
identify the proposed work schedule and extent of disturbance within the river channel.
• Task 2-TDA will perform a field survey of the project area to determine if any listed biotic
species occur within the area of disturbance.
• Task 3 - TDA will clearly delineate in the field the limits of allowed disturbance within the
channel to ensure that areas not designated for construction are not impacted.
• Task 4-IDA will provide regular, random inspections during construction activities in the
river to ensure that identified Emits of disturbance are not exceeded.
Ms. Valorie Shatynski
July 17, 1996
Page 2
At this time, TDA does not have the contractors work schedule so, we are not able to establish the
number of days that will be required to monitor the construction activities in the river channel. Our
best estimate is that no more than 7 days of construction activities will be required to complete the
work within the channel. Additionally, we estimate that monitoring activities will not exceed about
4 hours per day. TDA, therefore proposes to provide the services identified in Tasks 1-4 above on
a time and expense basis at the following rates:
Environmental Specialist $100.00 /hour
Ecologist 1 $68.50/hour
Ecologist H $55.00/hour
Clerical/Graphics $35.00/hour
Based on this information on the project available at this time, TDA estimates the provision of the
above service will not exceed$3,200.00. This is, however, only an estimate and the work effort will
be billed at actual costs. If once the project has commenced, it is determined that additional work
effort will be required to meet the regulatory requirements, TDA will provide the City with a revised
proposal.
I hope you will find this proposal satisfactory,but should you have any questions or comments, please
call.
Sincerely,
TOM DODSON&ASSOCIATE Authorization to Proceed
Bill Gatlin
By.
Vice President
Date:
BG/cmc
RE-050/0717BGI
ATTACHMENT B
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DEPARTMENT OF THE ARMY
LOS ANGELES DISTRICT, CORPS OF ENGINEERS
REGULATORY BRANCH—SAR AREA OFFICE
325 WEST HOSPITALITY LANE,SUITE 101
SAN BERNARDINO,CALIFORNIA 92408 AL 1,
REPLY To
REPLY 5, 1996
TTarmav oF7
Office of the Chief
Regulatory Branch
City of Redlands
c/o: Bill Gatlin
Tom Dodson & Associates
463 North Sierra Way
San Bernardino, California 92410
Gentlemen:
This is in reply to your letter (No. 96-30021-AJS) dated April 9, 1996, concerning our
permit authority under Section 404 of the Clean Water Act of 1972 (33 U.S.C. 1344) over your
proposal to construct an outfall structure and energy dissipator in Santa Ana River in the
City of Redlands, San Bernardino County, California.
Regulations for our permit program, published in the Federal Register, include Part 330
- Nationwide Permits (see the enclosure). The Corps of Engineers has determined that your
proposed activity complies with the terms and conditions of the nationwide permit at 33 CFR
Part 330, Appendix A(B)(7) for outfall structures and associated intake structures where the
effluent from that outfall is authorized, conditionally authorized, or specifically exempted, or
are otherwise in compliance with regulations issued under the National Pollutant Discharge
Elimination System program, as stated in the enclosure.
As long as you comply with the nationwide permit conditions described in Part 330,
Appendix A(C) and the attached special conditions, an individual permit is not required.
This letter of verification is valid for a period not to exceed two years unless the nationwide
permit is modified, reissued, revoked, or expires before that time. Presently, all nationwide
permits are scheduled to expire on January 21, 1997. It is incumbent upon you to remain
informed of changes to the nationwide permits. We will issue a public notice announcing the
changes when they occur. Furthermore, if you commence or are under contract to commence
this activity before the date the nationwide permit is modified or revoked, you will have
twelve months from the date of the modification or revocation to complete the activity under
the present terms and conditions of the nationwide permit.
A nationwide permit does not grant any property rights or exclusive privileges. Also,
it does not authorize any injury to the property or rights of others or authorize interference
with any existing or proposed Federal project. Furthermore, it does not obviate the need to
obtain other Federal, state, or local authorizations required by law.
-2-
Thank you for participating in our regulatory program. If you have any questions,
please contact Antal Szijj of my staff at (909) 884-3952.
Sincerely,
- r I J
A! j 61/6�61"Y
Mark Durham
Chief, South Coast Section
Regulatory Branch
Enclosure
_3_
SPECIAL CONDITIONS FOR 96-30021-AJS
1. The permittee shall clearly mark the limits of work within the Santa Ana River prior to
any construction activities.
2. The permittee shall provide a biological monitor on site to ensure there is no
encroachment outside the designated limits of work during construction activities.
Federal Register J Vol. 56, No, 726 Friday, November 22. 1991 J Rules and Regulations
time to time after an opportunity for
public notice and comment,Proposed
NWPs or modifications to Or reissuance
of existing NWPs will be adopted only
after the Corps gives notice and allows
the public an opportunity to comment on
and request a public hearing regarding
the Proposals.The Corps will give full
consideration to all comments received
prior to reaching a final decision.
10 Temis and conda ons. An activity
is authorized under an NWP only if that
activity and the permittee satisfy all of
the NWP's terms and conditions.
Activities that do not qualify for
authorization under an NWP still may
be authorized by an individual or
regional general permit.The Corps will
consider unauthorized any activity
requiring Corps authorization if that
activity is under construction or
completed and does not comply with sit
of the terms and conditions of an NWP.
regional general permit, or an individual
permit.The Corps will evaluate
unauthorized activities for enforcement
action under 33 CFR pari 326.The
district engineer(DE)may elect to
suspend enforcement proceedings it the
permittee modifies his project to comply
with an NWP or a regional general
PART 330—MATIONWIDE PERMIT permit.After considering whether a
PROGRAM violation was knowing or intentional.
and other indications of the need for a
se-_ penalty.the DE can elect to terminate an
330.1 Nrpose and policy. enforcement proceeding with an after-
330.2 Definitions. the-fact authorization under an NWP.If
330.3 Activities occurring before certain all terms and conditions of the NWP
dates. have been satisfied.either Wore or
330.4 Conditions.limitations.and
restrictions. after the activity has been
3303 Issuing.modifying.suspending.or accomplished,
revoking nationwide permits and (d)Discrefionory out-t4ority.District
authorizations. and division engineers have been
=4 Authorization by nationwide permit. delegated a discretionary authority to
Appendix A to Part US—Natiocivido Permits suspend.modify.or revoke
and Conditions authorizations under an NWP.This
Authority-33 U-S.C.401 at seq.:33 US.0 discretionary authority may be used by
1344:33 U-S.0 1413. district and division engineers only to
further condition or restrict the
f 2=1 P;- --at Arid po". applicability of an NWP for cases where
(4)Purpose.This part describes the they have concerns for the Aquatic
policy and procedures used in the environment under the Clean Water Act
Department of the Army*&nationwide section 4N(b)(1)Guidelines or for any
permit program to issue.modify. factor of the public interest.Because Of
suspend or revoke nationwide permits: the nature of most activities authorized
to identify conditions.limitations.and by NWP.district and division engineers
restrictions on the nationwide permits: will not have to review every such
and to identify any procedures,whether activity to decide whether to exercise
required or optional. for authorization discretionary authority.The terms and
by nationwide permits. conditions of certain NWPs require the
(b)NoLionwide permits. Nationwide DE in review the proposed activity
permits(NWP%)are a type of general before the NWP authorizes its
permit issued by the Chief of Engineers construction.However.the DE has the
and are designed to regulate with little, discretionary authority 10 review any
it any,delay or paperwork certain activity authorized by NWP to
activities having minimal impacts.The determine whether the activity complies
NWPv are proposed. issued modified. with the NWP.If the DE finds that the
reissued(extended).and revoked from proposed activity would have more than
Federal Register / VOL 56, No, 226 / Fricay. Novernuer
minimal individual or cumulative net notification,The DE will consider that (c)Authorization means that specific
adverse effects an the environment or proposed mitigation when deciding it activities that qualify for an NWP may
otherwise may be contrary to the public the impacts are minimal,The DE shall proceed.provided that the terms and
interest, he shall modify the NWP add activity-specific conditions to conditions of the NWP are met. After
authorization to reduce or eliminate ensure that the mitigation will be determining that the activity complies
those adverse effects.or he shall accomplished. If sufficient mitigation with all applicable terms and conditions,
instruct the prospective permittee to cannot be developed to reduce the the prospective permittee may assume
apply for a regional general permit or an adverse environmental effects to the an authorization under an NWP.This
individual permit. Discretionary minimal level. the DE will not allow assumption is subject to the DE's
authority is also discussed at 33 CFR authorization under the NWP and will authority to determine it an activity
330.4(e)and 330.5, instruct the prospective permittee on complies with the terms and conditions
(e)Notifications.(1)In most cases. procedures to seek authorization under of an NWP.If requested by the
permittees may proceed with activities an individual permit. permittee in writing,the DE will verify
authorized by NWPs without notifying (f)Individual Applications, DEs in writing that the permittee's proposed
the DE However.the prospective should review all incoming applications activity:complies with the terms and
permittee should carefully review the for individual permits for possible conditions of the NWP.A written
language of the NWP to'ascertain eligibility under.regionjil geWal permits verification may contain activity
whether he must notify'the'DE prior to or NWPs. If the activity complies with specific conditions and regional
commencing the authorized activity.For the terms and conditions of one,or more conditions which s permittee must
NW?s requiring advancemotification. NWP.he should vezify the authorization satisfy for the authorization to be valid,
subb notification m6st'bi made in and so notify the applicant.,It,the DE NJ Headwaters means non-tidal
writing as early-its possible prior to determines that.the activity could
rivers.streams,and their lakes and
commencingAhe proposed activity.*The compi},after reasonable project
impoundments.including adjacent
permittee may presume that his project modifications and/or activity-specific wetlands.that are part of a surface
qualifies for the NWP unless he is conditions,he should notify the tributary system to an interstate or
otherwise notified-by the DE within a applicant of such modifications and navigable water of the United States
30-day period.The 30-day period starts conditions. If such modifications and upstream of the point on the river or
on the date of receipt sof the notification conditions are accepted by the - stream at which the average annual flow
in the Corps district office and ends 30 applicant. verbally of in writing. the DE is less than five cubic feet per second.
calendar days later regardless'of warverify the authorization with the The DE may estimate this point from
weekends'or Wlidays.It the DE notifies modifications and conditions in- available data byusingthe mean annual
the prospective perinittee that the accordance with 33 CFR 330.6(a). rea precipitation.area drainage basin
notificationli incomplete.-a new 30-day However.i * the DE,
wiliprciceed with maps.and the average runoff coefficient.
period will commence'upcin receipt or" processing the application-as an or by similar means.For streams that
the reifisedT66ficailisn:11it"prospective individ1sal permit,a*4 take.thew,,.!.t,,X are4rylor long peciods of,the year.DEs
perynfttee may not proceed with the appropriate action within 15 calendar may establish the point where
proposed activity before expiration of days of receipt.in accordance with 33 headwaters begin as that point on the
the 3"ay4ieri6d bnh!ss otherwise CFR 3254(sXZ),un!'as&Jbe applicant, stream where a flow of rive cubic4eet
notified by the DE If the'DE fails to act indicates that he swill accept the per-second is equated or exceeded 50
within the 30-day period.he must use modifications or conditions. * percent of the time.
the procedures of 33 CFR 3304 in order (g)Authority.NWPs can be issued to (e)Isolated waters means those non-
to modify.suspend.or revoke the NWP satisfy the permit requirements of tidal waters of the United States that
authorization. section 20 of the Rivers and Harbors Act are:
(2)The DE will review the of iagg.section 4o4 of the Clean Water
U*t'rlcst'on (1)Not part of a surface tributary
Act.section 203 of the Marine system to interstate or navigable waters
and may add'acliviiy-specific conditions Protection,Research.and Sanctuaries
to ensure that'the activity complies with Act.or Some combination thereof.The of the United States:and
the terms and conditions of the NWP applicable authority will be indicated at (2)Not adjacent to such tributary
and that the adverse impacts on the the end of each NWP.NWPs and their waterbodies.
aquatic environment and other aspects conditions previously published at 33 In Filied arm means the area within
of the public interest are individually CFR 330.5 and 330.6 will remain in effect jurisdictional waters which is eliminated
and cumulatively minimill �. until they expire or are modifted or or covered as a direct result of the , -
(3)For some NWPs involving revoked in accordance with the. discharge(i.e-the area actually covered
discharges itilo'wetilands.the . procedures of this part. by the discharged material). It does not
notification must include a wetland include areas excavated nor areas
delineation.The DE will review the J 330.2 DefinitionlLimpacted as an indirect effect of the ML
notification and determine if the' W The definitions found in 33 C-FR IS)Discretionary authority means the
individual and cumulative adverse parts,320-M are applicable to the terms authority described in'll 330-1(d)and
environmental effects are more than used in this parL I I i 330,4(e)which the Chief of Engineers
minimal.If the adverse effects are more, (b)Nationwide permit,refers to-& type delegates to division or district
than minimal the DE will notify the of general permit which authorizes engineers to modify an NWP
prospective permittee that an individual activities on a nationwide basis unless authorization by adding conditions, to
permit is required at that the specifically limited.fAnother type of suspend an NWP authorization.Or to
prospective permittee may propose generai permit is a **regional permit- revoke an NWRauthorization and thus
measures to mitigate the loss of special which is issued by division or district require individual Permit authorization.
aquatic.sites.including wetlands.to engineers on a regional basis in (h) 7e.--.7s and conditions The-terms-
reduce,the adverseimpactsto minimal, accordance with 33 CXR-part 3251,(See of an NWP are the limitations and
—he prospective permittee may elect to 33 CFR 3ZZ24Q,and 3232(h)lor the provisions included in the description of
,iropose mitigation with the original definition of a general permit.) the NWP itseff."Me-conditions-or
`eral3Register;41YOIJ56: No..=6, /-Friday..iNdvc
rnbcr.Z2.- 19-1-- Rules zarid:%Rekul at tons
.are:additionaf provisions.which asserted jurisdiction at the time the an individual 440", water quality
..ce restrictions-or limitations on all of activity occurred,provided in-both certification or waives its right to do so.,
,he NWPs.Tbcse are published with the instances.:there is no interference with State denial of 401 water quality 1 -1-
INVVPs.Other conditions may be navigation.Activities completed , certification for any specific NWP
imposed by district or division engineers shoreward of applicable Federal Harbor affects only those activities which may
on a geographic,category-of-activity,or lines before May Z7.1970 do not require result in a discharge.That NWP -
activily-specific basis(See 33 CFR specific authorization.(section 10) continues to authorize activities which"
-,30 4(e)). could not reasonably be expected to t(;;
(i)Single and complete project means 133-0.4 Conditions�.UmftstlOfts,and result in discharges into waters-of-the ::
the total project proposed or. restrictions.. 1 - , i;"
United States.'
accomplished by.one owner/developer (a)General.A prospective permittee )DEs will take appropriate, <T
must satisfy ail terms and conditions of (4
or Partnership or other association of � measures to inform the public of which
owners/developers-For example,if an NWP for a valid authorization to activities.-waterbodies.or regions
occur.Some conditions-identify a
construction'of a residential that if met requires require an individual 401 water quality
development affects several different certification before authorization by
water..areas of a headwater or' contained in other paragraphs in this isolated w additional procedures or provisions NWP.
or several different headwaters or, section.It is important to remember that (5)The DE will not require or process
all filled areas should *
isolated waters,the cumthe basis for cumulative total of the NWPs only authorize activities from an individual permit application for an"
be
decidwig whether or not the project will the perspective of the Corps regulatory activity which may result in a discharge
be covered by an NWP.For linear authorities and that other Federal,state, and otherwise qualifies for an NWP
projects, the-single and complete and local permits.approvals, or solely on the basis that the 401 water
project- (i.e.single and completeauthorizations may also be required. quality certification has been denied for
,
crossing) willapply to each crossing of.a (b)Further information. (1)DEs have that NWR However.the district or
separate water of the United States(ie. authority to determine if an activity division engineer may consider water
single waterb-ody)at that location: plies with the terms and conditions quality,among other appropriate
complies
except that for linear projects crossing a Of an NWP. factors,in determining whether to
single waterbody,several times at (2)NWP#do not obviate the need to exercise his discretionary authority and
separate and distant locations.each obtain-other Federal state.or local require a regional general permit or an
crossing is considered a single and permi ts,approvals.or authorizations individual permit
complete project.However,individual required by law.,-.- ' :- . * - (6)In instances where a state has
channels in a braided stream or river.or (3)NWPs do not grant any property denied the 402 water quality
individual arms of a large.irregularly- rights or exclusive privileges. certification for discharges under a
shaped wetland or lake,etc-are not (4)NWPs do not authorize any injury particular NWP,permittees must furnish
separate waterbodies. to the property or rights of others. the DE with an individual 401 water
(j)Special aquatic sites means (5)NWPs do not authorize quality certification or a copy of the
wetlands.mudflats.vegetated shallows, interference with any existing or application to the state for such
coral reefs.riffle and pool complexes, proposed Federal project. certification.For NWPs for'which a
sanctuaries,and refuges as defined at 40 (c)State 401 water quality state has denied the 401 water quality
CFR 230.40 through 230.45. certification.(1)State 401 water quality certification.the DE will determine a
certification pursuant to section 401 of reasonable period of time after receipt
330.3 AcUvtt$es occuming before certain the Clean Water Act.,or waiver thereof, of the request for an activity-specific 401
datelL is required prior to the issuance or water quality certification(generally 60
The following activities were reissuonce of NWPs authorizing days),upon the expiration of which the
permitted by NWPs issued on July 19. activities which may result in a DE will presume state waiver of the
197'7.and,unless the activities are discharge into waters of the United certification for the individual activity
modified. they do not require further States. covered by the NVVV*.However.the DE
permitting- (2)If.prior to the issuance or and the state may negotiate for
(a)Discharges of dredged or fill reissuance of such NWPs.a state issues additional time for the 401 water quelity
material into waters of the United States a 401 water quality certification which certification,but in no event shall the
outside the limits of navigable waters of includes special coaditions.the=diviision period exceed one(1)year(a"33 CrR
the United States that occurred before engineer will make these special 325.2(b)[1)(ii)).Upon receipt of an
the phase-in dates which extended conditions regional conditions of the individual 401 water quality
Section 404 jurisdiction to all waters of NWP for activities which may result in a
the United States.The phase-in dates discharge into waters of United States in NVVJAa nandiered L L L s 10.1t.12,34,ZL and
were:After July 25.1475.discharges into that state.unless he determines that 3S,do not require 4171 Witter qu&111V Qtr11fWA1i*n
navigable waters of the United States such conditions do not comply with the since they avuld authorize ecunues-bKA.UN the
and adjacent wetlands:after September provisions of 33 CFR 325-4.In the latter Opinion of the Costae.apuld not reasonably be
ttypecied to result in a dacha.-se and in tbt case Of
1. 1978,discharges into navigable waters use.the conditioned 401 water quality NWP a is at the ternto"al sees.KINVI
of the United States and their primary certification will be considered a denial numbered 3.4-S.4L?.13.14.1&2a.21,rt zi.Z7'2L
tributaries.including adjacent wetlands. of the certification(see paragraph(c)(3) 3&37.and 3&invotv*various "a"t of
and into natural takes.greater than 5 of this section). -hick may result an 4 d2schofs.,and tiquifit 401
-ster quality cenificalson.few others of-111ch do
acres in surface area.and after July 1. (3)If a state denies a required 401 not,State dirmai of am Water quality celtstics"On
1977.discharges into all waters of the water quality certification for an activity for any specific NWP In this"'tVVY 01ttiCu only
United States.including wetlands. otherwise meeting the terms and those activities-hich May result in a dischorra-Fol
ihwar*cts.11firs Ow m-01"Al discharra-Stir NwP
(section 404) conditions of a particular NWP.that , flct -18-
remains 's _NWP.numbered%L 11 la,Ir
(b)Structures or work completed NWP's authorization for all such X and 40 taivolivit ticu"Ist,_b'ch-*,Jd tw*wtt so
before December 18.195&or in activities within that state is denied do6writes and therefore 4171 Water quality
waterbodies over which the DE had not without prejudice until the state issues certification to required
Federal -Register- '/ Vol. 56. No. 220 1 Friday. November ZZ. -iyiii i
certification.or if the prospective coastal zone that affect land or water subsequently attempts to reverse it*s
permittee demonstrates to the DE state uses or natural resources of the state's agreement for substantive reasons after
waive.-of such certification,the coastal zone is denied without prejudice the effective date of the NWP.the
proposed work can he authorized under until the prospective permittee furnishes division engineer will review those
the N .T. For NWPs requiring a 30-day the DE an individual consistency reasons and consider whether there is
predischarge notification the district certification pursuant to section substantial basis for suspension.
engineer will immediately begin, and 307(c)(3)of the CZMA and demonstrates modification.or revocation as outlined
complete, his review prior to the state that the state has concurred in it(either in 33 CFF 330.5.Otherwise. such
action on the individual section 401 on an individual or generic basis).or attempted reversal is not effective and
water quality certification.If a state that concurrence should be presumed the Corps will consider the state CZMA
issues a conditioned individual 401 (see paragraph(d)(6)of this section), consistency agreement to be valid for
water quality certification for an (4)DEs will take appropriate the NWP authorization until such time
individual activity.,the EYE will include measures.such as public notices, to as the NWP is modified or reissued.
those conditions es activity-specific inform the public of which activities, f8)Federal activities must be
conditions of the NNW. i waterbodiC3,or regions require consistent with a state's Federally-
(7) Where-a state.after issuing a 401 prospective permittees to make an approved coastal management program
water quality certification for an NWP. individual consistericy determination to the maximum extent practicable.
subsequently attempts to withdraw it for and seek concurrence from the state. Federal agencies should follow their
substantive reasons afterthe effective µ (5)DEs will not require or process an own procedures and the Department of
date of the NWP.the division engineer individual permit application foranCommerce regulations appearing at 15
will review ahose,reasons and consider activity otherwise qualifying for an CFR Part 930 to meet the requirements
whether there is substantial basis for ' N`WP soliAy on the basia,that the of the CZMA.Therefore-the provisions
suspension.modification.or revocation activity has not received CZMA of 33 CFR 330.4(d)tIH7)do not apply to
of the NIAT authorization as outlined in consistency agreement from the state. Federal activities.Indian tribes doing
§ 330.5.Otherwisersuch attempted state However,the district or division work on Indian Reservation lands shall
withdrawal is not effective and the engineer may consider that factor. be treated in the same manner as
Corps will consider the state among other appropriate factors, in Federal applicants.
certification to be valid for the NWP determining whether to exercise his (e)Discretionary authority.The Corps
authorizations until such time as the discretionary authority and require a reserves the right(ie-discretion)to
NWP is modified or reissued regional general permit or an individual modify.suspend or revoke NVVT
(d)Coastal zone management permit application.: c
consistency determination.(1)Section (6)In instances where a-state has authorizations.Modification means the
imposition of additional or revised terms
307(c)0);of the Coastal Zone disagreed with the Corps consistency, orconditions on.theauthorization.
Management Ac,(.(CZMA)requires the determination for activities under a Suspension means the temporary
Corps to provide,a consistency particular NWP.pent ittear-usust furnishr canceUation of the aut6anization'whilea
determination and receive state the DE with an individual consistency decision is made to either modify.agreement prior to the issuanm concurrence or a copy of the consistency -or reinstate the authorization.or expansion of activities certification provided to revoke
the state for � :r, Revocation means the cancellation of
authorized by an NWP that authorizes concurrence.If a state fails to act on a the authorization.The procedWms for
activities within a state with a perwittee's consistency certification modifying.suspending.or revoking NWP
Federally-approved Coastal within six months after receipt by the authorizations are detailed in I 3W.5.
Management Program when activities state.concurrence will be presumed. (I I A division engineer may assert
that would occur within.or outside.that Upon receipt of an individual discretionary authority by modifying.
state's coastal zone will affect land at consistency concurrence or upon suspending.or revoking NWP ,
water uses or natural resources of the presumed consistency.the,proposed authorizations for&speciric geographic
state's coastal zone. '. work is authorized if it complies with all :rea.class of activity.or class of waters
(2) If.prior to.the issuance,reissuance. terms and conditions of the NWP.For within his division.in
on a'
or expansion of activities authorized by NWps requiring a 30-day predischarge statewide basis.whenever he
an NWP.a state indicates that notification the DE will immediately determines sufficient concerns for the
additional conditions are necessary for begin.and may complete,his review environment under the section 404(b)(1)
the state to agree with the Corps prior to the state action on the . Guidelines or any other factor of the
consistency determination.the division ......individual consistency cortification.ff a-
engineer will make such conditions , state indicates that individual i,,---' - . public interest to requires,or if he
regional conditions for the NWP in that conditions are necessary for consistency Otherwise detertnines'that the NWP
state. unless he determines that the with the state's Federally-approved would result in more than minimal
conditions do not comply with the coastal management program for that adverse environmental effects either
provisions of 33 CFR 325.4 or believes t individual activity, the DE will include individually or cumulatively.
for some other specific reason it would those conditions as activity-specific (Z)A DE may assert discretionary
be inappropriate 10 fiicludii the conditions of the NWPunless he-t . authority by Modifying.suspending.or
conditions. In this cise.the state"*' determines that such conditions do not revoking NWP authorization for a
failure to agree with the Corps comply with the provisions of 33 CFR specific activity whenever he
consistency determination without the 325.4.In the latter case the DE will determines sufficient concerns for the
w - environment or any other factor of the
conditions will lit;;onsidered,lo be a consider the conditioned concurrence as
disagreement with ihe,*C64s_ a nonconcurrence unless the permittee publv: interest so requires. Whenever
consistency determination. chooses to comply voluntarily with all the DE determines that a proposed,
(3) When a state has disagreed with the conditions in the conditioned specific activity covered by an NWP
I
the Corps corijjjencf determinstia;L, concurrence, ,,-ould have more than minimal
authorization for all such activities (7) Where a state,after agreeing with 'intitwidual or cumulative adverse effects
occurring within or outside the state's the Corps consistency determination, on the environment or otherwise may be
w9138 Federal Register / Vul. SG. No. Z26 / Friday. November 22. 1991 / Rules and Regulations
,m!rary to the public interest.he must require an individual permit (see 33 CFR State Histonc Preservation Officer and
i her modify the NWP authorization to 330-5(d)). the National Register of historic Places,
duce or eliminate the adverse impacts, (3)Prospective permittees are §3301S tssuinC.moditying.suspending.or
notify the prospective permittee that encouraged to obtain information an the revokiN nationwide pemits and
"e proposed acuvity is not authorized location of threatened or endangered author ustionr-
I NWP and provide instructions on species and their critical habitats from
ow to seek authorization under a the U.S.Fish and Wildlife Service, (a) Generial. Thi3 section sets forth the
-vional general or individual permit. Endangered Species Office.and the procedures for issuing and reissuing
;3)The division or district engineer National Marine Fisheries Service. NWPs and for modifying. suspending,or
ill restore authorization under the (g)Hisioric properties. No activity revoking NWPs and authorizations
'A'VPs at any time he determines that which may affect propertie3 listed or under NWPs.
s reason for asserting discretionary properties eligible for listing in the (b)Chief of Engineers.(1)Anyone
e"Ithority has been satisfied by a National Register of Historic Places,is may.at any time,suggest to the Chief of
condition, project modification.or new authorized until the DE has complied Engineers.(ATTN:CECW-OR).any new
if formation. with the provisions of 33 CFR part 325. NWPs or conditions for issuance.or
(4) When the Chief of Engineers appendix C changes to existing NWPs.which he
t,odifies or reissues an NWP.division (1)Federal permittees should follow believes to be appropriate for
engineers must use the procedures of their own procedures for compliance consideration- From time-to-time new
3M5 to reassert discretionary with the requirements of the National NWPs and revocations of or
uthority to reinstate regional Historic Preservation Act and other modifications to existing NWPs will be
conditions or revoalion of WAT Federal historic-pre:ervett-cm.laws. evaluated by the ChiefofEngineers
.authorizations for specific geographic (2)Non-federal permittees*will notify following the procedures specified in
.:eas.class of activities.or class of the DE If the activity may affect historic this section.Within rive years of
waters.Division engineers will update properties which the National Park issuance of the NWPs.the Chief of
P Xisting documentation for each NWP. Service has listed.determined eligible Engineers will review the NWPs and
Upon modification or reissuance of for listing.or which the prospective propose modification.revocation,or
!JWPs.previous activity-specific permittee has reason to believe may be reissuance-
conditions or revocations of NWP eligible for listing.on the National (2)Public notice.(I)Upon proposed
authorization will remain in effect Register of Historic Places.In such issuance of new NWPs or modification.
unless the DE specifically removes the cases.the prospective permittee will not suspension.revocation.or reissuance of
activity-specific conditions or begin the proposed activity until notified existing NWPs.the Chief of Engineers
revocations. by the DE that the requirements of the . will publish a document seeking public
(f)Endangered species.No activity is National Historic Preservation Act have comments.including the opportunity to
authorized by any NWP If that activity been satisfied and that the activity is request a public hearing.This document
15 likely to jeopardize the continued authorized.If a properly in the permit will also state that the information
existence of At threatened or endangeredareaof the activity is determined to be supporting the Corps*provisional
species as hated or proposed for listing an historic property in accordance with determination that proposed activities
under the Federal Endangered Species CFR pan 3=appendix C.the DE will comply with the requirements for
Act(ESA),or to destroy or adversely 33
take into account the effects on such issuance under general permit authority
modify the critical habitat of such properties in accordance with 33 CFR is available at the Office of the Chief of
species. part 325,appendix C.In such cases,the Engineers and at all district offices.The
(1)Federal agencies should follow Chief of Engineers will prepare this
their own procedures for complying with district engineer may: information which will be
the requirements of the ESA. (1)After complying with the supplemented.if appropriate.by
(Z) Non-federal permittees*hall notify requirements of 33 CFR part 325.
appendix C.authorize the activity under division engineers.
the DE if any Federally listed(or the NWP by adding.If appropriate. (ii)Concurrent with the Chief of
proposed for listing)endangered or activity-specific conditions;or Engineers'notification of proposed.
i,rcatened species or critical habitat (11)Prior to or concurrent with modified,reissued."revoked NWPs.
might be affected or is in the vicinity of , DEs will notify the known interested
the projecL In such rates.the -— I complying with the requirements of 33
prospective permittee will not begin CFR part 3M appentib:C.he may assert public by a notice issued at the district
Work under authority of the NWP until discretionary authority(am 33 CFR level.The notice will include proposed
notified by the district engineer that the 3W-4(e))and instruct the prospective regional conditions or proposed
requirements of the Endangered Species permittee of procedures to seek ' revocations of NWP authorizations for
Act have been satisfied and that the authorization under a regional general specific geographic areas.classes of
activity is authorized.If the DE permit or an individual permit(See 33 activities.or classes of waters.if any.
determines that the activity may affect CFR 330.5(4).) developed by the division engineer.
anyFederally listed species or critical (3)The permittee*hall immediately (3)Docutnentditib&The Chief Of
habitat.the DE must ir-itiate section 7 notify the DE iL before or durinEngineers will prepare appropriateg NEPA documents and.if applicable.
consultation in accordance with the prosecution of the work authorized.he
ESA.in such cases.the DE mar. encounters an historic property that has section 404(b)(1)Guidelines compliance
(i)Initiate section 7 consultation and not been listed or determined eligible for analyze*for proposed NWPs-
then. upon completion.authorize the hating on the National Register.but Documentation for existing NWPs will
activity under the NWP by eddin&.if which the prospective permittee has be modified to reflect any changes in
appropriate.activity-specific conditioeir, reason to believe may be eligible for these permits and to reflect the Chief of
or listing an the National Register. Engineers'evaluation of the use of the
(ii)Prior to or concurrent with section (4)Prospective permittees are permit since the last issuance.Copies of
7 consultation.assert discretionary encouraged to obtain information on the *I,comments received on the document
authority(see 33 CFR 330.4(e))and location of historic properties from the will be included in the administrative
Federal Register I VOL 56. No. =fj Friday. November ZZ. 1991 / Rules and Regulations SS3139
record,The Chief Of Engineers will forwarded to the Office of the Chief of appropriate.that the authorization under
consider these comments in making his Engineers. ATT-N. CECW-0R- the NWP may be modified by mutual
decision on the NWPs.and will prepare (d)District Engineer. (1) When agreement.The permittee will also be
a statement of findings outlining his deciding whether to exercise his advised that within 10 days of receipt of
views regarding each NWP and discretionary authority to modify. the notice of suspension.he tray request
discussing how substantive corrunents suspend. or revoke a case specific a meeting with the DE.or his designated
were considered.The Chief of Engineers activity's authorization under an NWP. representative.to present information in
will also determine the need to hold a the DE should consider to the extent this matter.After completion of the
public hearing for the proposed NWPs. relevant and appropriate:Changes in meeting(or within a reasonable period
(4)Effective dates.The Chief of circurns*ances relating to the authorized of time after suspending the
Engineers will advise the public of the activity since the NWP itself Was issued authorization if no meeting is
e rfective(da te of any issuance. or since the DE confirmed authorization requested).the DE wiU take action to
modification.or revocation of an WWP. under the NVVP by written verification; reinstate.modify.or revoke the
(c)Division Engineer.(1)A division the continuing need for.or adequacy of. authorization.
engineer may use his discretionary the specific conditions of the (iii)Following completion of the
authority to modify.suspend.or revoke authorization;any significant objections suspension procedures.if the DE
NWP authorizations for any specific to the authorization not previously determines that sufficient concerns for
geographic area. class of activities.or considered.progress inspections of the environment.including the aquatic
class of waters within his division. individual activities occurring under an environment under the section 404(b)(1)
inciuding on a statewide basis.by MVpt cvmulative ae-verse Guidelines.or other relevant factors of
issuing a public notice or notifying the environmental effects resulting from the public interest so require.he will
individuals involved The notice will activities occurring under the NWR the revoke authorization under the NWP.
state his concerns regarding the extent of the permittee's compliance The DE will provide the permittee&
environment or the other relevant with the terms and conditions of the . written ftnal decision and instruct him
factors of the public interest.Before NNV?s.revisions to applicable statutory an the procedures to seek authorization
using his discretionary authority to or regulatory authorities:and.the extent under a regional general permit or an
modify or revoke such NWP to which asserting discretionary individual permit
authorizations.division engineers will: authority would adversely affect plans. (3)Tat DE need not issue a public
(i)Give an opportunity for interested investments.and actions the permittee notice when asserting discretionary
parties to express their views an the has made or taken In reliance on the authority over s specific activity.The
proposed action(the DE will publish permit:and.other concerns for the modification.suspension.or revocation
and circulate a notice to the known environment.including the aquatic - will become effective by notification to
interested public to solicit comments environment under the section 404(b)(1) the prospective permittee.
andprovide the opportunity to request a Guidelines.and other relevant factors of
the public interest. f 3300 Auftwuntlim by fudkwmk%
public hearing): (2)Procedures.(1)When considering per"111t.
(ii)Consider fully the views of whether to moor revoke a specific NaLionwide permit verification.(1)
affected parties; authorization under an NWP.whenever
(ill)Prepare supplemental Nationwide permittees may.and in
documentation for any modifications or practicable.the DE will initially hold some cases must.request from a DE
informal consultations with the confirmation that an activity complies
revocations
tions that may result through permittee to determine whether special with the terms and conditions of an
assertion of discretionary authority. conditions to modify the authorization
Such documentation will include conNWP.DE&should respond as promptly
would be mutually agreeable or to allow &spracticable to such requests.
comments received an the district public the permittee to furnish information
notices and&statement of findings (2)9 the DE decides that an activity
showing how substantive comments which not comply with the terms or
mutual agreement is reached.the DE conditions of an NW.he will notify the
were considered;- will give the permittee written
(iv)Provide.if appropriate,a person desiring to do the work and
verification of the authortmilom
grandfathering period as specified in including the special conditions.It the Instruct him on the procedures to seek
j 330.S(b)for those who have permittee furnishes Wormaition which authorization under a revional general
commenced work or are under contract satisfies the DE's concerns.the permit or individual permit,
to commence in reliance an the NWP permittee may proceed.U appropriate. (3)If the DE decides that an activity
authorization;and the DE may suspend the NWP does comply with the terms and
(v)Notify affected parties of the authorization while holding informal conditions of an NWP.he will notify the
consultations with the permittee. (1)The DE may a conditions on a
modification.suspension.or revocation. nationwide permittee,
including the effective date(the DE will (6)If the DE*s concerns remain after add
publish and circulate a notice to the the informal consultation.the DE may case-by-case basis to clarify COMPliancs
known interested public and to anyone suspend a specific authorization,under, with the terms and conditions of an
who commented on the proposed an NWP by notifying the permittee in NWP or to ensure that the activity will
action). writing by the most expeditious means have only minimal individual and
(2)1-he modification suspension.or available that the authorization has cumulative adverse effects on the
revocation of authorizations under an been suspended stating the reasons for environment.and will not be contrary to
NWP by the division singineer will the suspension.and ordering the ' the public interest
become effective by issuance of public permittee to stop any activities being (ii)The We response will state that
notice or a notification to the individuals done in reliance upon the authorization the verification is valid for a specific
involved under the NWP.The permittee will be period of time(,generally but no more
(3)A copy of all regional conditions advised that&decision will be made than two years)uttless the NWP
imposed by division engineers an either to reinstate or revoke the authorization is modified.suspended.or
activities authorized by NWPs will be authorization under the NWP:or.if revoked.The response should*too
143 Federal Register / Vol. 5
9 6. No. 22i" Fridat. November 27. 1991 1 Rules and Regulations
! ,-.lt;de a stscrzent that the verification completed continue to be authorized by an after-the-fact authorization. Use of
r
;!l remain valid for the cpecifted period that NWP. Z,ter-the-fact NJ1WP authoriza!ion must
time.if during that time period, the (c)Af,illip!&L:,-&(7f notionsvide be Consistent -ttF 0'�e terms of the
W?authc:17.ation is reissued without Two or more different NWPs ArrnyiE?A hiernorandurr,of A�rceme-lt
rn-odificatior.or the activity comp!ies can be combined to authorize a "single on Erforcement.Copies are available
%,.nth any subsequent modification of the and complete praject"as defined 9!33 fro,:i each d-rinct eng!reC7.
11 VVP aul;,orizahon,Furthermore.the CFR 330.26), Howcver. the sante N:WP Appendix A to Part 330--Nationwide
resprnse should include a statement canna!be used more than once for a Permits and Conditions
!*,,,,t the provisiors of I 330.6(b)will sirg!c and complete project.
e,nply. if during that period or time.the (d)Corn5in ing no tion vi-ide pern,it� A.Index of the Na:ionwide Permits and
%W11 authorization expires.or is hill i.iJ.'ridualprrmi.s, Subject to the Coodiuonr
sus-pended or revoked,or is modified, frdlowing qualifications.portions of a %'C:;C.-Ttvfdr rerjr.J.-s
such thst the activity would no longer larger p:-oicc, may proceed under the 1,Aids to Navigt.on
comply with the le.-ms and conditions of authority c{the NWPs while the DE
2,Structures In A:141:141 cavals
an Nk%-P. Finaliy,the response should evaluates an individual permit 3 Maintenance
.elude zny known expiration date thet application for other portions of the 4. Fish and Wild:'fe liarvestin&
would occur during the specified period same project,but only it the portions of Enhancerneni-and Attraction Devices
t,[ time. A period of time less than two the project qualifying for NWP and Activities
ti e a rs rn a y be used if deemed authorization would have independent S.Scientific h1cos-.;--emert Devices
i,:,propriate. -I r u!ility and are able to function c.-meet S. Actiities
(iii) For activities where a s1zte hes
their purpose indepencic.-st of the total 7.Oulf4il Structures
protect.When the functioning or &Oil and Cat Structures
denied 401 water quality certi"ication 9.51ructures in Fleeting and Anchorage
d n d/or d i d no, agree with the Corps usefulness of a portion of the total Arers
consistency determination for an NVVP pr'o'ject quslifyi:-.&for an KWP is 10 Moc..ng Buoys
!he DE's response will state that the d!-pendent or the remainder or the I I-Temporar,Recreational Structures
nroposed zctivity meets the terms and pruiect.such that its construcLon and 12.Utility Line aackfil!and Bedding
conditions for authorization under the use would not be fully justified even it 13.Bank Stabilization
N%&*P with the exception of a state 4Cn the Corps were to deny the individucl 14,Road Crossing
water quality certification and/or CZM permit,the IN""does not apply and all IS.U.S.Coast Guard Approved Bridges
portions of the project must be Ia.Return Water From Upland Containe.1
consistency concurrence.The response evaluated as part of the individual Disposal Areas
will also indicate the activity is denied IT.Hydropower Proiects
Without prejudice and cannot be permit process. In.Minor DischerWs
a whorized until the requirements of (1)When a portion of a larger project 19.Z5 Cubic Yard Dredging
330.4(c)(3).=4(c)(6).330.41'd)f3). is authorized to proceed under an NWP. zo.W Spill Cleanup
and 3W.4(d)(6)are satisfied.The it is with the understanding that its n.Swfoce Muting Activities
response will also indicate that work construction will in no way prejudice ZZ Removal of Vessels
trey only proceed subject to the terms the decision on the individual permit for Z3.Approved Categorical Exclusions
and conditions of the state 401 water the rest of the project.Furthermore.the U.State Administered Section 404 Prr"tr.-t
individual permit documentation must 25.Structural Dischargequit!i!y certification and/or CZM 25.Headwaters and Isolated Waters
concurrence, include an analysis of the impacts of the Discharges
entire project,including related Z7.Wetlenid Restoration Activities
(iv)Once the DE has provided such activities authorized by NAIP.
verification,he must use the procedures Z&Modifications of Existing Marines
(2)NWPs do not apply,even if a 22.Reserved
or 33 CFR 330.5 in order to modify.
suspend.or revoke the authorization. p 30.action of the project is not dependent Reserved
on the rest of the project.when any 31.Reserved
(b)Expiration of nationwide permits, portion of the project is subject to an 32.Completed Enforcement Actions
The Chief or Engineers will periodically enforcement action by the Corps or EPA. 33.Temporary Construction and Access
review NIATs and their conditions and (a)Aftep-the-fact outhariza.lions. 34.Cranberry Production Activities
will decide to either modify.reissue.or These authorizations often play on 3s.maintenance Dredging of Existing Basins
revoke the permits.if laii NWP isnot important part in the resolution of 36.boat Ramps
modified or reissued within five years of37.Emergency watershed Protection
violations.In appropriate cases where
its effeLlive date.It automatically 3a.Cleanup of Hazardous and Toxic Waste the activity complies with the terms and ..Reserved
expires and becomes null and void. conditions of an NWP.the DE can elect 40.Farm Buildings
Activities which have commenced(i.e. to use the NWP for resolution of an
are under construction)or are under after-the-fact permit situation following Aa"On-es'Pier"n"'"""ont
contract to commence in reliance upon a consideration of whether the violation General Gan di6ofts
an NWP will remain authorized being resolved was knowing or 1.Navigation
provided the activity is completed intentional and other indications of&.a z proper Maintenance
within twelve months of the date of an need for a penalty.For example.where 3.Erosion and Siltation Controls
NWP`s expiration.modification.or an unauthorized fill meets the terms and 4.Aquatic Life Movements
revocation.unless discretionary conditions of NWP 13.the DE can 5.Equipment
authority has been exercised on a case- cons-der the appropriateners at allowing &Reatonal and Case-By-Case Con, ition
by-case basis to modify.suspend.or the residual rill to remain,in situations 7•Wild and Scenic Riven
&Tribal Rights
revoke the authorization in accordance where said fill would normally have 9,Water Quality Certification
with 33 CFR 330.4(e)and 33 CFR 330.5 been permitted under NWP 13.A to.coastal Zone faarissement
(c)or(d).Activities completed under the knowing,intentional.willful violation 11,Endangered Species
authorization of an NWP which was in should be the subject of an enforcement Iz,Historic Properties
effect at the time the activity was action leading to a penalty.rather than 13.Notification
Federal Register it Vol, .56. No. Z-16 it Friday. Novcmucr
iection 404 Only Conditions 4. Fish and Wildlife Harvesting. on the outer con:inental shelf within
I Water Supply Intakes Enhancement. and Attraction Devices areas leased for such Purposes by the
2 Shellfish Production andActivities. Fish and wildlife Department of the Interior,Minerals
S.,jabie Matenitl harvesting devices and activities such as Management Service.Such structures
4 Mitigation pound nets.crab traps. crab dredging. shall not be placed within the limits of
5 Spa—misS Areas eel pots. lobster traps. duck blinds,clam any designated shipping safety faim�av
6 Obstruction of High Flows
7.Adverse Impacts From Impoundments and oyster digging-,and small fish or traffic separation scheme.except
a Waterfowl Breeding Areas attraction devices such as open water temporary anchors that comply with Ilic
Q Removal of Ten-.porsry Fills fish concentrators (sea kites.etc}.This fairway regulations in 33 CFR 32_7.5(j).
nationwide permit authorizes shellfish (Where such linuts;have not been
B. Nationwide Permits seeding provided this activity does not designated or where changes are
1.Aids to Navigation.The placement occur in wetlands or vegetated anticipated.district engineers will
or aide to navigation and regulatory shallows.This nationwide permit does consider asserting discretionary
markers which are approved by and not authorize artificial reefs or authority in accordance with 33 CFR
installed in accordance with the impoundments and semi-impoundmenu 330.4(e)and will also review such
requirements of the U.S.Coast Guard of waters of the United States for the Proposals to ensure they comply with
(See 33 CFR Part 66.chapter L culture or holding of motile species such the provisions of the fairway regulations
subchapter C), (section 10) as lobster.(sections 10 and 404) in 33 CFR 3ZZ.S(l)).Such structures will
Z.Structures in Artificial Canals. S.Scientific Measurement Devices. not be placed in established danger
Structures constructed in artificial Staff gages.tide gages. water recording zones or restricted areas as designated
canals within principally residential devices,water quality testing and in 33 CFR part 334,nor will such
developments where the connection of irnprovement devices and similar structures be permitted in EPA or Corps
the canal to a navigable water of the structures.Small weirs and flurries designated dredged material disposal
United States has been previously constructed primarily to record water areas.(section 10)
authorized(see 33 cFR 3z2_s(Z)). quantity and velocity are also 9.Structures in Fleeting and
(section 10) authorized provided the discharge is Anchorage Areas-Structures,buoys,
3.Maintenance-The repair, limited to ZS cubic yards and further for floats,end other devices placed within
rehabilitation.or replacement of any discharges of 10 to Z5 cubic yards anchorage or fleeting areas to facilitate
previously authorized.currently provided the permittee notifies the moorage of vessels where such areas
serviceable.structure or fill or of any district engineer in accordance with have been established for that purpose
currently serviceable structure or fill —Notification-general condition. by the U.S.Coast Coard.(section 10)
authorized by 33 CFR 330.3.provided (sections 10 and 404) 10,Mooring Buoys. Non-commercial.
that the structure or rill is not to be put &Survey Activities. Survey activities single-boat.mooring buoys.(section 10) 4
to users differing from those uses includuig core sampling. seismic 11.Temporary Recreational
specirsed or contemplated for it in the exploratory operations.and plugging of seismic shot holes and other Structures.Temporary buoys.markers.
original permit or the most recently exploratory-typesmall floating docks.and similar
authorized modification.Minor bore holes.Drilling and structures placed for recreational use
the discharge of excavated material
deviations in the structum*s from test wells for oil and gas during specific events such as water I
configuration or filled area including exploration is not authorized by this skiing competitions and boat race*or
those due to changes In materials, nationwide permit the plugging of such seasonal use provided that such
construction techniques.or current wells is authorized-Fill placed for roads. structures are removed within 30 days
construction codes or safety standards pads and other similar activities is not after use has been discontinued.At
which are necessary to make repair. authorized by this nationwide permit.. Corps of Engineers reservoirs.the
rehabilitation.or replacement are ne discharge of drilling muds and reservoir manager must approve each
permitted. provided the environmental cuttingi;May require a permit under buoy or marker individually.(section 101
impacts resulting from such repair. section 402 of the Clean Water ACL 17-Utih:y Line Bock fill and Bedding,
rehabilitation.or replacement are (sections 10 and 404) Discharges of material for backfill or
minimal.Currently serviceable means 7.OurfallStmCtures. Activities bedding for utility lines.including outfall
useable as is or with some maintenance. related to construction of outfall and intake structures.provided there is
but not to degraded as to essentially structures and associated intake no change in preconstruction contours.
require reconstruction.This nationwide structams where the effluent Imm the A-utility line**is defined as any pipe or
permit authorizes the repair. outfall is authorized.conditionally pipeline for the trans".nation of any
rehabilitation,or replacement of those authorized.or specifically exempted.or gaseous,liquid.liquefiable,or slurry
structures destroyed by storms.floods. are otherwise in compliance with substance.for any purpose.and any
fire or other discrete events.provided regulations issued under the National cable.line.or wire for the transmission
the repair.rehabilitation.or replacement Pollutant Discharge Elimination System for any purpose of electrical energy.
is commenced or under contract to program(section 402 of the Clean Water telephone and telegraph messages,and
commence within two years of the date Act),provided that the nationwide radio and television communication,
of their destruction or damage.In cases permittee notifies the district engineer in The term**utility line"does not include
of catastrophic events.such as accordance with the-Notification- activities which drain a water of the
hurricanes or tornadoes.this two-year general condition.(Also see 33 CFR United States.such as drainage tile.
istnit may be waived by the District 330.1(e)), Intake structures per se are not however.it does apply to Pipes
Entineer. provided the permittee can included--*nly those directly associated conveying drainage from another area,
demonstrate funding.contract-or other with an outfall structure.(sections 10 material resulting from trench
similar delay i..Maintenance dredging and 404) excavation may be temporarily sidecast
and beach restoration are not a. Oil and Cos Structures.Structures (up to three months)into waters of the
authorized by this nationwide permit. for the exploration- production.and United States provided that the material
(sections 10 and 404I transportation of oil.822.and minerals is not placed in such a manner that it is
59147. Fedeial-:Re stere: _Vol:'S6. No..Z26s Tricia Ncivember 1 1 .t r�ules-ni.a.i
----------------------
dispersed•by•cuirents or other forces. more than a total-of 2M linear-feet of the which includes the fill.-is-licensed bkl.the' -
T•he DE may-extend theperiod of.= fill for the roadway can occur in special Federal Energy Regulatory Commission
temporary elide-casting up to 160 days, aquatic sites,`inctuding wetlands: (FERC)under the Federal Power Act of..
where appropriate.The area of waters c.The crossing is culverted. bridged or 19Zt1,as amended.and has a total
of the United States that is disturbed otherwise designed to prevent the generating capacity of not more than ..
must be limited to the minimum OW restriction of.and to withstand. SKIN.and the pernuttee notifies the
necessary to construct the utility line.In expected high-flows and tidal flows. and district engineer in accordarice with the'' .
wetlands..the top6"to 1-2 of the-trench to prevent the restrictioncif low flows -Notification-general condition.�ic'(n) `.
should generally be backfilled with and the movement of aquatict►rganisms: hydropower projects for whic.t the*FERC
topsoil from the trench.Excess material d.The croasing.'lncStiding'all: has granted an exemption from-liceizsi-g
must beremaved to upland areas attendant features,both temporary and pursuant to section 408 of the En#rgy i rj, .
immediately;upon completion.of: }::: permanent.is part of a single and Security Act of 2980(18 U.S.C.2705 and
construction.Any exposed slopes and complete project for'csoscirig of a water z7o8)and section 30 of the Federal l i,.-..
streambanks must be stabilized.. .';`..r. of the United•States:-and:i ee.: : R . . Power-Act.-as amended:provided the;:,,,;_
immediatelyupon completion of the. e.For fills in special-aquatic-sites. permittee notifies the district engineer.in•,
utility:line.ahe utility line itself will :^cY including wetlands»-the permittee accordance with the"Notification">
require a Section 10 permit If in notifies the district`engineer4n : general condition.(section 404)
navigable water's of the United States. accordance with thi"Notification" 18.MrnorDischarges.Minor
(See 33=CFR part 3Z2)_(section 404). general condition'.1be notification must discharges of dredged or fill material
13.Bank Stabilizatiort.Rank - also include a delineation of affected into all waters of the United States
stabilization activities,necessary for, special aquatic sites.incluiilitg- provided:
erosion prevention provided. wetlsnda. - °' a.The discharge does not exceed zS
a.,No material ts,placed in excess of Some road fills may be eligible'for an. cubic yards;
the minimum needed for erosion exemption from the need for a Section b.The discharge will not cause the
protections; ::. -. ,- 404 permit altogether(see 33 tTR 323.1). loss of more-then Vie acre of a special
b.The bank stabilization activity is Also,where local circumstances aquatic site.including wetlands.For the
less than 500 feet in length: indicate the need.district e4ineers will purposes of this nationwide permit.the
c.The activity will not exceed an define the term—expected high"f(ows" acreage limitation includes the filled
average of one cubic yard per running for the purpose of estakdisling, area plus special aquatic sites that are
foot placed along the bank below the applicability of this natioriaride permit. adversely affected by flooding and
plane of the.ordinary high water mark or (sections 10 and 404)' '�` special aquatic sites that are drained so
the high tide line; 15.U.S.Coast Gutrrd Approved . that they would no longer be a water of
d.No material is placed in any special Bridges.Discharges of dredgei3 or fill the United States as a result of the
aquatic site.including wetlands; material incidintal to tbe�coaiittiuction of project:
e.No material is of the type or is bridges across nsvigable•r raters,of the c.if the discharge exceeds 10 cubic
placed in any location or in any manner United States,including iiif ihisms. yards or the discharge is in a special .
to as to Impair surface water flow into - abutmentsJoundatiiut 'piers,and aquatic site.including wetlands.the
or out of any wetland area: temporary construction'and access fills permittee notifies the district engineer in
L No material is placed in a manner provided such discharges have been accordance with the"Notification"
that will be eroded by normal or authorised by the U.S.Coast Cuard as general condition.For discharges in
expected high flows(properly anchored part of the bridge permit.Causeways special aquatic sites.including
trees and treetops may be used in low and approach fills are not included in wetlands.the notification must also
energy areas).and, this nationwide permit and will require include a delineation of affected special
g.The activity is part of a single and an individual or regional section 404 aquatic sites,including wetlands.(Also
complete project. permit.(section 404) see 33 CFR 330.1(e)r and
Rank stabilization activities in excess of 111.Return Water From Upland d.The discharge.including all
SOD feet in length or greater than an Contained Disposal Meas.Return water attendant features.both temporary and
average of one cubic yard per running from an upland.contained dredged pemtanent,is part of a single and
foot may be authorized if the permittee material disposal area.The dredging complete project and is not placed for
notifies the district engineer in itself requires a section 10 permit if the purpose of stream diversion.
accordance with the'"Notificsation" - located in navigable.waters of the (sections to and 404)
general condition and the district United Statea,The return water from a 19.Afinor Dredging.Dredging of no
engineer determines the activity contained disposal.area is more than 25 cubic yards below the
complies with the other tennis and administratively defined as a discharge plane of the ordinary high water mark or
conditions of the nationwide permit and of dredged material by 33 CFR 3Z3.2(d) ilia mean high water mark from
the adverse environmental impacts are even though the disposal itself occurs on navigable waters of the trotted States as
minimal both individually and the upland and thus does not require a part of a single and complete project.
cumulatively.(sections 10 and 4041 section 404 permit.This nationwide This nationwide permit does not
14.Road Crossing Fills for roads permit satisfies the technical authorize the dredging or,degradation
dossing waters of the United States requirement for a section 404 permit for through siltation of coral reefs.
(including wetlands and other special the return water where the quality of the submerged aouatic vegetation.
aquatic sitesl provided: return water is controlled by the state anadromous fish spawning tress.or
it,The width of the fill is limited to the through the section 401 certification wetlands or.the connection of canals or
minimum necessary for the actual procedures.(section 404) other artificial waterways to navigable
dossing; 17.HyVropower Projects. Discharges waters of the United States(see 33 CFR
b.The filt placed in waters of the of dredged or(ill material associated 3Zz.5(g)).€section 10)
United States is Merited to a filled area with(a)small hydropower projects at 2D.oil Spill Cleanup, Activities
of no more titan %acro.Furthermore.no existing reservoirs where the protect, required for tate containment and
cleanup of oil and hazardous substances CECW-OR)has been fumished notice of the United States-includes the filled urea
which are subject to the National Oil tile agency's or department's application plus waters of the United States that are
and Hazardous Substances Pollution for the categorical exclusion and adversely affected by flooding,
Contingency plan.(40 CFR part 300), concurs with that determination. Prior to excavation or drainage as a result of the
provided that the work is done in approval for purposes of this nationwide project The ten-acre and one-acre limits
accordance with the Spill Control and permit of any agency's categorical of NWP 26 are absolute. and cannot be
Countermeasure Plan required by 40 exclusions, the Chief of Engineers will increased by any mitigation plan offered
CFR 112.3 and any existing State solicit public comment.In addressing by the applicant or required by the DE,
contingency plan and provided that the these comments, the Chief of Engineers Subdivisions:For any real estate
Regional Response Team(if one exists may require certain conditions for subdivision created or subdivided after
in the area)concurs with the proposed authorization of an agency's categorical October 5.1984.a notification pursuant
containment and cleanup action. exclusions under this nationwide permit. to subsection b,of this nationwide
(sections 10 and 404).- (sections 10 and 404) Permit is required for any discharge
21,Surface Coal Mining Activities. 24.State Administered Section 404 which would cause the aggregate total
Activities associated with surface coal Program. Any activity permitted by a loss of waters of the United States for
mining activities provided they are state administering its own section 404 the entire subdivision to exceed one(-I)
authonzed by the Department of the permit program pursuant to 33 U.S.C, acre. Any discharge in any real estate
Intenor.Office of Surface Mining.or by '1344(gi-41) is permitted pursuant to subdivisiqn which would cause the
states with approved programs under section 10 of the Rivers and Harbors Act' aggregate total loss of waters of the
-Title V of the Surfate MinirwControl of IM.Those activities which do not United States in the subdivision to
and Reclamation Act of 1977 and involve.a section 404 state permit are' exceed ten(10)acres is not authorized
provided the permittee notifies the noLincluded4n this nationwide permit,, by this nationwtde perma;,uniess the DE
Ylistrict enginei!r'in accordance with the but crrtain structures will be exempted,, exempts a particular subdivision or
-Notifica tion-general condition.For by section 154 of Public Law 94-587,90 parcel by making*"Written
discharges in special aquatic sites. :Stat.2917.(33 U.S.C.591)(see 33 CPR determination that.(1)The individual
including wetlands.the notification must., 32.2_3(a)(2)� (section 10) and cumulative adverse environmental
also include a delineation of affected 25.Structural Discharge. Discharges effects would be minimal and the
special aquatic sites. including of material such as concrete.send,rack. property owner had.after October 5.
wetlands.(Also see 33 CFR 330.1(e)). etc.into tightly sealed forms or cells 1984.but prior to January 21.1992
(sections 10 and 4041 - it where the material will be used as a committed substantial resources in
22.Removal of-Vessels.Temporary structural member for standard pile reliance on NWP 26'with regard to a
structures or minor discharges of (1 supported structures,such as piers and subdivision.itt circumstances where it
dredged or rill material required for the -. -docks;and for4inear projects.such as would be inequitable to frustrate his
removal of wrecled.abandoned.or - -if--bridges.transmission line footings.and. ,investment-banked expectations.or(Z)
disabled vessels-.or the removal of man.., ' walkways.The NWP does not authorize that the individuil and cumulative
made obstructions to navigation.This 4filied st1ructural membersthat would
..adverse envirqamental effects would be
nationwide permit does not authorize support buildings.homes.parking areas:' minimal.high quality wetlands would
the removal of vessels listed or storage areas and other such structures. not be adversely affected.and there
determined eligible for listing on the Housepeds or other building-pods are would be an overall benefit to the
National Register of Historic Places also not included in this nationwide aquatic environment.Once the
unless the district engineer is notified permit.The structure itself may require exemption is established for a
and indicates that there is compliance a section 10 permit If located in subdivision,subsequent lot development
with the-Historic Properties-general navigable waters of the United States. by individual property owners may
condition.This nationwide permit does (section 404) proceed using NWP 26.For purposes of
not authorize maintenance dredging. 26.Headwaters and isolated wafers NWP 26.the term'*real estate
shoal removal.or-river bank snagging.' -Discharges. Discharges-of dredged or fill subdivision-shall be interpreted to
Vessel disposal in waters of the United material into headwaters and isolated include circumstances where 9
States may need a permit from EPA(see -stars provided: landowner or developer divides a tract
40 CFR 229.3).(sections 10 and 404) a.The discharge does not cause the of land into smaller parcels for the
Z3.Approved Categorical Exclusions. lose of more than 10 acres of waters of purpose of setting,conveying.
Activities undertaken,assisted. the United States: transferring.leasing.or developing said
authori-ted.regulated.funded.or b.The permittee notifies the district parcels.This would include the entire
financed.in whole or in'part by another engineer if the discharge%-ould cause area of a residential.commercial or
Federal agencior department where , the loss of waters-of the United States' Ther real estate subdivision.including
that agency or department has greater than one acre in accordance 11 parcels and parts thereof.(section
determined.pursuant to the Council on with the"Notification-general 404)
Environmental Quality Repletion for condition.For discharges in special 27. wetland and,Riparian Restoration
Implementing the Procedural Provisions aquatic sites.including wetlands, the 'and Creation Activities.Activities in
of the National Environmental Policy notification must also include a waters of the United States associated
Act (40 CFR part 1500 at ooq.). that the delineation of affected"cis] aquatic with the restoration of altered and
activity.work.or dischirle is sites:includipl,wetlands.(Also see 33 degraded non tidal wetlands and
categorically excluded from CFR 330.1(e)):and creation of wetlands on private lands in
environmental documentation because it c.The discharge. including all accordance with the terms and
is included within a category of actions attendant features.both temporary and conditions of a binding welland
which neither individually nor ,� � , permanent.is part of a single and restoration or creation agreement
cumulatively have a significant effect on complete project. between the landowner and the U.S.
it human environment.and the Office For the purposes of this nationwide Fish and Wildlife Service(USFWS)or
of the Chief of Engineers(ATTN: permit. the acreage of loss of waters of the Soil Conservation Service(SCS);or
9144 Federal Register I Vol. 58. Na 226 / Friday. November ZZ, 1991 / Rules and Regulations
ivities associated with the restoration or settlement agreement in an does not exceed 10 acres of waters of
aiiered and degraded non-tidal enforcement action brought by the the United States.including wetlands;
,,;a nds.riparian areas and creation of United States under section 404 of the b.The permittee notifies the District
,- ands and riparian areas on U.S. Clean Water Act and/or section ic of Engineer in accordance with the
est Service and Bureau of Land
c the Rivers and Harbors Act of 1899, notification procedures:and
%iar,aRement lands.Federal surplus (sections 10 and 404) C.The activity does not result in a net
s(e.g.,military lands proposed for
7i 33. Temporary Construction.Access loss of wetland acreage.
, �2
:is-,osall,Farmers Home Administration and Dewatering.Temporary structures
into tory properties.and Resolution and discharges.including cofferdams. This nationwide permit does not
`stCorporation inventory properties necessary for construction activities or authorize any discharge of dredged or
a. are under Federal control prior to access fills or dewatering of fill material related to other cranberry
)2:n-. transferred to the private sector. construction sites.provided the production activities such as
2-;cn activities include.but are not associated permanent activity was warehouses,processing facilities,or
,!��icd to:Installation and maintenance previously authorized by the Corps of parking areas.For the purposes of this
stall water control structures.dikes. Engineers or the U.S.Coast Cuard,or for nationwide permit.the cumulative total
berms: backfilling of existing bridge construction activities not subject of 10 acres will be measured over the
nage ditches: removal of existing to Federal regulation.Appropriate period that this nationwide permit isvalid.(section 404)
nage structures:construction of measures must be taken to maintain
a i nesting islands:and other related near normal downstream flows and to 35.Maintenance Dredging of Existing
vities.This nationwide permit minimize flooding.Fill must be of Basins. Excavation and removal of
a:3;nies to restoration projects that serve materials and placed ir.a manner that accumulated sediment for maintenance
�--c purpose of restoring"natural- will not be eroded by expected high of existing marina basins.canals.and
o';and hydrology.vegetation.and flows.Temporary fill must be entirely boat slips to previously authorized
!_n.-non to altered and degraded non- removed to upland areas following depths or controlling depths for ingre!s/
:.::a! wetlands and"natural"functions completion of the construction activity egress whichever is less provided the
c: riparian areas.For agreement and the affected areas restored to the dredged material is disposed of at an
est ration and creation projects only. pre-project conditions.Cofferdams
upland site and proper siltation controls
!n:s nationwide permit also authorizes cannot be used to dewater wetlands or are used.(section 10)
a n y future discharge of dredged or fill other aquatic areas so as to change their 38.Boat Ramps.Activities required
77 a terial associated with the reversion use.Structures left in place after for the construction of boat ramps
c' the area to its prior condition and use cofferdams are removed require a provided-
1 e_ prior to restoration under the section 10 permit if located in navigable a.The discharge into waters of the
agreement)within five years after waters of the United States.(See 33 LTR United States does not exceed So cubic
expiration of the limited term wetland part 3=).The permittee must notify the yards of concrete.rock crushed stone or
restoration or creation agreement.even district engineer in accordance with the gravel into forms,or placement of pre-
if in e discharge occurs after this -Notification-general condition.The cast concrete planks or slabs.
r,at i onwide,permit expires.The prior notification must also include a (Unsuitable material that causes
condition will be documented in the restoration plan of reasonable measures unacceptable chemical pollution or is
original agreement.and the to avoid and minimize impacts to structurally unstable is not authorizeft
oete-mination of return to prior aquatic resources.The district engineer b.The boot ramp does not exceed 20
conditions,will be mode by the Federal will add special conditions.where feet in width;
agency executing the agreement.Once necessary.to ensure that adverse c.The base material is crushed stone.
an a-ea is reverted back to its prior environmental impacts am minimal. gravel or other suitable material;physical condition.it will be subject to Such conditions may include:limiting
%v ft at ever the Corps regulatory the temporary work to the ndnimum d.The excavation is hatited to the
rep u i rements will be at that futm date. necessary:requiring seasonal area necessary for site preparation and
This nationwide permit does not restrictions;modilying the restoration all excavated material h removed to the
authorize the conversion of natural upland:and requiring alternative uplatrAt and
wetlands to another aquatic use,such as construction methods(e.g.construction . a.No material is placed in special
I creation of waterfowl impoundments mats in wetlands where la es -aquatic sites.including wetiandL
where a forested wetland previously This nationwide permit does not Dredging to provide access-to the boat
existed.(sections 10 and 404)
2a. A fodifications of Exhrbitg Marinas.x authorize temporary structures or fill ramp may be authorized by another
Rcconfigurations,of existing docking associated with mining activities or the NWP,regional general permit.or
construction of marina basins which individual permit pursuant to section 10
facilities within an authorized marinaconstruction
not been authorized by the Corps. if located in navigable waters of the
area,No dredging,additional slips or
do zk spaces.or expansion of any kind (sections 10 and 404) United States.(sections 10 and 404)
within waters of the United States are 34.Cranberry Production Activities: 37.Emergency Watershed P!rvtection
a ut horized by this nationwide permit. Discharges of dredged or fill material for and P—ohobilitation.Work done by or
section 10) dikes.berms.pumps.water control funded by the Soil Conservation Service
29. Reserved structures or leveling of cranberry beds qualifying as an-exigency"situation
30. Reserved associated with expansion. (requiring immediate action)under its
-,i. Reserved
enhancement.or modification activities Emergency Watershed Protection
12. Completed EnforcvniientActions. at existing cranberry production Program(7 CFR part$24)and work done
Any structure,work or discharge oft Service under its
operations provided: or funded by the Forest
dredged or fill material undertaken in a.The cumulative total acreage of Burned-Area Emergency Rehabilitation
a Ccordance with.or remaining in place disturbance per cranberry production Handbook(FSH 509.13)provided the
in Compliance with,the terms of a final operation,including but not limited to. district engineer is notified in
Federal court decision.consent decree. rifling.flooding.ditching.or clearing. accordance with the notification general
f Federal kegks'ei
condition, (Also see 33 CFR 330-1(e))- 5.Equipment, Heavy equipment be eligible.or which the prospective
(sections io and+04) working in wetlands must be placed on permittee has reason to believe may be
38.Cleanup Of HOzat-dous and Toxic mats or other measures must be taken to eligible for listing on the National
waste. Specific activities required to minimize soil disturbance. Register of Historic Places.and shall no
effect the containment.stabilization or 6.Regional and case-by-case begin the activity until notified by the
removal of hazardous or toxic waste conditions.The activity must comply District Engineer that the requirements
materials that are performed.ordered.or with any regional conditions which may of the National Historic Preservation
sponsored by a government agency with have been added by the division Act have been satisfied and that the
established legal or regulatory authority engineer(see 33 CFR 330.4(e))and any activity is authorized.Information on
provided the permittee notifiFs the case specific conditions added by the the location and existence of historic
district engineer in accordance with the Corps. resources can be obtained from the
"Notificationgeneral condition.For 7. Wild and Scenic Rivers. No activity State Historic Preservation Office and
discharges in special aquatic sites. may occur in a component of the the National Register of Historic Places
including wetlands.the notification must National Wild and Scenic River System: (see 33 CFR 330.4(g)).
also include a delineation.of affected or in a river officially designated by 13.Notification.(a)Where required
-pecial aquatic sites.Including - Congress as a-study river"for possible by the terms of the NWP,the
wetlands-Court ordered remedial action inclusion in the system.while the river prospective permittee must notify the
plans or related settlements are also is in an official study status.Information District Engineer as early as possible
authorized by this natiorlyride permit. on Wild and Scenic`Rivers may be and shall not begin the activity:
This nationwide permit does na,( obtained from the Nation'al Park Service (1)Until notified by the District
authorize the establishment of new and the'U.S.Forest Service. '- ' Engineer that the activity may proceed
disposal sites or the expansion of -,,4' ,t& Tribal i;ShLs, No activity or its under the NWP with any special
existipl;sites used for the disposal of operatiori'may impair reserved tribal conditions imposed by the district or
hazardous or toxic-wasi 6'(sections 10 rights.including,but not limited to. division engineer or
and 404) reserved water rights,and treaty fishing
(2)If notified
39. Reserved and hunting rights. fied by the District or,
40.Form Buildings.Discharges of 9. Water quality certification.In Division engineer that an individual
dredged or rill material into certain states.an individual state water permit is required.or
jurisdictional wetlands(but not quality certification must be obtained or (3)Unless 30 days have passed from
including prairie potholes.playa likes. Waivid(see 33 CFR MA(c)). the District Engineer's receipt of the
or vernal pools) that were,in agricultural , 10,Coastal zone managiemcl)L Id notification and the prospective ,
crop production prior to Dccember 23, certain states.an Individual state permittee has not received notice from
1985(i.e.. farmed wetlands).f6t coastal!zone management consistency the District or Division-Engineer.
foundations and building pads for concurrence must be obtained oil Subsequently.the permittee's rignt to
buildings or agricultural,related :waive&(see 33M340 d'- proceed under the NWP may be
�41(
structures'ntCe3saiy,for'fiii�ini Al:Endangered$peeies.No i modified.sus;pended_or.revoked only in
ge1jivity is
K�.T-r, procedure set forth
activities.The discharge wif be limited authorized under any NWP"id is accordance with thep
to the minimum necessary but will in no likely to jeopardize the continued in 33 CFR 330_5(d)(2l.
case exceed I acre(see the existence of&threatened or endangered (b)The notification must be in writing
"Minimization"section 404 only species or a species proposed for'such and include the following-informs(ion
condition).(section 404) designation,as identified under the and any required fees:
Federal Endangered Species Act.or (1)Name.address and telephone
C.Nationwide Permit Conditions which is likely to destroy or adversely number of the prospective permittee:
Ceneral Conditions:The following modify the critical habitat of such (2)Location of the proposed project;
general conditions must be followed in species.Non-federal permittees shall (3)Brief description of the proposed
order for any authorization by 4 notify the district engineer if any listed project.the project's purpose.direct and
tationwide permit to be valid: species or critical habitat alight be indirect adverse environmental effects
't.Navigation. No activity may cause affected or is in the vicinity of the the project would cause:any other .
more than a minimal adverse effect on project and shall not begin work on the NWP(sI.regional general permit(s)or
navigation. activity until notified by the district individual perruttisl used or intended to
2. Proper maintenance.Any structure engineer that the requirements of e be used to authorize any part of the
or fill authorized shall be properly Endangered Species Act have been proposed project a:any related activity.
maintained.including maintenance to satisfied and that the activity is (4)Where required by the terms of the
ensure Public safety. authorized.Information on the location NWP.a delineation of affected special
1 Erosion and siltation Cantis Is. of threatened and endangered species aquatic sites.including wetlands:and
Appropriate erosion and siltation and their critical habitat can be (51 A statement that the prospective
controls must be used and maintained in obtained from the U.S.Fish and Wildlife (511
has contacted:operating 66ndition during Service and National Marine`Fisheries
construction.and all exposed soil and Service.(see 33 CFR 330.4(n) (i)The USFWS*INNXFS regarding the
other rills must be permanently 17-Historic properties. No presence of any Federally"listed(or
stabilized at the earliest practicable which may affect Historic properties proposed Tor listing)endangered or
date. listed.or eligible for listing.in the threatened species ur,critical habitat in
4.Aquatic life movements.No activity National Register at Historic Places is the permit area that may be affected by
may substantially disrupt the mqvcment authorized.until the DE has complied the proposed protect: and any available
of those species of a4usticlife with the provisions of 33 CFR 325. information provided by those agencies-
indigenous to the waterbody,including appendix C The prospective Permittee (The prospective permittee may contact
Offices for USFWS/
those species which normally migrate must notify the district engineer if the Corps District contacts and list$of
through the area.unless the ispovity's authorized activity may affect any NMFS agency co,
primary purpcse is to impound water. historic properties listed.determined to critical 1,abilat-)
Federal Register f Vol. 56. No. Z26 f t rtaay, Novemuet ... .tea. .,�.
migratory waterfowl must be avoided to —
the maximum extent practicable.
9. Removot of temporary fills.Any
temporary fills must be removed in their
entirety and the affected areas returned
to their preexisting elevation.
IrP Doc.91--27573 Filed 11-21-$2.&45 aml
ff(LA- C.COME 3410-01-Y
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4
591" Federal Register / Vol, 56, No, Z-16 / Friday. November Z2. 1991 / Rules and Regulations
(ii)The SHPO regarding the presence NWP and that the adverse effects are and enhancing similar functions and
of any historic properties in the permit minimal. he will notify the permittee and values In dddition.n1itig3ttOn Must
area that may be affected by the include any conditions he deems address impacts and cannot be used to
proposed project. and the avaiiable necessary, If the District Engineer offset the acircage of wetland lossr.1 that
information.if any, provided by that determines that the adverse effects of would occur in -order to meet The
agency. the propos:!d work are more than acreage limits of acme of the nationwide
(c)The standard individual permit minimal,then he will notify the Permits (e-g.5 acres of wetlands cannot
application form (Form ENG 4345)may applicant either.(1)That the project be created to change a 6 acre loss of
Etc used as the notification but must does not qualify for authorization under wetlands to a I acre loss:however, the s
clearly indicate that it is a PON and the NWP and instruct the applicant on crested acres can be used to reduce the
must include all of the information the prNccdures to seek awherization impacts of the 6 acre loss',
required in(b)(IHS)of General under an individual pennit: or(2)that Section 404 O !
Condition 13. the project is authorized under the ny Condil;ors
(d) In revicwing an activity under the nationwide Permit subject to the In addition to the General Conditions.
ratification procedure.the District applicant's submitting a mitigation the following conditions apply only to
Engineer will first determine whether proposal that would reduce the adverse activities that involve the discharge of
the activ'ty will result in more than effects to the minimal level.This dredged or fill material and must be
r-Animal individual or cumulative mitigation proposal must be approved followed in order for authenzation by
adverse environmental effects or will be by the District Engineer prior to the nationwide permits to be valid:
contrary to the public interest.The c.)mmencing work.If the prospective 1. Water supply intakes. No discharge
Prospective permittee may.at his option. permittee elects to submit a mitigation of dredged or fill material may occur in
submit a proposed mitigation plan with plan.the DE will expeditiously review the proximity of a public water supply
the predischarge notification to expedite the proposed mitigation plan, but will intake except where the discharge is for
the process and the District Engineer not commence a second 30-day repair of the public water supply intake
will consider any optional mitigation the notification procedure.If the net adverse structures or adjacent brink
applicant has included in the proposal in effects of the project(with the mitigation stabilization.
determining whether the net adverse proposal)are determined by the District 2.Shellfish production. No discharge
environmental effects of the proposed Engineer to be minimal.the District of dredged or fill material may occur in
work are minimal.The District Engineer Engineer will provide a timely written areas of concentrated shellfish
will consider any comments from response to the applicant informing him production,unless the discharge is
Federal and State agencies concerning that the project can proceed under the directly related to a shellfish harvesting
the proposed activity's compliance with terms and conditions of the nationwide activity authorized by nationwide
the terms and conditions of the permit. permit 4.
nationwide permits and the need for (a) Wetlands Delineations. Wedand 3.Suitable material.No discharge of
mitigation to reduce the projects delineations must be prepared in dredged or fill material may consist of
adverse environmental effects to a accordance with the current method unsuitable material(e.g-trash.debris.
minimal level.The district engineer will required by the Corps.The permittee car bodies,etc.)and material discharged
upon receipt of a notification provide may ask the Corps to delineate the nust be free from toxic pollutants in
immediately(e.g.facsimile transmission. special aquatic site.There may be some toxic amounts(see section 307 of the
overnight mail or other expeditious delay it the Corps does the delineation. Clean Water Act).
manner)a copy to the appropriate Furthermore.the 30-day period will not 4.Mitigation.Discharges of dredged
offices of the Fish and Wildlife Service, start until the wetland delineation has or rill material into waters of the United
State natural resource or water quality been completed. States must be minimized or avoided to
aigency.EPA.and.If appropriate.the inhfitiSatiam-Factors that the District the maximum extent practicable at the
National Marine Fisheries Service.With Engineer will consider when project site(ie.on-site),unless the DE
the exception of NWP 37.these agencies determining the acceptability of has approved&compensation mitigation
will then have 5 calendar days from the appropriate and practicable mitigation plan for the specific regulated activity.
date the material is transmitted to include,but are not limited to: 5.Spawning arms.Discharges in
telephone the District Engineer it they fl)To be practicable the mitigation spawning areas during spawning
intend to provide substantive.site- must be available and capable of being seasons must be avoided to the
specific comments.If so contacted by an done considering costs,existing maximum extent practicable.
agency.the District Engineer will wait technology.and logistics in light of 6.Obstmcition of high flows.TO the
an additional 20 calendar days before overall project purposes; maximum extent practicable,discharges
making a decision on the notification. (2)To the extent appropriate, must not permanently restrict or impede
The District Engineer will fully consider permittees should consider mitigation the passage of normal or expected high
agency comments received within the banking and other forms of mitigation flows or cause the relocation of the
specified time frame.but will provide no including contributions to wetland trust water(unless the Primary Purpose of the
response to the resource agency.The funds,which contribute to the rill is to impound waters).
District Engineer will indicate in the restoration.creation.replacement. 7.Adverse impacts from
administrative record associated with enhancement.or preservation of impoundments.If the discharge creates
each notification that the resource wetlands. an impoundment of water,adverse
agencies'concerns were considered. Furthermore.examples of mitigation impacts on the aquatic system caused
Applicants are encouraged to provide that may be appropriate and practicable by the accelerated passage of water
the Corps multiple copies of include but are not limited to:reducing and/or the restriction of its flow shall be
notifications to expedite agency the size of the project establishing minimized to the maximum extent
notification.If the District Engineer buffer zones to protect aquatic resource practicable.
determines that the activity complies values:and replacing the lost of aquatic & Waterfowl breeding areas.
withthe terms and conditions of the resource values by creating.restoring. Discharges into breeding areas for
M1
x
ATTACHMENT C
A:envstorm.agt
i
CALIFORNIA DEPARTMENT OF FISH AND GAME
330 Golden Shore, Suite So
Long Beach, California 90802
Notification No . 5-149--96
Page of A—
AGREEMENT' REGARDING PROPOSED STREAM OR LATE ALTERATION
THIS AGREEMENT, entered into between the State of California,
Department of Fish and Game, hereinafter called the Department, and
the City of Redlands, State of California, hereinafter called the
Operator, is as follows :
WHEREAS, pursuant to Section 1601 of California Fish and Game
Code, the Operator, on the 23rd day of April. 1996, notified the
Department that they intend to divert or obstruct the natural flow
of, or change the bed, channel, or bank of, or use material from
the streambed(s) of, the following water(s) : Santa Ana give , San
Bernardino County, California , Section 17 Township ja Range 3W.
WHEREAS, the Department (represented by Rebecca Jones) has
determined that such operations may substantially adversely affect
existing fish and wildlife resources including: all acruatic
resQurces and wildliLx- in the area.
THEREFORE, the Department hereby proposes measures to protect
fish and wildlife resources during the operator' s work. The
Operator hereby agrees to accept the following measures/conditions
as part of the proposed work.
If the Operator's work changes from that stated in the
notification specified, above, this Agreement is no longer valid and
a new notification shall be submitted to the Department of Fish and
Game. Failure to comply with the provisions of this Agreement and
with other pertinent code sections, including but not limited to
Fish and Game Code Sections 5650, 5652, 5937, and 5948, may result
in prosecution.
Nothing in this agreement authorizes the Operator to trespass on
any land or property, nor does it relieve the Operator of
responsibility for compliance with applicable federal, state, or
local laws or ordinances. A consummated Agreement does not
constitute Department of Fish and Game endorsement of the proposed
operation, or assure the Department's concurrence with permits
required from other agencies.
Thig Agreem nt becomes gffective the date of nepartmg-ntls sicmature
and tgrminates one year from date of Denartment'n signature for
nroj act--cons t"ct-ion only. This Aareement, shall rta-main in effect
fnr that time na(--PgsarX to satisfy the terms/condition nf this
Acrrcement .
'v
a
Page—Z of 4_._
STREAMBED ALTERATION CONDITIONS FOR NOTIFICATION NUMBER: 5-149-96
1 . The following provisions constitute the limit of activities
agreed to and resolved by this .Agreement. The signing of this
Agreement does not imply that the Operator is precluded from doing
other activities at the site . However, activities not specifically
agreed to and resolved by this Agreement shall be subject to
separate notification pursuant to Fish and Game Code Sections 1600
t seq.
2 . The Operator proposes to alter the streambed to install an
underground storm drain pipe along California Street to collect
surface drainage from borrow area and transport the flows to the
Santa Ana River. Installation of pipe outlet structure will
include a 12 ' X 20 ' rock and concrete energy dissipator. Earthen
bank adjacent to outlet structure will be rip-rapped to prevent
erosion.
3 . The agreed work includes activities associated with No. 2
above. The project area is located south bank of the Santa .Ana
River approximately 5, 000 feet westerly of Alabama Street in the
City of Redlands in San Bernardino County. Specific work areas and
mitigation measures are described on/in the plans and documents
submitted by the Operator and shall be implemented as proposed
unless directed differently by this agreement.
4 . The Operator shall request an extension of this agreement prior
to its termination. Extensions may be granted for up to 12 months
from the date of termination of the agreement and are subject to
Departmental approval. The extension request and fees shall be
submitted- to the Department' s Region 5 Office at the above address.
If the Operator fails to request the extension prior to the
agreement's -termination then the Operator shall submit a new
notification with fees and required information to the Department.
Any activities conducted under an expired agreement is a violation
of Fish and Game Code Section 1600 et. seq. The Operator may
request up to a maximum of 2 extensions of this agreement .
5 . Disturbance or removal of vegetation shall not exceed the
limits approved by the Department. The disturbed portions of any
stream channel or lake margin within the high water mark of the
stream or lake shall be restored to their original condition.
6 . Installation of bridges, culverts, or other structures shall be
such that water flaw is not impaired. Bottoms of temporary and
permanent culverts shall be placed at or below stream channel
grade.
Page 3 of 4 #5-149-96
7 . Equipment shall not be operated in wetted areas (including but
not limited to ponded, flowing, or wetland areas) .
S . The perimeter of the work site shall be adequately flagged to
prevent damage to adjacent habitat.
9 . All concrete placed with in the streambed shall be allowed to
dry a minimum of 24 hours prior to inundation with water.
10 . This agreement does not authorize the "take" of any listed
species . A biological monitor shall be present onsite during land
disturbance activities to insure there is no encroachment outside
the designated construction area or to Santa Ana River woollystar
or slender-horned spineflower habitat .
11 . Any equipment or vehicles driven and/or operated within or
adjacent to the stream/lake shall be checked and maintained daily,
to prevent leaks of materials that if introduced to water could be
deleterious to aquatic life .
12 . Storm drains lines/culverts shall be adequately sized to carry
peak storm flows for the drainage to one outfall structure. The
storm drain lines/culverts and the outfall structure shall be
properly aligned within the stream and otherwise engineered,
installed and maintained, to assure resistance to washout, and to
erosion of the stream bed, stream banks and/or fill. Water
velocity shall be dissipated at the outfall, to reduce erosion.
13 . Structures and associated materials not designed to withstand
high water flows shall be moved to areas above high water before
such flows occur.
14 . No debris, soil, silt, sand, bark, slash, sawdust, rubbish,
cement or concrete or washings thereof, asphalt, oil or petroleum
products or other organic or earthen material from any logging,
construction, or associated activity of whatever nature shall be
allowed to enter into or placed where it may be washed by rainfall
or runoff into, waters of the State. When operations are
completed, any excess materials or debris shall be removed from the
work area. No rubbish shall be deposited within 150 feet of the
high water mark of any stream or lake.
15 . The Operator shall comply with all litter and pollution laws.
All contractors, subcontractors and employees shall also obey these
laws and it shall be the responsibility of the operator to ensure
compliance.
is . No equipment maintenance shall be done within or near any
stream channel of lake margin where petroleum products or other
pollutants from the equipment may enter these areas under any flow.
Page 4 of 4 5-149;-96
16 . The Operator shall provide a copy of this :egr e n to all
contracts, subcontractors, and the Operator's project supervisors.
Copies of the ,Agreement shall be readily available at work sites at
all times during periods of active work and ''must be presented to
any Department peg- onnel, or personnel from another agency upon
demand.
17 . The Department reserves the right to enter the project site at
any time to ensure compliance with terms/conditions of this
Agreement,
18 . The Department reserves the right to cancel: this Agreement,
after giving notice to the Operator, if the Department determines
that the Operator has breached any of the terms or conditions of
the Agreement.
9 The Department reserves the right to suspend or cancel this
Agreement for ether reasons, including but are not limited to, the
following-.
a. The Department determines the information provided by the
Operator in support of the Agreement/Notification is
incomplete or inaccurate;
b. The :Department obtains new information that was not know
tq it in preparing the terms and conditions of the
Agreement;
C. The conditions of or affecting fish and, wildlife
resources change, or
dd. The Department determines project activities will result
in a substantial: adverse effect on the environment.
CONCURRENCE
(Operator's Name) California Dept. of Fish
CITY OF REDLANDS and Game
July 2, 1996
Sven Larson, Mayor
(signature) (date) (signature) (date)
ATTEST:`: Rebecca. Jones
v
(tit Lorr" P :ger, City Clerk. (title)