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HomeMy WebLinkAboutArmy Corps of Engineers �rT OF CORPS S O OF THE OMAHA DISTRICT R CT l'� f 2 C. /0•—••, �� BILLINGS REGULATORY OFFICE POST OFFICE BOX 2256 BILLINGS, MONTANA 59103 -2256 A TTENTI O REPLY TO N OF DEC '82010 r�rW December 3, 2010 CITY OF LAUREL Regulatory Branch Montana State Program Corps No: NWO- 2010 - 02648 -MTB Subject: Water Main Replacement City of Laurel Attn: Mr. Ken Olson PO Box 10 Laurel, Montana 59044 -0010 Dear Mr. Olson: We have reviewed the Montana joint application submitted on your behalf by Great West Engineering for a Department of the Army (DA) permit to replace a water main over the Yellowstone River on the Highway 212 Bridge at Laurel. The project is located in Sections 15 & 22, Township 2 South, Range 24 East, in Yellowstone County, Montana. Specifically, you requested authorization for the following work in waters of the U.S.: Work Item Description Remove approximately 600 feet of an existing 4" water main along the east side of the a ' bridge from the water treatment plant to Riverside Park. b. Installation of approximately 600 feet of new 4" HDPE water main in the same location. c. 40 linear feet of stream bank will be temporarily impacted during construction. Under the authority of Section 10 of the Rivers and Harbors Act (RHA), DA permits are required for structures or work in, over, under or affecting navigable waters of the U.S. Based on the information you initially provided, the site is located over a navigable water of the U. S. under the authority of RHA Section 10. This is an Approved Jurisdictional Determination. If you disagree with this jurisdictional determination, you have the right to appeal the decision. If you would like more information on the jurisdictional appeal, process, contact this office. Based on the information provided we have determined that the proposed work is authorized by Nationwide Permit (NWP) 12 found in the March 12, 2007 Federal Register (72 FR 11092), Reissuance of Nationwide Permits. Enclosed is a fact sheet that fully describes this NWP and lists the General Conditions that must be adhered to for this authorization to remain valid. Please note that deviations from the original plans and specifications of your project could require additional authorization from this office. In addition to conditions referenced above, the following Special Conditions apply: Condition Description 1 The project will be constructed as described in the joint application received in this office on November 19, 2010. Printed on : Recycled Paper . 2 2 All earthwork operations will be carried out in such a manner that sediment runoff and soil erosion to the river are controlled. 3 The clearing of vegetation will be limited to that which is absolutely necessary for construction and operation of the project. All areas along the bank disturbed or newly created by the construction activity which will 4. not be otherwise stabilized, will be seeded with vegetation indigenous to the area for protection against subsequent erosion. 5 Do not disturb wetland, riparian, or stream bank vegetation to accommodate temporary staging areas, temporary storage areas, or temporary parking areas. Disturbed areas shall be monitored following the project construction and noxious weeds 6. (i.e., Canada thistle, purple loosestrife, leafy spurge and other invasive exotic species) controlled in accordance with Montana State law. Should you at any time become aware that either an endangered or a threatened species, or their critical habitat, exists within the project area, you must immediately notify this office. Although an Individual DA permit involving a public interest review will not be required for the project, this does not eliminate the requirement that you obtain any other applicable Federal, state, tribal, and local permits as required. The Montana Department of Environmental Quality issued the enclosed CWA Section 401 water quality certification for this NWP which also includes General Conditions, all of which must be complied with for that certification to remain valid. This does not eliminate the need to obtain other permits that may be required by that agency. This verification is valid until the work item's NWP is modified, reissued, or revoked. All of the existing NWPs are scheduled to be modified, reissued, or revoked prior to March 18, 2012. It is incumbent upon you to remain informed of changes to the NWPs. We will issue a public notice when the NWPs are reissued. Furthermore, if you commence or are under contract to commence this activity before the date that the relevant NWP is modified or revoked, you will have twelve (12) months from the date of the modification or revocation of the NWP to complete the activity under the present terms and conditions of this NWP. In accordance with the terms and conditions of the NWPs, you are responsible for all work accomplished. If a contractor or other authorized representative will be accomplishing the work authorized by an NWP on your behalf, it is strongly recommended that they be provided a copy of this letter and the attached conditions so that they are aware of the limitations of the applicable NWP. Any activity that fails to comply with all of the terms and conditions of the NWP will be considered unauthorized and subject to appropriate enforcement action. You, as the permittee, understand and agree that, if future operations by the U.S. 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 (Corps), to remove, relocate, or alter the structural work or obstructions caused thereby, without expense to the U.S. No claim shall be made against the U.S. on account of any such removal or alteration. In compliance with General Condition 26, the enclosed Compliance Certification form must be signed and returned to the address listed upon completion of the authorized work and any required mitigation. 3 We are interested in your thoughts and opinions concerning your experience with the Corps' Omaha District Regulatory Program. We have placed an automated version of our Customer Service Survey form at http:// per2. nwp.usace.army.mil/survey.html. At your request, we will mail a paper copy that you may complete and return to us by mail or fax. A copy of this permit verification letter has also been provided to the following: a. Ms. Jackie Kuhl, Great West Engineering, Inc., 115 North Broadway, Suite 500, Billings, Montana 59101 -2003; b. COP Construction, 242 South 64th Street West, Billings, Montana 59106 -2740; and c. Ms. Heidy Bruner, Montana Department of Transportation, PO Box 201001, Helena, Montana 59620 -1001. Please contact Shannon Johnson at (406) 657 -5910 if you have any questions and reference Corps File Number NWO- 2010 - 02648 -MTB. Sincere , 2 11/ Todd N. Tillinger Montana State Program Manager Enclosures 4 COMPLIANCE CERTIFICATION Corps File Number: NWO- 2010 - 02648 -MTB Water Main Replacement Name of Perniittee: City of Laurel County: Yellowstone County, Montana Date of Issuance: December 3, 2010 COE Project Manager: Shannon Johnson Upon completion of the activity authorized by this permit and any mitigation required by the permit, sign this certification and return it to the following address: US Army Corps of Engineers Helena Regulatory Office 10 West 15th Street, Suite 2200 Helena, Montana 59626 -9705 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 the conditions of this permit, you are subject to permit suspension, modification, or revocation. I hereby certify that the work authorized by the above referenced permit has been completed in accordance with the terms and conditions of the said permit, and required mitigation was completed in accordance with the permit conditions. Signature of Permittee Date FACT SHEET NATIONWIDE PERMIT 12 Effective March 19, 2007 UTILITY LINE ACTIVITIES. Activities required for the construction, maintenance, repair, and removal of utility lines and associated facilities in waters of the United States, provided the activity does not result in the loss of greater than 1/2 acre of waters of the United States. Utility lines: This NWP authorizes the construction, maintenance, or repair of utility lines, including outfall and intake structures, and the associated excavation, backfill, or bedding for the utility lines, in all waters of the United States, provided there is no change in pre - construction contours. A "utility line" is defined as any pipe or pipeline for the transportation of any gaseous, liquid, liquescent, or slurry substance, for any purpose, and any cable, line, or wire for the transmission for any purpose of electrical energy, telephone, and telegraph messages, and radio and television communication. The term "utility line" does not include activities that drain a water of the United States, such as drainage tile or french drains, but it does apply to pipes conveying drainage from another area. Material resulting from trench excavation may be temporarily sidecast into waters of the United States for no more than three months, provided the material is not placed in such a manner that it is dispersed by currents or other forces. The district engineer may extend the period of temporary side casting for no more than a total of 180 days, where appropriate. In wetlands, the top 6 to 12 inches of the trench should normally be backfilled with topsoil from the trench. The trench cannot be constructed or backfilled in such a manner as to drain waters of the United States (e.g., backfilling with extensive gravel layers, creating a french drain effect). Any exposed slopes and stream banks must be stabilized immediately upon completion of the utility line crossing of each waterbody. Utility line substations: This NWP authorizes the construction, maintenance, or expansion of substation facilities associated with a power line or utility line in non -tidal waters of the United States, provided the activity, in combination with all other activities included in one single and complete project, does not result in the loss of greater than 1/2 acre of waters of the United States. This NWP does not authorize discharges into non -tidal wetlands adjacent to tidal waters of the United States to construct, maintain, or expand substation facilities. Foundations for overhead utility line towers, poles, and anchors: This NWP authorizes the construction or maintenance of foundations for overhead utility line towers, poles, and anchors in all waters of the United States, provided the foundations are the minimum size necessary and separate footings for each tower leg (rather than a larger single pad) are used where feasible. Access roads: This NWP authorizes the construction of access roads for the construction and maintenance of utility lines, including overhead power lines and utility line substations, in non -tidal waters of the United States, provided the total discharge from a single and complete project does not cause the loss of greater than 1/2 -acre of non -tidal waters of the United States. This NWP does not authorize discharges into non -tidal wetlands adjacent to tidal waters for access roads. Access roads must be the minimum width necessary (see Note 2, below). Access roads must be constructed so that the length of the road minimizes any adverse effects on waters of the United States and must be as near as possible to pre - construction contours and elevations (e.g., at grade corduroy roads or geotextile /gravel roads). Access roads constructed above pre- construction contours and elevations in waters of the United States must be properly bridged or culverted to maintain surface flows. This NWP may authorize utility lines in or affecting navigable waters of the United States even if there is no associated discharge of dredged or fill material (See 33 CFR Part 322). Overhead utility lines constructed over section 10 waters and utility lines that are routed in or under section 10 waters without a discharge of dredged or fill material require a section 10 permit. This NWP also authorizes temporary structures, fills, and work necessary to conduct the utility line activity. Appropriate measures must be taken to maintain normal downstream flows and minimize flooding to the maximum extent practicable, when temporary structures, work, and discharges, including cofferdams, are necessary for construction activities, access fills, or dewatering of construction sites. Temporary fills must consist of materials, and be placed in a manner, that will not be eroded by expected high flows. Temporary fills must be removed in their entirety and the affected areas returned to pre - construction elevations. The areas affected by temporary fills must be revegetated, as appropriate. Notification: The permittee must submit a pre - construction notification to the district engineer prior to commencing the activity if any of the following criteria are met: (1) the activity involves mechanized land clearing in a forested wetland for the utility line right -of -way; (2) a section 10 permit is required; (3) the utility line in waters of the United States, excluding overhead lines, exceeds 500 feet; (4) the utility line is placed within a jurisdictional area (i.e., water of the United States), and it runs parallel to a stream bed that is within that jurisdictional area; (5) discharges that result in the loss of greater than 1 /10 -acre of waters of the United States; (6) permanent access roads are constructed above grade in waters of the United States for a distance of more than 500 feet; or (7) permanent access roads are constructed in waters of the United States with impervious materials. (Sections 10 and 404) Note 1: Where the proposed utility line is constructed or installed in navigable waters of the United States (i.e., section 10 waters), copies of the pre- construction notification and NWP verification will be sent by the Corps to the National Oceanic and Atmospheric Administration (NOAA), National Ocean Service (NOS), for charting the utility line to protect navigation. Note 2: Access roads used for both construction and maintenance may be authorized, provided they meet the terms and conditions of this NWP. Access roads used solely for construction of the utility line must be removed upon completion of the work, accordance with the requirements for temporary fills. Note 3: Pipes or pipelines used to transport gaseous, liquid, liquescent, or slurry substances over navigable waters of the United States are considered to be bridges, not utility lines, and may require a permit from the U.S. Coast Guard pursuant to Section 9 of the Rivers and Harbors Act of 1899. However, any discharges of dredged or fill material into waters of the United States associated with such pipelines will require a section 404 permit (see NWP 15). General Conditions: To qualify for NWP authorization, the prospective permittee must comply with the following general conditions, as appropriate, in addition to any regional or case- specific conditions imposed by the division engineer or district engineer. 1. Navigation. (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 permittee'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. Culverts placed in streams must be installed to maintain low flow conditions. 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 Breeding 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. 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 the 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 bank 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 Flows. 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. Heavy 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. 14. Proper Maintenance. Any authorized structure or fill shall be properly maintained, including maintenance to ensure public safety. 15. 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 in the area (e.g., National Park Service, U.S. Forest Service, Bureau of Land Management, U.S. Fish and Wildlife Service). 16. 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. 17. 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. 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. (c) 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 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 may be affected by the proposed work or that utilize the designated critical habitat that may be affected by the proposed work. The district engineer will determine whether the proposed activity "may affect" or will have "no effect" to listed species and designated critical habitat and will notify the non - Federal applicant of the Corps' determination within 45 days of receipt of a complete pre - construction notification. In cases where the non - Federal applicant has identified listed species or critical habitat that might be affected or is in the vicinity of the project, and has so notified the Corps, the applicant shall not begin work until the Corps has provided notification the proposed activities will have "no effect" on listed species or critical habitat, or until Section 7 consultation has been completed. (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, 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 U.S. FWS and NMFS or their world wide Web pages at http: / /www.fws.gov/ and http: / /www.noaa.gov /fisheries.html respectively. 18. Historic Properties. (a) In cases where the district engineer determines that the activity may affect properties listed, or eligible for listing, in the National Register of Historic Places, the activity is not authorized, until the requirements of Section 106 of the National Historic Preservation Act (NHPA) have been satisfied. (b) Federal permittees should follow their own procedures for complying with the requirements of Section 106 of the National Historic Preservation Act. Federal permittees must provide the district engineer with the appropriate documentation to demonstrate compliance with those requirements. (c) Non - federal permittees must submit a pre - construction notification to the district engineer if the authorized activity may have the potential to cause effects to any historic properties listed, 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)). 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 which the activity may have the potential to cause effects and so notified the Corps, the non - Federal applicant shall not begin the activity until notified by the district engineer either that the activity has no potential to cause effects or that consultation under Section 106 of the NHPA has been completed. (d) The district engineer will notify the prospective permittee within 45 days of receipt of a complete pre - construction notification whether NHPA Section 106 consultation is required. Section 106 consultation is not required when the Corps determines that the activity does not have the potential to cause effects on historic properties (see 36 CFR §800.3(a)). If NHPA section 106 consultation is required and will occur, the district engineer will notify the non- Federal applicant that he or she cannot begin work until Section 106 consultation is completed. (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, explaining 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. 19. Designated Critical Resource Waters. Critical resource waters include, NOAA- designated marine sanctuaries, National Estuarine Research Reserves, state natural heritage sites, and outstanding national resource waters or other waters officially designated by a state as having particular environmental or ecological significance and identified by the district engineer after notice and opportunity for public comment. The district engineer may also designate additional critical resource waters after notice and opportunity for comment. (a) 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, and 50 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 27, 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. 20. Mitigation. The district engineer will consider the following factors when determining appropriate and practicable mitigation necessary 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 permanent, to waters of the 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) will be required to the extent necessary to ensure that the adverse effects to the aquatic environment are minimal. (c) Compensatory mitigation at a minimum one - for -one ratio will be required for all wetland losses that exceed 1 /10 acre and require pre - construction notification, unless the district engineer determines in writing that some other form of mitigation would be more environmentally appropriate and provides a project- specific waiver of this requirement. 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. 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. (d) For losses of streams or other open waters that require pre - construction notification, the district engineer may require compensatory mitigation, such as stream restoration, 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 example, 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 of waters 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. (f) Compensatory mitigation plans for projects in or near streams or other open waters will normally include a requirement for the establishment, maintenance, and legal protection (e.g., 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. 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 compensatory mitigation, 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 arrangements or separate activity- specific compensatory mitigation. In all cases, the mitigation provisions will specify the party responsible for accomplishing and/or complying with the mitigation plan. (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 permanently maintained utility line right -of -way, mitigation may be required to reduce the adverse effects of the project to the minimal level. 21. 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. 22. Coastal Zone Management. Not Applicable. 23. 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. 24. 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. 25. 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 terms 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." (Transferee) (Date) 26. Compliance Certification. Each permittee who received an NWP verification from the Corps must submit a signed certification regarding the completed work and any required mitigation. The certification form must be forwarded by the Corps with the NWP verification letter and will include: (a) A statement that the authorized work was done in accordance with the NWP authorization, including any general or specific conditions; (b) A statement that any required mitigation was completed in accordance with the permit conditions; and (c) The signature of the permittee certifying the completion of the work and mitigation. 27. Pre - Construction Notification. See Web version at https: / /www.nwo.usace. army. mil /html /od -r /factsheets /factsh.html 28. Single and Complete Profect. 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. Further Information 1. District Engineers have authority to determine if an activity complies with the terms 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. 2007 NATIONWIDE PERMITS REGIONAL CONDITIONS STATE OF MONTANA OMAHA DISTRICT — CORPS OF ENGINEERS Effective March 19, 2007 1. Fens All nationwide permits, with the exception of 3, 5, 6, 20, 27, 32, 38 and NWP 47, are revoked for use in fens in Montana For these nationwide permits (except NWP 47) permittees must notify the Corps in accordance with General Condition No. 27 (Notification) prior to initiating any regulated activity impacting fens in Montana. Fens are wetlands that are characterized by waterlogged spongy ground and contain (in all or in part) soils classified as histosols (e.g. peat, muck) or mineral soils with an organic surface layer Peat accumulations can be from one to more than 10 feet deep. Fens develop on flat to gently sloping terrain, and are sustained by both groundwater and surface flow. Fens typically support uncommon plant and animal species. Dominant vegetation types usually include grasses, sedges, rushes and some species of shrubs. 2. Springs For all nationwide permits, except NWP 47, permittees must notify the Corps in accordance with General Condition No. 27 (Notification) for regulated activities located within 100 feet of the water source in natural spring areas in Montana. For purposes of this condition, a spring source is defined as any location where there is groundwater flow emanating from a distinct point at any time during the growing season. Springs do not include seeps and other groundwater discharge areas where there is no distinct point source. 3. Riffle and Pool Complexes For all nationwide permits, except NWP 47, permittees must notify the Corps in accordance with General Condition No. 27 (Notification) prior to initiating any regulated activity involving the discharge of dredge or fill material into riffle and pool complexes. 4. Forested Wetlands For all nationwide permits, except NWP 47, permittees must notify the Corps in accordance with General Condition No. 27 (Notification) prior to in itiating any regulated activity involving the discharge of dredge or fill material into a forested wetland. Forested wetlands are characterized by woody vegetation that is 20 feet tall or taller. They are located where moisture is relatively abundant, particularly along rivers and in the mountains and normally possess an overstory of trees and an understory of young trees or shrubs and an herbaceous layer. 5. Yellowstone River, Bitterroot River, Missouri River, the Flathead River above Flathead Lake and Flathead Lake In addition to those nationwide permit activities that require notification to the Corps, all activities, except those activities authorized by NWP 47, proposed to be undertaken on these rivers require prior notification to the Corps in accordance with General Condition No. 27 (Notification). 6. Placement and Removal of Temporary Fills Temporary fills in wetlands must be placed on a horizontal marker layer such as fabric or certified weed - free straw to delineate the pre - project ground elevation and facilitate complete fill removal and site restoration. 7. Channel Straightening and Relocation Activities For all nationwide permits, except NWP 47, permittees must notify the Corps in accordance with General Condition No. 27 (Notification) prior to straightening, relocating and/or shortening an existing perennial stream channel. The total channel length reduction must be less than 100 feet, and the project must be necessary to prevent significant damage to existing structures (roads, buildings, bridges, etc.). 8. Temporary Vegetation Impacts Limit clearing of riparian or wetland vegetation to the absolute minimum necessary. Where temporary riparian or wetland vegetation impacts are unavoidable, mow or cut off the vegetation above the ground, leaving the topsoil and root mass intact Restore disturbed areas to original contours and use seeding and planting as necessary to re- establish desirable vegetative cover, utilizing native species in areas where native species were impacted. 9. Erosion Control Blanket All erosion control blanket or fabric used in or adjacent to waters of the U. S. must be natural and biodegradable to ensure decomposition. Do not use material that includes a synthetic or ultraviolet (UV) stabilized mesh, as those products take a long time to degrade and trap small animals, birds, amphibians and fish. 10. Historic Properties The permittee and/or the permittee's contractor, or any of the employees, subcontractors or other persons working in the performance of a contract or contract(s) to complete the work authorized by any Nationwide Permit, shall cease work and report the discovery of any previously unknown historic or archeological remains to the Helena Regulatory Office. Notification shall be by telephone or fax within 24 hours of the discovery and in writing within 48 hours. Work shall not resume until the permittee is notified by the Helena Regulatory Office. 11. Nationwide Permits 3 — Maintenance and 45 - Repair of Uplands Damaged by Discrete Events "Discrete Event," as used in these nationwide permits, does not include runoff events equal to or less than the bankfull discharge. 12. Nationwide Permit 12 - Utility Line Activities Permittees must notify the Corps in accordance with General Condition No. 27 (Notification) prior to initiating any utility line activity that involves the discharge of dredged or fill material into any open water including lakes, ponds and flowing streams. 13. Nationwide Permit 13 - Bank Stabilization Permittees must notify the Corps in accordance with General Condition No. 27 (Notification) prior to initiating any bank stabilization activity that exceeds 300 linear feet or utilizes broken concrete. Additionally, the following requirements apply: For bank revetments such as riprap, rootwads or any bioengineered revetment, a. though c. apply: a. the revetment must conform to the existing bankline. b. the revetment must not extend above the elevation of the existing top of the bank (i.e., no new levees). c. the revetment must not wholly or partially block flows from entering a side channel or an overflow channel. For bank stabilization structures that project into the stream, such as weirs, barbs or vanes, d. though i. apply: d .The bank -end of the structure can be no higher than the ordinary high water mark. e. The top of the structure must decrease in elevation as it extends away from the bank. f. The structures must angle upstream from the bank. g _The structures must be keyed into the bed and the bank. h. The structure must not wholly or partially block flows from entering a side channel or an overflow channel i. The structure cannot extend out more than 25% of the bankfull channel width from the existing bank. 14. Nationwide Permit 27 - Aquatic Habitat Restoration, Establishment, and Enhancement Activities Notifications for pond projects must demonstrate there will be no net loss of emergent wetlands (if present) once the pond site matures in order for the project to qualify for NW27. Monitoring will be required to assure no net loss of emergent wetlands. Nationwide Permit 27 will not be used to authorize berms or similar structures for on -stream ponds on perennial streams. Additional Information Suitable Material Permittees are reminded of the General Condition No. 6 which prohibits the use of unsuitable material. In addition, organic debris, building waste, and materials containing excessive fine sediment are not suitable material. Montana Department of ENV][RO t UALITY Brian Schweitzer, Governor P.O. Box 200901 • Helena, MT 59620 -0901 • (406) 444 -2544 • www.deq.mt.gov May 4, 2007 Water Quality Certification In Accordance With Section 401 of the Clean Water Act For The 2007 Nationwide Permits in Montana A. General Conditions for Nationwide Permits 1) This certification does not authorize the placement or construction of septic /leach systems or other sewage treatment plants in wetlands. 2) This certification does not authorize construction of dams, except for stream restoration projects and temporary dams associated with construction activity. 3) This certification requires that materials used in stream bank stabilization projects adhere to the Montana Department of Environmental Quality's December 5, 2000 guidelines for materials for stream bank stabilization. 4) This certification requires that all equipment be inspected for oil, gas, diesel, anti - freeze, hydraulic fluid and other petroleum leaks. Equipment cannot continue operating in or near the water if a leak is discovered. All such leaks will be properly repaired prior to equipment being allowed on the project. Leaks that occur after the equipment is moved to the project site will be fixed that same day or the next day or be removed from the project area. If equipment is to be operated in or near water, a spill containment kit shall be available at the project site. 5) This certification requires that bridge decks shall, to the maximum extent practicable, incorporate design features that do not allow the direct drainage of deck run -off laden with sand/salt, to discharge directly into state waters. B. Special Conditions for Specific Nationwide Permits 1) 401 Water Quality Certification is granted for Nationwide Permits 1 -11, 14 -25, 28-44, 46 -50. Enforcement Division • Permitting & Compliance Division • Planning, Prevention & Assistance Division • Remediatioa Division 2) Nationwide Permit #12 (utility line activities) is certified for fiber optic projects where a static or vibratory plow is used, there are less than 12.stream crossings or the crossing is done in the dry. For all other projects that qualify for this NWP, DEQ denies 401 Water Quality Certification. This will allow DEQ to consider water quality standard related conditions for smaller projects that would not qualify for our review under the Montana Major Facilities Siting Act. 3) DEQ denies 401 Water Quality Certification for Nationwide Permit # 27 (stream and wetland restoration activities) for projects in all water bodies, including projects that involve 303 (d) listed water quality limited water bodies. Traditionally, DEQ waived certification for non - listed water bodies, but due to on going listing and de- listing of water bodies in the program, DEQ reserves the 401 Water Quality Certification option for all water bodies. This will give DEQ the option of providing Total Maximum Daily Load (TMDL) monitoring conditions for projects that may qualify for TMDL restoration type activities. 4) DEQ denies 401 Water Quality Certification for Nationwide Permit #13 (bank stabilization) for projects greater than 300 lineal feet in all water bodies. This will allow us to further our goals of improving bank stabilization techniques and also complement TMDL projects involving impairments related to habitat alterations. As always, our staff will coordinate with your staff to define certain water bodies and project sizes that will not require our 401 Certification review. 5) DEQ denies 401 Water Quality Certification for Nationwide Permit #45 (repair of uplands damaged by discrete events) Since this is one of the new Nationwide permits, we want to reserve our 401 Water Quality Certification option to see how and to what degree it will be applied to river and stream projects.