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South Carolina Coastal Council Freshwater Wetland Policy Selected Information and Correspondence (to include nationwide permits for Section 404) MEMORANDUM SOM TO: Wayne Beam CAMINA FROM: Steve Snyder COAS1AL COUNCIL DATE: February 29, 1988 te Center SUBJECT: Coastal Council policy regarding freshwater wetlands Place North Suite 300 Charleston, S.C. 29405 (M -5 T ) 7(W443) M744-SM7 Policies for projects impacting freshwater wetlands in the John C. Hayes, III coastal zone are found in the South Carolina Coastal Zone Management Chaitman Program. Specific wetland resource policies exist for residential, H. Wayne Beam, Ph.D. commercial, industrial, and other development projects (see attached Executive Dftctor listing of policies dealing with wetland development); however, the underlying policy can be summarized as follows: Project proposals which would require fill or other significant permanent alteration of a productive freshwater wetland will not be approved unless no feasible alternative exists or an overridding public interest can be demonstrated, and any substantial environmental impacts can be minimized. This policy applies to all projects requiring a direct South Carolina Coastal Council permit and all projects within the eight-county coastal zone requiring Coastal Council certification of any state or federal permit. The resource policies do not distinguish between wetland types; however, the Coastal Zone Management Program specifically lists the following as coastal wetland resources: salt marsh, brackish and freshwater marsh, coastal impoundments, mud and sand f'lats, oyster reefs, swamps and bottom lands, savannahs, pocosins, and Carolina bays (Chapter I, C.1.). A further break down is made between alluvial wetlands (bottomland flood plains) and non-alluvial wetlands (inland groundwater-fed wetlands) (Chapter I, C.l.f.), with both types catagorized collectively as "swamps and bottomlands" and both types providing similar functions. In addition, three of the wetland types (savannah, pocosins, and Carolina bays) are generally non-alluvial isolated wetlands. Wetlands of the type listed above have been specifically determined by the S. C. Coastal Zone Management Plan to be of "such long range, comprehensive importance as to be in the national interest" (Chapter III, C.1.1 p. 111-5) and are intentially "reflected throughout all the Resource Policies, which provide strong protection against unwarranted dredging, filling or other permanent alteration of salt, brackish and freshwater wetlands" (Chapter III, e.1, p. 111-7). The resource policies are clear and provide little flexibility. The staff and the Management Committee have worked together over the past two years to establish precedence for implementation of wetland policy. The committee and therefore the staff have allowed wetland impacts only under the terms of the policy. The only exceptions are development of storm water management.systems in wetlands where no other alternatives are feasible and in those cases where the wetland area is extremely small and isolated (for example, less than 0.2 acres). Mitigation has been required in all but the smallest of projects. mksO373D/(86/87) cc: Mr. Christopher L. Brooks FRESHWATER WEILAND DEVELOPMENT SELECTED POLICIES SOUTH CAROLINA COASTAL ZONE MANAGEMENT PROGRAM (Chapter III-, Policy Section I. W(b)). Residential development which would require filling or other permanent alteration of salt, brackish or freshwater wetlands will be prohibited, unless no feasible alternatives exist or an overriding public interest can be demonstrated, and any substantial environmental damage can be minimized. These marshes are valuable habitat for wildlife and plant species and serve as hydrologic buffers, providing for absorption of storm water runoff and aquifer recharge, and therefore, their destruction for residential purposes must be avoided whenever possible. (p. (Chapter III, Policy Section II. B. (1)(0). Construction of private roadways for private access shall be allgned to avoid salt, brackish and freshwater wetlands wherever feasible, and, where applicable, must provide bridges, culverts or other means to maintain circulation and water flow. (p. 111-22). (Chapter III, Policy Section II. C. (1)(a)). To the extent feasible, new airport facilities shall not encroach into salt, brackish or freshwater wetlands. Permit applications involving dredge or fill to construct these facilities in wetland areas generally shall be denied, unless no feasible alternatives exist or an overriding public interest can be demonstrated, and any substantial environmental damage can be minimized. (p. 111-24). (Chapter III, Policy Section II. E. (1)(a)). The filling or other permanent alteration of productive salt,, brackish or freshwater wetlands'will be prohibited for purposes of parking unless no feasible alternatives exist, the facility is directly associated with a water-dependent activity, any substantial environmental impacts can be minimized, and an overriding public interest can be demonstrated. (p. 111-27). (Chapter III, Policy Section III. A. (1)(b)(ii))'. Ditching for drainage from uplands shall avoid passing through productive wetlands to the maximum extent practicable. (p. ILT-30). (Chapter III,, Policy Section III. C. (1)(b)). Dredge or strip mining operations are prohibited in wetland areas, unless no feasible alternatives exist and the benefits of mining outweigh the adverse impacts. If all or part of a mining site must involve water bodies or wetland areas, policies for dredging (VIII (A) of the Resource Policies) shall apply. (p. 111-32). (Chapter III, Policy Section III. D. (1)(b)). The filling or other permanent alteration of productive f'resh, brackish and saltwater wetland areas for manufacturing facilities and related activities or structures will be prohibited, unless no feasible alternatives exist and any substantial environmental impact can be minimized. To the extent feasible heavy industry shall be directed away from ecologically sensitive areas such as marshes, forested wetlands, pocosins, etc. (p. 111-34). (Chapter III, Policy Section IV. (1)(b)). Commercial proposals which require fill or other permanent alteration of salt, brackish or freshwater wetlands will be denied unless no feasible alternatives exist and the facility is water-dependent. Since these wetlands are valuable habitat for wildlife-and plant species and serve as hydrologic buffers, providing for storm water runoff and aquifer rechargeg commercial development is discouraged in these areas. The cumulative impacts of the commercial activity which exists or is likely to exist in the area will be considered. (p. III-Q). (Chapter III, Policy Section V. B. (1)(a)). Proposals which include the filling or other permanent alteration of productive salt, brackish or freshwater wetlands will not be approved unless no feasible alternatives exist. (P. III-"). (Chapter III, Policy Section VIL A. (1)(a)). Activities deemed, by the South Carolina Coastal Council in consultation with the South Carolina Wildlife and Marine Resources Departmentq to'have a significant negative impact on wildlife and fisheries resourcest whether it be on the stocks themselves or their habitat, will not be approved unless overriding socio-economic considerations are involved. In reviewing permit applications relative to wildlife and fisheries resources, social and economic impacts as well as.biological impacts will be considered. (p. 111-51). (Chapter III, Policy Section VIII. A. (l)(d)). Dredging for establishment of new canals which involves permanent alteration of valuable wetland habitats will be prohibited unless no feasible alternative exists or an overwhelming public interest can be demonstrated. Establishnent of canals for purposes of creating waterfront lots from Inland property, especially where dead-end canals would result, will be prohibited unless it can be demonstrated that there will be no significant envirordnental impacts. (p. 111-55). (Chapter III,, Policy Section XII. E. (1)). ProJect proposals which would require fill or other significant permanent alteration of a productive freshwater marsh will not be approved unless no feasible alternative exists or an overriding public interest can be demonstrated,, and any substantial environmental impact can be minimized. (p. 111-73). -b. In the interest of protecting navigational safety, bridges spanninp n( outh Carolina navigable waters must provide adequate cleara is q8q f r boating. These clearances are set by the South Carolina ter R ources Commission. A minimum'of Vvertical clearance 10, hon ontal clearance are required. However, greater clearen s may be r uired under some circumstances. c. In I interest of protecting navigational safety, stru res in navi- gable w ters must be constructed within certain limi (generally no more tha one third the distance across the wate y). d. In the in rest of protecting the rights of adi ent riparian land- owners, it i generally. the policy of the S th Carolina Water ResourcesCo mission not to allow encroach nt in fro'nt of adjacent lands by a per ted activity unless the per applicant has obtained written permissi from the affected party. e. Tofurtherconsi rmajorprojectim cts itis highly recommended that a pireapplicatio, int enc nference be held for such proposed activities. osc;Z@five Y plicants can be advised and guided by such meeting assist i reproject planning that will meet the needs of the applicant ndal protect the resource involved. This planning approach maybe ar ed and continued through the permit review process. Project plan ay be modified over the course of time to avoid or minimize adver esource impacts. In certain specific circumstances a proposal y a applicant to replace or compensate for unavoidable detrimen to So Carolina navigable waters may be considered by the So h Carolin Water Resources Commission accordingt Y 'h:dSo establishe in the permit regulations. 0 proced 9. Agency Conta Anyone planni o perform construction alteration work in navi- a rs gable waters uth Carolina orwaterbodie t uncertain navigability status shoul contact the South Carolina Wat Resources Commis- sion prior the initiation of any work. The h Carolina Water Resourc Commission staff is available to answ questions on the permitti program, make jurisdictional determin tionand provide appli ions for required permits. Individuals requ ting additional it info ation should contact the Permit Administra or, outh Carolina W er Resources Commission, 1201 Main Street, uite 1100. umbia, South Carolina 29201, phone A/C 803-737-0 0. C. SOUTH CAROLINA COASTAL COUNCIL 1. Coastal Zone Management Program Consistency Certificadon South Carolina's Coastal Zone Management Act of 1977 (Act 123) defines the state's coastal zone as "all coastal waters and submerged lands seaward to the State's jurisdictional limits and all lands and waters in the counties of the State which contain any one or more of the critical areas." The critical areas, all of which are saft water wetlands, fall under the S.C. Coastal Council's direct permitting authority. Freshwater wetlands, however, are given protection through the Council's regulatory authority known as certification. Through Us ch e certification process the Coastal Council reviews all activities requiring permits by other state agencies, as well at federal agencies, to 19 determine if the project is consistent with the Coastal Zone Manage- ment Program. In order to receive certification approval, an activity must be determined to be consistent with relevant policies contained in the S.C. Coastal Management Program, including the S. C. Coastal Council Storm Water Management Guidelines. These policies and guidelines are aimed at protecting freshwater wetland areas as well as the quality of our surface waters. Without Coastal Council certification, a permit for the particular activity in question cannot be issued by the permitting agency. in summary the S. C. Coastal Council exerts an indirect regulatory authority over freshwater wetlands. A Coastal Council permit is not required for activities in freshwater wetlands; however, Coastal Council certification is mandatory whenever the permit of another state agency or a federal agency is required for a particular activity. The activity must be consistent with the Coastal Zone Management Plan. 2. Procedure The certification process works as follows, When an individual wants to pursue an activity (e.g., construction of a dock. boat ramp, bulkhead; dredging in a wetland, mining in a wetland; placing fill in a wetland for commercial or housing development; impounding a welland; construc-' tion of water supply lines or wastewater lines, etc.) which falls under the permitting authority of a state or federal agency, he must apply to the particular agency or agencies for a permit.The state or federal agency notifies the S. C. Coastal Council through a standard public notice or other type of notification (depending on the activity involved), and a review of the proposed activity is begun by Council staff. After its review, which can involve review of site plans *and/or site visits, the Council makes a decision on the project and notifies the permitting agency or agencies as well as the applicant of its determination. This determination will always be one of the following: a. the project is consistent with the Coastal Zone Management Program, b. the project is inconsistent with the Coastal Zone Management Program, c. the project is inconsistent but can be made consistent by making certain identified modifications to.the original plans. In the instance of a large project /development where a pro blem (i.e., conflict with the S. C. Coastal Management Program policies) with certification is obvious atthe beginning of its review, the staff will try to contact the applicant and make him aware of the problem(s) in order that modifications in plans may be discussed. Developers of large projects (e.g., commercial and/or housing developments) are encouraged to seek Coastal Council input early-on before application is made. 3. Basic Freshwater Wetland Policy Policies for projects impacting freshwater wetlands in the coastal zone are found in the South Carolina Coastal Zone Management Program. 20 -Specific wetland policies exist for residential, commercial, industrial, and other developmental projects; however, the underlying policy can be summarized as follows: Project proposals which would require fill or other significant perma- nent alteration of a productive freshwater wetland will not be approved unless: no feasible alternative exists or an overriding public interest can be demonstrated, and any substantial environmental impacts can be minimized. This policy applies to all projects requiring a direct South Carolina Coastal Council permit and all projects within the eight-county-coastal zone requiring Coastal Council certification of any other state or federal permit. The most basic advice to developers of land containing freshwater wetlands is to avoid them. Encroachment (filling, dredging, ditching, impounding) into wetlands will only be allowed in limited circumstances as defined under the Coastal Zone Management Program. Exceptions are discussed in the following sections on storm water management and wetland master planning. 4. Developing Storm Water Management Systems In Freshwater Wetlands Many projects within the coastal zone will be located within or adjacent to freshwater wetlands. These wetlands are natural filters and can often be utilized as receiving areas for storm water runoff. Therefore, these wetland systems, when combined with other storm water best management practices, can frequently be incorporated into the overall drainage plan. The Council does 'not support the wholesale conversion of natural wetlands into lagoon or lake systems, but will approve the use of these areas in their natural state or with necessary alterations as part of the storm water management system. When using freshwater wetlands in the storm water management system, a well-planned effort is required to avoid any potential damage to the natural resource. The system should include a variety of individual best management practices that work together to achieve the desired results. For example, a pre-treatment lake located in high ground adjacent to a wetland can reduce sediment loads, remove oils and greases and attenuate storm water volumes. Also grassed swales could be used to collect and convey storm water to a distribution system (spreader swale, overflow berm, r1prap discharge structure, etc.) to ensure sheefflow of storm water through the wetland. This provides for greater contact of the storm water with the vegetation of the wetland and ensures a longer residence time within the wetland. All projects using wetlands in their storm water design must incorporate an extensive sediment and erosion control plan during construction. The entire wetland area needs to be protected against any potential sediment intrusion. In addition, all projects of this type should include a mechanism to minimize the amounts of oils and greases entering the wetlands. The following guidelines will be used in evaluating such systems: a. When freshwater wetlands are involved in a project site, the 21 -following order of design priorities will be used for storm water systems: (1) Avoid the wetlands, use highground alternatives (i.e., ponds, swales, etc). (2) Use wetlands in their natural state. (a) For low density residential, sheetflow storm water over grassed area into wetlands using other best management practices as appropriate. (b) For all other development, the general storm water manage- ment guidelines must be met prior to release into wetlands. (c) Manage water levels to maintain the hydrology of the natural wetland. (3) Excavate storage requirements out of immediately adjacent highground and overflow into the wetland area for additional treatment. (4) In special cases where the above alternatives are impractical, the Council staff will coordinate with the applicant to identify alternatives. b. Where natural wetland values are lost due to digging adjacent to or in freshwater wetlands, a combination of the following design criteria will apply to help replace some of the lost values: (1) Construct submerged 10:1 shelves, 10 - 15 feet wide, around a portion or portions of the storm water pond for emergent vegetation (slope and width can vary to meet the particular situation). Consult with Council staff biologist for depth of shelf. (2) Leave islands or peninsulas of natural wetland vegetation. (3) Leave 25 - 50 feet wide upland buffer of natural vegetation around a portion or portions of the storm water pond for a transitional zone. (4) Design the water level management system to maintain welland values. (5) Consider the need for revegetation of created or disturbed wetlands. 5. Wetland Master Planning Guidelines The Coastal Council, in conjunction with other state and federal agencies involved in wetland review, encourages a comprehensive approach to wetland management. To promote such an approach. the Council has utilized a "wetland master planning" concept. Simply stated, the guidelines are as follows: If a pre-development wetland master plan is prepared for a project, identifying all wetlands, drainage patterns and conceptual develop- ment, isolated freshwater wetlands of one (1) adre or less in size may be incorporated into the project development as. necessary provided: 1. the wetlands contain no endangered species or critical habitat, and 2. the welland losses are adequately rn itigated. The wetland master plan must be certified by the Coastal 22 'Council with input from other reviewing agencies as necessary. 6. Agency Contact OAT M- eTLAt-z For information regarding Coastal Council certification of projects containing freshwater wetland3 contact: Planning and Certification Division South Carolina Coastal Council 4280 Executive Place North, Suite 300 Charleston, S. C. 29405 Telephone: A/C 803-744-5838 D. SOUTH CAROLINA DEPARTMENT OF HEALTH AND ENVIRON- MENTAL CONTROL 1. ocedures a. pplication Process Th 01 Water Quality Certification procedure formally begins aft the rps of Engineers reviews each Corps application, determi s that er Quality Certification, pursuant to Section 401 the Clean ter Act, is required from the Department of He h and Environm tal Control (DHEC), and issues a joint pub notice advertisi ng e application. The public notice sta s that it Sal constitute r uest on behalf of the applicant for 401 ertification- fromDHEC..For al review of the application begins u onreceiptby DHEC of the Cor public notice. b. Review and Publi Notice Process Written comments s miffed during the d ignated comment period in each joint pu *c notice are revi:ew and considered by reque DHEC staff. The DHEC taff may r ues; dditional information r' u from the applicant any tim uring the rev:i process but preferably ti e 9w 0@ immediately upon rec ipt a review o he public notice. After the public comment period and iew all available information, DHEC staff prepates a staff as ss nt considering all application materials, supporting documen n. and other comments. DHEC staff will generally complete th i ssessment within 15 days after the public notice comment ri ends. The Department then issues a public notice of * own ich identifies the proposed project, summaries the 1 ormation i the application package, gives the location wher the assessme and related files may be reviewed, announce the Department prepared to make a certifica * d * ' , and issues notice o ime and place for a "on 'ec S'o Section,401 publ:c earing. The hearing is hel n every application for certification. c. Section 401 ublic Hearing The public aring are generally consolidated h rings where several a lications; are considered.-The hearings re usually conducte by a Department staff member who is a desi nee of the Board. e public hearings are conducted after proper fice and r a t t e t the ime and place directed by the hearing office e pro- c cee gs are recorded and transcribed. The record of the earing re ins open for 15 calendar days to receive rebuttal or s pple- ntal information from the participants. The final record inclu es a rbatim hearing transcript with all exhibfts. 23 Vil. WETLAND The Coastal Council, in conjunction with other state and federal MASTER agencies involved in wetland review, encourages a comprehensive PLANNING approach to wetland management. To promote such an approach, the Council has utilized a "wetland master planning" concept. Simply stated, the guidelines are as fo!lows: If a pre-development wetland master plan is prepared for a project identifing all wetlands, drainage patterns and conceptual development pattern, isolated freshwater wetlands of one (1) acre or less in size may be incorporated into the project development as necessary provided: 1. the wetlands contain no endangered species or critical habitat, and 2. the wetland losses are adequately mitigated. The wetland master plan must be certified by the Coastal Council with input from other reviewing agencies as necessary. Vill. GENERAL The following do's and don'ts are not conclusive but experience has GUIDANCE shown that without adherence to these concepts substantial project delays can be anticipated. A. Development Do's and Don'ts DO'S 1. Avoid all encroachments into wetlands. 2. Minimize any impacts that cannot be avoided. 3. Incorporate wetlands in their natural state as part of a project's storm water management plan. 4. Get agency input by attending South Carolina Coastal Council interagency meeting before initiating a new project. 5. Include all phases of a development when submitting a plan for public review.The intended use for all wetlands on-site should be included. 6. Fully incorporate the freshwater wetlands into the master plan. 7. Incorporate buffer zones around preserved wetlands." DOWTS 1. Don't finalize development plans before addressing site wetlands. 2. Don't purchase property until investigating amount of wetlands on site. 3. Don't proceed With project plans using consultant's wetland delineation. Always verity lines with Corps of Engineers first. 4. Don't submit development plans in a piecemeal fashion. 5. Don't submit mitigation plans until all other options are exhausted and wetlands impacts have been minimized to the greatest extent possible. 6. Don't plan extensive canals through.freshwater wetlands to create waterfront lots or water access. 48 7. Don't excavate freshwater wetlands to create lakes or ponds. 8. Don't dam off flowing streams to create open water ponds. 9. Don't fill freshwater wetlands to create residential or commerical lots. 10. Don't undertake any project without first obtaining all necessary permits or certifications. B. Planning Approach In the early planning processes of developing a conceptual master plan for a development, either commerical or residential, careful consideration should be given to freshwater wetlands. In developing the master plan, the three considerations discussed below must be employed if a project is to proceed in an orderly and timely manner. I.. Avoidance In developing a layout for a parcel or tract of land containing freshwater wetlands every effort should be made to avoid encroachments intothese areas. A well planned development can capitalize on the presence of the wetlands by utilizing them in their natural state for storm water management, or as open space, green areas or natural areas. Wetlands can be a selling point for the development from both an aesthetic and an environmental view- point. While specific data is not available the general public are much more environmentally conscious than ever before. Thus, avoiding wetlands can enhance your development and allow the project to proceed unencumbered by the permitting process. 2. Minimization If the wetlands located on the tract cannot be avoided, then every effort must be made to minimize encroachments into these areas. Early planning is always the key to minimizing impacts on the aquatic resource. The wetlands can be used for storm water management in either their natural state, as mentioned above, or by excavating a portion of the wetlands to i'ncrease the volume needed for retention. Minimization can be attained in a number of fashions but is generally considered to have occurred when the discharges are held to the minimum necessary to achieve a project purpose. Examples of minimization include but are not limited to: a. obtaining access to the property through wetlands only when no highland access is available, b. bridging all or a portion of the wetlands, c. providing steeper side slopes for access fills, d. providing a single access rather than multiple accesses, e. confining the development to the highland areas with only minor encroachments to shape the land. Minimization of project encroachments into'wetlands can significantly shorten the time required to obtain authorization for the project under nationwide permit #26 or under an individual permit. 3. Compensation Compensation for wetlands impacted by a project should be a consideration for developers from the early steps of planning even though it is not always required. If the project encroachments are 49 necessary to fulfill the intent of the project, the project is water dependent, and no other alternative sites or methods are available that would have lesser impacts on the aquatic resource, compensation may not be required. However, when encroachments cause impacts on wetlands beyond those absolutely necessary to accomplish the intent of the project, compensation will be required to offset the losses resulting from those encroachments. Compensation can take many forms. Some forms of compensation are as follows: a. creation of vegetated wetlands. This is not always accom- plished on a 1:1 ratio. In some instances the ratio can vary from the 1:1 to as much as 5:1. That is to say 5 acres for every acre impacted by the project. b. restoration and/or enhancement of significantly impaired wetlands. c. dedication of lands to an appropriate entity with provisions that require them to be preserved in their natural state in perpetuity. A willingness to compensate for wetland impacts does not necessarily mean that a permit will be granted. First and foremost, a project must be found to be consistent with the 404(b)(1) Guidelines. In addition, a project must be determined to be "not contrary to the public interest". To reach these conclusions all efforts must have been made to avoid. and/or minimize wetland encroachment/ alterations. Compensation may be used to tip the public interest scales to the positive side and may also be used to influence a finding of compliance with the 404(b)(1) Guidelines. so FLOM CHART r HATIOHMIDS PEMI? 26 - PROCESS IN ?K1 COASTAL SOM C'm 4aTA,,DI!w PIN IN WAL NO I va M CHAR SEE CRAM A, MD n IN N is NJIN CO )s AM S 10 91 DOCMOITIGN j u a CO&NIIN K ION Q1 'I QSI&O' lux mmh 11D wrqa, Lit LIKIII, 10 H I In m hi va GM NO ; Hn E, LIM METIAMINC11D a mmo -41 @Avpm 46 FLOM CHAR? W INIVIDUAL PUMIT PROCESS FOR IMMMAIEN IVIAM A TRI ZPA PUBLIC Comm$ Imclan ANA 0 NORMALLY i LA99 N 30 TO 45 DAVS OM MERAt AJTA OTH? 01 E coin nAg RAMS 42 no coART c, S. C. COASTAL COUNCIL CERTIFICATION ?ROCES$ FOR FRESHMAID MIANK A ICANIT I no F 11106 , TINO I a Pulf HER AGENC or= NA St IND N F ?MID COW 0XT;L%T Nil" Hn own uqlvEs In ENENT 9 r DO Omms RECTIVR. A v HA us ITIN FUN 44 June 23, 1986 Robert K. Dawson U.S. Army Corps of Engineers Room 2E 570 Pentagon Washington, D.C. 20310 Dear Mr. Dawson: The South Carolina Coastal Council and the Charleston District Corps of Engineers have been negotiating over the Section 404 Permit Program and the nationwide permits promulgated by the Corps of Engineers. we have been attempting to resolve the objection of the South Carolina Coastal Council to Nationwide Permit No. 26. As a result of these negotiations, the Coastal Council now submits the following Federal consistency determination to replace the one originally submitted. "The South Carolina Coastal Council maintains its position that Nationwide Permit No. 26 (33CFR3830.5(a)(26)) is not consistent with the South Carolina Coastal Management Program since it would allow the filling or other alteration of wetlands in contravention of program policies found in chapters III. and IV. Specifically, these policies are found in chapter III. C. 3 Resource Policies, Sections I. 1(b); II. B. (a); II. E. 1(a); III. C. 1(b); III. D.1(b); III. E. l(c); IV. l(b); V. B. l(a); VIII. B. l(a); IX. A. l(c); IX. B. l(b); IX. C l(b); IX. E. l(d); and XII. E. 1. However, the Coastal. Council would certify a regional condition or modification that would provide that an individual certification from the Coastal Council is required for all projects involving 10 acres or less of wetlands which are in the coastal zone of South Carolina." The Charleston District and the South Carolina Coastal Council have agreed upon procedures to implement both programs in a cooperative fashion. I would like to commend the Charleston District personnel for their efforts and time in reaching the agreement in regard to this nationwide permit. We believe that the agreed upon procedure and this change in our consistency statement will be to the benefit of the general public and to both of our regulatroy programs. Sincerely, H. Wayne Beam Executive Director HWB:0235A1jb cc: Senator James M. Waddell, Jr., Chairman Christopher L. Brooks, Deputa Director Newman J. Smith, Staff Attorney Lt. Col. F. L. Smith, Jr., Charleston District Corps Peter Tweedt, Asst. Administrator, OCRM Joe Uravitch, Regional Manager, OCRM Nat'&onwide Permit #26 allows fill of all less tnan I acre wetlands and some 1 10 acre wetlands. The filling of freshwater wetlands is inconsistent with the policies of the South Carolina Coastal Management Program. Therefore, the Coastal Council denied federal consistency certification of Nationwide Permit #26. This means that all proposals to fill freshwater wetlands under the Corps' jurisdiction must go through the regular 404 Permit process. Nationwide Permit #26 is not effective in South Carolina's coastal zone. Only wetlands less than 10 acres are affected. The Corps and the Coastal Council have negotiated a possible way of proceeding that would allow for Coastal Council review of these fill proposals while streamlining the process. The Corps could issue a modification of Nationwide Permit #26 tnat would require Coastal Council review and certification prior to Corps authorization for any fill. If the Coastal Council found a proposal consistent, the applicant could proceed under Nationwide Permit #26. If the Coastal Council found a proposal to be inconsistent, then a full application and review would be required. This procedure would mean that an application for a fill would not be required in all cases. The existing Pre-Discharge Notice in the Corps rules could be used rather than an application for all proposals impacting 10 acres or less. Only if the Coastal Council finds the proposal to be inconsistent would a full application and review be required. The Fish and Wildlife Service would also review the Pre-Discharge Notices, but because the negotiated procedures replaced'the strict time-requirements of the Corps' rule the Fisn and Wildlife Service would have more than 3 weeks to complete their review. NJS:0248Aljb South Carolina Coastal Council James M. Waddell, Jr. H. Wayne Beam, Ph.D Chairman Executive Director JUNE 20, 1984 C.E. Edgar, III Brigadier General, U.S. Army Deputy Director Civil Works Department of the Army Office of the Chief of Engineers Washington, D.C. 20314 Dear Brigadier General Edgar: The S. C. Coastal Council hereby submits its final position on the nationwide permits referred to in your letter of April 9, 1984. 1. Since the Coastal Council must issue its own permit for any activity covered by the nationwide permits in the critical areas of South Carolina's coastal zone, the nationwide permits are found to be consistent with the S. C. Coastal Management Program as they apply to any of such activities in the critical areas of the coastal zone. 2. For of the coastal zone outside of the critical areas the following nationwide permits are certified-to be consistent with the S. C. Coastal Management Program: 33.5(a)(1), (2), (3), (4), (5), (6), (7), (9), (10), (11), (13),(15), (17), (20), (21), (22), (24) and (25). 3. For areas of the coastal zone outside of the critical areas the following nationwide permits are certified provided. the indicated provisions are complied with: 330.5(a)(8)- provided such structures are approved by the Coastal Council in an Exploration or Development Plan pursuant to 15 CFR 930. 330.5(a)(12)- provided that the affected area be sealed to prevent sedimentation and turbidity in adjacent areas by the use of silt curtains or other methods; and that shellfish and other Indigenous organisms are protected from the detrimental effects of such activities. 330.(5)(a)(14)- provided that fill associated with such permitted activities will not restrict the normal flow of waters on any side of the activity or an adjacent area. 330.(5)(a)(16) - provided that the conditions of the S. C. Department of Health and Environmental Control are complied with for any such activity. C.E. Edgar, 111 -2- June 20,1984 4. For areas of the coastal zone outside of the critical areas the following nationwide permits are found to be inconsistent with the S. C. Coastal Management Program and any activities that would otherwise come under these nationwide permits must be certified as being consistent with the S. C. Coastal Management Program on an individual case by case basis: 330. (5) (a) (18), (19), (23) and (26). Thank you for the opportunity to review these nationwide permits. The cooperation of the U. S. Corps of Engineers in implementing the S. C. Coastal Management Program is appreciated. Sincerely, H. Wayne Beam Executive Director HWB:dms/0015d cc: Senator James M. Waddell, Jr. 13 CFR Ch. 11 (7-1-86 Edition) Corps of Engineers, Dept. of the Army, DoD � 330.4 engineer. as described above. finding should be forwarded to the Di- unless otherwise stated. These nation- vision Engineer, changes are not con- wide permits apply only to Depart- may be answered by an inter- aidered final until a determination has ment of the Army regulatory pro- which indicates that a final been made by the Division Engineer. grams (other Federal agency, state etermination must be made and local authorizations may be re- ;vision Engineer. U a need de. PART 330-NATIONWIDE PERMITS quired for the activity). ir an emergency deterinina- ,rict Engineers may act In re- Sec. 1330.2 Definitions. i a finding prepared as In 330.1 General. (a) The definitions of 33 CPR Parts of this parL The report of 330.2 Definitions. 321 through 329 are applicable to the should then be forwarded to 330.3 Nationwide permits for activities oc- ion Engineer on an expedited curing before certain datea. term used in this part. 330.4 Public notice. (b) Discretionary authority means ere determinations have been 330.5 Nationwide permits. the authority delegated to division en. the Division Engineer. inquir- 330.6 Management practices. gineers In 1330.7 of this part to over- 330.7 Notification procedures. ride provisions of nationwide permits ding the navigability of sPe- 330.3 Discretionary authority. to add regional conditions or to re. tionis of waterbodies covered 330.9 Expiration of nationwide permita. : determinations may be an- AuTHoarrr. 33 U.S.C. 403; 33 U.S.C. 1344. quire individual permit applications. 5 follows: Souftcr- 47 PR 31831. July 22.1982, unless 1330.3 Nationwide permits for activities partment, In the administration of otherwise noted. occurring before certain datea, gmeted by Congress for the protec- preservation of the navigable 1330.1 General. The following activities are permit, the United States. has determined The purpose of this regulation Is to ted by a nationwide permit which was - (River) (Bay) (lAke. etc.) is describe the Department of the Issued on 19 July 1977 and need not be le water of the United States from further permitted: - to - . Actions which Army's nationwide permit program (a) Discharges of dredged or fill ma- othemise affect those waten are and to list all current nationwide per- terial In wate-s of the United States the jurisdiction of this Depart- mIts which have been issued by pubH- ether such actions occur within or cation herein. The two types of gener- outside the limits of navigable waters ic navigable areas. &I permits are referred to as "nation. of the United States that occurred ecific Inquiries regarding the wide permits" and "regional permits." before the-phase-In dates which began 'ion of the Corps of Engineers A nationwide permit is a form of gen- July 25, 1975. and extended Section Lnswered only after a determi- eral permit which authorizes a catego- 404 jurisdiction to aU waters of the ihether (1) the waters are nav- ry of activities throughout the nation. United States. These phase-in dates taters of the United States or The authority for general permits to are: after July 25, 1975, discharges Into be Issued by district engineers on a re- navigable waters of the United States )t navigable. whether the pro- and adjacent wetlands: after Septem- ype of activity may neverthe- gional basis is contained In 33 CPR Part 325. Copies of regional permits ber 1. 1976, discharges into navigable iffect the navigable waters of can be obtained from the appropriate waters of the United States and their Led States that the assertion of primary tributaries, including adjacent )ry jurisdiction Is deemed nec- district engineer. Nationwide permits are designed to allow the work to wetlands. and into natural lakes. occur with little. If any. delay or pa- greater than 5 acres In surface area. Use and maintenance of lists of perwork. However. the nationwide per- and after July 1. 1977. discharges into -mInations. mits are valid only if the conditions all waters of the United States. applicable to the nationwide permits M Structures or work completed Lbulated Usts of final determl- are met. Just because a condition before IS December 1968 or In water- of navigability are to be main. cannot be met does not necessarily bodies over which the District Engi- [n each District office, and be mean the activity cannot The author. neer was not asserting jurisdiction at I as necessitated by court decl- ized but mther that the activity will the time the activity occurred provid- arisdictional inquiries, or other have to be authorized by an Individual ed. in both Instances. there is no inter- I conditions. or regional permit. Additionally. divi- ference with navigation. should be noted that the lists sion engineers have the discretion, nt only those waterbodles for under situations and procedures de- 9330.4 Public tootice. leterminations have been made; scribed herein, to override the nation- (a) Chief of Engineers. Upon pro- from that list should not be wide permit coverage and'require an posed Issuance of new nationwide per- .s an indication that the water- not navigable. individual or regional permit. The na- mits. modification to, or relssuance of. eletions from the list are not tionwide permits am Issued to satisfy existing nationwide permits, the Chief zed. if a change In status of a the requirements of both Section 10 of of Engineers will publish a notice In 3dy from navigable to non-navi- the River and Harbor Act of 1899 and the F@MERAL RrGisTzR seeking public deemed necessw7. an updated Section 404 of the Clean Water Act comments and including the opportu- 503 Corps of Engineers, 330.5 33 CFR Ch.11 (7-1-86 Edition) this part), and furt nty for a public hearing. This notice provided such repair. rehabilitation, or Provisions of the will state the availability of informa- replacement does not result In a devi- In 33 CFR 209.135. tion, at the Office of the Chief of En- ation I from the plans of the original (9) Structures plac gineers and at all district offices, structure or fill and further provided which reveals the Corps' provisional that the structure or fill to be main- age or fleeting areas age of vessels where determination that the proposed ac- tained has not been put to uses differ- been established by tivites comply with the requirements ing from uses specified for it In any Guard. for issuance under general permit au- permit authorizing its original con- (10) Non-commer prepare this Information which will be authorized by this nationwide permit. mooring buoys. supplemented. If appropriate, by divi- (11) Temporary b (4)Fish and wildlife harvesting de- sion engineers. vices and activities such as pound nets, Placed for recreation (b) District engineers. Concurrent water skiing and bo crab traps, eel pots, lobster traps, duck that the buoy or n with publication In the FEDERAL REGIS- blinds, clam and oyster digging. TER of new or reissued nationwide per- within 30 days after (5) Staff gages, tide gages, water re- discontinued. At C mits by the Chief of Engineers, dis- cording devices. water quality testing trict engineers will so notify the Inter- and Improvement devices, and similar reservoirs. the reserv ested public within the district by an approve each buoy scientific structures. ually. appropriate notice. The notice will In- (6) Survey activities Including core (12) Discharge of clude any applicable regional condi- tions adopted by the division engineer. sampling, seismic exploratory oper. fill or bedding for u (49 FR 39483. OCT.5, 1964) ations. and plugging of seismic shot ing outfall and inta holes and other exploratory-type bore vided there is no 330.5 Nationwide-permits. holes. struction bottom co (7) Outfall structures and associated terial must be remc (a) Authorized activities. The follow- intake structures where the effluent disposal area). A " ing activities, Including discharges of from that outfall has been permitted fined as any pipe dredged or fill material, are hereby under the National Pollutant Dis- transportation of at permitted Provided the conditions Charge Elimination System program listed in paragraph (b) of this section liquifiable, or slurry (section 402 of the Clean Water Act) purpose, and any c and the notification procedures. where (see 40 CFR Part 122) provided that for the transmission required. of 330.7 are met. Comment. the district or division engineer makes of electrical energ Because some states have denied water quality certification/coastal zone con- a determination that the Individual telegraph messages, and cumulative adverse environmental evision communica- sistency for some nationwide Permits effects of the structure itself are mini- line and outfall and reissued herein and many states have granted conditional water quality cer- mal in accordance with 330.7 (c)(2) will require a Sect and (d). Intake structures per se are navigable waters of tification, applicants should check not included-only those directly asso- See 33 CPR Part 3 with the district engineer regarding ciated with an outfall structure are graph (aX7) of this eligibility under the nationwide per- mits. covered by this nationwide permit. (13) Bank stabiliz (1) The placement of aids to naviga- (8) Structures for the exploration, vided: tion and regulatory markers which are production. and transport of oil,gas, (i) The bank stab approved by and installed in accord- and minerals on the outer continental less than 500 feet in ance with the requirements of the US shelf within areas leased for such pur (ii) The activity is Coast Guard (33 CFR Part 66, Sub- poses by the Department of Interior, sion prevention; chapter C). Bureau of Land Management, provid- (iii) The activity ed those structures are not placed (2) Structures constructed in artifi- than an average of cial canals within principally residen- within the limits of any designated running foot place- tial developments where the connec- shipping safety fairway or traffic sepa- within waters of the tion of the canal to a navigable water ration scheme (where such limits have (IV) No material of the United States has been previ- not been designated or where changes of the minimum ously authorized (see 33 CFR are anticipated. District Engineers will protection; 322.4(g). consider recommending the discretion- (3) The repair, rehabilitation, or re- ary authority provided by 330.7 of placement of any previously author ized, currently serviceable. structure Minor deviations due to changes in mate- or fill or of any currently serviceable tialsor construction techniques and which structure or fill constructed prior to are necessary to make repair, rehabilitation, the requirement for authorization; or replacement are permitted. 504 Corps of Engineers, Dept. of Army, DoD (vii) only clean material free of 33O.5 in 33 CPR 209.135. als, unsightly debris, etc. is used; and (9) Structures placed within anchor- (viii) The activity is a single and age or fleeting areas to facilitate moor- complete project. age of vessels where such areas have (14) Minor road crossing fills includ- been established by the U.S. Coast ing all attendant features both tempo- Guard. rary and permanent that are part of a (10) Non-commercial, single-boat, single and complete project for cross- mooring buoys. ingof a non-tidal waterbody, provided (11) Temporary buoys and markers that the crossing Is culverted, bridged placed for recreational use such as or otherwise designed to prevent the water skiing and boat racing provided restriction of and to withstand expect- that the buoy or marker is removed ed high flows I and provided further within 30 days after its use has been that discharges into any wetlands ad. discontinued. At Corps of Engineers Jacent to the waterbody do not extend reservoirs, the reservoir manager must beyond 100 feet on either side of the approve each buoy or marker individ- ordinary high water mark of that wa- ually. terbody. A "minor road crossing fill" Is (12) Discharge of material for back- defined as a crossing that involves the fill or bedding for utility lines includ- discharge of less than 200 cubic yards ing outfall and Intake structures pro- of fill material below the plane of ordi- struction bottom contours (excess ma- Quire a permit from the U.S. Coast terial must be removed to an upland Guard if located in navigable waters of disposal area). A "utility line" is de- the United States (see 33 U.S.C. 301). fined as any pipe or pipeline for the Some road fills may be eligible for an transportation of any gaseous, liquid. exemption from the need for a Section liquifiable, or slurry substance, for any 404 permit altogether (see 33 CPR purpose, and any cable, line, or wire 323.4). for the transmission for any purpose (15) Fill placed incidental to the con- of electrical energy, telephone and struction of bridges across navigable telegraph messages. and radio and tel- waters of the United States including evision communication. (The utility cofferdam , abutments, foundation line and outfall and Intake structures seals, piers. and temporary construc- will require a Section 10 permit if In tion and access fills provided such fill navigable waters of the United States. has been authorized by the U.S. Coast See 33 CPR Part 322. See also para- Guard under section 9 of the River graph (a)(7) of this section.) and Harbor Act of 1899 as part of the (13) Bank stabilization activities pro- bridge permit. Causeways and ap- vided: proach fills are not Included in this (i) The bank stabilization activity is nationwide permit and will require an less than 500 feet in length: Individual or regional Section 404 (ii) The activity is necessary for ero- permit. slon prevention: (16) Return water from a contained (iii) The activity Is limited to less dredged material disposal area provid- than an average of one cubic yard per running foot placed along the bank District Engineers are authorized, where within waters of the United States: regional conditions Indicate the need, to (iv) No material is placed in excess define the term "expected high flows" for of the minimum needed for erosion the purpose of establishing applicability of protection: this nationwide permit. (v) No material is placed In any wet- The return water or runoff from a con- land area; tained disposal area is administratively de- fined as a discharge of dredged material by (vi)No material is placed in any lo- 33 CPR 323.2(j) even though the disposal cation or in any manner so as to itself occurs on the upland and thus does impair surface water flow into or out not require a Section 404 permit. This na- of any wetland area: Continued 505 0 1p Corps of Engineers, D*F 330.5 33 CFR Ch. 11 (7-1-86 Edition). tion 404 at: volve a Sec ed the State has issued a certification mining activities provided they are au- not included in 0UIJS nat under section 401 of the Clean Water thorized by the Department of the In. but many will be exemp Act (see 33 CPR 325.2(b)(1)). The terior, Office of Surface Mining, or by 1, 94-587. of Pub. dredging Itself reuires a Section 10 states with approved program under 322.2(aX2)). permit 0H located In navigable waters Title V of the Surface Mining Control (25) Discharge of con( of the United States. and Reclamation Act of 1977: the ap. ly scaled forms Or cells (17) Fills associated with small hy- propriate district engineer is given the a stru crete Is used as dropower projects at existing reser opportunity to review the Title V which would not other voirs where the project which Includes permit application and all relevant to Clean Water Act Juri the fill is licensed by the Federal Office of Surface Mining or state (as (26) Discharges Of It, Energy Regulatory Commf Ion under the case may be) documentation prior material Into the water., the Federal Power Act of 1920. as to any decision on that application; graphs (aX26) (I) and amended; has a total genemtlng capac- and the district or division engineer tion except those which Ity of not more than 1500 kw (2.000 makes a determination that the Indi- or substantial adverse i horsepower). ualifies for the short- vidual and cumulative adverse effects r more of 10 acres 0 form licensing procedures of the Fed- on the environment from such struc. united States, Includinf eral Energy Regulatory Commission tures, work, or discharges are minimal discharges which cause (see 18 CPR 4.61). and the district or In accordance with 1330.7 (c)(2) and ILdverse modi0f0ic stantiat division engineer makes a determina- (3) and (d). acres of such waters, tion that the Individual and cumula- (22) Minor work or temporary 8druc. lands. notification of 0U, tive adverse effects on the environ tures reuired for the removal of neer Is reuired in ment are minimal In.accordance with wrecked. abandoned, or disabled ves. 1330.7 of this part- sels or the removal of obstructions to (I) Non-tidal rivers, 1330.7 (cX2) and (d). (18) Discharges of dredged or fill navigation. their lakes and impoun, material Into waters of the United (23) Activities, work. and discharges ing adjacent wetlands. t States that do not exceed ten cubic undertaken. assisted, authorized regu above the headwaters. yards as part of a single and complete lated funded or financed. in whole or (11) Other non-tidal project provided no material Is placed In part by another federal agency or United State& includini In wetlands department where that agency or de- lands. that 0& not pal (19) Dredging of no more than ten partment has determined, pursuant to tributary system to in' cubic yards from navigable waters of the C2E Regulation for Implementing or navigable waters I the United States as part of a single the Procedural Provisions of the 6NL- States (Le.. isolated wst' and complete project. t1onal Environmental Policy Act (40 The fc (20) Structures work and discharges CPR Part 1500 et se.), that the actIvi- (b) Conditions. conditions must be fO0l for the containment and cleanup of oil ty. work. or discharge is categorically for the nationwide per and haza ous substances which are excluded from environmental docu- in paraglra4ph (a) of th0l subject to the National Off and H&z. mentation because It Is included valid: ardous Substances Pollution Contin. within a category of actions which nei. (1) That any discharg gency Plan provided the Regional Re- ther Individually nor cumulatively fill material Will Dot Occ have a significant effect on the human sponse Team which is activated under imity of a public water the Plan concurs with the proposed environment, and the Office of the (2) That Any dIschar0g' containment and cleanup actiom Chief of Engineers (ATTN: DAE6N- fill material will not Oc (21) Structures, works. and dis- CWO-N) has been furnished notice of concentrsted shell6f6is- charges associated with surface coal the agency's or department's a4pplica- unless the discharge Is Lion for the categorical exclusion and to a shellfish harvest8J7 concurs with that determination. Prior thorized by paragraph tionwide permit satisfies the technical re- to approval for purposes of this na- section. uirement for a Section 404 for the return 2c; t2ionw2ide permit of any agency's cate- at the activity water where the uality of the return water gorical exclusions. the Chief of En4g6i- 8(38) Th eatened or 0e Is controlled by the state through the Sec- ard2ize a. thr neers will solicit comments through t0ion 401 certification Procedures. . c2ies as Identified und 60704%ese nationwide permits are designed publication In the 12P4MERAL REG188n3L gered Species Act. or for very minor dredge and fill activities such (24) Any activity permitted by a versel8y modify the cr12i' ae't0he removal of a small shoal In a boat state administering its own permit such species. in the slip,. they caonot be used for -piecemeal program for the discharge of dredged agencies, It IS the agen4o dredge and fill activities. or fill material authorized at 33 U.16S.C. 6It2y to review Its sct2ivitl 107413e State of Wisconsin has denied water uality certifications pursuant to Section 13448(g)-(1) shall be permitted pursu- if the &C20UOD "2Ma0Y S16t2: 401 of the Clem Water Act for these two ant to Section 10 of the River and species or critical 28W nationwide permits. Conseuently. the per. Harbor Act of 18969 (33 U.S.C. Part Federal agency must 0m0Its do not apply In Wisconsin. 4036). Those activity a which do not In- 506 it Corps of Engineers, Dept. of the Army DoD 330.5. volve a - Section 404 state permit are Fish and Wildlife Service and/or Na- not included in this nationwide permit tional Marine Fisheries Service: but many will be exempted by Sec. 154 (4) That the activity will not siffnift- y of Pub. L 94-587. (See 33 CFR cantly disrupt the movement of those r 322.2(a)(2)). species of aquatic life indigenous to ly sealed forms or cells where the con- purpose of the fill is to impound (25) Discharge of concrete into tight- the waterbody (unless the primuT e crete is used as a structural member water). I which would not otherwise be subject (5) That any discharge of dredged or t M Mpgn 3MsLtP_r Ant. limisdirtinn- fill material will consist of suitable (26) Discharges of dredged or fill material free from toxic pollutants r material Into the waters listed in Para- (See section 307 of Clean Water Act) gmphs (aX26) (1) and (H) of this see- in toxic amounts: r tion except those which cause the loss (6) That any structure or fill author- or substantial adverse modification of ized will be properly maintained; 10 acres or more of waters of the (7) That the activity will not occur United States, Including wetlands. For in a component of the National Wfld discharges which cause the loss or sub- and Scenic River System: and stantial adverse modification of I to 10 (8) That the activity will not cause acres of such waters. including wet- an unacceptable Interference with lands, notification of the district-engi- navigation. f neer Is required in socordance with (9) That the best management prac. 1330.7 of this part. tices listed in 1330.6 of this put (1) Non-tidal rIvers, streams, and should be followed to the maxim= 4. their lakes and impoundments. Includ- extent practicable. Ing adjacent wetlands. that are located (c) Gran0athering. (1) Dischmes above the headwaters. previously authorized by the nation. (H) Other non-tidal waters of the wide permits Q 330.4(a) (1) and (2) of r United States. including adjacent wet- the July 22. 1982, Interim Final Regu- lands. that are not part of a surface lation) modified and reissued at pars- tributary system to Interstate waters emph (aX26) of this section continue or navigable waters of the United to be authorized by those nationwide States (Le., Isolated waters). permits for 18 months from the effec. (b) Cbndition& The following special Uve date of this regulation, if: conditions must be followed in order (1) The discharge was commenced or for the nationwide permits Identified under contract to commence by the ef. In pamgmph (a) of this section to be fective date of this regulation or valid* 0i) The permiftee had; (1) That any discharge of dredged or (A) By Mamh 29. 1984. received writ, fill material will not occur In the prox- ten confirmation from the Corps stat- imity of a public water supply Intake; ing that the Corps considered the spe- (2) That any discharge of dredged or ctfic discharge In question and deter- concentmted shellfish production the nationwide permits modified and fill material will not occur in areas of mined It was previously authorized. by unless the discharge is dhvcUy related reissued at paragraph (aX26) of this to a shellfish harvesting activity au- section; and thorized by paragmph (aX4) of this (B) By the effective date of this reg. section. ulation, obtained all necessary pre-dis- (3) That the activity will not jeop- charge approvals or permits required ardize a threatened or endangered spk- by federal, state or local laws or regu- cies as Identified. under the Endan- lations. gered Species Act, or destroy or ad- (2) Permitting discharging under versely modify the critical habitat of paragraph (c)(1) of this section must such species. In the case of Federal provide documents demonstrating agencies. It is the agencies' responsibil- compliance to the district engineer Ity to review its activities to determine within 60 days of the effective date of If the action "may affect" any listed this regulation. These documents will species or critical habitat. if so, the become a part of the public record. Federal agency must consult with. the The district engineer will notify such 567 .T. 0 Corps of Engineers, Dept. o 1330.6 33 2CFR Ch. 11 (7-1-86 Edition) permittees whether they meet the cri- shall be avoided or Minimized through (1) Name, address, ai teria of paragraph (cXl) of this sec- the use of other practical alterna2UveL number of the general pem (2) Location of the planne@ tion within 15 days of receipt of such (2) Discharges in spawning aress (3) Brief description of th documents. during spawning seasons shall be (3) If a permittee cannot meet the avoided. work. Its purpose, and th Mate 31M of the waters, In8e criteria of paragraph (c)(1) of this sec- (3) Discharges shall not restrict or tion. but can otherwise demonstrate to lands. which would be lost Impede the movement of auatic spe. the district engineer within 60 days of tIa6My adversely modified as cies Indigenous to the waters or the the work; and the effective date of this regulation. passa e of normal or expected high (4) Any specific infori Investments made toward the dis- flows or cause the relocation of the uired by the nationwide charge In reliance on the previous au- water (unless the primary purpose of A any other Information th" i thorizLtIons of the nationwide permits the fill Is to Impound waters). modified and reissued at paragraph mittee believes Is appropria (aX26) of this section which cannot be (4) If the discharge creates an im- (c) District engineer revie modified to comply with 33 CPR Parts POundment of water. adverse impacts cation. Upon receipt of r on the auatic system caused by the 320 through 330 without substantial the district engineer will loss to the 8permittee. then the district accelerated passage of water and/or review the general permitt the restriction of Its flow, shall be engineer may allow the discharge to cation to determine which minimized. proceed for 18 months from the effec- lowing procedures should t 6Uve date of this regulation If and (5) Discharge in wetlands areas shall (1) If the nationwide when he determines the discharge be Voided. I 330.5(aX26) Is Involved a complies with the Section 404(b)(1) (6) Heavy euipment working in wet. trict engineer determines ei s0Wdelines. lands shall be placed on mats. (1) The proposed wUvity (4) After 18 months from the effec- (7) Discharges Into breeding aress a class of discharges or wil Uve date of this regulation. the per- for migratory waterfowl shall be category of waters which mittee must follow 33 CPR Parts 320 &voided. previously Identified by th through 330 for any new or remaining (8) Ali temporary fills shall be re- Admirdstrator. Environmer discharges. moved In their entirety. tion Agency, the Region (5) This section shall not set aside. F2Uh and Wildlife Service alter. prevent or affect any past. 1230.7 Notification procedureL al Director. National Mt present, or future assertion of the divi- Service; or the heads of th (a) The general permIttee shall not sion engineer's authority to reuire an begin discharges reuiring predis- ate state natural resource Individual permit under either 1330.7 charge notification pursuant to the being of particular Intere of the July 22. 1982, Interim Final nationwide permit at 1 330.5(a)(26) agencies: or 401) the par Regulation (47 6F2R 31794) or 1330.8 of charge has not been previc this part. (1) Until notified by the district en. fled but he believes It ma gineer that the work may proceed portance to those acencJ [47 4P4R 31831. July 22, 1082t as amended at under the nationwide permit with any promptly forward the not 49 0P0R 39483. Oct. 5. 1984:49 P4R 39843. Oct. 11.19842 special conditions Imposed by the dJ& the division engineer and V trict or division e8mineer, or appropriate staff official' 1330.6 Management practlem (2) If notified by the district or divi- agencies to afford those (a) In addition to the conditions sion engineer that an individual adeuate opportunity befo permit may be reuired; or specified In If 330.4 and 330.5 of this charge occurs to consider part. the following management prac- (3) Unless 20 days have passed from cation and express their v. tices should be followed. to the rnsix. receipt of the notification by the dis- to the distilct engineer mum extent practicable, in the db;- trict engineer and no notice has been whether individual permit charge of dredged or fill material received from the district or division reciufivd. under nationwide permits in order to engineer. (2) If the na2Uonwi( minimize the adverse effects of these (b) Notification pursuant to the na- 1 330.5(m) (7). (17). or (21) discharges on the auatic env6iron- tionwide permit at I 330.58(a)(26) Must and the Environmental -8ment. 16f16t2ilure to comply with these be In writing and Include the Informs- Agency, the 2F12Uh and Wilt practices may be cause for the district t2ion listed below. Notification Is not an the National Marine P16Uhc engineer to recommend or the division admission that the proposed work or the appropriate state engineer to take discretionary author. would result In more than minimal 6hn. source or water uality E 6Ity to regulate the activity on an in12d6l- pacts to waters of the United States; It ward concerns to the distr v6idual or regional basis pursuant to simply allows the district or division he will forward those com 1330.7 of this part. en04z8in6der to evaluate specific activities division engineer toget8Y 8(12) Discharges of dredged or fill ma- for compliance with general permit statement of the factors p terial into waters of the United States criteria. determination of the en 508 Ion) Corps of Engineers, Dept. of the Army, DoD 330.7 ugh (1) Name, address, and phone effects of the proposed discharges. In- ves. number of the general PermIttee; cluding those set forth in the 404(b)(1) (2) Location of the planned work: guidelines, and his views on the specif- ,eas be (3) Brief description of the proposed Ic points raised by those agencies. work. Its purpose, and the approxi- (3) If the nationwide permit at or mate size of the waters, Including wet- j 330.5(aX21) is Involved the district lands, which would be lost or substan- engineer will give notice to the Envi- ;Pe. tMy adversely modified as a result of ronmental Protection Agency and the Tf. the f, the work: and appropriate state water quality d Igh (4) Any specific information re- agency. This notice will Include as a .!'?" .he quired by the nationwide Permit and Of any other information that the per- minimum the information required by paragraph (b) of this section. In. mittee believes is approPriat& (d) Division engineer review of noti- (c) District engineer review Qr nott4- fication. The division engineer will eta cation. Upon receipt of notifleati on. he review all notifications referred to him the district engineer will promptly In accordance with paragraph (cXD or or review the general permittee's notifi- be cation to determine which of the fol. (cX2) of this section. The division en- ]owing procedures should be followed: gineer will require an Individual 111 (1) U the nationwide permit at permit when he determines that an ac- 1 330.5(a)(26) is Involved and the dis- tivItY does not comply with the terms !t- trict engineer determines either or conditions of a " nationwide permit (1) The proposed activity falls within or does not meet the definition of a a class of discharges or will occur in a general permit (see 33 CFR 322.2(f) )e category of waters which has been and 323.2(n)) Including discharge.,,n previously Identified by the Regional under the nationwide permit ac Administrator. Environmental Protec- I 330.5(aX26) which have more than tion Agency, the Regional Director, minimal adverse environmental effects FUh and Wildlife Service; the Region. on the aquatic environment when a) Director, National Marine F"Isheries viewed either cumulatively or sepa- it Service; or the heads of.the appropri. rately. In reaching his decision, he will ate state natural resource agencies as review factors pertinent to a determi- being of particular Interest to those nation of the environmental effects of e agencies; or (U) the particular dia- the proposed discharge, Including charge has not been previously idenU- those set forth In the 404(bXD guide- fied but he believes it may be of im- portance to those agencim he will lines, and will give full consideration promptly forward the notification to the views. If any, of the federal and to J the division engineer and the head and state natural resource agencies Identi. appropriate staff officials of those fied In paragraph (c) of this section. If the division engineer decides that an agencies to afford those agencies an adequate opportunity before such dis- individual permmlt Is not required. and charge occurs to consider such notifi- a federal or appropriate state natural cation and express their views. if any. resource agency has indicated In writ- to the district engineer concerning ing that an activity may result In more whether individual permits should be than minimal adverse environmental required. Impacts, he will prepare a written (2) if the nationwide permits statement. available to the public on 330.3(a) (7). (17). or (21) are Involved request, which sets forth his response and the Environmental Protection to the specific points raised by the Agency, the FUh and Wildlife Service. commenting agency. When the divi. the National Marine F"Isheries Service sion engineer reaches his decision he or the appropriate state natural re- will notify the district engineer. who source or water quality agencies for- will Immediately notify the general ward concerns to the district engineer, permittee of the division engineer's de- :fir he will forward those concerns to the cision. division engineer together with a statement of the factors pertinent to a (49 PR 39484. OcL-5. 1984) 3 .A determination of the environmental 5 09 1330.6 33 CFR Ch. 11 (7-1-86, Edition) Corps of Engineers, Dept. of fh I 33U Discretionary authority. activities. or in a specific geographical See. tlanUc Ocean In vicinity Except as provided In pariagmph (d) area The division engineer will an. 334.40 A of this section. division engineers on nounce the decision to persons affecto- Island,, Maine. Isles of Shoals; n their own Initiative or upon recom- ed by the action. The district engineer erL0M bombing target arec 334.50 piscataua River at Pori mendation of a district engineer are will then regulate the activity or ac. Naval Shipyard. Kittery. Maine-, authorized to modify nationwide per. tivities by processing an applIcation(s) ed arems. mits by adding regional conditions or for individual permit(s) pursuant to 33 334.60 cape cod Day south of N to override nationwide permits by re- CPR Part 325. 0narbor. Mass.: naval aircraft uiring Individual permit applications (c) Discretionary authority which target area. on a cLse-by-case basis. Discretionary has been exercised under nationwide 334.70 Buzzards Bay. and adjacent authority will be based on concerns for Mass.: danger zones for nav; permits Issued on 19 July 1977 expilres ations. the auatic environment as expressed four months from the effective date of 334.80 Narragansett Bay. RI.; pr in the guidelines published by EPA this regula0Uon. Such authority may area. pursuant to section 404(b)(l). (40 CPR be extended or reinstated after appro- 334.90 Waters of Atlantic Ocean: I Part 230) priate procedures of this regulation Guard Training Center. Sea Girt (a) Regional condition& Division en- and 33 CPR Paris 320 through 325 334-100 Atlantic Ocean off Cape 0M gineers are authorized to modify na- have been followed. Coast Guard Rine Rance@ tionwide permits by adding conditions (d) Por the nationwide permit found 334.110 Delaware Bay off Cape 0H, applicable to certain activities or spe. DeL; naval restricted OV& cific geogmphic areas within their di- at I 330.5(aX26). after the applicable 33CI20 Delaware Bay off Mlifor visions. In developing regional condl- prov2Wons of 11 330.7(a) (1) and (3) naval Liiw4at bombing target art tions. division and district engineers have been satisfied. the permittee's 334.130 Atlantic Ocean off W9110P will follow standard permit processing right to proceed under the general and Chincoteague Inlet. Va.; procedures as prescribed In 3 CPR permit may be modified. suspended. or zone. 334.140 Chesapeake Bar. 4UJL Am Part 325 applying the evaluation crite- revoked only In accordance with the Ing Ground Reservation. Aberde ria of 33 C6FR Part 320 and appropri- procedure set forth in 33 CPR 325.7. 334.11164 Severn River at Annapolis, ate parts of 33 CPR Parts 321. 322. 147 PR 31831. July 22, 1982. Redesignated perimental test area. 4U4A Navy 323. and 324. A copy of the Statement and amended at 49 PR 39484, Oct. a. 194M Engineering Laboratory. of Findings will be forwarded to the 334.160 Severn River. at U.S. Naw Office of the Chief of Engineers. 13303 Expiration of nationwide permits. my Santee Basin. Annapolkh 0M( ATTN: DAEN-CWO-N. - Division and restricted area. Ustrict engineers will take appropriate The Chief of Engineers will review 334.170 Chesapeake Bay. in the vi( nationwide permits at least every five Chesapeake Beach. Md.; firim measures to Inform the public at large years. Based on this review. which will Naval Research Laboratory. of the additional conditions; Include public notice and opportunity 334.180 Patuxent River. Mdz r( (b) Individual Permits. In nation- areW 8UJL Naval Air Tat Cen wide permit cases where additional re. for public hearing through publication tuxent River. Md. gional conditioning may not be suffi- In the P)wzuL Rzoism he will either 334.190 Chesapeake Bay, in vici cient or where there is not sufficient modify. reissue (extend) or revoke the 4Bloodsworth island. Md.: shoi time to develop regional conditionit Permits. If a nationwide permit Is not bardment. air bombing. air straf under paragraph (a) of this section, modified or reissued within five yeaza rocket firing area. U0A Navy. 1. of publication in the FEDERAL 2Rzois. 334.200 Chesapeake Day. Point Itoc the division engineer may reuire indd Tm, it automatically expires and be- Cedar Point; aerial firing rar vidual permit applications on a case. es null and void. target arm, U.S. Naval Air Test by mse basis there time Is of the es- cOm Patuxent River. Md. ence. the district engineer may tele- (47 PR 31831. July 22.1984L Redesignated at 334.210 Chesapeake Bay. In vic, phonleally recommend that the divi- 49 4PR 39484. 8OcL 3, IM] Tangier island; Naval guided sion enlrineer assert discretionary au- test operations arm thority to reuire an individual permit 334.220 Chesapeake Bay. South of Island. 0Vlrgir?la; naval firing rant application for a specific activity. if PART 334-DANGER ZONE AND 334.230 Potomac River. the division engineer concurs. he may RESTRICTED AREA REGULATIONS 334.240 Potomac River. Matt; verbally authorize the district engi. Creek and Ch4icamuzen Creel neer to Implement that authority. Naval Propellant. Plan4L Indiar Both actions will be followed by writ. Sec. M0d0L ten confirmation with copy to the 334.10 Gulf of Maine off Beal Islandtt 334.250 08Gung0lon Cove. 144 W0h Maine; naval. aircraft bombing target Point,, Va.: U04A Army restricted 4; Chief of Engineers (DA12E16K-20MO-N2). area 334.2060 York River. 00V8V naval Pr Additionally. after notice and opport- 334.20 Gulf of Maine off Cape Small., and restricted area nity for public hearing, division engi- Maine: naval aircraft practice 0miriing neers may recommend to the Chief of range area. 334.270 Yor0lL River adJacent to C Annex Depo8L Naval Supply Cen Engineers that individual permit ap- 334.30 Gulf of Maine off Pe6mau4ld Point, Hamburg Virginia: restricted are picat6ions be reuqired for categories of Maine. naval sonobuoy test ares. 510 4 6 j NOAA COASTAL SERVICES CTR LIBRARY 1 3 6668 14112969 4