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determine applicable measures to reduce impacts to migratory birds or eagles,including whether"incidental take"permits are necessary and available
<br /> under the Migratory Bird Treaty Act or Bald and Golden Eagle Protection Act for a particular activity.
<br /> 20.Historic Properties.
<br /> (a)In cases where the district engineer determines that the activity may have the potential to cause effects to properties listed,or eligible for
<br /> listing,in the National Register of Historic Places,the activity is not authorized,until the requirements of Section 106 of the National Historic
<br /> Preservation Act(NHPA)have been satisfied.
<br /> (b)Federal permittees should follow their own procedures for complying with the requirements of section 106 of the National Historic
<br /> Preservation Act.If pre-construction notification is required for the proposed NWP activity,the Federal permittee must provide the district
<br /> engineer with the appropriate documentation to demonstrate compliance with those requirements.The district engineer will verify that the
<br /> appropriate documentation has been submitted.If the appropriate documentation is not submitted,then additional consultation under section
<br /> 106 may be necessary.The respective federal agency is responsible for fulfilling its obligation to comply with section 106.
<br /> (c)Non-federal permittees must submit a pre-construction notification to the district engineer if the NWP activity might have the potential to
<br /> cause effects to any historic properties listed on,determined to be eligible for listing on,or potentially eligible for listing on the National Register
<br /> of Historic Places,including previously unidentified properties.For such activities,the pre-construction notification must state which historic
<br /> properties might have the potential to be affected by the proposed NWP activity or include a vicinity map indicating the location of the historic
<br /> properties or the potential for the presence of historic properties.Assistance regarding information on the location of,or potential for,the
<br /> presence of historic properties can be sought from the State Historic Preservation Officer,Tribal Historic Preservation Officer,or designated
<br /> tribal representative,as appropriate,and the National Register of Historic Places(see 33 CFR 330.4(g)).When reviewing pre-construction
<br /> notifications,district engineers will comply with the current procedures for addressing the requirements of section 106 of the National Historic
<br /> Preservation Act.The district engineer shall make a reasonable and good faith effort to carry out appropriate identification efforts,which may
<br /> include background research,consultation,oral history interviews,sample field investigation,and field survey.Based on the information
<br /> submitted in the PCN and these identification efforts,the district engineer shall determine whether the proposed NWP activity has the potential
<br /> to cause effects on the historic properties.Section 106 consultation is not required when the district engineer determines that the activity does
<br /> not have the potential to cause effects on historic properties(see 36 CFR 800.3(a)).Section 106 consultation is required when the district
<br /> engineer determines that the activity has the potential to cause effects on historic properties.The district engineer will conduct consultation with
<br /> consulting parties identified under 36 CFR 800.2(c)when he or she makes any of the following effect determinations for the purposes of section
<br /> 106 of the NHPA:no historic properties affected,no adverse effect,or adverse effect.Where the non-Federal applicant has identified historic
<br /> properties on which the activity might have the potential to cause effects and so notified the Corps,the non-Federal applicant shall not begin the
<br /> activity until notified by the district engineer either that the activity has no potential to cause effects to historic properties or that NHPA section
<br /> 106 consultation has been completed.
<br /> (d)For non-federal permittees,the district engineer will notify the prospective permittee within 45 days of receipt of a complete pre-construction
<br /> notification whether NHPA section 106 consultation is required.If NI-IPA section 106 consultation is required,the district engineer will notify the
<br /> non-Federal applicant that he or she cannot begin the activity until section 106 consultation is completed. If the non-Federal applicant has not
<br /> heard back from the Corps within 45 days,the applicant must still wait for notification from the Corps.
<br /> (e)Prospective permittees should be aware that section 110k of the NHPA(54 U.S.C.306113)prevents the Corps from granting a permit or
<br /> other assistance to an applicant who,with intent to avoid the requirements of section 106 of the NHPA,has intentionally significantly adversely
<br /> affected a historic property to which the permit would relate,or having legal power to prevent it,allowed such significant adverse effect to occur,
<br /> unless the Corps,after consultation with the Advisory Council on Historic Preservation(ACHP),determines that circumstances justify granting
<br /> such assistance despite the adverse effect created or permitted by the applicant.If circumstances justify granting the assistance,the Corps is
<br /> required to notify the ACHP and provide documentation specifying the circumstances,the degree of damage to the integrity of any historic
<br /> properties affected,and proposed mitigation.This documentation must include any views obtained from the applicant,SHPO/THPO,appropriate
<br /> Indian tribes if the undertaking occurs on or affects historic properties on tribal lands or affects properties of interest to those tribes,and other
<br /> parties known to have a legitimate interest in the impacts to the permitted activity on historic properties.
<br /> 21.Discovery of Previously Unknown Remains and Artifacts. If you discover any previously unknown historic,cultural or archeological remains and
<br /> artifacts while accomplishing the activity authorized by this permit,you must immediately notify the district engineer of what you have found,and to the
<br /> maximum extent practicable,avoid construction activities that may affect the remains and artifacts until the required coordination has been completed.The
<br /> 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
<br /> eligible for listing in the National Register of Historic Places.
<br /> 22.Designated Critical Resource Waters.Critical resource waters include, NOAA-managed marine sanctuaries and marine monuments,and National
<br /> Estuarine Research Reserves.The district engineer may designate,after notice and opportunity for public comment,additional waters officially designated
<br /> by a state as having particular environmental or ecological significance,such as outstanding national resource waters or state natural heritage sites.The
<br /> district engineer may also designate additional critical resource waters after notice and opportunity for public comment.
<br /> (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,
<br /> 42,43,44,49,50,51,and 52 for any activity within,or directly affecting,critical resource waters,including wetlands adjacent to such waters.
<br /> (b)For NWPs 3,8, 10, 13, 15, 18, 19,22,23,25,27,28,30,33,34,36,37,38,and 54,notification is required in accordance with general
<br /> condition 32,for any activity proposed in the designated critical resource waters including wetlands adjacent to those waters.The district
<br /> engineer may authorize activities under these NWPs only after it is determined that the impacts to the critical resource waters will be no more
<br /> than minimal.
<br /> 23.Mitigation.The district engineer will consider the following factors when determining appropriate and practicable mitigation necessary to ensure that
<br /> the individual and cumulative adverse environmental effects are no more than minimal:
<br /> (a)The activity must be designed and constructed to avoid and minimize adverse effects,both temporary and permanent,to waters of the
<br /> United States to the maximum extent practicable at the project site(i.e.,on site).
<br /> (b)Mitigation in all its forms(avoiding,minimizing, rectifying, reducing,or compensating for resource losses)will be required to the extent
<br /> necessary to ensure that the individual and cumulative adverse environmental effects are no more than minimal.
<br /> (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-
<br /> construction notification,unless the district engineer determines in writing that either some other form of mitigation would be more
<br /> environmentally appropriate or the adverse environmental effects of the proposed activity are no more than minimal,and provides an activity-
<br /> specific waiver of this requirement.For wetland losses of 1/10-acre or less that require pre-construction notification,the district engineer may
<br /> determine on a case-by-case basis that compensatory mitigation is required to ensure that the activity results in only minimal adverse
<br /> environmental effects.
<br /> (d)For losses of streams or other open waters that require pre-construction notification,the district engineer may require compensatory
<br /> mitigation to ensure that the activity results in no more than minimal adverse environmental effects.Compensatory mitigation for losses of
<br /> streams should be provided,if practicable,through stream rehabilitation,enhancement,or preservation,since streams are difficult to-replace
<br /> resources(see 33 CFR 332.3(e)(3)).
<br /> (e)Compensatory mitigation plans for NWP activities in or near streams or other open waters will normally include a requirement for the
<br /> restoration or enhancement,maintenance,and legal protection(e.g.,conservation easements)of riparian areas next to open waters.In some
<br /> cases,the restoration or maintenance/protection of riparian areas may be the only compensatory mitigation required.Restored riparian areas
<br /> should consist of native species.The width of the required riparian area will address documented water quality or aquatic habitat loss concerns.
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