06-17-2019 Planning Commission Packet

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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,or during low tides. 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 and compliance with applicable NWP general conditions,as well as any activity-specific conditions added by the district engineer to an NWP authorization. 15.Single and Complete Project.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. (a)No NWP 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. (b)If a proposed NWP activity will 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,the permittee must submit a pre- construction notification(see general condition 32).The district engineer will coordinate the PCN with the Federal agency with direct management responsibility for that river.The permittee shall not begin the NWP activity until notified by the district engineer that the Federal agency with direct management responsibility for that river has determined in writing that the proposed NWP activity will not adversely affect the Wild and Scenic River designation or study status. (c)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).Information on these rivers is also available at:http://www.rivers.gov/. 17.Tribal Rights.No NWP activity may cause more than minimal adverse effects on tribal rights(including treaty rights),protected tribal resources,or tribal lands. 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 ESA section 7 consultation addressing the effects of the proposed activity has been completed.Direct effects are the immediate effects on listed species and critical habitat caused by the NWP activity.Indirect effects are those effects on listed species and critical habitat that are caused by the NWP activity and are later in time,but still are reasonably certain to occur. (b)Federal agencies should follow their own procedures for complying with the requirements of the ESA.If pre-construction notification is required for the proposed activity,the Federal permittee must provide the district engineer with the appropriate documentation to demonstrate compliance with those requirements.The district engineer will verify that the appropriate documentation has been submitted. If the appropriate documentation has not been submitted,additional ESA section 7 consultation may be necessary for the activity and the respective federal agency would be responsible for fulfilling its obligation under section 7 of the ESA. (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 activity,or if the activity 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 activity or that utilize the designated critical habitat that might be affected by the proposed activity.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 preconstruction 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 activity,and has so notified the Corps,the applicant shall not begin work until the Corps has provided notification that the proposed activity will have"no effect"on listed species or critical habitat,or until ESA section 7 consultation 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 permit conditions to the NWPs. (e)Authorization of an activity by an 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 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. (f)If the non-federal permittee has a valid ESA section 10(a)(1)(B)incidental take permit with an approved Habitat Conservation Plan for a project or a group of projects that includes the proposed NWP activity,the non-federal applicant should provide a copy of that ESA section 10(a)(1)(B)permit with the PCN required by paragraph(c)of this general condition.The district engineer will coordinate with the agency that issued the ESA section 10(a)(1)(B)permit to determine whether the proposed NWP activity and the associated incidental take were considered in the internal ESA section 7 consultation conducted for the ESA section 10(a)(1)(B)permit.If that coordination results in concurrence from the agency that the proposed NWP activity and the associated incidental take were considered in the internal ESA section 7 consultation for the ESA section 10(a)(1)(B)permit,the district engineer does not need to conduct a separate ESA section 7 consultation for the proposed NWP activity.The district engineer will notify the non-federal applicant within 45 days of receipt of a complete pre-construction notification whether the ESA section 10(a)(1)(B)permit covers the proposed NWP activity or whether additional ESA section 7 consultation is required. (g)Information on the location of threatened and endangered species and their critical habitat can be obtained directly from the offices of the FWS and NMFS or their World Wide Web pages at http://www.fws.gov/or http://wwv.fws.gov/ipac and http://www.nmfs.noaa.gov/pr/species/esa/respectively. 19.Migratory Birds and Bald and Golden Eagles.The permittee is responsible for ensuring their action complies with the Migratory Bird Treaty Act and the Bald and Golden Eagle Protection Act.The permittee is responsible for contacting appropriate local office of the U.S.Fish and Wildlife Service to Page 3 of 7