US Army Corps of Engineers
San Francisco District

Regional Conditions for Nationwide Permits

SAN FRANCISCO DISTRICT
CORPS OF ENGINEERS
REGIONAL CONDITIONS FOR NATIONWIDE PERMITS
May 9, 2002

A. Regional Conditions that apply to all NWPs in the San Francisco District:

1. Notification to the Corps (as per General Condition No. 13) is required for any activity permitted by NWP if it will take place in waters or wetlands of the U.S. that are within the San Francisco Bay diked baylands (undeveloped areas currently behind levees that are within the historic margin of the Bay. Diked historic baylands are those areas on the Nichols and Wright map below the 5-foot contour line, National Geodetic Vertical Datum (NGVD) (see Nichols, D.R., and N. A. Wright. 1971. Preliminary map of historic margins of marshland, San Francisco Bay, California. U.S. Geological Survey Open File Map)). The notification will explain how avoidance and minimization of losses of waters or wetlands are taken into consideration to the maximum extent practicable (see General Condition 19(a)).

2. Notification to the Corps (as per General Condition No. 13), including a compensatory mitigation plan, is required for any activity permitted by NWP if it will take place in eelgrass beds.

3. Notification to the Corps (as per General Condition No.13) is required for any activity permitted by NWP in Essential Fish Habitat (EFH) designated by the Pacific Fishery Management Council (examples of designated EFH are, but not limited to: the Pacific Ocean, estuaries like Tomales, San Francisco and Humboldt Bays, and watersheds utilized by coho and chinook salmon). Notification under this regional condition is not required if another Federal agency completed consultation with the National Marine Fisheries Service on EFH, and the project is either authorized by a non-reporting NWP, or does not require notification by another regional condition.

4. Mitigation that is required by special condition to the permitted activity shall be completed before or concurrent with project construction. Where project mitigation involves the use of a mitigation bank or in-lieu fee, the required payment must be made before commencing construction of the permitted activity. If the permittee cannot comply with this condition, the permittee shall provide the Corps with sound reasons why this condition cannot be met, and shall propose reasonable alternatives to ensure the required mitigation will be fully met and completed in a timely manner.

5. For NWPs 39, 40, 42 and 43, the 300 linear foot limitation for intermittent streams includes ephemeral streams. Any request to waive the 300 linear foot limitation for intermittent (including ephemeral) streams must include an analysis of the impacts to the stream environment, measures taken to avoid and minimize losses (as per General Condition 13 (b)(12)), other measures to avoid and minimize filling but were found not to be practical, and a mitigation plan as to how the unavoidable losses will be offset.


B. Regional Conditions that apply to specific nationwide permits:

3. MAINTENANCE
1. To the extent practicable, excavation equipment shall work from an upland site (e.g., from the top of the bank, the road bed of the bridge or culverted road crossing) to minimize adding fill into waters of the U.S. If it is not practicable to work from an upland site, or if working from the upland site would cause more environmental damage than working in the stream channel, the excavation equipment can be located within the stream channel but it must minimize disturbance to the channel (other than the removal of accumulated sediments or debris). As part of the notification to the Corps (
General Condition No. 13), an explanation as to the need to place excavation equipment in waters of the U.S. is required, as well as a statement of any additional necessary fill (e.g., cofferdams, access road, fill below the OHW mark for a staging area, etc.).

3(ii). MAINTENANCE
1. If the activity is proposed in a special aquatic site, the notification shall include an explanation of why the special aquatic site cannot be avoided, and measures to be taken to minimize impacts to the special aquatic site.

7. OUTFALL STRUCTURES AND MAINTENANCE
1. To the extent practicable, excavation equipment shall work from an upland site (e.g., from the top of the bank, the road bed of the bridge or culverted road crossing) to minimize adding fill into waters of the U.S. If it is not practicable to work from an upland site, or if working from the upland site would cause more environmental damage than working in the stream channel, the excavation equipment can be located within the stream channel but it must minimize disturbance to the channel (other than the removal of accumulated sediments or debris). As part of the notification to the Corps (General Condition No. 13), an explanation as to the need to place excavation equipment in waters of the U.S. Is required, as well as an explanation of any additional necessary fill (e.g., cofferdams, access road, fill below the OHW mark for a staging area, etc.).

11. TEMPORARY RECREATIONAL STRUCTURES
1. Notification to the Corps is required (as per General Condition No. 13) if any temporary structures are proposed in wetlands or vegetated shallow water areas (e.g. in eelgrass beds). The notification shall include the type of habitat and areal extent affected by the structures.
2. The temporary structure(s) must be removed within 6 months of its placement unless otherwise approved for a longer period not to exceed 1 year by the District Engineer.

12. UTILITY LINE ACTIVITIES
1. The upper 12 inches of the trench dug for placement or removal of utility lines shall be backfilled with native material taken from the trench. Where trenches are dug in wetlands, the upper 12 inches of material must be stored separately from other material removed from the trench. This upper 12 inches of material shall be placed back into the trench as the last material added to restore the original contour.
2. Excess material removed from the trench shall be disposed of at an upland site away from any wetlands or other waters of the U.S. so as to prevent this material from being washed into aquatic areas.
3. For the Santa Rosa Plain (see
Figure 1), notification are required to discharge into seasonal wetlands (including vernal pools) even for proposed losses of 1/10 acre or less. The notification shall include a complete Habitat Quality Evaluation performed according to the most recent version of the 'Training Manual to Evaluate Habitat Quality of Vernal Pool Ecosystem Sites in Santa Rosa Plain.'

12(ii). UTILITY LINE SUBSTATIONS
1. Nationwide Permit 12(ii) is revoked because utility line substations generally do not requiring being sited in waters or wetlands.

12(iv). ACCESS ROADS
1. Notification is required for all access roads greater than 200 feet in length constructed in waters of the United States.
2. Access roads shall be designed to be the minimum width necessary. Notification will be required for any road wider than 15 feet, as measured at the toe of the proposed road to be built in waters of the United States.
3. The following Best Management Practices (BMPs) shall be followed to the maximum extent practicable to assure that flow and circulation patterns of waters are not impaired and adverse effects on the aquatic environment will be kept to a minimum:
a. Stream channelization is not authorized.
b. The road fill shall be designed to minimize changes to the hydraulic flow characteristics of the stream and degradation of water quality (see General Conditions 9 and 21).
c. The road shall be properly stabilized and maintained during and following construction to prevent erosion.
d. Construction of the road fill shall be made in a manner that minimizes the encroachment of trucks, tractors, bulldozers, or other heavy equipment within waters of the United States (including adjacent wetlands) that lie outside the lateral boundaries of the fill itself.
e. Vegetative disturbance in the waters of the U.S. shall be kept to a minimum.
f. Borrow material shall be taken from upland sources whenever feasible.
g. All temporary fills shall be removed in their entirety and the area restored to its original elevation within 6 months of project completion.

13. BANK STABILIZATION
1. Where the removal of wetland vegetation (including riparian wetland trees, shrubs and other plants) or submerged, rooted, aquatic plants over a cumulative area greater than 1/10 acre is proposed, the Corps shall be notified in accordance with General Condition No. 13. The notification shall include the type of vegetation and extent (e.g., areal dimension or number of trees) of the proposed removal.
2. This permit allows excavating a toe trench in waters of the U.S., and, if necessary, to use the material for backfill behind the stabilizing structure. Excess material is to be disposed of in a manner that will have only minimal impacts to the aquatic environment.
3. For man-made banks, roads or levees damaged by storms or high flows, the one cubic yard per running foot limit for NWP 13 is counted only for that additional fill which encroaches (extends) beyond the pre-flood or pre-storm shoreline condition of the waterway. It is not counted for the fill that would be placed just to reconstruct the original dimensions of the eroded, man-made shoreline.
4. For natural berms and banks, the one cubic yard per running foot limit applies to any added armoring.
5. To the maximum extent practicable, any new or additional bank stabilization must incorporate structures or modifications beneficial to fish and wildlife (e.g., soil bioengineering or biotechnical design, root wads, large woody debris, etc.). Where these structures or modifications are not used, the applicant shall demonstrate why they were not considered practicable.
6. As part of the notification requirement for bank stabilization activities in excess of 500 feet in length, the project proponent shall address the effect of the bank stabilization on the stability of the opposite side of the streambank (if it is not part of the stabilization activity), and on adjacent property upstream and downstream of the activity.

14. LINEAR TRANSPORTATION PROJECTS
1. This permit does not authorize construction of new airport runways and taxiways.
2. To the maximum extent practicable, any new or additional bank stabilization required for the crossing must incorporate structures or modifications beneficial to fish and wildlife (e.g., soil bioengineering or biotechnical design, root wads, large woody debris, etc.) The requirements of NWP
General Condition 13 will apply to this regional condition.
3. For the Santa Rosa Plain (see
Figure 1), notification is required to discharge into seasonal wetlands (including vernal pools) even for proposed losses of 1/10 acre or less. The notification shall include a complete Habitat Quality Evaluation performed according to the most recent version of the "Training Manual to Evaluate Habitat Quality of Vernal Pool Ecosystem Sites in Santa Rosa Plain." The requirements of NWP General Condition 13 will apply to this regional condition.

23. APPROVED CATEGORICAL EXCLUSIONS
Use of this NWP requires notification to the Corps. The Pre-Construction Notification (PCN) shall include the following:
a. A copy of the Federal Categorical Exclusion (Cat/Ex) document signed by the appropriate federal agency. If the Cat/Ex is signed by a state or local agency representative instead of by a federal agency representative, then copies of all documentation authorizing alternative agency signature shall be on file at the San Francisco District Regulatory Branch.
b. Only activities specifically described in the Cat/Ex project description will be covered by the NWP 23 authorization. If other activities not described in the Cat/Ex project description will be performed (e.g., dewatering, slope protection, etc.), these activities must receive separate NWP authorizations, if applicable.
c. The lead Federal agency (Cat/Ex signatory) or its designated non-Federal representative shall perform all formal and/or informal consultation required pursuant to Section 7 of the Endangered Species Act (ESA), as amended. All documentation resulting from such consultation shall be provided along with the PCN.
d. If the project would not result in impacts to federally-listed species, then the federal lead agency (Cat/Ex signatory) or its designated nonfederal representative shall provide written documentation of no effect along with the PCN.
e. Written description of Corps authority (e.g., Section 10 of the Rivers and Harbors Act and/or Section 404 of the Clean Water Act.)
f. List of conditions described in the Cat/Ex and/or attachments outlining measures that must be taken prior to, during or after project construction to minimize impacts to the aquatic environment, if any.
g. A copy of the jurisdictional delineation performed by qualified specialists showing the project limits and the location (delineated boundaries) of Corps jurisdiction within the overall project limits.
h. A map(s) showing the locations of potential permanent and temporary project impacts to areas within Corps jurisdiction.
i. A clear and concise description of all project impacts including, but not necessarily limited to,
a) quantification and description of permanent project impacts to areas within Corps jurisdiction,
b) quantification and description of temporary impacts to areas within Corps jurisdiction, and
c) linear extent of Corps jurisdiction affected by the project.
j. General description of activities covered by the Cat/Ex that do not require Corps authorization but are connected or related to the activities in Corps jurisdiction.
k. A complete description of any proposed mitigation and/or restoration including, but not necessarily limited to, locations of any proposed planting, short- and long-term maintenance, proposed monitoring, success criteria and contingency plans.
l. Written justification of how the project complies with the Nationwide Permit Program including less than minimal impact to the aquatic environment and compliance with the General Conditions.
m. For Federal Highway Administration (FHWA) Cat/Ex projects, the PCN should describe how activities described in the Cat/Ex meet the description of Cat/Ex project published in the August 28,1987 Federal Register part 771.117 (a)(b)(c) and (d) (Volume 52, No. 167) or any updated version published in the Federal Register.

35. MAINTENANCE DREDGING OF EXISTING BASINS
1. Use of this NWP will require notification to the Corps in accordance with General Condition No. 13. The notification must include the location of the proposed upland disposal site, and evidence to demonstrate that no portion of the disposal site is a water of the U.S., including wetlands.
2. The U.S. Coast Guard will be notified by the permittee at least 10 days before dredging commences if the activity occurs in navigable waters of the U.S. (Section 10 waters).

39. RESIDENTIAL, COMMERCIAL, AND INSTITUTIONAL DEVELOPMENTS
1. For the Santa Rosa Plain (see Figure 1), notification is required to discharge into seasonal wetlands (including vernal pools) even for proposed losses of 1/10 acre or less. The notification shall include a complete Habitat Quality Evaluation performed according to the most recent version of the "Training Manual to Evaluate Habitat Quality of Vernal Pool Ecosystem Sites in Santa Rosa Plain." The requirements of NWP General Condition 13 will apply to this regional condition.
2. Notification to the Corps is required for the loss of any open waters, including ephemeral, perennial, or intermittent streams, below the ordinary high water mark. The requirements of NWP
General Condition 13 will apply to this regional condition.
3. See
Regional Condition A5 concerning the 300 linear foot limitation.

40. AGRICULTURAL ACTIVITIES
1. All mitigation plans submitted pursuant to Terms and Conditions "b." "c.", and "d." are subject to Corps review and approval.
2. This NWP does not authorize fills or discharges into the channel of a perennial or intermittent watercourse that could impede high flows. This limitation does not include narrow, intermittent or ephemeral watercourses that flow only when there is an irregular, extraordinary flood event.
3. For the Santa Rosa Plain (see
Figure 1), notification is required to discharge into seasonal wetlands (including vernal pools) even for proposed losses of 1/10 acre or less. The notification shall include a complete Habitat Quality Evaluation performed according to the most recent version of the "Training Manual to Evaluate Habitat Quality of Vernal Pool Ecosystem Sites in Santa Rosa Plain." The requirements of NWP General Condition 13 will apply to this regional condition.
4. See
Regional Condition A5 concerning the 300 linear foot limitation.

41. RESHAPING EXISTING DRAINAGE DITCHES
1. Compensatory mitigation may be required if the Corps determines there will be a detrimental impact to aquatic habitat.
2. Notification to the Corps is required if the applicant proposes to regrade, discharge, install channel lining, or redeposit fill material. The requirements of NWP
General Condition 13 will apply to this regional condition.
3. For the Santa Rosa Plain, notification is required to discharge into seasonal wetlands (including vernal pools) even for proposed losses of 1/10 acre, 500 linear feet or less. The notification shall include a complete Habitat Quality Evaluation performed according to the most recent version of the "Training Manual to Evaluate Habitat Quality of Vernal Pool Ecosystem Sites in Santa Rosa Plain." The requirements of NWP
General Condition 13 will apply to this regional condition.
4. The notification shall include an explanation of the project's benefit to water quality.

42. RECREATIONAL FACILITIES
1. This permit does not authorize golf courses or ski areas.
2. If buildings are proposed to be built in waters of the United States, including wetlands, the applicant must demonstrate that there is no on-site practicable alternative that is less environmentally damaging as defined by the Section 404(b)(1) guidelines.
3. For the Santa Rosa Plain (see
Figure 1), notification is required to discharge into seasonal wetlands (including vernal pools) even for proposed losses of 1/10 acre or less. The notification shall include a complete Habitat Quality Evaluation performed according to the most recent version of the "Training Manual to Evaluate Habitat Quality of Vernal Pool Ecosystem Sites in Santa Rosa Plain." The requirements of NWP General Condition 13 will apply to this regional condition.
4. Notification to the Corps is required for the loss of any open waters, including ephemeral, perennial, or intermittent streams, below the ordinary high water mark. The requirements of NWP
General Condition 13 will apply to this regional condition.
5. See
Regional Condition A5 concerning the 300 linear foot limitation.

43. STORMWATER MANAGEMENT FACILITIES
1. For the Santa Rosa Plain (see Figure 1), notification is required to discharge into seasonal wetlands (including vernal pools) even for proposed losses of 1/10 acre or less. The notification shall include a complete Habitat Quality Evaluation performed according to the most recent version of the "Training Manual to Evaluate Habitat Quality of Vernal Pool Ecosystem Sites in Santa Rosa Plain." The requirements of NWP General Condition 13 will apply to this regional condition.
2. See
Regional Condition A5 concerning the 300 linear foot limitation.

44. MINING ACTIVITIES
Nationwide Permit 44 is revoked.


C. Amendments to General Conditions

1. General Condition No. 13(b)(3), Content of Notification: Drawings are always required. The drawings can be schematic but should contain, at minimum, an appropriate title block, legends and scales (if practical), amount (in cubic yards) and size (in acreage or fraction thereof) of fill or activity in Corps jurisdiction, including both permanent and temporary fills/structures. If a waterbody is involved, the ordinary high water mark, estimated highest tide line or mean high water mark should be shown (in feet), if possible, based on NGVD or other appropriate referenced elevation. The drawings should clearly depict the project location, and include plan and cross-section views.

2. General Condition No. 19(f), Mitigation (in reference to vegetated buffers): If the permittee requests the District Engineer to waive or reduce the requirement to provide wetland compensatory mitigation by providing vegetated buffers, the permittee shall provide documentation as to how the vegetated buffers are better for the aquatic environment than more wetland compensatory mitigation.


General Condition No. 11 to the
Nationwide Permits

11. Endangered Species.

(a) No activity is authorized under any NWP which is likely to jeopardize the continued existence of a threatened or endangered species or a species proposed for such designation, as identified under the Federal Endangered Species Act (ESA), or which will destroy or adversely modify the critical habitat of such species. Non-federal permittees shall notify the District Engineer if any listed species or designated critical habitat might be affected or is in the vicinity of the project, or is located in the designated critical habitat and shall not begin work on the activity until notified by the District Engineer that the requirements of the ESA have been satisfied and that the activity is authorized. For activities that may affect Federally-listed endangered or threatened species or designated critical habitat, the notification must include the name(s) of the endangered or threatened species that may be affected by the proposed work or that utilize the designated critical habitat that may be affected by the proposed work. As a result of formal or informal consultation with the FWS or NMFS the District Engineer may add species-specific regional endangered species conditions to the NWPs.

(b) Authorization of an activity by a NWP does not authorize the``take'' of a threatened or endangered species as defined under the ESA. In the absence of separate authorization (e.g., an ESA Section 10 Permit, a Biological Opinion with ``incidental take'' provisions, etc.)from the USFWS or the NMFS, both lethal and non-lethal ``takes'' of protected species are in violation of the ESA. Information on the location of threatened and endangered species and their critical habitat can be obtained directly from the offices of the USFWS and NMFS or their world wide web pages at http://www.fws.gov/r9endspp/endspp.html and http://www.nfms.noaa.gov/prot_res/overview/es.html respectively. 


General Condition No. 13 to the
Nationwide Permits

13. Notification.

(a) Timing: Where required by the terms of the NWP, the prospective permittee must notify the District Engineer with a preconstruction notification (PCN) as early as possible. The District Engineer must determine if the notification is complete within 30 days of the date of receipt and can request additional information necessary to make the PCN complete only once. However, if the prospective permittee does not provide all of the requested information, then the District Engineer will notify the prospective permittee that the notification is still incomplete and the PCN review process will not commence until all of the requested information has been received by the District Engineer. The prospective permittee shall not begin the activity:
(1) Until notified in writing by the District Engineer that the activity may proceed under the NWP with any special conditions imposed by the District or Division Engineer; or
(2) If notified in writing by the District or Division Engineer that an Individual Permit is required; or
(3) Unless 45 days have passed from the District Engineer's receipt of the complete notification and the prospective permittee has not received written notice from the District or Division Engineer. Subsequently, the permittee's right to proceed under the NWP may be modified, suspended, or revoked only in accordance with the procedure set forth in 33 CFR Part 330.5(d)(2).

(b) Contents of Notification: The notification must be in writing and include the following information:
(1) Name, address and telephone numbers of the prospective permittee;
(2) Location of the proposed project;
(3) Brief description of the proposed project; the project's purpose; direct and indirect adverse environmental effects the project would cause; any other NWP(s), Regional General Permit(s), or Individual Permit(s) used or intended to be used to authorize any part of the proposed project or any related activity. Sketches should be provided when necessary to show that the activity complies with the terms of the NWP. (Sketches usually clarify the project and when provided result in a quicker decision.);
(4) For NWPs 7, 12, 14, 18, 21, 29, 31, 34, 38, 39, 40, 41, 42, and 43, the PCN must include a delineation of affected special aquatic sites, including wetlands, vegetated shallows (e.g., submerged aquatic vegetation, seagrass beds), and riffle and pool complexes (See Paragraph 13(f) below.);
(5) For NWP 7 (Outfall Structures and Maintenance), the PCN must include information regarding the original design capacities and configurations of those areas of the facility where maintenance dredging or excavation is proposed;
(6) For NWP 14 (Linear Transportation Projects), the PCN must include a compensatory mitigation proposal to offset permanent losses of waters of the U.S. And a statement describing how temporary losses of waters of the U.S. will be minimized to the maximum extent practicable;
(7) For NWP 21 (Surface Coal Mining Activities), the PCN must include an Office of Surface Mining (OSM) or state-approved mitigation plan, if applicable. To be authorized by this NWP, the District Engineer must determine that the activity complies with the terms and conditions of the NWP and that the adverse environmental effects are minimal both individually and cumulatively and must notify the project sponsor of this determination in writing;
(8) For NWP 27 (Stream and Wetland Restoration Activities), the PCN must include documentation of the prior condition of the site that will be reverted by the permittee;
(9) For NWP 29 (Single-family Housing), the PCN must include:
(i) Any past use of this NWP by the prospective permittee and/or the permittee's spouse;
(ii) A statement that the single-family housing activity is for a personal residence of the permittee;
(iii) A description of the entire parcel, including its size, and a delineation of wetlands. For the purpose of this NWP, parcels of land measuring 1/4 acre or less will not require a formal on-site delineation. However, the applicant shall provide an indication of where the wetlands are and the amount of wetlands that exists on the property. For parcels greater than 1/4 acre in size, formal wetland delineation must be prepared in accordance with the current method required by the Corps. (See Paragraph 13(f) below.);
(iv) A written description of all land (including, if available, legal descriptions) owned by the prospective permittee and/or the prospective permittee's spouse, within a one mile radius of the parcel, in any form of ownership (including any land owned as a partner, corporation, joint tenant, co-tenant, or as a tenant-by-the-entirety) and any land on which a purchase and sale agreement or other contract for sale or purchase has been executed;
(10) For NWP 31 (Maintenance of Existing Flood Control Facilities), the prospective permittee must either notify the District Engineer with a PCN prior to each maintenance activity or submit a five year (or less) maintenance plan. In addition, the PCN must include all of the following:
(i) Sufficient baseline information identifying the approved channel depths and configurations and existing facilities. Minor deviations are authorized, provided the approved flood control protection or drainage is not increased;
(ii) A delineation of any affected special aquatic sites, including wetlands; and
(iii) Location of the dredged material disposal site;
(11) For NWP 33 (Temporary Construction, Access, and Dewatering), the PCN must include a restoration plan of reasonable measures to avoid and minimize adverse effects to aquatic resources;
(12) For NWPs 39, 43, and 44, the PCN must also include a written statement to the District Engineer explaining how avoidance and minimization for losses of waters of the US were achieved on the project site;
(13) For NWP 39 and NWP 42, the PCN must include a compensatory mitigation proposal to offset losses of waters of the US or justification explaining why compensatory mitigation should not be required. For discharges that cause the loss of greater than 300 linear feet of an intermittent stream bed, to be authorized, the District Engineer must determine that the activity complies with the other terms and conditions of the NWP, determine adverse environmental effects are minimal both individually and cumulatively, and waive the limitation on stream impacts in writing before the permittee may proceed;
(14) For NWP 40 (Agricultural Activities), the PCN must include a compensatory mitigation proposal to offset losses of waters of the U.S. This NWP does not authorize the relocation of greater than 300 linear feet of existing serviceable drainage ditches constructed in non-tidal streams unless, for drainage ditches constructed in intermittent non-tidal streams, the District Engineer waives this criterion in writing, and the District Engineer has determined that the project complies with all terms and conditions of this NWP, and that any adverse impacts of the project on the aquatic environment are minimal, both individually and cumulatively;
(15) For NWP 43 (Stormwater Management Facilities), the PCN must include, for the construction of new stormwater management facilities, a maintenance plan (in accordance with state and local requirements, if applicable) and a compensatory mitigation proposal to offset losses of waters of the U.S. For discharges that cause the loss of greater than 300 linear feet of an intermittent stream bed, to be authorized, the District Engineer must determine that the activity complies with the other terms and conditions of the NWP, determine adverse environmental effects are minimal both individually and cumulatively, and waive the limitation on stream impacts in writing before the permittee may proceed;
(16) For NWP 44 (Mining Activities), the PCN must include a description of all waters of the U.S. adversely affected by the project, a description of measures taken to minimize adverse effects to waters of the U.S., a description of measures taken to comply with the criteria of the NWP, and a reclamation plan (for all aggregate mining activities in isolated waters and non-tidal wetlands adjacent to headwaters and any hard rock/mineral mining activities);
(17) For activities that may adversely affect Federally-listed endangered or threatened species, the PCN must include the name(s) of those endangered or threatened species that may be affected by the proposed work or utilize the designated critical habitat that may be affected by the proposed work; and
(18) For activities that may affect historic properties listed in, or eligible for listing in, the National Register of Historic Places, the PCN must state which historic property may be affected by the proposed work or include a vicinity map indicating the location of the historic property.

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

(d) District Engineer's Decision: In reviewing the PCN for the proposed activity, the District Engineer will determine whether the activity authorized by the NWP will result in more than minimal individual or cumulative adverse environmental effects or may be contrary to the public interest. The prospective permittee may submit a proposed mitigation plan with the PCN to expedite the process. The District Engineer will consider any proposed compensatory mitigation the applicant has included in the proposal in determining whether the net adverse environmental effects to the aquatic environment of the proposed work are minimal. If the District Engineer determines that the activity complies with the terms and conditions of the NWP and that the adverse effects on the aquatic environment are minimal, after considering mitigation, the District Engineer will notify the permittee and include any conditions the District Engineer deems necessary. The District Engineer must approve any compensatory mitigation proposal before the permittee commences work. If the prospective permittee is required to submit a compensatory mitigation proposal with the PCN, the proposal may be either conceptual or detailed. If the prospective permittee elects to submit a compensatory mitigation plan with the PCN, the District Engineer will expeditiously review the proposed compensatory mitigation plan. The District Engineer must review the plan within 45 days of receiving a complete PCN and determine whether the conceptual or specific proposed mitigation would ensure no more than minimal adverse effects on the aquatic environment. If the net adverse effects of the project on the aquatic environment (after consideration of the compensatory mitigation proposal) are determined by the District Engineer to be minimal, the District Engineer will provide a timely written response to the applicant. The response will state that the project can proceed under the terms and conditions of the NWP.
If the District Engineer determines that the adverse effects of the proposed work are more than minimal, then the District Engineer will notify the applicant either:
(1) that the project does not qualify for authorization under the NWP and instruct the applicant on the procedures to seek authorization under an Individual Permit;
(2) that the project is authorized under the NWP subject to the applicant's submission of a mitigation proposal that would reduce the adverse effects on the aquatic environment to the minimal level; or
(3) that the project is authorized under the NWP with specific modifications or conditions.
Where the District Engineer determines that mitigation is required to ensure no more than minimal adverse effects occur to the aquatic environment, the activity will be authorized within the 45-day PCN period. The authorization will include the necessary conceptual or specific mitigation or a requirement that the applicant submit a mitigation proposal that would reduce the adverse effects on the aquatic environment to the minimal level. When conceptual mitigation is included, or a mitigation plan is required under item (2) above, no work in waters of the U.S. Will occur until the District Engineer has approved a specific mitigation plan.

(e) Agency Coordination: The District Engineer will consider any comments from Federal and state agencies concerning the proposed activity's compliance with the terms and conditions of the NWPs and the need for mitigation to reduce the project's adverse environmental effects to a minimal level.
For activities requiring notification to the District Engineer that result in the loss of greater than 1/2 acre of waters of the U.S., the District Engineer will provide immediately (e.g., via facsimile transmission, overnight mail, or other expeditious manner) a copy to the appropriate Federal or state offices (FWS, state natural resource or water quality agency, EPA, State Historic Preservation Officer (SHPO), and, if appropriate, NMFS). With the exception of NWP 37, these agencies will then have 10 calendar days from the date the material is transmitted to telephone or fax the District Engineer notice that they intend to provide substantive, site-specific comments. If so contacted by an agency, the District Engineer will wait an additional 15 calendar days before making a decision on the notification. The District Engineer will fully consider agency comments received within the specified time frame, but will provide no response to the resource agency, except as provided below. The District Engineer will indicate in the administrative record associated with each notification that the resource agencies' concerns were considered. As required by Section 305(b)(4)(B) of the Magnuson-Stevens Fishery Conservation and Management Act, the District Engineer will provide a response to NMFS within 30 days of receipt of any Essential Fish Habitat conservation recommendations. Applicants are encouraged to provide the Corps multiple copies of notifications to expedite agency notification.

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

Contact

Department of the Army
San Francisco District, Corps of Engineers
Regulatory Division
450 Golden Gate Ave., 4th Floor, Suite 1111
San Francisco, California 94102-3406

Phone Number: (415) 503-6795
Fax Number: (415) 503-6693
cespn-regulatory-info@usace.army.mil