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HomeMy WebLinkAboutPERMIT 1754 Fish Hatchery Rd Stream Restoration Project 2015-10-081)El'ARTMENT 01 TIIE ARMV coRrs ay L NG IN 17IRS, OMAHA DIS'TRICT D ENV ER REGU 1..ATOR Y. OFFICE, 9307 S( ) UTFI W A DS1V()IRTI-1 11301J1 E V ARE) ITT[. ETON, (1'0 LOR ADO 8(1128-69) I October 8, 2015 SUBJECT: Nationwide Permit Verification — Action No. NWO-2015-01829-DEN, Fall River Hydroplant and Upper Fish Hatchery Reaches Stream Restoration Project Tina Kurtz Town of Estes Park, Community Development Department PO Box 1200 Estes Park, CO 80517 Dear Ms, Kurtz: Reference is made to the above -mentioned proposed project located at approximately latitude 40.3996889439269, longitude -105.58539199937, in Larimer County, Colorado. The work as described in your submittal will consist of stream restoration and enhancement within Fall River in the Town of Estes Park, Larimer County, Colorado. The project will reestablish a stable stream channel gradient, include earthwork to lay back the vertical stream banks and reestablish a sinuous stable low flow channel, provide vertical and lateral stability, develop a complex channel cross section, construct riffle -pool sequencing and/or steep pool sections, improve habitat, and re -vegetation for stability. To do this, 3,250 feet of Fall River will be impacted, with approximately 0.20 acre of wetlands being created. Based on the information provided, this office has determined that the work is authorized by the Department of the Army Nationwide Permit (NWP) NWP 27 Aquatic Habitat Restoration, Establishment, and Enhancement Activities., found in the February 21, 2012, Federal Register. Enclosed is a fact sheet, which fully describes this Nationwide Permit and lists the General Conditions, and Colorado Regional Conditions, which must he adhered to for this authorization to remain valid. Although an Individual Department of the Arrny permit will not be required for this work, this does not eliminate the requirement that any other applicable federal, state, tribal. or local. permits be obtained as required. Please be, advised that deviations from the original plans and specifications of this project could require additional authorization from this office. - 2 The applicant is responsible fbr all work accomplished in accordance with the terms and conditions of the nationwide permit. if a contractor or other authorized representative will be accomplishing the work authorized. by the nationwide permit on behalf of the applicant, it is strongly recommended that they be provided a copy of this letter and the enclosed conditions so that they are aware of the limitations of the applicable nationwide pen -Mt Any activity which fails to comply with all the terms and conditions of the nationwide permit will be considered unauthorized and subject to. appropriate enforcement action. This verification will be valid until March 18, 2017. In compliance with General Condition 30, the enclosed "Certification of Completed Work" form (blue) must he signed and returned to this office upon completion of the authorized Ivork and any required mitigation. Enclosed is a Preliminary Jurisdictional Determination (JD) which is a written indication that wetlands and waterways within your project area may be waters of the United States (enclosed). Such waters will be treated as jurisdictional waters of the US for purposes of computation of impacts and compensatory mitigation requirements. If you concur with the findings of the Preliminary JD, please sign it and return it to the letterhead address within two weeks. If you believe the Preliminary JD is inaccurate, you may request an Approved JD, which is an official determination regarding the presence or absence of waters ofthe US. If an approved JD is requested, the Corps will complete one and you may not begin work on the proposed project until after the Approved JD is complete. If you do not want the Corps to complete an Approved JD, you may proceed with the proposed project. If there are any questions please feel free to contact Michael Stanley at (303) 979-4120 or by e-mail at Michael.G.Stanley@usace.army.mil, and reference Corps File No. NWO-2015-01829- DEN. Kiel Downing Chief, Denver Regulatory Office Enclosure(s) Copies Furnished: U.S. Fish and Wildlife Service Colorado Department of Public Health and Environment Environmental Protection Agency Colorado Parks and VVildlife Eric Petterson Olsson Associates 214 8th. Street, Suite 302 Glenwood Springs, CO 81601 Tall 1 - PRELIMINARY JURISDICTIONAL DETERMINATION FORM This preliminary JD finds that there "may be" waters of the United States on the subject project site, and identifies all aquatic features on the site that could be affected by the proposed activity, based on the following information: A. Report Completion Date for Preliminary Jurisdictional Determination October 8. 2015 B. Name and Address of Person Requesting Preliminary JD: 'Fina Kurtz Town of Estes Park, Community Development Department PO Box 1200 Estes Park, CO 8051 7 tkurtz@estes.org C. District Office, Name, and Number: NWO-2015-01 829-DEN, Fall River Iiydroplant and Upper Fish Hatchery Reaches Stream Restoration Project D. PROJECT LOCATION(S), BACKGROUND INFORMATION, AND 'WATERS: State: CO City: Estes County: 1..arimer Name of nearest waterbody: Fall River ,Identify amount of waters in the review area: Approximately 3.33 Acres Name of any water bodies on the site that have been identified as Section 10 waters: Tidal: n/a Non -Tidal; n/a ate -s of the U.S. Latitude Longitude 40.399688 -105,585 Estimated Estimated amount of amount of Cowardin Stream aquatic aquatic Class Flow resources in resource eview area impact Perennial Riverinc 3.33 Acres 3.33 Acres E. REVIEW .PERFORMED FOR SITE EVALUATION (CHECK ALL THAT .APPIX): Office (Desk) Determination. Date: October 8, 2015, Field Determination, Date(s); Jurisdi ctional Authori ty Sec. 404 F. SUPPORTING DATA: Data reviewed for preliminary .113, (check all that apply - checked items should be included in case file and, where checked and requested, appropriately reference sources below): Maps, plans, plots or plat submitted by or on behalf of the applicant/consultant: Data sheets prepared/submitted by or on behalf of the applicant/consultant, (1)ffice concurs with data sheets/delineation report. Office does not concur with data, sheets/delineation report. El Data sheets prepared by the Corps: Corps navigable waters' study: U.S. Geological Survey Hydrologic Atlas: USGS MID data. USGS 8 and :12 digit HUC maps. Geological Survey map(s), Cite quad name: C:0-ESTES PARK P USDA Natural Resources Conservation Service Soil Survey. Citation: GIS. National wetlands inventory map(s). Cite name: GIS. State/Local wetland inventory map(s): -1 FE:MA/FIRM maps: I I 100-year Floodpiain Elevation is: (National Geodectic Vertical Datum of 1929) Photographs: [ Aerial (Name & Dzite): Provided by applicant. or I Other (Name & Date): Previous determination(s). File no. and date of response letter: Other information (please specify): IMPORTANT NOTE: The information recorded on this form has not necessarily been verified by the Corps and should not be relied upon for later iurisdictional determinations. ,„„e, Signature and date of Signature adate, f Regulatory Project Manager (Required) person requesting preliminary JD (REQU IRED, unless obtaining the signature is impracticable) 2 G. EXPLANATION OF PRELIMINARY AND APPROVED JURISDICTIONAL DETERMINATIONS: The Corps of Engineers believes that there may he jurisdictional waters of the United States on the subject site, and the permit applicant or other affected party who requested this preliminary JD is hereby advised of his or her option to request and obtain an approved jurisdictional determination (JD) for that site. Nevertheless, the permit applicant or other person who requested this preliminary JD has; declined to exercise the option to obtain an approved JD in this instance and at this time. 2, In any circumstance where a permit applicant obtains an individual permit, or a Nationwide General Permit (NWP) or other general permit verification requiring "pre - construction notification" (PCN), or requests verification for a non -reporting NWP or other general permit, and the permit applicant has not requested an approved JD for the activity, the permit applicant is hereby made aware of the fi)llowing: (1) the permit applicant has elected to seek a permit authorization based on a preliminary JD, which does not make an official determination ofjurisdictional waters; (2) that the applicant has the option 10 request an approved JD betbre accepting the terms and conditions of the pen -nit authorization, and that basing a permit authorization on an approved JD could possibly result in less compensatory mitigation being required or different special conditions; (3) that the applicant has the right to request an individual permit rather than accepting the terms and conditions of the NWP or other general pennit authorization; (4) that the applicant can accept a permit authorization and thereby agree to comply with all the terms and conditions of that permit, including whatever mitigation requirements the Corps has determined to be necessary; (5) that undertaking any activity in reliance upon the subject pennit authorization without requesting an approved JD constitutes the applicant's acceptance of the use of the preliminary JD, but that either form ofJD will be processed as soon as is practicable; (6) accepting a permit authorization (e.g., signing a proffered individual permit) or undertaking any activity in reliance on any form of Corps permit authorization based on a preliminary JD constitutes agreement that all wetlands and other water bodies on the site affected in any way by that activity are jurisdictional waters of the United States, and precludes any challenge to such jurisdiction in any administrative or judicial compliance or enforcement action, or in any administrative appeal or in any Federal court; and (7) whether the applicant elects 10 use either an approved JD or a preliminary JD, that JD will be processed as soon as is practicable. Further, an approved JD, a proffered individual permit (and all terms and conditions contained therein), or individual permit denial can be administratively appealed pursuant to 33 C.F.R. Part 331, and that in any administrative appeal, jurisdictional issues can be raised (see 33 C.F.R. 331.5(a)(2)). lf, during that administrative appeal, it becomes necessary to make an official deterrnination whether CWA jurisdiction exists over a site, or to provide an official delineation ofjurisdictional waters on the site, the Corps will provide an approved JD to accomplish that result, as soon as is practicable. Nationwide Perrnit 27 A uatic Habitat Restoration, Establishmeuit And Enhancement Activities Activities in waters of the United States associated with the restoration, enhancement, and establishmentof tidal and non -tidal wetlands and riparian areas, the restoration and enhancement of non -tidal streams and other non -tidal open waters, and the rehabilitation or enhancement of tidal streams, tidal wetlands, and tidal open waters, provided those activities result in net increases in aquatic resource functions and services. To the extent that a Corps permit is required, activities authorized by this NWP include, but are not limited to: the removal of accumulated sediments; the installation, removal, and. maintenance of small water control structures, dikes, and berms, as well as discharges of dredged or fill material to restore appropriate stream channel configurations after small water control structures, dikes, and berms, are removed; the installation of current deflectors; the enhancement, restoration, or establishment of riffle and pool stream structure; the placement of in -stream. habitat structures; rnodifications of the stream bed and/or banks to restore or establish :stream meanders; the backfilling of artificial channels; the removal of existing drainage structures, such as drain tiles, and the filling., blocking, or reshaping of drainage ditches to restore wetland hydrology; the installation of structures or fills necessary to establish or re-establish wetland or stream hydrology; the construction of small nesting islands; the construction of open water areas; theconstruction of oyster habitat over unvegetated 'bottom' in tidal waters; shellfish seeding; activities needed to reestablish vegetation, .including plowing or discing for seed bed preparation and the planting of appropriate wetland species; re-establishment of submerged aquatic vegetation in areas where those plant communities previously existed; re-establishment of tidal wetlands in tidal waters where those wetlands previously existed; mechanized land clearing to remove non-native invasive, exotic, or nuisance vegetation; and other related activities. Only native plant species should be planted at the site.. This NWP authorizes the relocation of non -tidal waters, including non -tidal wetlands and streams, on the project site provided there are net increases in aquatic resource functions and services. Except for the relocation of non -tidal waters on the project site, this NWP does not authorize the conversion of a stream or natural wetlands to another aquatic habitat type (e.g., stream to wetland or vice versa) or uplands. Changes in wetland plant communities that occur when wetland hydrology is more fully restored during wetland rehabilitation activities are not considered a conversion to another aquatic habitat type. This NWP does not authorize stream channelization. This NWP does not authorize the relocation of tidal waters or the conversion of tidal waters, including tidal wetlands, to other aquatic uses, such as the conversion of tidal wetlands into open water impoundments. Compensatory mitigation is not required for activities authorized by this NWP since these activities must result in net increases in aquatic resource functions and services. Reversion. For enhancement, restoration, and establishment activities conducted: (1) In accordance with the terms and conditions of a binding stream or wetland enhancement or restoration agreement, or a wetland establishment agreement, between the landowner and the U.S. Fish and Wildlife Service (FWS), the Natural Resources Conservation Service (NRCS), the Farm Service Agency (FSA), the National Marine Fisheries Service (NMFS), the National Ocean Service (NOS), U.S. Forest Service (USFS), or their designated state cooperating agencies; (2) as voluntary wetland restoration, enhancement, and establishment actions documented by the NRCS or USDA Technical Service Provider pursuant to NRCS Field Office Technical Guide standards; or (3) on reclaimed surface coal inine lands, in accordance with a Surface Mining Control and Reclamation Act permit issued by the Office of Surface Mining Reclamation and Enforcement (OSMRE) or the applicable state agency, this NWP also authorizes any future discharge of dredged or fill material associated with the reversion of the area to its documented prior condition and use (i.e., prior to the restoration, enhancement., or establishment activities). The reversion must occur within five years after expiration of a limited term wetland restoration or establishment agreement or permit, and is authorized in these circumstances even if the discharge occurs after this NWP expires. The five-year reversion limit does not apply to agreements without time limits reached between the landowner and the FWS, NRCS, FSA, NMFS, NOS, USFS, or an appropriate state cooperating agency. This NWP also authorizes discharges of dredged or fill material in waters of the United States for the reversion of wetlands that were restored, enhanced, or established on prior -converted cropland or on uplands, in accordance with a binding agreement between the landowner and NRCS, FSA, FWS, or their designated state cooperating agencies (even though the restoration, enhancement, or establishment activity did not require a section 404 pennit). The prior condition will be documented in the original agreement or permit, and the determination of return to prior conditions will be made by the Federal agency or appropriate state agency executing the agreement or permit. Before conducting any reversion activity the permittee or the appropriate Federal or state agency must notify the district engineer and include the documentation of the prior condition. Once an area has reverted to its prior physical condition, it will be subject to whatever the Corps Regulatory requirements are applicable to that type of land at the time. The requirement that the activity results in a net increase in aquatic resource functions and services does not apply to reversion activities meeting the above conditions. Except for the activities described above, this NWP does not authorize any future discharge of dredged or fill material associated with the reversion of the area to its prior condition. In such cases a separate permit would be required for any reversion. Reporting. For those activities that do not require pre -construction notification, the permittee must submit to the district engineer a copy of: (1) The binding stream enhancement or restoration agreement or wetland enhancement, restoration, or establishmentagreement, or a project description, including project plans and location map; (2) the NRCS or USDA Technical Service Provider documentation for the voluntary stream enhancement or restoration action or wetland restoration, enhancement, or establishment action; or (3) the SMCRA permit issued by OSMRE or the applicable state agency. The report must also include information on baseline ecological conditions on the project site, such as a delineation of wetlands, streams, and/or other 2 aquatic habitats. These documents must be submitted to the district engineer at lcast 30 days prior to commencing activities in waters of the United States authorized by this NWP, (Sections 10 and 404) Note: This NWP can be used to authorize compensatory mitigation projects, including mitigation banks and in -lieu fee projects. However, this NWP does not authorize the reversion of an area used for a compensatory mitigation project to its .prior condition, since compensatory mitigation is generally intended to be permanent, Nationwide Permit General Conditions Note: To qualify for NWP authorization„ the prospective permittee must comply with the following general conditions, as applicable, in addition to any regional or case -specific conditions imposed by the division engineer or district engineer. 1. Navigatinn. (a) No activity may cause more than a minimal adverse effect on navigation. (b) Any safety lights and signals prescribed by the U.S. Coast Guard, through regulations or otherwise, must be .installed and maintained at the pennittee's expense on authorized .facilities in navigable waters of the United States. (c) The permittee understands and agrees that, if future operations by the United States require the removal, relocation, or other alteration, of the structure or work herein authorized, or if, in the opinion of the Secretary of the Army or his authorized representative, said structure or work shall cause .unreasonable obstruction to the free navigation of the navigable waters, the permittee will be required, upon due notice from the Corps of Engineers, to remove, relocate, or alter the structural work or obstructions caused thereby, without expense to the United States. No claim shall be made against the United States on account of any such removal or alteration. 2. Aquatic Life Movements. No activity may substantially disrupt the necessary life cycle movements of those species of aquatic life indigenous to the waterbody, including those species that normally migrate through the area, unless the activity's primary purpose is to impound water. All permanent and temporary crossings of waterbodies shall be suitably culvertcd, bridged, or otherwise designed and constructed to maintain low flows to sustain the movement of those aquatic species. 3. Spawning Areas. Activities in spawning areas during spawning seasons must be avoided to the maximum extent practicable. Activities that result in the physical destruction (e.g., through excavation, fill, or downstream smothering by substantial turbidity) of an important spawning area are not authorized. 4. Migratory Bird I reeding Areas. Activities in waters of the United States that serve as breeding areas for migratory birds must be avoided to the maximum extent practicable. 5. Shellfish Beds. No activity may occur in areas of concentrated shellfish populations, unless the activity is directly related to a shellfish harvesting activity authorized by NWPs 4 and 48, or is a shellfish seeding or habitat restoration activity authorized by NWP 27. 6. Suitable Material. No activity may use unsuitable material (e.g., trash, debris, car bodies, asphalt, etc.). Material used for construction or discharged must be free from toxic pollutants in toxic amounts (see Section 307 of the Clean Water Act), 7. Water Supply Intakes. No activity may occur in thc proximity of a public water supply intake, except where the activity is for the repair or improvement of public water supply intake structures or adjacent hank stabilization. 8. Adverse Effects From Impoundments. If the activity creates an impoundment of water, adverse effects to the aquatic system due to accelerating the passage: of water, and/or restricting its flow must be minimized to the maximum extent practicable. 9. Management of Water Fiows. To the maximum extent practicable, the pre - construction course, condition, capacity, and location of open waters must be maintained for each activity, including stream channelization and storm water management activities, except as provided below. The activity must be constructed to withstand expected high flows. The activity must not restrict or impede the passage of normal or high flows, unless the primary purpose of the activity is to impound water or manage high flows. The activity may alter the pre - construction course, condition, capacity, and location of open waters if it benefits the aquatic environment (e.g., stream restoration or relocation activities). 10. Fills Within 100-Year Floodplains. The activity must comply with applicable FEMA-approved state or local floodplain management requirements. 11. Equipment. Fleavy equipment working in wetlands or mudflats must be placed on mats, or other measures must be taken to minimize soil disturbance. 12. Soil Erosion and Sediment Controls. Appropriate soil erosion and sediment controls must be used and maintained in effective operating condition during construction, and all exposed soil and other fills, as well as any work below the ordinary high water mark or high tide line, must be permanently stabilized at the earliest practicable date. Permittees are encouraged to perform work within waters of the United States during periods of low -flow or no - flow. 13. Removal of Temporary Fills. Temporary fills must be removed in their entirety and the affected areas returned to pre -construction elevations. The affected areas must be revegetated, as appropriate. In Colorado, when temporary fills are placed in wetlands, a horizontal marker (Le. fabric, certifies weed -free straw, etc.) must be used to delineate the existing ground elevation of wetlands that will be temporarily filled during construction. 14. Proper Maintenance. Any authorized structure or fill shall be properly maintained, including maintenance to ensure public safety and compliance with applicable NWP general 4 conditions, as well as any activity -specific conditions added by the district engineer to an NWP auth.orization. 15. Sin1e and Complete Proiect. The activity must be a single and complete project. The same NWP cannot be used more than once for the same single and complete project. 16. Wild and Scenic Rivers. No activity may occur in a component of the National Wild and Scenic River System, or in a river officially designated by Congress as a "study river" for possible inclusion in the system while the river is in an official study status, unless the appropriate Federal agency with direct management responsibility for such river, has determined in writing that the proposed activity will not adversely affect the Wild and Scenic River designation or study status. Information on Wild and Scenic .Rivers may be obtained from the appropriate Federal land management agency responsible for the designated Wild and Scenic River or study river (e.g., National Park Service, U.S. Forest Service, Bureau of Land Management, U.S. Fish and Wildlife Service). 17. Tribal Rights. No activity or its operation may impair reserved tribal rights, including, but not limited to, reserved water rights and treaty fishing and hunting rights. 18. Endangered Species,. (a) No activity is authorized under any NWP which is likely to directly or indirectly jeopardize the continued existence of a threatened or endangered species or a species proposed for such designation, as identified under the Federal Endangered Species Act (ESA), or which will directly or indirectly destroy or adversely modify the critical habitat of such species. No activity is authorized under any NWP which "may affect" a listed species or critical habitat, unless Section 7 consultation addressing the effects of the proposed activity has been completed. (b) Federal agencies should follow their own procedures for complying with the requirements of the ESA. Federal permittees must provide the district engineer with the appropriate documentation to demonstrate compliance with those requirements. The district engineer will review the documentation and determine whether it is sufficient to address ESA compliance for the NWP activity, or whether additional ESA consultation is necessary. (c) Non-federal permittees must submit a pre -construction notification to the district engineer if any listed species or designated critical habitat might be affected or is in the vicinity of the project, or if the project is located in designated critical habitat, and shall not begin work on the activity until notified by the district engineer that the requirements of the ESA have been satisfied and that the activity is authorized. For activities that might affect Federally -listed endangered or threatened species or designated critical habitat, the pre -construction notification must include the name(s) of the endangered or threatened species that might be affected by the proposed work or that utilize the designated critical habitat that might be affected by the proposed work. The district engineer will determine whether the proposed activity "may affect" or will have "no effect" to listed species and designated critical habitat and will notify the non - Federal applicant of the Corps' determination within 45 days of receipt of a complete pre - construction notification. In cases where the non -Federal applicant has identified listed species or critical habitat that might be affected or is in the vicinity of the project, and has so notified the Corps, the applicant shall not begin work until the Corps has provided notification the proposed activities will have "no effect" on listed species or critical habitat, or until Section 7 consultation 5 has been completed. If the non -Federal applicant has not heard back from the Corps within 45 days, the applicant must still wait for notification from the Corps. (d) As a result of formal or informal consultation with the FWS or NMFS the district engineer may add species -specific regional endangered species conditions to the NWPs. (e) Authorization of an activity by a NWP does not authorize the "take" of a threatened or endangered species as defined under the ESA. In the absence of separate authorization (e.g., an ESA Section 10 Permit, a Biological Opinion with "incidental take" provisions, etc.) from the U.S. FWS or the NMFS, The Endangered Species Act prohibits any person subject to the jurisdiction of the United States to take a listed species, where "take" means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. The word "harm" in the definition of"take" means an act which actually kills or injures wildlife. Such an act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering. (t) Information on the location of threatened and endangered species and their critical habitat can be obtained directly from the offices of the U.S. FWS and NMFS or their world wide web pages at http://www.fws.gov/ or hp.//www.Iws.go/ipac and littp://_www.noaa,gov/fisheries.html respectively. 19. Migratory Birds and Bald and Golden Eagles. The pennittee is responsible for obtaining any "take" permits required under the U.S. Fish and Wildlife Service's regulations governing compliance with the Migratory Bird Treaty Act or the Bald and Golden Eagle Protection Act. The peririittee should contact the appropriate local office of the U.S. Fish and Wildlife Service to determine if such "take" permits are required for a particular activity. 20. Historic Properties. (a) In cases where the district engineer dete, mines that the activity may affect properties listed, or eligible for listing, in the National Register of Historic Places, the activity is not authorized, until the requirements of Section 106 of the National Historic Preservation Act (NI -IPA) have been satisfied. (b) Federal permittees should follow their own procedures for complying with the requirements of Section 106 of the National Historic Preservation Act. Federal permittees must provide the district engineer with the appropriate documentation to demonstrate compliance with those requirements. The district engineer will review the documentation and determine whether it is sufficient to address section 106 compliance for the NWP activity, or whether additional section 106 consultation is necessary. (c) Non-federal permittees must submit a pre -construction notification to the district engineer if the authorized activity rriay have the potential to cause effects to any historic properties listed on, determined to be eligible for listing on, or potentially eligible for listing on the National Register of Historic Places, including previously unidentified properties. For such activities, the pre -construction notification must state which historic properties may be affected by the proposed work or include a vicinity map indicating the location of the historic properties or the potential for the presence of historic properties. Assistance regarding information on the location of or potential for the presence of historic resources can be sought from the State Historic Preservation Officer or Tribal Historic Preservation Officer, as appropriate, and the National Register of Historic Places (see 33 CFR 330.4(g)). When reviewing pre -construction notifications, district engineers will comply with the current procedures for addressing the 6 requirements of Section 106 of the National Historic Preservation Act. The district engineer shall make a reasonable and good faith effort to carry out appropriate identification efforts, which may include background research, consultation, oral history interviews, sample field investigation, and field survey. Based on the information submitted and these efforts, the district engineer shall determine whether the proposed activity has the potential to cause an effect on the historic properties. Where the non -Federal applicant has identified historic properties on which the activity may have the potential to cause effects and so notified the Corps, the non -Federal applicant shall not begin the activity until notified by the district engineer either that the activity has no potential to cause effects or that consultation under Section 106 of the NHPA has been completed. (d) The district engineer will notify the prospective pennittee within 45 days of receipt of a complete pre -construction notification whether NHPA Section 106 consultation is required. Section 106 consultation is not required when the Corps determines that the activity does not have the potential to cause effects on historic properties (see 36 CFR §800.3(a)). IfNHPA section 106 consultation is required and will occur, the district engineer will notify the non - Federal applicant that he or she cannot begin work until Section 106 consultation is completed. If the non -Federal applicant has not heard back from the Corps within 45 days, the applicant must still wait for notification from the Corps. (e) Prospective permittees should be aware that section 110k of the NHPA (16 U.S.C. 470h-2(k)) prevents the Corps from granting a permit or other assistance to an applicant who, with intent to avoid the requirements of Section 106 of the NHPA, has intentionally significantly adversely affected a historic property to which the permit would relate, or having legal power to prevent it, allowed such significant adverse effect to occur, unless the Corps, after consultation with the Advisory Council on Historic Preservation (ACHP), determines that circumstances justify granting such assistance despite the adverse effect created or permitted by the applicant. If circumstances justify granting the assistance, the Corps is required to notify the ACHP and provide documentation specifying the circumstances, the degree of damage to the integrity of any historic properties affected, and proposed mitigation. This documentation must include any views obtained from the applicant, SHPO/THPO, appropriate Indian tribes if the undertaking occurs on or affects historic properties on tribal lands or affects properties of interest to those tribes, and other parties known to have a legitimate interest in the impacts to the permitted activity on historic properties. 21. Discovery of Previously Unknown Remains and Artifacts. If you discover any previously unknown historic, cultural or archeological remains and artifacts while accomplishing the activity authorized by this pemnit, you must immediately notify the district engineer of what you have found, and to the maximum extent practicable, avoid construction activities that may affect the remains and artifacts until the required coordination has been completed. The district engineer will initiate the Federal, Tribal and state coordination required to determine if the items or remains warrant a recovery effort or if the site is eligible for listing in the National Register of Historic Places. 22. Designated Critical Resource Waters. Critical resource waters include, NOAA- managed marine sanctuaries and marine monuments, and National Estuarine Research Reserves. The district engineer may designate, after notice and opportunity for public comment, additional waters officially designated by a state as having particular environmental or ecological 7 significance, such as outstanding national resource waters or state natural heritage sites. The district engineer may also designate additional critical resource waters after notice and opportunity for public comment. (a) Discharges of dredged or fill material into waters of the United States are not authorized by NWPs 7, 12, 14, 16, 17, 21, 29, 31, 35, 39, 40, 42, 43, 44, 49, 50, 51, and 52 for any activity within, or directly affecting, critical resource waters, including wetlands adjacent to such waters. (b) For NWPs 3, 8, 10, 13, 15, 18, 19, 22, 23, 25, 27, 28, 30, 33, 34, 36, 37, and 38, notification is required in accordance with general condition 31, for any activity proposed in the designated critical resource waters including wetlands adjacent to those waters. The district engineer may authorize activities under these NWPs only after it is determined that the impacts to the critical resource waters will be no more than minimal. 23. Mitigation. The district engineer will consider the following factors when determining appropriate and practicable mitigationnecessary to ensure that adverse effects on the aquatic environment are minimal.: (a) The activity must be designed and constructed to avoid and minimize adverse effects, both temporary and pe.manent, to waters ofthe United States to the maximum extent practicable at the project site (i.e., on site). (b) Mitigation in all its forms (avoiding, minimizing, rectifying, reducing, or compensating for resource losses) will be required to the extent necessaryto ensure that the adverse effects to the aquatic environment are minimal. (c) Compensatory mitigation at a minimum one -for -one ratio will be required for all. wetland losses that exceed 1/10-acre and require: pre -construction notification, unless the district engineer determines in writing that either some other form of mitigation would be more environmentally appropriate or the adverse effects of the proposed activity are minimal, and provides a project -specific waiver ofthis requirement. For wetland losses of 1/10-acre or less that require pre -construction notification, the district engineer may determine on a case -by -case basis that compensatory mitigation is required to ensure that the activity results in minimal adverse effects on the aquatic environment.. Compensatory mitigation projects provided to offset losses of aquatic resources must comply with the applicable provisions of 33 CFR part 332.. (1) The prospective permittee is responsible for proposing an appropriate compensatory mitigation option if compensatory mitigation is necessary to ensure that the activity results in minimal adverse effects on the aquatic environment. (2) Since the likelihood of success is greater and the impacts to potentially valuable uplands are reduced, wetland restoration should be the first compensatory mitigation option considered. (3) If pennittee-responsible mitigation is the proposed option, the prospective permittee is responsible for submitting a mitigation plan. A conceptual or detailed mitigation plan may be used by the district engineer to make the decision on the NWP verification request, but a final mitigation plan that addresses the applicable requirements of 33 CFR 332.4(c)(2) - (1.4) must be approved by the district engineer before the permittee begins work in waters of the United States, unless the district engineer determines that prior approval of the final mitigation plan is not practicable or not necessary to ensure timely completion ofthe required compensatory mitigation (see 33 CFR 332.3(k)(3)). 8 (4) If mitigation bank or in -lieu fee program credits are the proposed option, the mitigation plan only needs to address the 'baseline conditionsat the impact site and the .number of credits to be provided. (5) Compensatory mitigation requirements (e.g.„ resource type and amount to be provided as compensatory mitigation, site protection, ecological performance standards, monitoring requirements) may be addressed through conditions added to the NWP authorization, instead of components of a compensatory mitigation plan. (d) For losses of streams or other open waters that require pre -construction notification, the district engineer may require compensatory mitigation, such as stream rehabilitation, enhancement, or preservation, to ensure that the activity results in minimal adverse effects on the aquatic environment. (e) Compensatory mitigation will not be used to increase the acreage losses allowed by the acreage limits of the NWPs. For exal.riple, if an NWP has an acreage limit of 1/2-acre, it. cannot be used to authorize any project resulting in the loss of greater than 1/2-acre ofwaters of the United States, even if compensatory mitigation is provided that replaces or restores some of the lost waters. However, compensatory mitigation can and should be used, as necessary, to ensure that a project already meeting the established acreage limits also satisfies the minimal impact requirement associated with the NWPs. (t) Compensatory mitigation plans for projects in or near streams or other open waters will normally include a requirement for the restoration or establishment, maintenance,and legal. protection (e.g., conservation easements) of riparian areas next to open waters. In some cases, riparian areas may be the only compensatory mitigation required. Riparian areas should consist of native species. The width of the required riparian area will address documented water quality or aquatic habitat loss concerns.. Normally, the riparian area will be 25 to 50 feet wide on each side, of the stream, but the district engineer may require slightly wider riparian areas to address documented water quality or habitat loss concerns. If it. is not possible to establish a riparian area on both sides of a. stream, or if the waterbody is a lake or coastal waters, then restoring or establishing a riparian area along a single hank or shoreline may be sufficient. Where both wetlands and open waters exist on the project site, the district engineer will determine the appropriate compensatory mitigation (e.g., riparian areas and/or wetlands compensation) based on what is best for the aquatic environment. on a watershed basis. In cases where riparian areas are determined to be the most appropriate form of compensatorymitigation, the district engineer may waive or reduce the requirement to provide wetland compensatory mitigation for wetland losses. (g) Permittees may propose the use of mitigation banks, in -lieu fee programs,or separate permittee-responsible mitigation. For activities resulting in the loss of marine or estuarine resources, permittee-responsible compensatory mitigation may be environmentally preferable if there are no mitigation banks or in -lieu fee programs in the area that have marine or estuarine credits available for sale or transfer to the pennittee. For permittee-responsible mitigation, the special conditions of the NWP verification must clearly indicate the party or parties responsible for the implementation and performance of th.e compensatory mitigation project, and, if required, its long-tenn management. (h) Where certain functions and services of waters of the United States are permanently adversely affected, such as the conversion of a forested or scrub -shrub wetland to a herbaceous wetland in a .pennanently maintained utility line right-of-way, mitigation may be required to reduce the adverse effects of the project to the .minimal level. 9 24. Safety of Impoundment Structures. To ensure that all impoundment structures are safely designed, the district engineer may require non -Federal applicants to demonstrate that the structures comply with established state dam safety criteria or have been designed by qualified persons. The district engineer may also require documentation that the design has been independently reviewed by similarly qualified persons, and appropriate modifications made to ensure safety. 25. Water Quality. Where States and authorized Tribes, or EPA where applicable, have not previously certified compliance of an NWP with CWA Section 401, individual 401 Water Quality Certification must be obtained or waived (see 33 CFR 330.4(c)). The district engineer or State or Tribe may require additional water quality management measures to ensure that the authorized activity does not result in more than minimal degradation of water quality. 26. Coastal Zone Management. In coastal states where an NWP has not previously received a state coastal zone management consistency concuiTence, an individual state coastal zone management consistency concurrence must be obtained, or a presumption of concurrence must occur (see 33 CFR 330.4(d)). The district engineer or a State may require additional measures to ensure that the authorized activity is consistent with state coastal zone management requirements. 27. Regional and Case -By -Case Conditions. The activity must comply with any regional conditions that may have been added by the Division Engineer (see 33 CFR 330.4(e)) and with any case specific conditions added by the Corps or by the state, Indian Tribe, or U.S. EPA in its section 401 Water Quality Certification, or by the state in its Coastal Zone Management Act consistency determination. 28. Use of Multiple Nationwide Permits. The use of more than one NWP for a single and complete project is prohibited, except when the acreage loss of waters of the United States authorized by the NWPs does not exceed the acreage limit of the NWP with the highest specified acreage limit. For example, if a road crossing over tidal waters is constructed under NWP 14, with associated bank stabilization authorized by NWP 13, the maximum acreage loss of waters of the United States for the total project cannot exceed 1/3-acre. 29. Transfer of Nationwide Permit Verifications. If the permittee sells the property associated with a nationwide permit verification, the permittee may transfer the nationwide permit verification to the new owner by submitting a letter to the appropriate Corps district office to validate the transfer. A copy of the nationwide permit verification must be attached to the letter, and the letter must contain the following statement and signature: "When the structures or work authorized by this nationwide permit are still in existence at the time the property is transferred, the terns and conditions of this nationwide permit, including any special conditions, will continue to be binding on the new owner(s) of the property. To validate the transfer of this nationwide permit and the associated liabilities associated with compliance with its terms and conditions, have the transferee sign and date below." 10 (Transferee) (Date) 30. Compliance Certification. Each permittee who receives an NWP verification letter from. the Corps must provide a signed certification documenting completion of the authorized activity and any required compensatory mitigation. The success of any required permittee- responsible mitigation, including the achievement of ecological performance standards, will be addressed separatelyby the district engineer. The Corps will provide the permittee the certification document with the NWP verification 'letter. The certification document will. include: (a) A statement that the authorized work was done in accordance with the NWP authorization, including any general., regional, or activity -specific conditions; (b) A statement that the implementation of any required compensatory mitigation was completed in accordance with the permit conditions. If credits from a mitigation bank or in -lieu fee program are used to satisfy the compensatory mitigation requirements, the certification must include the documentation required by 33 CFR 332.3(1)(3) to confirm that the .permittee secured the appropriate .number and resource type of credits and (c) The signature of the permittee certifying the completion of the work and mitigation. Further Information 1. District Engineers have authority to determine if an activity complies with the terrns and conditions of an NWP. 2. NWPs do not obviate the need to obtain other federal, state, or local permits, approvals, or authorizations required by law. 3. NWPs do not grant any property rights or exclusive privileges. 4. NWPs do not authorize any injury to the property or rights of others. 5. NWPs do not authorize interference with any existing or proposed Federal project. Colorado Regional Conditions — NWP 27 Applicable Condition and Additional Information Nationwide Permit No. 27 Stream and Wetland Restoration Activities. In Colorado, NWP 27 is revoked for activities that include a fishery enhancement component in perennial streams. These types of projects must be authorized by the Regional Permit No, 12 for Aquatic Habitat Improvement for Stream Channels in Colorado. a. Channel realignment is not authorized by this permit unless it is demonstrated that the realignment is consistent with the natural morphological evolution of the stream. 11 b. Structures authorized by this permit must allow for the upstream and downstream passage of aquatic organisms, including fish native to the reach, unless waived in writing by the District Engineer. c. Structures authorized by this permit must not impede waterborne navigation, including recreational watercrafts, unless waived in writing by the District Engineer. d. The use of concrete/grouting is not allowed in perennial streams unless waived in writing by the District Engineer. e. The construction of water parks (e.g. kayak courses) and flood control projects are not authorized by this pellnit. The following additional information relates to minimization of impacts to jurisdictional waters of the United States, and compliance with existing General Conditions: 1. Permittees are reminded that appropriate erosion and sediment controls arc required in accordance with General Condition No. 12 in order to properly stabilize the site and prevent erosion and siltation into wetlands and other waters downstream. Streambed material or other small aggregate material placed alone for bank stabilization will not meet General Condition No. 12. 2. Permittees are reminded that all compensatory mitigation is required prior to or concurrent with project construction to ensure compliance with the Final Compensatory Mitigation Rule. A complete copy of the Final Compensatory Mitigation Rule may be obtained at the following website: http://www.usace.arniy.mil/cecwpagcs/finalsmr.aspx. 3. Permittees are encouraged to clean heavy equipment prior to and after construction if equipment was previously used in another stream, river, lake, pond or wetland within 10 days of initiating work in order to prevent the spread of New Zealand Mud Snails and other aquatic hitchhikers: a. Remove all mud and debris from equipment (tracks, turrets, buckets, drags, teeth, etc.) and keep the equipment dry for 10 days; or b. Remove all mud and debris from equipment (tracks, turrets, buckets, drags, teeth, etc.) and spray/soak equipment with either a 1:1 solution of Formula 409 Household Cleaner and water, or other approved chemical solutions. Treated equipment must be kept moist for at least 10 minutes; or c. Remove all mud and debris from equipment (tracks, turrets, buckets, drags, teeth, etc.) and spray/soak equipment with water greater than 120 degrees F for at least 10 minutes. 12 Certification of Completed Work Corps File Number: Name of Permittee: Date of Issuance: Expiration Date: Upon completion of the activity authorized by this permit and any initigation required by the permit, sign this certification and return it to the following address: U. S. Army Corps of Engineers Denver Regulatory Office 9307 South Wadsworth Blvd. Littleton, Colorado 80128-6901 Phone (303) 979-4120 Fax (303) 979-0602 Please note that your permitted activity is subject to a compliance inspection by a U. S. Army Corps of Engineers representative. If you fail to comply with this permit you are subject to permit suspension, modification, or revocation, hereby certify that the work authorized by the above referenced permit has been completed in accordance with the terms and conditions of said permit, and required mitigation was completed in accordance with the permit conditions.1 Signature of Permittee If your permit included wetlands monitoring and annual reports, these activities will continue after submittal of this form until you are notified by the Denver Regulatory Office that your mitigation is successful and monitoring reports are no longer required.