HomeMy WebLinkAbout2002-06-11 Public hearing NOTICE OF PUBLIC HEARING
Notice is hereby given that a public hearing will
be held by the City Council of Iowa City, Iowa, at
7:00 p.m. on the llth day of June, 2002, in the
Emma J. Harvat Hall, Civic Center, 410 E.
Washington Street, Iowa City, Iowa, or if said
meeting is cancelled, at the next meeting of the
City Council thereafter as posted by the City
Clerk; at which hearing the Council will consider:
An ordinance amending the Sensitive
Areas Ordinance to regulate isolated
wetlands.
An ordinance changing the zoning
designation from Low Density Multi-Family
Residential, RM-12, to Sensitive Areas
Overlay Low Density Multi-Family
Residential, SAO-RM-12, for Lot 2 of First
and Rochester subdivision, Part 1, a 38,041
square-foot property located west of First
Avenue, north of Rochester Street.
Copies of the proposed ordinances are on file for
public examination in the office of the City Clerk,
Civic Center, Iowa City, Iowa. Persons wishing
to make their views known for Council
consideration are encouraged to appear at the
above-mentioned time and place.
MARIAN K. KARR, CITY CLERK
Prepared by: Mitchel T. Behr, Assistant City Attorney, 410 E. Washington St,, Iowa City. IA 52240; 319~356-5030
ORDINANCE NO.
AN ORDINANCE AMENDING TITLE '14, CHAPTER 6, ARTICLE K, SECTION '1, SENSITIVE AREAS
ORDINANCE TO AMEND DEFINITION OF WETLANDS AND REGULATE ISOLATED WETLANDS.
WHEREAS, Iowa City's Sensitive Areas Ordinanee limits its definition of "wetlands" to those regulated
by the U.S. Army Corps of Engineers, and regulates only wetlands falling within said definition;
WHEREAS, the January, 2001 decision of the United States Supreme Court in Solid Waste Aqency of
Northern Cook County v. U.S. Army Corps of Enqineers has decreased regulation of wetlands which are
not contiguous to a navigable waterway or a tributary of a navigable waterway, often referred to as
"isolated wetlands," by the U.S. Army Corps of Engineers and the Iowa City Sensitive Areas Ordinance;
and
WHEREAS, it is in the public interest for Iowa City's Sensitive Areas Ordinance to regulate isolated
wetlands.
NOW, THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF IOWA CITY, IOWA:
SECTION I. AMENDMENT.
14-6K-1 Sensitive Areas Ordinance is hereby amended as follows: Repeal '14-6K-'1 B Definitions - WETLAND, WETLAND AREAS:
WETLAND, WETLAND AREAS: Those areas that are inundated or saturated by surface or ground
water at a frequency and duration sufficient to support, and that under normal circumstances do
support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands
generally include swamps, marshes, bogs, and similar areas. For the purposes of this Section,
"wetland" shall mean a jurisdictional wetland that is regulated by the U.S. Army Corps of Engineers, or
its successor. Determination of jurisdictional wetlands shall be made either by the Corps or its
successor or by a wetland specialist and accepted by the Corps or its successor.
Add '14-6K-1B Definitions - WETLAND, WETLAND AREAS:
WETLAND, WETLAND AREAS: Those areas that are inundated or saturated by surface or ground
water at a frequency and duration sufficient to support, and that under normal circumstances do
support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands
generally include swamps, marshes, bogs, and similar areas. Determination of wetlands under the
jurisdiction and regulation of the U.S. Army Corps of Engineers shall be made either by the Corps or
its successor or by a wetland specialist and accepted by the Corps or its successor. Determination of
other wetlands shall be made by a wetland specialist.
Repeal 14-6K-'1C(3)(a)('1) Applicability - Sensitive Features governed by the Sensitive Areas
Ordinance:
(1) Jurisdictional wetlands as regulated by the U.S. Army Corps of Engineers, or its successor
Add '14-eK-1C(3)(a)('1) Applicability - Sensitive Features governed by the Sensitive Areas
Ordinance:
(1) Wetlands
Repeal '14-6K-'1D(2) Exemptions - Maintenance/Expansion:
2. Maintenance/Expansion: Normal maintenance/expansion of existing single-family or duplex
residences. Exterior remodeling, reconstruction or replacement of single-family or duplex
residences in existence as of December 13, t995, provided the new construction or related activity
connected with an existing single-family or duplex residence shall not increase the footprint of the
structure lying within the sensitive area by more than a maximum total of one thousand (1,000)
square feet, and also provided there is no encroachment by said activities, including grading, into
a jurisdictional wetland, a designated sensitive areas conservation tract and/or protected sensitive
area.
Add 14-6K-ID(2) Exemptions- Maintenance/Expansion:
2. Maintenance/Expansion: Normal maintenance/expansion of existing single-family or duplex
residences. Exterior remodeling, reconstruction or replacement of single-family or duplex
residences in existence as of December 13, f995, provided the new construction or related activity
connected with an existing single-family or duplex residence shall not increase the footprint of the
structure lying within the sensitive area by more than a maximum total of one thousand (1,000)
square feet, and also provided there is no encroachment by said activities, including grading, into
more than ¼ acre of wetlands, a designated sensitive areas conservation tract and/or protected
sensitive area.
Repeal 14-6K-1 D(3) Exemptions - Construction:
3. Construction: Construction of new single-family or duplex residences. Grading, clearing or
development activities not to exceed a maximum total of twenty thousand (20,000) square feet in
area on a tract of land for the purpose of construction, landscaping and/or associated
improvements for one single-family or duplex residence, provided there is no encroachment by
said activities into a jurisdictional wetland, a designated sensitive areas conservation tract and/or
protected sensitive area.
Add '14-6K-1 D(3) Exemptions- Construction:
3. Construction: Construction of new single-family or duplex residences. Grading, clearing or
development activities not to exceed a maximum total of twenty thousand (20,000) square feet in
area on a tract of land for the purpose of construct[on, landscaping and/or associated
improvements for one single-family or duprex residence, provided there is no encroachment by
said activities into more than ¼ acre of wetlands, a designated sensitive areas conservation tract
and/or protected sensitive area.
Repeal 14-6K-ID(6) Exemptions - Other Activities:
6. Other Activities: Activities that disturb less than one acre of a wetland, provided such activities are
approved by the U.S. Army Corps of Engineers, or its successor, through a nationwide permit.
Add '~ 4-6K-ID(6) Exemptions - Other Activities:
6. Other Activities: Activities that disturb less than ~ acre of wetlands.
Repeal 14-6K-1G(3)(a)(1)Wetland Regulations- Wetland Delineation:
(1) Prior to any development activity occurring on a site containing a potential "wetland" as defined
above or as shown on the Sensitive Areas Inventory Map - Phase I, the property owner shall
provide a delineation of the wetland area(s) accepted by the U.S. Army Corps of Engineers, or its
successor, prior to the submittal to the City of a sensitive areas oveday rezoning application and
a sensitive areas development plan, or a sensitive areas site plan, for City review.
Add 14-6K-1G(3)(a)(1) Wetland Regulations -Wetland Delineation:
(1) Prior to any development activity occurring on a site containing a potential "wetland" as defined
above or as shown on the Sensitive Areas Inventory Map - Phase I, the property owner shall
provide a delineation of the wetland area(s), prior to the submittal to the City of a sensitive areas
overlay rezoning application and a sensitive areas development plan, or a sensitive areas site
plan, for City review.
Repeal the first, unnumbered paragraph of 14-6K-1G(4)(b) Wetland Mitigation
b. Compensatory mitigation may be permitted only if it is clearly demonstrated minimizing the
impact on a wetland is unreasonable. A permit for any development activity within a wetland area
regulated by the Corps is required by the U.S. Army Corps of Engineers or its successor, if a
permit is granted for development activity within a wetland, compensatory mitigation shall be
required based on the following criteria, unless a greater degree of compensation is required by
the Corps or its successor
Add a first, unnumbered paragraph to 14-6K-1G(4)(b) Wetland Mitigation
b. Compensatory mitigation may be permitted only if it is clearly demonstrated minimizing the
impact on a wetland is unreasonable. A permit from the U.S. Army Corps of Engineers is required
for any development activity within a wetland area regulated by the Corps or its successor, if a
permit is granted for development activity within a wetland, compensatory mitigation shall be
required based on the following criteria, unless a greater degree of compensation is required by
the Corps or its successor.
Repeal the first, unnumbered paragraph of 14-6K-1K Fully Hydric Soils - Purpose:
1. Purpose: Fully hydric soils may indicate the potential existence of jurisdictional-wetlands and the
probable existence of a high water table. The purpose of regulating lands that contain fully hydric
soils is to recognize the constraints imposed on urban development projects by potential wetlands
and/or high water tables. That is:
Add a first, unnumbered paragraph to 14-6K-1 K Fully Hydric Soils - Purpose:
1. Purpose: Fully hydric soils may indicate the potential existence of wetlands and the probable
existence of a high water table. The purpose of regulating lands that contain fully hydric soils is to
3
recognize the constraints imposed on urban development projects by potential wetlands and/or
high water tables. That is:
SECTION II. REPEALER. All ordinances and pads of ordinances in conflict with the provisions of this
Ordinance are hereby repealed.
SECTION III. SEVERABILITY. If any section, provision or pad of the Ordinance shall be adjudged to
be invalid or unconstitutional, such adjudication shall not affect the validity of the Ordinance as a whole or
any section, provision or pad thereof not adjudged invalid or unconstitutional.
SECTION IV. EFFECTIVE DATE. This Ordinance shall be in effect after its final passage, approval
and publication, as provided by law.
Passed and approved this __ day of ,20.__
MAYOR
ATTEST:
CITY CLERK
Approved by
City :Att6~n~y'~ Ot~r~ce
Hisbldg\ord\wetlandsamend.doc
City of Iowa City
MEMORANDUM
Date: April 26, 2002
To: Planning and Zoning Commission
From: Mitchel T. Behr, Assistant City Attorney
Re: Amendment of Sensitive Areas Ordinance regarding wetlands
First Assistant City Attorney Sarah E. Holecek issued a July 9, 2001 memorandum to the
City Council regarding the status of the regulation of wetlands under the Iowa City
Sensitive Areas Ordinance (SAO) after the U.S. Supreme Court decision in Solid Waste
Aqency of Northern Cook County v. U.S. Army Corps of En~qineers (SWANCC). For your
reference, a copy of that memorandum is attached. As indicated by Sarah Holecek, the
SAO currently regulates wetlands in accordance with the rules of the U.S. Army Corps of
Engineers (COE). The practical effect of the SWANCC decision has been less COE
regulation of wetlands. The COE now regulates "jurisdictional" wetlands, which are those
contiguous to a navigable waterway or a tributary of a navigable waterway, but no longer
regulates other, "isolated" wetlands. The COE previously regulated both types of
wetlands. In turn, there is less regulation of wetlands by states, counties and cities, such
as Iowa City, whose wetland ordinances regulate in accordance with the rules of the COE.
The City Council directed staff to prepare an amendment to the SAO to make it apply to
isolated wetlands, as it had before the SWANCC decision. To accomplish this, staff has
prepared the following amendments to the SAO.
1. First, the Definition and Applicability sections of the current SAO would be
amended as follows:
14-6K-1-B. Definitions: The following definitions apply to the interpretation and
enforcement of the Sensitive Areas Ordinance regulations:
WETLAND, WETLAND AREAS: Those areas that are inundated or
saturated by surface or ground water at a frequency and duration sufficient
to support, and that under normal circumstances do support, a prevalence
of vegetation typically adapted for life in saturated soil conditions.
Wetlands generally include swamps, marshes, bogs, and similar areas.
under the iurisdiction and regulation of the U.S. Army Corps of
En.qineers shaft be made either by the Corps or its successor or by a
wet/and specialist and accepted by the Corps or its successor.
Determination of other wetlands shall be made by a wetland
specialist.
14-6K-1-C. Applicability:
3. Sensitive Features:
a. Sensitive features governed by the Sensitive Areas Ordinance
include:
(1) J'.:r!~d!ct!cn~! wWetlands ~= regu!ctcd by thc
The definition of wetlands as "[t]hose areas that are inundated or saturated by
surface or ground water at a frequency and duration sufficient to support, and that
Amendment of Sensitive Areas Ordinance Re: Wetlands
April 26, 2002
Page 2
under normal circumstances do support, a prevalence of vegetation typically
adapted for life in saturated soil conditions" is the same definition used by the
COE. It is a widely accepted definition, so wetland specialists, civil engineers,
landscape architects and other professionals involved, in development and site
design are familiar with these standards. The City will not be changing the manner
in which they determine the existence of, and delineate, wetlands.
With amendment of the Definition and Applicability sections as indicated above,
the definition of wetlands will simply no longer limit "wetlands" to only those under
the jurisdiction of and regulated by the COE. The SAO will apply to isolated
wetlands.
2. Second, the Exemptions section of the SAO would be amended as follows:
14-6K-1-D. Exemptions: The following activities are exempt from the requirements
of this Section:
2. Maintenance/Expansion: Normal maintenance/expansion of existing
single-family or duplex residences. Exterior remodeling, reconstruction or
replacement of single-family or duplex residences in existence as of
December 13, 1995, provided the new construction or related activity
connected with an existing single-family or duplex residence shall not
increase the footprint of the structure lying within the sensitive area by
more than a maximum total of one thousand (1,000) square feet, and also
provided there is no encroachment by said activities, including grading,
into ~ ;'"';~;~*;~-"~ more than % acre of wet/ands, a designated
sensitive areas conservation tract and/or protected sensitive area.
3. Construction: Construction of new sing/e-family or duplex residences.
Grading, c/earing or development activities not to exceed a maximum tote/
of twenty thousand (20,000) square feet in area on a tract of land for the
purpose of construction, landscaping and/or associated improvements for
one single-family or duplex residence, provided there is no encroachment
by said activities into ~
. · ..............more than % acre of wetlands, a
designated sensitive areas conservation tract and/or protected sensitive
area.
6. Other Activities: Activities that disturb less than c,~c ~ acre of a
wetlands_,-prc ..... ='-'ch ............. apprc'.'cd by thc U.S. Army
The SAO exemptions, as they relate to wetlands, were designed to exempt
activities allowed by the COE under what is called a "nationwide permit," The COE
has categorized specified activities into nationwide permits, which allow
disturbance of certain amounts of wetlands by such activities.
The COE's current nationwide permit relating to single family housing activities
applies to, and permits wetland disturbance by, such activities disturbing no more
than ¼ acre of wetlands. Amendment of the SAO exemptions in subsections D-2
and D-3 as indicated above would be consistent with the COE's nationwide permit
relating to and allowing similar activities. Such activities with development activity
disturbing more than ¼ acre of wetlands would be subject to the SAO
requirements.
The COE's current nationwide permit relating to "residential, commercial and
institutional development" activities applies to, and permits wetland disturbance by,
such activities disturbing no more than ½ acre of wetlands. Most of the
Amendment of Sensitive Areas Ordinance Re: Wetlands
April 26, 2002
Page 3
development activity done within Iowa City should fall within this category. Thus,
amendment of the SAC exemption in subsection D-6, which applies to "other
activities," as indicated above, would be consistent with the COE's nationwide
permit relating to and allowing such activities. Such activities with development
activity disturbing more than ½ acre of wetlands would be subject to the SAC
requirements.
3. Last of all, simply to remove and clarify references to the COE and wetlands
regulated by the COE, the following amendments to specific regulations regarding
wetlands and fully hydric soils would be necessary:
14-6K-1-G. Wetlands:
3. Wetland Regulations:
a. Wetland Delineation:
(1) Prior to any development activity occurring on a site containing
a potential "wetland" as defined above or as shown on the
Sensitive Areas Inventory Map - Phase I, the property owner shall
provide a delineation of the wetland area(s) ..... '"'~ ~'"
..... · C':Ns ..... ~ ....... , ..... ,."-'ccc-'-'--'.', prior to the
submittal to the City of a sensitive areas overlay rezoning
application and a sensitive areas development plan, or a sensitive
areas site plan, for City review.
4. Wetland Mitigation: A sensitive areas overlay rezoning/sensitive areas
development plan or sensitive areas site plan for propet~y containing a "wetland",
as defined in the Sensitive Areas Ordinance, shall include a mitigation plan
showing that all regulations contained in subsection G3 of this Section, entitled
Wetland Regulations , will be met. Avoiding a delineated wetland area and
minimizing the impact of development on a wetland is strongly encouraged, and
shall be investigated before compensatory mitigation will be considered.
b. Compensatory mitigation may be permitted only if it is clearly demonstrated that
avoiding and minimizing the impact on a wetland is unreasonable. A permit from
the U.S. Army Corps of Engineers is required for any development activity within a
wetland area regulated by the Corps ~ ...... ~--'~ ~'" ~" ~ ~ '~ ....
~ or its successor. If a permit is granted for development activity within a
wetland, compensatory mitigation shall be required based on the following criteria,
unless a greater degree of compensation is required by the Corps or its successor:
14-6K-f-K. Fully Hydfic Soils:
1. Purpose: Fully hydric soils may indicate the potential existence
wetlands and the probable existence of a high water table. The purpose of
regulating lands that contain fully hydric soils is to recognize the constraints
imposed on urban development projects by potential wetlands and/or high water
tables. That is:
With the above amendments to the SAC, the SAC would apply to isolated wetlands to the
same extent as it had before SWANCC.
It should be noted that despite amendment of the SAC to make it applicable to isolated
wetlands as proposed above, small amounts of isolated wetlands, between 1/10 and ½ of
an acre, will not be subject to regulation as they may have been before the SWANCC
decision. The COE had the authority to require "compensatory mitigation" when there
was disturbance of between 1/10 and ½ of an acre of wetlands by "residential,
commercial and institutional development" activities. Compensatory mitigation is the
Amendment of Sensitive Areas Ordinance Re: Wetlands
April 26, 2002
Page 4
replacement of disturbed wetlands by the creation and/or enhancement, and
maintenance, of wetlands at another site. It is unclear if and how much compensatory
mitigation for disturbance of isolated wetlands between 1/10 and ½ of an acre has been
required by the COE within Iowa City in the past. Compensatory mitigation is a complex
regulatory process that requires extensive time, work and expense related to the location,
completion and subsequent monitoring of the compensatory mitigation sites. The COE
has significant staff with expertise devoted to the compensatory mitigation regulatory
process. The City of Iowa City has never engaged in regulation by way of compensatory
mitigation.
City of Iowa City
MEMORANDUM
Date: July 9, 2001
To: City Council
From: Sarah E. Holecek, First Assistant City Attorn~~
Re: Sensitive Areas Ordinance: Status of the Regulation of Wetlands under the Iowa City
Zoning Ordinance after U.S. Supreme Court decision in Solid Waste A,qency of Northern Cook
County v. U.S. Army Corps of Engineers
In January 2001, the United States Supreme Court issued its ruling in Solid Waste Agency of
Northern Cook County v. United States Army Corps of Engineers, 531 U.S. 159, 121 S.Ct. 675
(2001) [hereinafter, SWANCC]. The issue in this case was the Corps' definition of "navigable
waters" and whether the CIean Water Act (CWA) gave the Corps authority to define "navigable
waters" broadly enough to include intrastate waters used as habitat by migratory birds which cross
state lines. In this case, the question was whether the regulation of an abandoned sand and
gravel pit by the Corps was clearly intended by Congress in the Clean Water Act, and if so,
whether such expansive federal jurisdiction was appropriate under the Commerce Clause of the
Constitution. The Supreme Court held that permitting the Corps to claim federal regulatory
jurisdiction over ponds and mudflats falling within the "Migratory Bird Rule" was not clearly
intended by Congress and would result in a significant impingement of the States' traditional and
primary power over land and water use.
This decision has significance to the City in that the Sensitive Areas Ordinance [SAO] of the
Zoning Code regulates wetlands in accord with the Corps of Engineers' rules. In other words, the
SAO defines "wetlands" in relevant part as follows:
"for the purposes of this Section, "wetland" shall mean a jurisdictional wetland that is
regulated by the U.S. Army Corps of Engineers, or it successor. Determination of
jurisdictional wetlands shall be made by either the Corps or its successor or by a wetland
specialist and accepted by the Corps or its successor."
As a result of the decision curtailing the Corps' definition of "jurisdictional wetlands", the
applicability of the Sensitive Areas Ordinance to wetlands within Iowa City has also been
narrowed. Three examples of Iowa City wetlands that were previously protected under section
404 of the CWA and the SAO but are being filled er have been filled since the Court's opinion are:
1) the Braverman/Kennedy commercial development on Southgate and South Gilbert Street (as
part of the City's trunk sewer project); 2) the Aviation Commercial Park; and 3) the summer 2001
phase of the former Captain Irish (Scott Boulevard) extension project. Each of the above are
public capital improvement projects.
It is clear that the City Council has the authority to pass legislation/local regulations extending
beyond that of the Corps and choose to more closely regulate wetlands within the City. Should
the Council wish to more closely regulate wetlands, the SAO could be amended by striking the
reference to the Corps definition of wetlands and having wetlands determined by City personnel
according to their individual characteristics.
Alternatively, the Council may wish to leave the SAO in its current form and regulate wetlands in
the same manner as the Corps of Engineers after the SWANCC ruling.
If you have any further questions regarding this matter or wish to review a copy of the Court's
decision, please feel free to contact me.
cc: Marian Karr, City Clerk
Steve Atkins, City Manager
Eleanor Dilkes, City Attorney
Doug Boothroy, Director, HIS
Karin Franklin, Director, PCD
Julie Tallman, Development Regulations Specialist, HIS
11 South Gilbert
P.O. Box 3396
Iowa City, Iowa 52244
HBA ..on,:
Fax: (319) 358-2443
E-mail: hbaofic~cs.com
HOME BUILOERS ASSOCIATION www. iowacityhomes.com
Advocates for homeownership
by promoting standards for
quality and affordablility
Mayor Ernie Lehman
City of Iowa City [~[~ Jk/N 0 3
410 E Washington Street
Iowa City, Iowa 52240 C[~Y MANA~;[R'S
Dear Mayor Lehman:
I am writing to you on behalf of the Greater Iowa City Area Home Builders Association
regarding a proposed amendment to the Sensitive Areas Ordinance, specifically, isolated
wetlands which is scheduled for a public hearing on June 11th. While we fully support
the goal of protecting and mitigating our community's wetland areas and recognize the
potential ecological value of these natural areas, we have concerns regarding the
proposed amendment we hope the Council would address before adoption.
In a January 2001 ruling by the U.S. Supreme Court, referred to as the SWANCC
decision, the Supreme Court ruled against the Army Corps of Engineers (COE) stating
they had exceeded their congressional authority by regulating isolated wetlands or,
wetlands that are not connected to a "navigable waterway". In light of the Supreme
Court's ruling and against the recommendation of the Planning Department, at an
October 22nd, 2001 work session, City Council decided to continue to regulate "isolated
wetlands". Therefore, at the center of this issue is the fact that the city of Iowa City will
now be adopting the role of the COE and be responsible for the regulation and
delineation of isolated wetland areas. This raises a number of questions and potential
significant financial impacts to our community.
First, has a complete and objective inventory been done to determine exactly the
magnitude of the proposed ordinance? Without such an inventory, we believe it would
be difficult to assess the direct impact of any regulation. Along with the inventory, will
any analysis be done to determine the ecological benefit of the wetland area in relation to
the cost of regulating it? While there is widespread agreement that wetland areas play an
important ecological role, there is equal agreement among regulators and environmental
experts that not all wetlands are of equal value and benefit. Since the council has
decided to pursue a direction contrary to the Supreme Court ruling and against the
Planning Department's recommendation, we feel a comprehensive, objective and
scientific inventory is essential for a sound and thorough wetland policy.
Affiliated with National Assoclation of Home Builders & Home Builders Association of Iowa
Another concern is how does the city intend to implement and enforce this regulation
which the Planning Department, after carefully reviewing this subject, concluded "would
be minimal impact in terms of wetland mitigation in Iowa City, but to require further
review if we were to change the Sensitive Areas Ordinance would mean expenditures in
terms of time and money on the part of the City and the private sector that would not be
justified by what was achieved." It should also be noted that according to the minutes of
the October work session, the City currently does not have any staff capable of making
the necessary determinations on a comprehensive review of isolated wetlands. In light of
the issues raised by the Planning Department, we feel it would be appropriate for the
Council to engage in a cost/benefit analysis of the proposed ordinance and to balance our
communities environmental wants with economic feasibility.
In addition, in order for a wetland to remain a viable, beneficial and of significant
ecological benefit, it must be maintained. Presumably, this maintenance will be
performed as required in a plan set forth by a wetlands expert or environmental engineer.
This obligation will be assumed by the homeowners who will more than likely need to
contract to have this specific service provided. It is important to note that this service
will not be inexpensive and it is safe to assume that this responsibility will be passed
along to the homeowner because of the liability issues involved - a developer will transfer
the title of their property in effort to avoid any potential lawsuit.
While we have not covered every specific concern in this correspondence, we have
attempted to present a range of issues we feel should be part of the discussion as you
proceed with your deliberations. We remain committed to working with the City of Iowa
City and the Planning Department to ensure a vibrant and environmentally sound
construction industry in the Iowa City area. We look forward to working with you on this
matter.
Kevin Hochstedler
President
Greater Iowa City Area Home Builders Assn.
CITY OF I0 WA CITY
5 June 2002
Kevin Hochstedler, President
Greater Iowa City Area Home Builders Association
PO Box 3396
Iowa City, Iowa 52244-3396
Dear Kevin:
Thank you for your recent correspondence regarding Iowa City's proposed amendments to the
wetland provisions in our Sensitive Areas Ordinance (SAO). Your letter summarized related
concerns of the building industry; this reply will address the items in your letter.
In brief, City Council has directed staff to prepare amendments to the SAO in order that wetlands
in Iowa City will re-gain protections that were lost when the Supreme Coud decided, in Solid
Waste Agency v. Northern Cook County (SWANCC), that only those waters connected to
navigable watem, ays and their tributaries are protected by the provisions of the Clean Water Act.
Before SWANCC, City staff relied on information illustrated in the Sensitive Areas Inventory Map
(SAIM), and in specific cases required additional field studies by qualified professionals. For
example, when the SAIM illustrated areas of hydric soils, City staff would require a field
investigation to confirm or deny the presence of wetlands.
In response to your concern about how the City intends to implement and enforce
the new wetland regulations, we intend to implement and enforce the new
wetland regulations in precisely the same manner we regulated them prior to
SWANCC. In other words, we will continue to rely on the data summarized in the
SAIM and request field investigations when necessary to confirm the presence of
wetlands, woodlands, slopes, prairie remnants, and other natural features that are
protected by the SAO.
In response to your concern about the lack of City staff capable of making the
necessary determination of when a wetland is present, we intend to utilize the
expertise of professional wetland delineators in precisely the same way we
utilized their expertise prior to SWANCC.
Your letter requests that a complete and objective inventory be conducted to assess the direct
impact of the proposed regulations. Regrettably, the City cannot afford to hire a wetland specialist
to conduct a comprehensive inventory within City limits in order to assess the impact of the
proposed wetland regulations. What we can do is look at the SAIM for areas of hydric soils and
areas identified as wetland and continue to utilize the expertise of professional wetland specialists,
as noted above.
Those wetlands that are shown adjacent to a blue-line tributary, a creek, or a
navigable waterway (Iowa River), will still be protected under the CWA. After
SWANCC, other wetlands probably lost their protection under the CWA and -
with the proposed revisions - will re-gain protection under the SAC.
We can point to specific examples of wetlands that were previously protected by the CWA (and
Iowa City's SAC) but lost their protected status after SWANCC: the wetland in the
Braverman/Kennedy land on South Gilbert, a portion of the wetland in the Airport North
Development project, and the wetlands within the Scott Boulevard extension (formerly Captain
Irish Parkway).
We can reasonably conclude that the SWANCC decision had a measurable
impact on Iowa City's SAC. We can reasonably infer, then, that recovering those
protections will have a measurable impact on the remaining wetlands that are
within Iowa City but are no longer protected by the CWA.
Your letter requests that the City undertake a cost-benefit analysis to explore the economic
feasibility of protecting isolated wetlands. Indeed, there is an economic motivation for protecting
wetlands: wetlands preserve water quality, manage storm water, and control flooding. These are
extremely valuable functions within and around the built environment.
In saying this, it is not our intention to advocate degrading wetlands in order to accommodate
urban development, particularly in the case of high-quality wetlands that contain conservative
plant species and provide diverse habitat. The SAC already contains varying design standards for
wetland protection, allowing for decreased buffers under specific circumstances where field
conditions indicate the presence of extremely Iow-quality wetlands. We will continue to
acknowledge the varying quality of wetlands in our revised standards.
Finally, your letter voices concern about the maintenance of protected wetlands. Protected
wetland areas are typically incorporated as private open space, and maintained by an association
of property owners. This arrangement functions in both commercial and residential settings. Our
proposed amendment does nothing to change the way our ordinance currently functions with
respect to maintenance.
I hope this information is helpful. I look forward to continued discussions with you, and with others
in our community.
Respectfully,
Development Regulations Specialist
julie-tallm an @iowa-city.erg
319/356-5132
319/356-5009 fax
Johnson County Soil & Water Conservation District
238 Stevens D~lve Telephone (319) 337-2.322
Iowo Cily, IA 52240-4353 Fax [319J 358-9521
Email jcswcdOya~o.¢om
Sunc 6, 2002
City Council ~ ~ ' ~i--~-~'
Civic Center
4 lO J~ast Washington Street . i ~ ~-~-~
Iowa City, IA 52240 -~..:~
Dear City Council:
I understand that you will be discussing the Sensitive Area Ordinance regarding wetlands. I have worked
with conservation end wetlend issues for over ten yeah. 1 support Iowa Wetland In Needs' efforts to
restore protection to wetlands that were previously protected prior to the Supreme Court's January 9, 200 I
ruling,
On January 9. 2001, in a 5 to 4 decision, the Supreme Court ruled that the federal Clean Water Act did not
extend to protect isolat~cl ponds and wetlands, Thus, the Clean Water Act and the Army Corps of
Engineers can no longer protect wetlands that have been prelected/or years.
In 1995, the Iowa City Sensitive Area Ordinance was enacted to balance economic development with the
preservation of Iowa City's environmentally sensitive features and natural resources. Wetlands are an
impor~am component of the Sensitive Area Ordhmnce.
The Sensitive Area Ordinance protects wetlands as defined by the Clean Water Act and the Army Corps of
Engineers. In response to the January 9, 200l Supreme Court ruling, many s~ates and communities across
the United Slates have token steps to enact/revise locnl ordinances lo ensure that wetlands that were once
protected can still be. I recommend that the City of Iowa City ,~mcnd the Sensilive Area Ordismnce to offer
the same amnum of protection to wetlands prior to the Supreme C, oun'~ ruling.
Wetlands provide numerous benefits ~o our community. Wetlands reduce the likelihood of flooding, help
to minimize the increases in storm water runoff' as urban development occurs, help maintain and stabilize
stream flows, provide habitat for animals and plants, help preserve biological diversity, and improve water
quality by trapping and filtering nutrients and other pollutants.
Oftentimes wetlands are looked al negatively because construction/development plans might have to be
altered. However, wetlands can become a tremendous esset lo a developmem site by providing water
quality, stormwaU:r management, recrentional, and wildlife habitat benefits. Projects such as Whispering
Meadows and the South Sycamore Regional Storm Water Project provide local examples of how ecnnomie
development and environmental preservation can integrally work togelher Io protect and enhance our local
w~llands.
Please restore protection to wetlands and amend the Sensitive Area Ordinance accordingly,
Sincerely,
Amy Bouska
Environmen*al Specialist
MI8810N: To promote the wi~e urm of aoil and wMer resources.
All USDA pfopams and se~ ~ offL~d On inon-dJscrlmJnatoly bnsi.% without regard to face.
national origin, s~nd~, I~ligion. age, disability, political beliefS, sexvn] orienMtion, (md mari~ m family status.
Marian Karr
From: Jones, Donna M MVR [Donna. M.Jones@mvr02.usace.army.mil]
Sent: Tuesday, June 11, 2002 2:49 PM
To: 'cou ncil@iowa-city.org'
Subject: Iowa Fact Sheet
Fact5ia
FACT SHEET NO. 5(IA)
US Army Corps
of Engineers
Rock Island District NATIONWIDE PERMITS IN IOWA
EFFECTIVE DATE: MARCH 18, 2002
On January 15, 2002, the Corps of Engineers published in the Federal Register (67 FR 2077),
the Final Rule for the Nationwide Permits Program under the Rivers and Harbors Act of 1899; the
Clean Water Act; and the Marine Protection, Research and Sanctuaries kct. These rules became
effective on March 15, 2002.
The Nationwide Permit Program is an integral part of the Corps' Regulatory Program. The
Nationwide Permits are a form of general permits issued by the Chief of Engineers and are
intended to apply throughout the entire United States and its territories. A listing of the
nationwide permits and general conditions is included herein. We encourage prospective permit
applicants to consider the advantages of nationwide permit authorization during the preliminary
design of their projects. Assistance and further information regarding all aspects of the Corps
of Engineers Regulatory Program may be obtained by contacting the appropriate Corps of Engineers
District at the address and/or telephone number listed on the last page of this Fact Sheet.
To ensure projects authorized by a Nationwide Permit will result in minimal adverse effects
to the aquatic environment, the following Regional Conditions were developed for projects
proposed within the state of Iowa:
1. Side slopes of a newly constructed channel will be no steeper than 2:1 and planted to
pernlanent, pere~ial, native vegetation if it is not az~nored.
2. NWPs with mitigation ~aay require recording of the permit with the Registrar of Deeds or other
appropriate official charged with the responsibility for maintaining records of title to, or
interest in, real property and provide proof of recording to the Corps.
3. Mitigation shall be scheduled for construction prior to or concurrent with the construction
Of the ~in project.
NOTE: None of the Regional Conditions pertain to paragraph a. of Nationwide Permit Nun~er 40.
Permits, issued by the Corps of Engineers, under the authority of Section 404 of the Clean
Water Act may not be issued until the state (where the discharge will occur) certifies, under
Section 401 of the Act, that the discharge will comply with the water quality standards of the '
State. The Iowa Department of Natural Resources issued Section 401 Water Quality Certification
for all nationwide permits (effective July 17, 2002).
Nationwide Perr~its 3, 5, 7, 12, 13, 14, 17, 18, 21, 27, 29, 31, 33, 34, 37, 38, 39, 40, 41,
42, 43, and 44 require the permittee notify the District Engineer at least 30 to 45 days prior to
performing the discharge under certain circumstances. Specific instI~/ctions for these
notifications are contained in General Condition 13, a copy of which is included.
COMMENTS
The nationwide permits provide a simplified, expeditious means of project authorization under
the various authorities of the Corps of Engineers. We encourage prospective permit applicants to
consider the advantages of nationwide permit authorization during the preliminary design of their
projects. Assistance and further information regarding all aspects of the Corps of Engineers
Regulatory Program may be obtained by contacting the appropriate Corps of Engineers District (The
Omaha District has regulatory jurisdiction over the Missouri River, its contiguous wetlands, and
Carter Lake. The Rock Island District regulates the remainder of the projects occurring in
Iowa.):
US Army Engineer District, Rock Island US Army Engineer Disfrict, Omaha
Clock Tower Building Wehrspann Regulatory Office
Post office Box 2004 8901 South 154th Street
Rock Island, Illinois 61204-2004 Omaha, Nebraska 68138-3621
Telephone: {309) 794 5370 Telephone: (402) 896 0723
Nationwide Pez~its and Conditions
The following is a list of the nationwide permits, authorized by the Chief of Engineers, and
pttblished in the Federal Register (67 FR 2077), (67 FR 6692) and (67 FR 8579). Pei~ittees
wishing to conduct activities under the nationwide permits must comply with the conditions
published in Section C. The Nationwide Permit Conditions found in Section C have been reprinted
at the end of this Fact Sheet. The parenthetical references (Section 10, Section 404) following
each nationwide permit indicate the specific authorities under which that permit is issued.
NATIONWIDE PERMITS
1. Aids to Navigation. The placement of aids to navigation and Regulatory markers which are
approved by and installed in accordance with the requirements of the U.S. Coast Guard (USCG}
(See 33 CFR, chapter I, subchapter C part 66). (Eection 10)
2. Structures in Artificial Canals. Structures constructed in artificial canals within
principally residential developments where the connection of the canal to navigable water of the
US has been previously authorized (see 33 CFR 322.S(g)) . (Section 10)
3. Maintenance. Activities related to:
(i) The repair, rehabilitation, or replacement of any previously authorized, currently
serviceable, structure, or fill, or of any currently serviceable structure or fill authorized by
33 CPR 330.3, provided that the structure or fill is not to be put to uses differing from those
uses specified or contemplated for it in the original permit or the most recently authorized
modification. Minor deviations in the structure's configuration or filled area including those
due to changes in materials, construction techniques, or current construction codes or safety
standards which are necessary to make repair, rehabilitation, or replacement are permitted,
provided the adverse environmental effects resulting from such repair, rehabilitation, or
replacement are minimal. Currently serviceable means useable as is or with some maintenance, but
not so degraded as to essentially require reconstruction. This NWP authorizes the repair,
rehabilitation, or replacement of those structures or fills destroyed or damaged by storms,
floods, fire or other discrete events, provided the repair, rehabilitation, or replacement is
commenced, or is under contract to commence, within two years of the date of their destruction or
damage. In cases of catastrophic events, such as hurricanes or tornadoes, this two-year limit
may be waived by the District Engineer, provided the permittee can demonstrate funding, contract,
or other similar delays.
(ii) Discharges of dredged or fill material, including excavation, into all waters of the US
to remove accumulated sediments and debris in the vicinity of, and within, existing structures
(e.g., bridges, culverted road crossings, water intake structures, etc.) and the placement of new
or additional riprap to protect the structure, provided the permittee notifies the District
Engineer in accordance with General Condition 13. The removal of sediment is limited to the
minimum necessary to restore the waterway in the immediate vicinity of the structure to the
approximate dimensions that existed when the structure was built, but cannot extend further than
200 feet in any direction from the structure. The placement of rip rap must be the minimum
necessary to protect the structure or to ensure the safety of the structure. All excavated
materials must be deposited and retained in an upland area unless otherwise specifically approved
by the District Engineer under separate authorization. Any bank stabilization measures not
directly associated with the structure will require a separate authorization from the District
Engineer.
(iii) Discharges of dredged or fill material, including excavation, into all waters of the US
for activities associated with the restoration of upland areas damaged by a storm, flood, or
other discrete event, including the construction, placement, or installation of upland protection
structures and minor dredging to remove obstructions in a water of the US. (Uplands lost as a
result of a storm, flood, or other discrete event can be replaced without a Section 404 permit
provided the uplands are restored to their original pre-event location. This NWP is for the
activities in waters of the US associated with the replacement of the uplands.) The permittee
must notify the District Engineer, in accordance with General Condition 13, within 12 months of
the date of the damage and the work must commence, or be under contract to commence, within two
years of the date of the damage. The permittee should provide evidence, such as a recent
topographic survey or photographs, to justify the extent of the proposed restoration. The
restoration of the damaged areas cannot exceed the contours, or ordinary high water mark, that
existed before the damage. The District Engineer retains the right to determine the extent of
the pre-existing conditions and the extent of any restoration work authorized by this permit.
Minor dredging to remove obstructions from the adjacent waterbody is limited to 50 cubic yards
below the plane of the ordinary high water mark, and is limited to the amount necessary to
restore the pre-existing bottom contours of the waterbody. The dredging may not be done
primarily to obtain fill for any restoration activities. The discharge of dredged or fill
material and all related work needed to restore the upland must be part of a single and complete
project. This permit cannot be used in conjunction with NWP 18 or NWP 19 to restore damaged
upland areas. This permit cannot be used to reclaim historic lands lost, over an extended
period, to normal erosion processes.
This permit does not authorize maintenance dredging for the primary purpose of navigation and
beach restoration. This permit does not authorize new stream channelization or stream relocation
projects. Any work authorized by this permit must not cause more than minimal degradation of
water quality, more than minimal changes to the flow characteristics of the stream, or increase
flooding (See General Conditions 9 and 21). (Sections 10 and 404)
Note: This Nq4D authorizes the repair, rehabilitation, or replacement of any previously
authorized structure or fill that does not qualify for the Section 404 (f) exemption for
maintenance.
4. Fish and Wildlife Harvesting, Enhancexaent, and Attraction D~vices and Activities. Fish
and wildlife harvesting devices and activities such as pound nets, crab traps, crab dredging, eel
pots, lobster traps, duck blinds, clam and oyster digging; and small fish attraction devices such
as open water fish concentrators {sea kites, etc.). This NWP authorizes shellfish seeding
provided this activity does not occur in wetlands or sites that support submerged aquatic
2
vegetation (including sites where submerged aquatic vegetation is documented to exist, but may
not be present in a given year.). This NWp does not authorize artificial reefs or impoundments
and semi-impoundments of waters of the US for the culture or holding of motile species such as
lobster or the use of covered oyster trays or clam racks. (Sections 10 and 404)
5. Scientific Measurement Devices. Devices, whose purpose is to measure and record
scientific data such as staff gages, tide gages, water recording devices, water quality testing
and improvement devices and similar structures. Small weirs and flumes constructed primarily to
record water quantity and velocity are also authorized provided the discharge is limited to
25 cubic yards and further for discharges of 10 to 25 cubic yards provided the permittee notifies
the District Englneer in accordance with the "Notification" General Condition.
(Sections 10 and 404)
6. Survey Activities. Survey activities including core sampling, seismic exploratory
operations, plugging of seismic shot holes and other exploratory-type bore holes, soil survey,
sampling, and historic resources surveys. Discharges and structures associated with the recovery
of historic resources are not authorized by this NWP. Drillin9 and the discharge of excavated
material from test wells for oil and gas exploration is not authorized by this NWp; the plugging
of such wells is authorized. Fill placed for roads, pads and other similar activities is not
authorized by this NWP. The NWp does not authorize any permanent structures. The discharge of
drilling mud and cuttings may require a permit under section 402 of the CWA.
(Sections 10 and 404)
7. Outfall Structures and Maintenance. Activities related to:
(i) Construction of outfall structures and associated intake structures where the effluent
from the outfall is authorized, conditionally authorized, or specifically exempted, or are
otherwise in compliance with regulations issued under the National Pollutant Discharge
Elimination System Program (Section 402 of the CWA), and
(ii) Maintenance excavation, including dredging, to remove accumulated sediments blocking or
restricting outfall and intake structures, accumulated sediments from small impoundments
associated with outfall and intake structures, and accumulated sediments from canals associated
with outfall and intake structures, provided that the activity meets all of the following
criteria:
a. The permittee notifies the District Engineer in accordance with General Condition 13;
b. The amount of excavated or dredged material must be the minimum necessary to restore the
outfalls, intakes, small impoundments, and canals to original design capacities and design
configurations (i.e., depth and width);
c. The excavated or dredged material is deposited and retained at an upland site, unless
otherwise approved by the District Engineer under separate authorization; and
d. Proper soil erosion and sediment control measures are used to minimize reentry of
sediments into waters of the US.
The construction of intake structures is not authorized by this NWP, unless they are directly
associated with an authorized outfall structure. For maintenance excavation and dredging to
remove accumulated sediments, the notification must include information regarding the original
design capacities and configurations of the facility and the presence of special aquatic sites
(e.g., vegetated shallows) in the vicinity of the proposed work. (Sections 10 and 404)
8. Oil and Gas Structures. Structures for the exploration, production, and transportation
of oil, gas, and minerals on the outer continental shelf within areas leased for such purposes by
the DOI, Minerals Management Service (MMS) . Such structures shall not be placed within the
limits of any designated shipping safety fairway or traffic separation scheme, except temporary
anchors that comply with the fairway regulations in 33 CFR 322.5(1). (Where such limits have not
been designated, or where changes are anticipated, District Engineers will consider assertin9
discretionary authority in accordance with 33 CFR 330.4(e) and will also review such proposals to
ensure they comply with the provisions of the fairway regulations in 33 CFR 322.5(1). Any Corps
review under this permit will be limited to the effects on navigation and national security in
accordance with 33 CFR 322.5(f)). Such structures will not be placed in established danger zones
or restricted areas as designated in 33 CFR part 334: nor will such structures be permitted in
EPA or Corps designated dredged material disposal areas. (Section 10)
9. Structures in Fleeting and ~chorage Areas. Structures, buoys, floats and other devices
placed within anchorage or fleeting areas to facilitate moorage of vessels where the USCG has
established such areas for that purpose. (Section 10)
10. Mooring Buoys. Non-commercial, single-boat, mooring buoys. (Section 10)
11. Temporary Recreational Structures. Temporary buoys, markers, small floating docks, and
similar structures placed for recreational use during specific events such as water skiing
competitions and boat races or seasonal use provided that such structures are removed within 30
days after use has been discontinued. At Corps of Engineers reservoirs, the reservoir manager
must approve each buoy or marker individually. (Section 10)
12. Utility Line Activities. Activities required for the construction, maintenance and
repair of utility lines and associated facilities in waters of the US as follows:
(i) Utility lines: The construction, maintenance, or repair of utility lines, including
outfall and intake structures and the associated excavation, backfill, or bedding for the utility
lines, in all waters of the US, provided there is no change in preconstruction contours. A
3
"utility line" is defined as any pipe or pipeline for the transportation of any gaseous, liquid,
liquescent, or slurry substance, for any purpose, and any cable, line, or wire for the
transmission for any purpose of electrical energy, telephone, and telegraph messages, and radio
and television communication (see Note 1, below). Material resulting from trench excavation may
be temporarily sidecast (up to three months) into waters of the US, provided that the material is
not placed in such a manner that it is dispersed by currents or other forces. The District
Engineer may extend the period of temporary side casting not to exceed a total of 180 days, where
appropriate. In wetlands, the top 6" to 12" of the trench should normally be backfilled with
topsoil from the trench. Furthermore, the trench cannot be constructed in such a manner as to
drain waters of the US (e.g., backfilling with extensive gravel layers, creating a french drain
effect). For example, utility line trenches can be backfilled with clay blocks to ensure that
the trench does not drain the waters of the US through which the utility line is installed. Any
exposed slopes and stream banks must be stabilized immediately upon completion of the utility
line crossing of each waterbody.
(ii) Utility line substations: The construction, maintenance, or expansion of a substation
facility associated with a power line or utility line in non-tidal waters of the US, excluding
non-tidal wetlands adjacent to tidal waters, provided the activity does not result in the loss of
greater than 1/2-acre of non tidal waters of the US.
(iii) Foundations for overhead utility line towers, poles, and anchors: The construction or
maintenance of foundations for overhead utility line towers, poles, and anchors in all waters of
the US, provided the foundations are the minimum size necessary and separate footings for each
tower leg (rather than a larger single pad) are used where feasible.
(iv) Access roads: The construction of access roads for the construction and maintenance of
utility lines, including overhead power lines and utility llne substations, in non-tidal waters
of the US, excluding non-tidal wetlands adjacent to tidal waters, provided the discharges do not
cause the loss of greater than 1/2 acre of non-tidal waters of the US. Access roads shall be the
minimum width necessary (see Note 2, below). Access roads must be constructed so that the length
of the road minimizes the adverse effects on waters of the US and as near as possible to
preconstruction contours and elevations (e.g., at grade corduroy roads or geotextile/gravel
roads). Access roads constructed above preconstruction contours and elevations in waters of the
US must be properly bridged or culverted to maintain surface flows.
The term "utility line" does not include activities which drain a water of the US, such as
drainage tile, or french drains; however, it does apply to pipes conveying drainage from another
area. For the purposes of this NWP, the loss of waters of the US includes the filled area plus
waters of the US that are adversely affected by flooding, excavation, or drainage as a result of
the project. Activities authorized by paragraph (i) through (iv) may not exceed a total of
1/2-acre loss of waters of the US. Waters of the US temporarily affected by filling, flooding,
excavation, or drainage, where the project area is restored to preconstruction contours and
elevation, is not included in the calculation of permanent loss of waters of the US. This
includes temporary construction mats (e.g., timber, steel, geotextile) used during construction
and removed upon completion of the work. Where certain functions and values of waters of the US
are permanently adversely affected, such as the conversion of a forested wetland to a herbaceous
wetland in the permanently maintained utility line right-of-way, mitigation will be required to
reduce the adverse effects of the project to the minimal level.
Mechanized land clearing necessary for the construction, maintenance, or repair of utility
lines and the construction, maintenance and expansion of utility line substations, foundations
for overhead utility lines, and access roads is authorized, provided the cleared area is kept to
the minimum necessary and preconstructlon contours are maintained as near as possible. The area
of waters of the US that is filled, excavated, or flooded must be limited to the minimum
necessary to construct the utility line, substations, foundations, and access roads. Excess
material must be removed to upland areas immediately upon completion of construction. This NWP
may authorize utility lines in or affecting navigable waters of the US even if there is no
associated discharge of dredged or fill material (See 33 CFR part 322).
Notification: The permittee must notify the District Engineer in accordance with General
Condition 13, if any of the following criteria are met:
(a) Mechanized land clearing in a forested wetland for the utility line right-of-way;
(b) A Section 10 permit is required;
(c) The utility line in waters of the US, excluding overhead lines, exceeds 500 feet;
(d) The utility line is placed within a jurisdictional area (i.e., water of the US), and it
runs parallel to a stream bed that is within that jurisdictional area;
(e) Discharges associated with the constI~/ction of utility line substations that result in
the loss of greater than 1/10-acre of waters of the US;
(f) Permanent access roads constructed above grade in waters of the US for a distance of more
than 500 feet; or
(g) Permanent access roads constructed in waters of the US with impervious materials.
(sections 10 and 404)
Note 1: Overhead utility lines constructed over Section 10 waters and utility lines that are
routed in or under Section 10 waters without a discharge of dredged or fill material require a
Section 10 permit; except for pipes or pipelines used to transport gaseous, liquid, liquescent,
or slurry substances over navigable waters of the US, which are considered to be bridges, not
utility lines, and may require a permit from the USCG pursuant to section 9 of the Rivers and
Harbors Act of 1899. However, any discharges of dredged or fill material associated with such
pipelines will require a Corps permit under Section 404.
Note 2: Access roads used for both construction and maintenance may be authorized, provided
they meet the terms and conditions of this NWP. Access roads used solely for construction of the
utility line must be removed upon completion of the work and the area restored to preconstruction
contours, elevations, and wetland conditions. Temporary access roads for construction may be
authorized by N~P 33.
Note 3: Where the proposed utility line is constructed or installed in navigable waters of
the US (i.e., Section 10 waters), copies of the PCN and NWP verification will be sent by the
Corps to the National Oceanic and Atmospheric Administration (NOD-~), National Ocean Service
(NOS), for charting the utility line to protect navigation.
13. Bank Stabilization. Bank stabilization activities necessary for erosion prevention
provided the activity meets all of the following criteria:
a. NO material is placed in excess of the minimum needed for erosion protection;
b. The bank stabilization activity is less than 500 feet in length;
c. The activity will not exceed an average of one c%~bic yard per running foot placed along
the bank below the plane of the ordinary high water mark or the high tide line;
d. NO material is placed in any special aquatic site, including wetlands;
e. NO material is of the t~pe, or is placed in any location, or in any manner, to impair
surface water flow into or out of any wetland area;
f. NO material is placed in a manner that will be eroded by normal or expected high flows
(properly anchored trees and treetops may be used in low energy areas); and, g. The activity is part of a single and complete project.
Bank stabilization activities in excess of 500 feet in length or greater than an average of
one cubic yard per running foot may be authorized if the permittee notifies the District Engineer
in accordance with the ~'Notification" General Condition 13 and the District Engineer determines
the activity complies with the other terms and conditions of the NWP and the adverse
environmental effects are minimal both individually and cumulatively. This NWP may not be used
for the channelization of waters of the US. (Sections 10 and 404)
14. Linear Transportation Projects. Activities required for the construction, expansion,
modification, or improvement of linear transportation crossings (e.g., highways, railways,
trails, airport runways, and taxiways) in waters of the US, including wetlands, if the activity
meets the following criteria:
a. This NWP is subject to the following acreage limits:
(1) For linear transportation projects in non-tidal waters, provided the discharge does not
cause the loss of greater than 1/2-acre of waters of the US; or
{2) For linear transportation projects in tidal waters, provided the discharge does not cause
the loss of greater than 1/3-acre of waters of the US.
b. The permittee must notify the District Engineer in accordance with General Condition 13 if
any of the following criteria are met:
{1) The discharge causes the loss of greater than 1/10-acre of waters of the US; or
(2) There is a discharge in a special aquatic site, including wetlands;
c. The notification must include a compensatory mitigation proposal to offset permanent
losses of waters of the US to ensure that those losses result only in minimal adverse effects to
the aquatic environment and a statement describing how temporary losses will be minimized to the
maximum extent practicable;
d. For discharges in special aquatic sites, including wetlands, and stream riffle and pool
complexes, the notification must include a delineation Of the affected special aquatic sites;
e. The width of the fill is limited to the minimum necessary for the crossing;
f. This permit does not authorize stream channelization, and the authorized activities must
not cause more than minimal changes to the hydraulic flow characteristics of the stream, increase
flooding, or cause more than minimal degradation of water quality of any stream (see General
Conditions 9 and 21);
g. This permit cannot be used to authorize non-linear features commonly associated with
transportation projects, such as vehicle maintenance or storage buildings, parking lots, train
stations, or aircraft hangars; and
h. The crossing is a single and complete project for crossing waters of the US. Where a road
segment {i.e., the shortest segment of a road with independent utility that is part of a larger
project) has multiple crossings of streams {several single and complete projects) the Corps will
consider whether it should use its discretionary authority to require an Individual Permit.
(Sections 10 and 404)
Note: Some discharges for the construction of farm roads, forest roads, or temporary roads
for moving mining equipment may be eligible for an exemption from the need for a Section 404
permit (see 33 CFR 323.4}.
15. U.S. Coast Guard Approved Bridges. Discharges of dredged or fill material incidental to
the construction of bridges across navigable waters Of the US, including cofferdams, abutments,
foundation seals, piers, and temporary construction and access fills provided such discharges
have been authorized by the USCG as part of the bridge permit. Causeways and approach fills are
not included in this NWp and will require an individual or regional Section 404 permit.
(Section 404)
16. Return Water From Upland Contained Disposal Areas. Return water from upland, contained
dredged material disposal area. The dredging itself may require a section 404 permit
{33 CFR 323.2{d)), but will require a Section 10 permit if located in navigable waters of the US.
The return water from a contained disposal area is administratively defined as a discharge of
dredged material by 33 CFR 323.2(d), even though the disposal itself occurs on the upland and
5
does not require a Section 404 permit. This NWP satisfies the technical requirement for a
Section 404 permit for the return water where the q~ality of the return water is controlled by
the state through the Section 401 certification procedures. (Section 404)
17. Hydropower Projects. Discharges of dredged or fill material associated with (a) small:
hydropower projects at existing reservoirs where the project, which includes the fill, are
licensed by the Federal Energy Regulatory Commission (FERC) under the Federal Power Act of 1920,
as amended; and has a total generating capacity of not more than 5000 kW; and the permittee
notifies the District Engineer in accordance with the "Notification" General Condition; or
(b) hydropower projects for which the FERC has granted an exemption from licensing pursuant to
section 408 of the Energy Security Act of 1980 (16 U.S.C. 2705 and 2708) and section 30 of the
Federal Power Act, as amended; provided the pei~nittee notifies the District Engineer in
accordance with the "Notification" General Condition. (Section 404)
18. Minor Discharges. Minor discharges of dredged or fill material into all waters of the
US if the activity meets all of the following criteria:
a. The q~antity of discharged material and the volume of area excavated do not exceed
25 cubic yards below the plane of the ordinary high water mark or the high tide line;
b. The discharge, including any excavated area, will not cause the loss of more than
1/10-acre of a special aquatic site, including wetlands. For the purposes of this NWp, the
acreage limitation includes the filled area and excavated area plus special aquatic sites that
are adversely affected by flooding and special aquatic sites that are drained so that they would
no longer be a water of the US as a result of the project;
c. If the discharge, including any excavated area, exceeds 10 cubic yards below the plane of
the ordinary high water mark or the high tide line or if the discharge is in a special aquatic
site, including wetlands, the permittee notifies the District Engineer in accordance with the
"Notification" General Condition. For discharges in special aquatic sites, including wetlands,
the notification must also include a delineation of affected special aquatic sites, including
wetlands (also see 33 CFR 330.1(e)); and
d. The discharge, including all attendant features, both temporary and permanent, is part of
a single and complete project and is not placed for the purpose of a stream diversion.
(Sections 10 and 404)
19. Minor Dredging. Dredging of no more than 25 cubic yards below the plane of the ordinary
high water mark or the mean high water mark from navigable waters of the US (i.e., Section 10
waters) as part of a single and complete project. This NWP does not authorize the dredging or
degradation through siltation of coral reefs, sites that support submerged aquatic vegetation
(including sites where submerged aquatic vegetation is documented to exist, but may not be
present in a given year), anadromous fish spawning areas, or wetlands, or the connection of
canals or other artificial waterways to navigable waters of the US (see 33 CFR 322.5(g)) .
(Sections 10 and 404)
20. Oil Spill Cleanup. Activities required for the containment and cleanup of oil and
hazardous substances which are subject to the National Oil and Hazardous Substances Pollution
Contingency Plan (40 CFR part 300) provided that the work is done in accordance with the Spill
Control and Countermeasure Plan required by 40 CFR 112.3 and any existing state contingency plan
and provided that the Regional Response Team (if one exists in the area) concurs with the
proposed containment and cleanup action. (Sections 10 and 404)
21. ~urface Coal Mining Activities. Discharges of dredged or fill material into waters of
the US associated with surface coal mining and reclamation operations provided the coal mining
activities are authorized by the DOI, Office of Surface Mining (OSM), or by states with approved
programs under Title V of the Surface Mining Control and Reclamation Act of 1977 and provided the
permittee notifies the District Engineer in accordance with the "Notification" General Condition.
In addition, to be authorized by this NWP, the District Engineer must determine that the activity
complies with the terms and conditions of the NWP and that the adverse environmental effects are
minimal both individually and cumulatively and must notify the project sponsor of this
determination in writing. The Corps, at the discretion of the District Engineer, may require a
bond to ensure success of the mitigation, if no other Federal or state agency has required one.
For discharges in special aquatic sites, including wetlands, and stream riffle and pool
complexes, the notification must also include a delineation of affected special aquatic sites,
including wetlands. (also, see 33 CFR 330.1(e))
Mitigation: In determining the need for as well as the level and t~e of mitigation, the
District Engineer will ensure no more than minimal adverse effects to the aquatic environment
occur. AS such, District Engineers will determine on a case-by-case basis the requirement for
adequate mitigation to ensure the effects to aquatic systems are minimal. In cases where OSM or
the state has required mitigation for the loss of aquatic habitat, the Corps may consider this in
determining appropriate mitigation under Section 404. (Sections 10 and 404)
22. Removal of Vessels. Temporary structures or minor discharges of dredged or fill
material required for the removal of wrecked, abandoned, or disabled vessels, or the removal of
man-made obstructions to navigation. This NWP does not authorize the removal of vessels listed
or determined eligible for listing on the National Register of Historic Places unless the
District Enginee~ is notified and indicates that there is compliance with the ~Hisforic
Properties" General Condition. This NWP does not authorize maintenance dredging, shoal removal,
or riverbank snagging. Vessel disposal in waters of the US may need a permit from EPA
(see 40 CFR 229.3). (Sections 10 and 404)
6
23. Approved Categorical Exclusions. Activities undertaken, assisted, authorized,
regulated, funded, or financed, in whole or in part, by another Federal agency or department
where that agency or department has determined, pursuant to the Council on Environmental Quality
Regulation for Implementing the Procedural Provisions of the National Environmental Policy Act
{NEPA) (40 CFR part 1500 et seq.), that the activity, work, or discharge is categorically
excluded from environmental documentation, because it is included within a category of actions
which neither individually nor cumulatively have a significant effect on the human environment,
and the Office of the Chief of Engineers (ATTN: CECW-OR) has been furnished notice of the
agency's or department's application for the categorical exclusion and concurs with that
determination. Before approval for purposes of this NWP of any agency's categorical exclusions,
the Chief of Engineers will solicit public comment. In addressing these comments, the Chief of
Engineers may require certain conditions for authorization of an agency's categorical exclusions
under this NWp. (Sections 10 and 404)
24. State Administered Section 404 Program. Any activity permitted by a state administering
its own Section 404 permit program pursuant to 33 U.S.C. 1344(g)-(1) is permitted pursuant to
section 10 of the Rivers and Harbors Act of 1899. Those activities that do not involve a
Section 404 state permit are not included in this NWP, but certain structures will be exempted by
section 154 of P%~b. L. 94-587, 90 Stat. 2917 (33 U.S.C. 591) (see 33 CFR 322.3(a) (2)) .
(Section 10)
29. Structural Discharges. Discharges of material such as concrete, sand, rock, etc., into
tightly sealed forms or cells where the material will be used as a structural member for standard
pile supported structures, such as bridges, transmission line footings, and walkways or for
general navigation, such as mooring cells, including the excavation of bottom material from
within the form prior to the discharge of concrete, sand, rock, etc. This NWP does not authorize
filled structural members that would support buildings, building pads, homes, house pads, parking
areas, storage areas and other such structures. The structure itself may require a Section 10
permit if located in navigable waters of the US. {Section 404)
26. [Reserved]
27. Stream and Wetland Restoration Activities. Activities in waters of the US associated
with the restoration of former waters, the enhancement of degraded tidal and non-tidal wetlands
and riparian areas, the creation of tidal and non-tidal wetlands and riparian areas, and the
restoration and enhancement of non-tidal streams and non tidal open water areas as follows: (a) The activity is conducted on:
(1) Non Federal public lands and private lands, in accordance with the terms and conditions
of a binding wetland enhancement, restoration, or creation agreement between the landowner and
the U.S. Fish and Wildlife Service (FWS) or the Natural Resources Conservation Service {NRCS),
the National Marine Fisheries Service, the National Ocean Service, or voluntary wetland
restoration, enhancement, and creation actions documented by the NRCS pursuant to NRCS
regulations; or
(2} Reclaimed surface coal mine lands, in accordance with a Surface Mining Control and
Reclamation Act permit issued by the OSM or the applicable state agency (the future reversion
does not apply to streams or wetlands created, restored, or enhanced as mitigation for the mining
impacts, nor naturally due to hydrologic or topographic features, nor for a mitigation bank}; or
(3) Any other public, private or tribal lands;
{b) Notification: For activities on any public or private land that are not described by
paragraphs (a) (1) or (a) (2) above, the permittee must notify the District Engineer in accordance
with General Condition 13; and
{c) Planting of only native species should occur on the site.
Activities authorized by this NWP include, to the extent that a Corps permit is required, but
are not limited to: the removal of accumulated sediments; the installation, removal, and
maintenance of small water control structures, dikes, and berms; the installation of current
deflectors; the enhancement, restoration, or creation of riffle and pool stream structure; the
placement of in-stream h~bltat structures; modifications of the stream bed and/or banks to
restore or create stream meanders; the backfilling of artificial channels and drainage ditches;
the removal of existing drainage structures; the construction of small nesting islands; the
construction of open water areas; the construction of Oyster habitat over unvegetated bottom in
tidal waters; activities needed to reestablish vegetation, including plowing or discing for seed
bed preparation and the planting of appropriate wetland species; mechanized land clearing to
remove non-native invasive, exotic or nuisance vegetation; and other related activities.
This NWP does not authorize the conversion of a stream to another aquatic use, such as the
creation of an impoundment for waterfowl h~/~itat. This NWP does not authorize stream
channelization. This N~P does not authorize the conversion of natural wetlands to another
aquatic use, such as creation of waterfowl impoundments where a forested wetland previously
existed. However, this NWP authorizes the relocation of non-tidal waters, including non-tidal
wetlands, on the project site provided there are net gains in aquatic resource functions and
values. For example, this NWP may authorize the creation of an open water impoundment in a non~
tidal emergent wetland, provided the non-tidal emergent wetland is replaced by creating that
wetland type on the project site. This NWP does not authorize the relocation of tidal waters or
the conversion of tidal waters, including tidal wetlands, to other aquatic uses, such as the
conversion of tidal wetlands into open water impoundments.
Reversion. For enhancement, restoration, and creation projects conducted under paragraphs
(a) (3}, this NWP does not authorize any future discharge of dredged or fill material associated
7
with the reversion of the area to its prior condition. In such cases a separate permit would be
required for any reversion. For restoration, enhancement, and creation projects conducted under
paragraphs (a) (1) and (a) (2), this NWP also authorizes any future discharge of dredged or fill
material associated with the reversion of the area to its documented prior condition and use
(i.e., prior to the restoration, enhancement, or creation activities). The reversion must occur
within five years after expiration of a limited term wetland restoration or creation agreement or
permit, even if the discharge occurs after this NWP expires. This NWP also authorizes the
reversion of wetlands that were restored, enhanced, or created on prior-converted cropland that
has not been abandoned, in accordance with a binding agreement between the landowner and NRCS or
FWS (even though the restoration, enhancement, or creation activity did not require a Section 404
permit). The five year reversion limit does not apply to agreements without time limits reached
under paragraph (a) (1). The prior condition will be documented in the original agreement or
permit, and the determination of return to prior conditions will be made by the Federal agency or
appropriate state agency executing the agreement or permit. Before any reversion activity the
permittee or the appropriate Federal or state agency must notify the District Engineer and
include the documentation of the prior condition. Once an area has reverted to its prior
physical condition, it will be subject to whatever the Corps Regulatory requirements will be at
that future date. (Sections 10 and 404)
Note: Compensatory mitigation is not required for activities authorized by this NWP, provided
the authorized work results in a net increase in aquatic resource functions and values in the
project area. This NWP can be used to authorize compensatory mitigation projects, including
mitigation banks, provided the permittee notifies the District Engineer in accordance with
General Condition 13, and the project includes compensatory mitigation for impacts to waters of,
the US caused by the authorized work. However, this NWP does not authorize the reversion of an
area used for a compensatory mitigation project to its prior condition. NWP 27 can be used to
authorize impacts at a mitigation bank, but only in circumstances where it has been approved
under the Interagency Federal Mitigation Bank Guidelines.
28. Modifications of Existing Marinas. Reconfiguration of existing docking facilities
within an authorized marina area. No dredging, additional slips, dock spaces, or expansion of
any kind within waters of the US is authorized by this NWP. (Section 10)
29. Single-family Housing. Discharges of dredged or fill material into non-tidal waters of
the US, including non-tidal wetlands for the construction or expansion of a single-family home
and attendant features (such as a garage, driveway, storage shed, and/or septic field) for an
Individual Permittee provided that the activity meets all of the following criteria:
a. The discharge does not cause the loss of more than 1/4 acre of non tidal waters of the US,
including non-tidal wetlands;
b. The permittee notifies the District Engineer in accordance with the "Notification' General
Condition;
c. The permittee has taken all practicable actions to minimize the on-site and off site
impacts of the discharge. For example, the location of the home may need to be adjusted on-site
to avoid flooding of adjacent property owners;
d. The discharge is part of a single and complete project; furthermore, that for any
subdivision created on or after November 22, 1991, the discharges authorized under this NWP may
not exceed an
aggregate total loss of waters of the US of 1/4-acre for the entire subdivision;
e. An individual may use this NWP only for a single family home for a personal residence;
f. This NWP may be used only once per parcel;
g. This NWP may not be used in conjunction with NWp 14 or NWP 18, for any parcel; and,
h. Sufficient vegetated buffers must be maintained adjacent to all open water bodies,
streams, etc., to preclude water quality degradation due to erosion and sedimentation.
For the purposes of this NWP, the acreage of loss of waters of the US includes the filled
area previously permitted, the proposed filled area, and any other waters of the US that are
adversely affected by flooding, excavation, or drainage as a result of the project. This NWP
authorizes activities only by individuals; for this purpose, the term ~individual" refers to a
natural person and/or a married couple, but does not include a corporation, partnership, or
similar entity. For the purposes of this NWP, a parcel of land is defined as "the entire
contiguous quantity of land in possession of, recorded as property of, or owned (in any form of
ownership, including land owned as a partner, corporation, joint tenant, etc.) by the same
individual (and/or that individual's spouse), and comprises not only the area of wetlands sought
to be filled, but also all land contiguous to those wetlands, owned by the individual (and/or
that individual's spouse) in any form of ownership." (Sections 10 and 404)
30. Moist Soil Management for Wildlife. Discharges of dredged or fill material and
maintenance activities that are associated with moist soil management for wildlife performed on
non tidal Federally-owned or managed, state-owned or managed property, and local government
agency-owned or managed property, for the purpose of continuing ongoing, site-specific, wildlife
management activities where soil manipulation is used to manage habitat and feeding areas for
wildlife. Such activities include, but are not limited to: The repair, maintenance or
replacement of existing water control structures; the repair or maintenance of dikes; and plowing
or discing to impede succession, prepare seed beds, or establish fire breaks. Sufficient
vegetated buffers must be maintained adjacent to all open water bodies, streams, etc., to
preclude water quality degradation due to erosion and sedimentation. This NWp does not authorize
the construction of new dikes, roads, water control structures, etc. associated with the
management areas. This NWP does not authorize converting wetlands to uplands, impoundments or
other open water bodies. (Section 404)
31. Maintenance of Existing Flood Control Facilities. Discharge of dredge or fill material
resulting from activities associated with the maintenance of existing flood control facilities,
including debris basins, retention/detention basins, and channels that
{i) were previously authorized by the Corps by Individual Permit, General Permit, by
33 CFR 330.3, or did not require a permit at the time it was constructed, or
(ii) were constructed by the Corps and transferred to a non-Federal sponsor for operation and
maintenance. Activities authorized by this NWP are limited to those resulting from maintenance
activities that are conducted within the "maintenance baseline," as described in the definition
below. Activities including the discharges of dredged or fill materials, associated with
maintenance activities in flood control facilities in any watercourse that has previously been
determined to be within the maintenance baseline, are authorized under this NWP. The NWP does
not authorize the removal of sediment and associated vegetation from the natural water courses
except to the extent that these have been included in the maintenance baseline. All dredged
material must be placed in an upland site or an authorized disposal site in waters of the US, and
proper siltation controls must be used. (Activities of any kind that result in only incidental
fallback, or only the cutting and removing of vegetation above the ground, e.g., mowing, rotary
cutting, and chainsawing, where the activity neither substantially disturbs the root system nor
involves mechanized pushing, dragging, or other similar activities that redeposit excavated soil
material, do not require a Section 404 permit in accordance with 33 CFR 323.2(d) (2)) .
Notification: After the maintenance baseline is established, and before any maintenance work
is conducted, the permittee must notify the District Engineer in accordance with the
~Notification" General Condition. The notification may be for activity-specific maintenance or
for maintenance of the entire flood control facility by submitting a five year (or less)
maintenance plan.
Maintenance Baseline: The maintenance baseline is a description of the physical
characteristics (e.g., depth, width, length, location, configuration, or design flood capacity,
etc.) of a flood control project within which maintenance activities are normally authorized by
NWP 31, subject to any case-specific conditions required by the District Engineer. The District
Engineer will approve the maintenance baseline based on the approved or constructed capacity of
the flood control facility, whichever is smaller, including any areas where there are no
constructed channels, but which are part of the facility. If no evidence of the constructed
capacity exist, the approved constructed capacity will be used. The prospective permittee will
provide documentation of the physical characteristics of the flood control facility (which will
normally consist of as-built or approved drawings) and documentation of the design capacities of
the flood control facility. The documentation will also include BMPs to ensure that the impacts
to the aquatic environment are minimal, especially in maintenance areas where there are no
constructed channels. (The Corps may request maintenance records in areas where there has not
been recent maintenance.) Revocation or modification of the final determination of the
maintenance baseline can only be done in accordance with 33 CFR 330.5. Except in emergencies as
described below, this NWP can not be used until the District Engineer approves the maintenance
baseline and determines the need for mitigation and any regional or activity-specific conditions.
Once determined, the maintenance baseline will remain valid for any subsequent reissuance of this
NWP. This permit does not authorize maintenance of a flood control facility that has been
abandoned. A flood control facility will be considered abandoned if it has operated at a
significantly reduced capacity without needed maintenance being accomplished in a timely manner.
Mitigation: The District Engineer will determine any required mitigation one-time only for
impacts associated with maintenance work at the same time that the maintenance baseline is
approved. Such one time mitigation will be required when necessary to ensure that adverse
environmental impacts are no more than minimal, both individually and cumulatively. Such
mitigation will only be required once for any specific reach of a flood control project.
However, if one-time mitigation is required for impacts associated with maintenance activities,
the District Engineer will not delay needed maintenance, provided the District Engineer and the
permittee establish a schedule for identification, approval, development, construction and
completion of any such required mitigation. Once the one time mitigation described above has
been completed, or a determination made that mitigation is not required, no further mitigation
will be required for maintenance activities within the maintenance baseline. In determining
appropriate mitigation, the District Engineer will give special consideration to natural water
courses that have been included in the maintenance baseline and require compensatory mitigation
and/or BMPs as appropriate.
Emergency Situations: In emergency situations, this NWP may be used to authorize maintenance
activities in flood control facilities for which no maintenance baseline has been approved.
Emergency situations are those which would result in an unacceptable hazard to life, a
significant loss of property, or an immediate, unforeseen, and significant economic hardship if
action is not taken before a maintenance baseline can be approved. In such situations, the
determination of mitigation requirements, if any, may be deferred until the emergency has been
resolved. Once the emergency has ended, a maintenance baseline must be established
expeditiously, and mitigation, including mitigation for maintenance conducted during the
emergency, must be required as appropriate. (Sections 10 and 404)
32. Completed Enforcement Actions. kuy structure, work or discharge of dredged or fill
material, remaining in place, or undertaken for mitigation, restoration, or environmental benefit
in compliance with either:
(i) The terms of a final written Corps non-judicial settlement agreement resolving a
violation of section 404 of the CWA and/or section 10 of the Rivers and Harbors Act of 1899; or
9
the terms of an EPA 309(a) order on consent resolving a violation of section 404 of the CWA,
provided that:
a. The unauthorized activity affected no more than 5 acres of non-tidal wetlands or 1 acre of
tidal wetlands;
b, The settlement agreement provides for environmental benefits, to an equal or greater
degree, than the environmental detriments caused by the unauthorized activity that is authorized
by this NWP; and
c. The District Engineer issues a verification letter authorizing the activity subject to the
terms and conditions of this NWP and the settlement agreement, including a specified completion
date; or
{ii) The terms of a final Federal court decision, consent decree, or settlement agreement
resulting from an enforcement action brought by the U.S. under section 404 of the CWA and/or
section 10 of the Rivers and Harbors Act of 1899; or
(iii) The terms of a final court decision, consent decree, settlement agreement, or non
judicial settlement agreement resulting from a natural resource damage claim brought by a trustee
or trustees for natural resources (as defined by the National Contingency Plan at
40 CFR subpart G) under section 311 of the Clean Water Act (CWA), section 107 of the
Comprehensive Environmental Response, Compensation and Liability Act (CERCLA or Superfund),
section 312 of the National Marine Sanctuaries Act (5~MSA), section 1002 of the Oil Pollution Act
of 1990 (OPA), or the Park System Resource Protection Act at 16 U.S.C. '19jj, to the extent that
a Corps permit is required.
For either (i), (ii) or (iii) above, compliance is a condition of the NWP itself. Any
authorization under this NWp is automatically revoked if the permittee does not comply with the
terms of this NWp or the terms of the court decision, consent decree, or judicial/non-judicial
settlement agreement or fails to complete the work by the specified completion date. This NWP
does not apply to any activities occurring after the date of the decision, decree, or agreement
that are not for the purpose of mitigation, restoration, or environmental benefit. Before
reaching any settlement agreement, the Corps will ensure compliance with the provisions of
33 CFR part 326 and 33 CFR 330.6 (d) (2) and {e) . (Sections 10 and 404)
93. Temporary Construction, Access and D®watering. Temporary structures, work and
discharges, including cofferdams, necessary for construction activities or access fills or
dewatering of construction sites; provided that the associated primary activity is authorized by
the Corps of Engineers or the USCG, or for other construction activities not subject to the Corps
or USCG regulations. Appropriate measures must be taken to maintain near normal downstream flows
and to minimize flooding. Fill must be of materials, and placed in a manner, that will not be
eroded by expected high flows. The use of dredged material may be allowed if it is determined by
the District Engineer that it will not cause more than minimal adverse effects on aquatic
resources. Temporary fill must be entirely removed to upland areas, or dredged material returned
to its original location, following completion of the construction activity, and the affected
areas must be restored to the pre-project conditions, cofferdams cannot be used to dewater
wetlands or other aquatic areas to change their use. Structures left in place after cofferdams
are removed require a Section 10 permit if located in navigable waters of the U.S.
(See 33 CFR part 322). The permittee must notify the District Engineer in accordance with the '
~Notification~ General Condition. The notification must also include a restoration plan of
reasonable measures to avoid and minimize adverse effects to aquatic resources. The District
Engineer will add Special Conditions, where necessary, to ensure environmental adverse effects is
minimal. Such conditions may include: limiting the temporary work to the minimum necessary;
requiring seasonal restrictions; modifying the restoration plan; and requiring alternative
construction methods (e.g, construction mats in wetlands where practicable.).
(Sections 10 and 404)
34. Cranberry Production Activities. Discharges of dredged or fill material for dikes,
berms, pumps, water control structures or leveling of cranberry beds associated with expansion,
enhancement, or modification activities at existing crar~berry production operations provided that
the activity meets all of the following criteria:
a. The cumulative total acreage of disturbance per cranberry production operation, including
but not limited to, filling, flooding, ditching, or clearing, does not exceed 10 acres of waters
of the U.S., including wetlands;
b. The permittee notifies the District Engineer in accordance with the ~Notificatio~' General
Condition. The notification must include a delineation of affected special aquatic sites,
including wetlands; and,
c. The activity does not result in a net loss of wetland acreage. This NWP does not
authorize any discharge of dredged or fill material related to other cranberry production
activities such as warehouses, processing facilities, or parking areas. For the purposes of this
NWP, the cumulative total of 10 acres will be measured over the period that this NWP is valid.
(Section 404)
35. Maintenance Dredging of Existing Basins. Excavation and removal of accumulated sediment
for maintenance of existing marina basins, access channels to marinas or boat slips, and boat
slips to previously authorized depths or controlling depths for ingress/egress, whichever is
less, provided the dredged material is disposed of at an upland site and proper siltation
controls are used. (Section 10)
36. Boat Ramps. Activities required for the construction of boat ramps provided:
a. The discharge into waters of the U.S. does not exceed 50 cubic yards of concrete, rock,
crushed stone or gravel into forms, or placement of pre-cast concrete planks or slabs.
10
(Unsuitable material that causes unacceptable chemical pollution or is structurally unstable is
not authorized);
b. The boat ramp does not exceed 20 feet in width;
c. The base material is crushed stone, gravel or other suitable material;
d. The excavation is limited to the area necessary for site preparation and all excavated
material is removed to the upland; and,
e. NO material is placed in special aquatic sites, including wetlands.
Dredging to provide access to the boat ramp may be authorized by another NWp, Regional
General Permit, or Individual Permit pursuant to Section 10 if located in navigable waters of the
U.S. (Sections 10 and 404)
37. Emergency Watershed Protectlon and Rehabilitation. Work done by or funded by:
a. The NRCS which is a situation requiring immediate action under its emergency Watershed
Protection Program (7 CFR part 624); or
b. The USFS under its Burned Area Emergency Rehabilitation Handbook (FSH 509.13); or
c. The DOI for wildland fire management burned area emergency stabilization and
rehabilitation (DOI Manual part 620, Ch. 3).
For all of the above provisions, the District Engineer must be notified in accordance with
the General Condition 13. (Also, see 33 CFR 330.1{e)) . (Sections 10 and 404)
38. Cleanup of Hazardous and Toxic Waste. Specific activities required to effect the
containment, stabilization, or removal of hazardous or toxic waste materials that are performed,
ordered, or sponsored by a government agency with established legal or regulatory authority
provided the permittee notifies the District Engineer in accordance with the "Notification"
General Condition. For discharges in special aquatic sites, including wetlands, the notification
must also include a delineation of affected special aquatic sites, including wetlands. Court
ordered remedial action plans or related settlements are also authorized by this NWP. This NWP
does not authorize the establishment of new disposal sites or the expansion of existing sites
used for the disposal of hazardous or toxic waste. Activities undertaken entirely on a
Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) site by authority
of CERCLA as approved or required by EPA, are not required to obtain permits under section 404 of
the CWA or section 10 of the Rivers and Rarbors Act. (Sections 10 and
39. Residential, Commercial, and Institutional Developments. Discharges of dredged or fill
material into non tidal waters of the U.S., excludlng non-tidal wetlands adjacent to tidal
waters, for the construction or expansion of residential, commercial, and institutional building
foundations and building pads and attendant features that are necessary for the use and
maintenance of the structures. Attendant features may include, but are not limited to, roads,
parking lots, garages, yards, utility lines, stormwater management facilities, and recreation
facilities such as playgrounds, playing fields, and golf courses (provided the golf course is an
integral part of the residential development). The construction of new ski areas or oil and gas
wells is not authorized by this NWP.
Residential developments include multiple and single unit developments. Examples of
commercial developments include retail stores, industrial facilities, restaurants, business
parks, and shopping centers. Examples of institutional developments include schools, fire
stations, government office buildings, judicial buildings, public works buildings, libraries,
hospitals, and places of worship. The activities listed above are authorized, provided the
activities meet all of the following criteria:
a. The discharge does not cause the loss of greater than 1/2-acre of non tidal waters of the
U.S., excluding nonwtidal wetlands adjacent to tidal waters;
b. The discharge does not cause the loss of greater than 300 linear-feet of a stream bed,
unless for intermittent stream beds this criterion is waived in writing pursuant to a
determination by the District Engineer, as specified below, that the project complies with all
terms and conditions of this NWP and that any adverse impacts of the project on the aquatic
environment are minimal, both individually and cumulatively;
c. The permittee must notify the District Engineer in accordance with General Condition 13,
if any of the following criteria are met:
(1) The discharge causes the loss of greater than 1/10-acre of non tidal waters of the US,
excluding non tidal wetlands adjacent to tidal waters; or
(2) The discharge causes the loss of any open waters, including perennial or intermittent
streams, below the ordinary high water mark (see Note, below); or
(3) The discharge causes the loss of greater than 300 linear feet of intermittent stream bed.
In such case, to be authorized the District Engineer must determine that the activity complies
with the other terms and conditions of the NWP, determine adverse environmental effects are
minimal both individually and cumulatively, and waive the limitation on stream impacts in writing
before the permittee may proceed;
d. For discharges in special aquatic sites, including wetlands, the notification must include
a delineation Of affected special aquatic sites;
e. The discharge is part of a single and complete project;
f. The permittee must avoid and minimize discharges into waters of the US at the project site
to the maximum extent practicable. The notification, when required, must include a written
statement ex~plaining how avoidance and minimization of losses of waters of the US were achieved
on the project site. Compensatory mitigation will normally be required to offset the losses of
waters Of the US. (See General Condition 19.) The notification must also include a compensatory
mitigation proposal for offsetting unavoidable losses of waters of the US. If an applicant
asserts that the adverse effects of the project are minimal without mitigation, then the
11
applicant may submit justification ex?plaining why compensatory mitigation should not be required
for the District Engineer's consideration;
g. When this NWP is used in conjunction with any other NWP, any combined total permanent loss
of waters of the US exceeding 1/10-acre requires that the permittee notify the District Engineer
in accordance with General Condition 13;
h. ~y work authorized by this NWP must not cause more than minimal degradation of water
quality or more than minimal changes to the flow characteristics of any stream (see General
Conditions 9 and 21);
i. For discharges causing the loss of 1/10-acre or less of waters of the US, the permittee
must submit a report, within 30 days of completion of the work, to the District Engineer that
contains the following information: (1) The name, address, and telephone number of the permittee;
(2) The location of the work; (3) A description of the work; (4) The t~e and acreage of the loss
of waters of the US (e.g., 1/12 acre of emergent wetlands); and (5) The ty~e and acreage of any
compensatory mitigation used to offset the loss of waters of the US {e.g., 1/12-acre of emergent
wetlands created on-site);
j. If there are any open waters or streams within the project area, the permittee will
establish and maintain, to the maximum extent practicable, wetland or upland vegetated buffers
next to those open waters or streams consistent with General Condition 19. Deed restrictions,
conservation easements, protective covenants, or other means of land conservation and
preservation are required to protect and maintain the vegetated buffers established on the
project site.
Only residential, commercial, and institutional activities with structures on the
foundation(s) or building pad(s), as well as the attendant features, are authorized by this NWP.
The compensatory mitigation proposal that is required in paragraph (f) of this NWP may be either
conceptual or detailed. The wetland or upland vegetated buffer required in paragraph (j) of this
NWP will be determined on a case-by-case basis by the District Engineer for addressing water
quality concerns. The required wetland or upland vegetated buffer is part of the overall
compensatory mitigation requirement for this NWP. If the project site was previously used for
agricultural purposes and the farm owner/operator used NWP 40 to authorize activities in waters
of the US to increase production or construct farm buildings, NWP 39 cannot be used by the
developer to authorize additional activities. This is more than the acreage limit for NWp 39
impacts to waters of the US (i.e., the combined acreage loss authorized under NWPs 39 and 40
cannot exceed 1/2-acre, see General Condition 15).
Subdivisions: For residential subdivisions, the aggregate total loss of waters of US
authorized by NWP 39 can not exceed 1/2 acre. This includes any loss of waters associated with
development of individual subdivision lots. (Sections 10 and 404)
Note: Areas where wetland vegetation is not present should be determined by the presence or
absence of an ordinary high water mark or bed and bank. Areas that are waters of the US based on
this criterion would require a PCN although water is infrequently present in the stream channel
(except for ephemeral waters, which do not require PCNS) .
40. Agricultural Activities. Discharges of dredged or fill material into non-tidal waters
of the US, excluding non tidal wetlands adjacent to tidal waters, for improving agricultural
production and the construction of building pads for farm buildings. Authorized activities
include the installation, placement, or construction of drainage tiles, ditches, or levees;
mechanized land clearing; land leveling; the relocation of existing serviceable drainage ditches
constructed in waters of the US; and similar activities, provided the permlttee complies with the
following terms and conditions:
a. For discharges into non-tidal wetlands to improve agricultural production, the following
criteria must be met if the permittee is an United States Department of Agriculture (USDA)
Program participant:
(1) The permittee must obtain a categorical minimal effects exemption, minimal effect
exemption, or mitigation exemption from NRCS in accordance with the provisions of the Food
Security Act of 1985, as amended (16 U.S.C. 3801 et seq.);
(2) The discharge into non tidal wetlands does not result in the loss of greater than
1/2-acre of non-tidal wetlands on a farm tract;
(3) The permittee must have NRCS-certified wetland delineation;
(4) The pexgnittee must implement an NRCS-approved compensatory mitigation plan that fully
offsets wetland losses, if required; and
(5) The permittee must submit a report, within 30 days of completion of the authorized work,
to the District Engineer that contains the following information: (a) The name, address, and
telephone number of the permittee; (b) The location of the work; (c) A description of the work;'
(d) The t~npe and acreage (or square feet) of the loss of wetlands (e.g., 1/3-acre of emergent
wetlands); and
(e) The type, acreage (or square feet), and location of compensatory mitigation (e.g. 1/3 acre of
emergent wetland on a farm tract; credits purchased from a mitigation bank); or
b. For discharges into non-tidal wetlands to improve agricultural production, the following
criteria must be met if the permittee is not a USDA Program participant (or a USDA Program
participant for which the proposed work does not qualify for authorization under paragraph (a} of
this NWP):
(1) The discharge into non-tidal wetlands does not result in the loss of greater than
1/2 acre of non-tidal wetlands on a farm tract;
(2) The permittee must notify the District Engineer in accordance with General Condition 13,
if the discharge results in the loss of greater than 1/10 acre of non tidal wetlands;
{3) The notification must include a delineation of affected wetlands; and
12
(4) The notification must include a compensatory mitigation proposal to offset losses of
waters of the US; or
c. For the construction of building pads for farm buildings, the discharge does not cause the
loss of greater than 1/2-acre of non-tidal wetlands that were in agricultural production prior to
Decen~er 23, 1985, (i.e., falTned wetlands) and the per~ittee must notify the District Engineer in
accordance with General Condition 13; and
d. D~ny activity in other waters of the US is limited to the relocation of existing
serviceable drainage ditches constructed in non-tidal streams. This NWP does not authorize the
relocation of greater than 300 linear-feet of existing serviceable drainage ditches constructed
in non-tidal streams unless, for drainage ditches constructed in intermittent non tidal streams,
the District Engineer waives this criterion in writing, and the District Engineer has determined
that the project complies with all terms and conditions of this NWP, and that any adverse impacts
of the project on the aquatic environment are minimal, both individually and cumulatively. For
impacts exceeding
300-linear feet of impacts to existing serviceable ditches constructed in intermittent non-tidal
streams, the permittee must notify the District Engineer in accordance with the ~Notification"
General Condition 13; and
e. The term ~farm tract" refers to a parcel of land identified by the Farm Service Agency.
The Corps will identify other waters of the US on the farm tract. NRCS will determine if a
proposed agricultural activity meets the terms and conditions of paragraph a. of this NWP, except
as provided below. For those activities that require notification, the District Engineer will
determine if a proposed agricultural activity is authorized by paragraphs b., c., and/or d. of
this NWp. USDA Program participants requesting authorization for discharges of dredged or fill
material into waters of the US authorized by paragraphs (c) or (d) of this NWp, in addition to
paragraph (a), must notify the District Engineer in accordance with General Condition 13 and the
District Engineer will determine if the entire single and complete project is authorized by this
NWP. Discharges of dredged or fill material into waters of the US associated with completing
required compensatory mitigation are authorized by this NWP. However, total impacts, including
other authorized impacts under this NWP, may not exceed the 1/2-acre limit of this NWP. This NWP
does not affect, or otherwise regulate, discharges associated with agricultural activities when
the discharge qualifies for an exemption under section 404(f) of the CWA, even though a
categorical minimal effects exemption, minimal effect exemption, or mitigation exemption from
NRCS pursuant to the Food Security Act of 1985, as amended, may be required. Activities
authorized by paragraphs a. through d. may not exceed a total of 1/2-acre on a single farm track.
If the site was used for agricultural purposes and the farm owner/operator used either paragraphs
a., b., or c. of this NWP to authorize activities in waters of the US to increase agricultural
production or construct farm buildings, and the current landowner wants to use NWP 39 to
authorize residential, commercial, or industrial development activities in waters of the US on
the site, the combined acreage loss authorized by NWPs 39 and 40 cannot exceed 1/2-acre (see
General Condition 15). (Section 404)
41. Reshaping Existing Drainage Ditches. Discharges of dredged or fill material into non
tidal waters of the US, excluding non-tidal wetlands adjacent to tidal waters, to modify the
cross sectional configuration of currently serviceable drainage ditches constructed in waters of
the US. The reshaping of the ditch cannot increase drainage capacity beyond the original' design
capacity. Nor can it expand the area drained by the ditch as originally designed (i.e., the
capacity of the ditch must be the same as originally designed and it cannot drain additional
wetlands or other waters of the US). Compensatory mitigation is not required because the work is
designed to improve water quality (e.g., by regrading the drainage ditch with gentler slopes,
which can reduce erosion, increase growth of vegetation, increase uptake of nutrients and other
substances by vegetation, etc.).
Notification: The permittee must notify the District Engineer in accordance with General
Condition 13 if greater than 500 linear feet of drainage ditch will be reshaped. Material
resulting from excavation may not be permanently sidecast into waters but may be temporarily
sidecast (up to three months) into waters of the US, provided the material is not placed in such
a manner that it is dispersed by currents or other forces. The District Engineer may extend the
period of temporary sidecasting not to exceed a total of 180 days, where appropriate. In
general, this NWp does not apply to reshaping drainage ditches constructed in uplands, since
these areas are generally not waters of the US, and thus no permit from the Corps is required, or
to the maintenance of existing drainage ditches to their original dimensions and configuration,
which does not require a Section 404 permit (see 33 CFR 323.4(a) (3)) . This NWP does not
authorize the relocation of drainage ditches constructed in waters of the US; the location of the
centerline of the reshaped drainage ditch must be approximately the same as the location of the
centerline of the original drainage ditch. This NWP does not authorize stream channelization or
stream relocation projects. (Section 404)
42. Recreational Facilitiss. Discharges of dredged or fill material into non-tidal waters
of the US, excluding non-tidal wetlands adjacent to tidal waters, for the construction or
expansion of recreational facilities, provided the activity meets all of the following criteria:
a. The discharge does not cause the loss of greater than 1/2 acre of non-tidal waters of the
US, excluding non-tidal wetlands adjacent to tidal waters;
b. The discharge does not cause the loss of greater than 300 linear-feet of a stream bed,
unless for intermittent stream beds this criterion is waived in writing pursuant to a
determination by the
District Engineer, as specified below, that the project complies with all terms and conditions of
this NWP and that any adverse impacts of the project on the aquatic environment are minimal, both
individually and cumulatively;
13
c. The permittee notifies the District Engineer in accordance with the "Notification" General
Condition 13 for discharges exceeding 300 linear feet of impact of intermittent stream beds. In
such cases, to be authorized the District Engineer must determine that the activity complies with
the other terms and conditions of the NWP, determine the adverse environmental effects are
minimal both individually and cumulatively, and waive this limitation in writing before the
permittee may proceed;
d. For discharges causing the loss of greater than 1/10 acre of non-tidal waters of the US,
the permittee notifies the District Engineer in accordance with General Condition 13;
e. For discharges in special aquatic sites, including wetlands, the notification must include
a delineation of affected special aquatic sites;
f. The discharge is part of a single and complete project; and
g. Compensatory mitigation will normally be required to offset the losses of waters of the
US. The notification must also include a compensatory mitigation proposal to offset authorized
losses of waters of the US.
For the purposes of this NWP, the term ~'recreational facility' is defined as a recreational
activity that is integrated into the natural landscape and does not substantially change
preconstruction grades or deviate from natural landscape contours. For the purpose of this
permit, the primary function of recreational facilities does not include the use of motor
vehicles, buildings, or impervious surfaces. Examples of recreational facilities that may be
authorized by this NWP include hiking trails, bike paths, horse paths, nature centers, and
campgrounds (excluding trailer parks). This NWP may authorize the construction or expansion of
golf courses and the expansion of ski areas, provided the golf course or ski area does not
substantially deviate from natural landscape contours. Additionally, these activities are
designed to minimize adverse effects to waters of the US and riparian areas through the use of
such practices as integrated pest management, adequate stormwater management facilities,
vegetated buffers, reduced fertilizer use, etc. The facility must have adequate water quality
management measures in accordance with General Condition 9, such as a stormwater management
facility, to ensure that the recreational facility results in no substantial adverse effects to
water quality. This NWP also authorizes the construction or expansion of small support
facilities, such as maintenance and storage buildings and stables that are directly related to
the recreational activity. This NWP does not authorize other buildings, such as hotels,
restaurants, etc. The construction or expansion of playing fields (e.g., baseball, soccer, or
football fields), basketball and tennis courts, racetracks, stadiums, arenas, and the
construction of new ski areas are not authorized by this NWP. (Section 404)
43. Stormwater Management Facilities. Discharges of dredged or fill material into non-tidal
waters of the US, excluding non tidal wetlands adjacent to tidal waters, for the construction and
maintenance of stormwater management facilities, including activities for the excavation of
stormwater ponds/facilities, detention basins, and retention basins; the installation and
maintenance of water control structures, outfall structures and emergency spillways; and the
maintenance dredging of existing stormwater management ponds/facilities and detention and
retention basins, provided the activity meets all of the following criteria:
a. The discharge for the construction of new stormwater management facilities does not cause
the loss of greater than 1/2-acre of non tidal waters of the US, excluding non tidal wetlands
adjacent to tidal waters;
b. The discharge does not cause the loss of greater than 300 linear-feet of a stream bed,
unless for intermittent stream beds this criterion is waived in writing pursuant to a
determination by the District Engineer, as specified below, that the project complies with all
terms and conditions of this NWP and that any adverse impacts of the project on the aquatic
environment are minimal, both individually and cumulatively;
c. For discharges causing the loss of greater than 300 linear feet of intermittent stream
beds, the permittee notifies the District Engineer in accordance with the "Notification" Genera~
Condition 13. In such cases, to be authorized the District Engineer must determine that the
activity complies with the other terms and conditions of the NWP, determine the adverse
environmental effects are minimal both individually and cumulatively, and waive this limitation
in writing before the permittee may proceed;
d. The discharges of dredged or fill material for the construction of new stormwater
management facilities in perennial streams is not authorized;
e. For discharges Or excavation for the construction of new stormwater management facilities
or for the maintenance of existing stormwater management facilities causing the loss of greater
than 1/10 acre of non-tidal waters, excluding non tidal wetlands adjacent to tidal waters,
provided the permittee notifies the District Engineer in accordance with the "Notification"
General Condition 13. In addition, the notification must include:
(1) A maintenance plan. The maintenance plan should be in accordance with state and local
requirements, if any such requirements exist;
(2) For discharges in special aquatic sites, including wetlands and submerged aquatic
vegetation, the notification must include a delineation of affected areas; and
(3) A compensatory mitigation proposal that offsets the loss of waters of the US.
Maintenance in constructed areas will not require mitigation provided such maintenance is
accomplished in designated maintenance areas and not within compensatory mitigation areas
{i.e., District Engineers may designate non-maintenance areas, normally at the downstream end of
the stormwater management facility, in existing stormwater management facilities). (NO
mitigation will be required for activities that are exempt from Section 404 permit requirements);
f. The permittee must avoid and minimize discharges into waters of the US at the project site
to the maximum extent practicable, and the notification must include a written statement to the
District Engineer detailing compliance with this condition (i.e. why the discharge must Occur in
waters of the US and why additional minimization cannot be achieved);
14
9. The stormwater management facility must comply with General Condition 21 and be designed
using BMPs and watershed protection techniques. Examples may include forebays (deeper areas at
the upstream end of the stormwater management facility that would be maintained through
excavation), vegetated buffers, and siting considerations to minimize adverse effects to aquatic
resources. Another example of a BMP would be bioengineering methods incorporated into the
facility design to benefit water quality and minimize adverse effects to aquatic resources from
storm flows, especially downstream Of the facility, that provide, to the maximum extent
practicable, for long term aquatic resource protection and enhancement;
h. Maintenance excavation will be in accordance with an approved maintenance plan and will
not exceed the original contours of the facility as approved and constructed; and
i. The discharge is part of a single and complete project. (Section 404)
44. Mining Activities. Discharges of dredged or fill material into:
(i) Isolated waters; streams where the annual average flow is 1 cubic foot per second or
less, and non-tidal wetlands adjacent to headwater streams, for aggregate mining (i.e., sand,
gravel, and crushed and broken stone) and associated support activities;
(ii) Lower perennial streams, excluding wetlands adjacent to lower perennial streams, for
aggregate mining activities (support activities in lower perennial streams or adjacent wetlands
are not authorized by this NWP); and/or
(iii) Isolated waters and non tidal wetlands adjacent to headwater streams, for hard
rock/mineral mining activities (i.e., extraction of metalliferous ores from subsurface locations)
and associated support activities, provided the discharge meets the following criteria:
a. The mined area within waters of the US, plus the acreage loss of waters of the US
resulting from support activities, cannot exceed 1/2-acre;
b. The permittee must avoid and minimize discharges into waters of the US at the project site
to the maximum extent practicable, and the notification must include a written statement
detailing compliance with this condition (i.e., why the discharge must occur in waters of the US
and why additional minimization cannot be achieved);
c. In addition to General Conditions 17 and 20, activities authorized by this permit must not
substantially alter the sediment characteristics of areas of concentrated shellfish beds or fish
spawning areas. Normally, the water quality management measures required by General Condition 9
should address these impacts;
d. The permittee must implement necessary measures to prevent increases in stream gradient
and water velocities and to prevent adverse effects (e.g., head cutting, bank erosion) to
upstream and downstream channel conditions;
e. Activities authorized by this permit must not result in adverse effects on the course,
capacity, or condition of navigable waters of the US;
f. The permittee must use measures to minimize downstream turbidity;
g. Wetland impacts must be compensated through mitigation approved by the Corps;
h. Beneficiation and mineral processing for hard rock/mineral mining activities may not Occur
within 200 feet of the ordinary high water mark of any open waterbody. Although the Corps does
not regulate discharges from these activities, a CWA section 402 permit may be required;
i. All activities authorized must comply with General Conditions 9 and 21. Further, the
District Engineer may require water quality management measures to ensure the authorized work
results in minimal adverse effects to water quality;
j. Except for aggregate mining activities in lower perennial streams, no aggregate mining can
occur within stream beds where the average annual flow is greater than 1 cubic foot per second or
in waters of the US within 100 feet of the ordinary high water mark of headwater stream segments
where the average annual flow of the stream is greater than 1 cabic foot per second (aggregate
mining can occur in areas inumediately adjacent to the ordinary high water mark of a stream where
the average annual flow is 1 cubic foot per second or less);
k. Single and complete project: The discharge must be for a single and complete project,
including support activities. Discharges of dredged or fill material into waters of the US fo~
multiple mining activities on several designated parcels of a single and complete mining
operation can be authorized by this NWP provided the 1/2 acre limit is not exceeded; and
1. Notification: The permittee must notify the District Engineer in accordance with General
Condition 13. The notification must include: (1) A description of waters of the US adversely
affected by the project; (2) A written statement to the District Engineer detailing compliance
with paragraph (b), above (i.e., why the discharge must occur in waters of the US and why
additional minimization cannot be achieved); (3) A description of measures taken to ensure that
the proposed work complies with paragraphs (c) through (f), above; and (4) A reclamation plan
(for aggregate mining in isolated waters and non-tidal wetlands adjacent to headwaters and hard
rock/mineral mining only).
This NWP does not authorize hard rock/mineral mining, including placer mining, in streams.
NO hard rock/mineral mining can occur in waters of the US within 100 feet of the ordinary high
water mark of headwater streams. The term's "headwaters" and ~isolated waters" are defined at
33 CFR 330.2(d) and (e), respectively. For the purposes Of this NWP, the term ~'lower perennial
strea~' is defined as follows: ~A stream in which the gradient is low and water velocity is slow,
there is no tidal influence, some water flows throughout the year, and the su~strate consists
mainly of sand and mud." (Sections 10 and 404)
15
C. Nationwide Permit General Conditions
The following General Conditions must be followed in order for any authorization by an NWP to
be valid:
1. Navigation. NO activity may cause more than a minimal adverse effect on navigation.
2. Proper Maintenance. ~y structure or fill authorized shall be properly maintained,
including maintenance to ensure public safety.
3. 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-f/ow or no-flow.
4. Aquatic Life Movements. NO activity may substantially disrupt the necessary life-cycle
movements of those species of aquatic life indigenous to the waterbody, including those species
that normally migrate through the area, unless the activity's primary purpose is to impound
water. Culverts placed in streams must be installed to maintain low flow conditions.
5. Equipment. Heavy equipment working in wetlands must be placed on mats, or other measures
must be taken to minimize soil disturbance.
6. Regional and Case-By-Case Conditions. The activity must comply with any regional
conditions that may have been added by the Division Engineer (see 33 CFR 330.4(e)) and with any
case specific conditions added by the Corps or by the state or tribe in its Section 401 Water
Quality Certification and Coastal Zone Management Act consistency determination.
7. Wild and Scenic Riwers. NO activity may occur in a component of the National Wild and
Scenic River System; or in a river officially designated by Congress as a ~study ~iver" for
possible inclusion in the system, while the river is in an official study status; unless the
appropriate Federal agency, with direct management responsibility for such river, has determined
in writing that the proposed activity will not adversely affect the Wild and Scenic River
designation, or study status. Information on Wild and Scenic Rivers may be obtained from the
appropriate Federal land management agency in the area (e.g., National Park Service, U.S. Forest
Service, Bureau of Land Management, U.S. Fish and wildlife Service).
8. Tribal Rights. NO activity or its operation may impair reserved tribal rights,
including, but not limited to, reserved water rights and treaty fishing and hunting rights.
9. Water Quality. (a) In certain states and tribal lands an individual 401 Water Quality
Certification must be obtained or waived (See 33 CFR 330.4(c)) .
(b) For NWPS 12, 14, 17, 18, 32, 39, 40, 42, 43, and 44, where the state or tribal 401
certification (either generically or individually) does not require or approve water quality
management measures, the permittee must provide water quality management measures that will
ensure that the authorized work does not result in more than minimal degradation of water quality
(or the Corps determines that compliance with state or local standards, where applicable, will
ensure no more than minimal adverse effect on water quality). An important component of water
quality management includes stormwater management that minimizes degradation of the downstream
aquatic system, including water quality (refer to General Condition 21 for stormwater management
requirements). Another important component of water quality management is the establishment and
maintenance of vegetated buffers next to open waters, including streams (refer to General
Condition 19 for vegetated buffer requirements for the NWPS) .
This condition is only applicable to projects that have the potential to affect water
quality. While appropriate measures must be taken, in most cases it is not necessary to conduct
detailed studies to identify such measures or to require monitoring.
10. Coastal Zone Management. In certain states, an individual state coastal zone management
consistency concurrence must be obtained or waived (see 33 CFR 330.4(d)).
11. Endangered Species, (a) No activity is authorized under any Aq4P which is likely to
jeopardize the continued existence of a threatened or endangered species or a species proposed
for such designation, as identified under the Federal Endangered Species Act (ESA), or which will
destroy or adversely modify the critical habitat of such species. Non federal permittees shall
notify the District Engineer if any listed species or designated critical habitat might be
affected or is in the vicinity of the project, or is located in the 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 may affect Federally listed endangered or threatened species or designated critical habitat,
the notification must include the name(s) of the endangered or threatened species that may be
affected by the proposed work or that utilize the designated critical habitat that may be
affected by the proposed work. As a result of foi~al or informal consultation with the FWS or
NMFS the District Engineer may add species-specific regional endangered species conditions to the
16
(b) Authorization of an activity by a NWP does not authorize the "take" of a threatened or
endangered species as defined under the ESA. In the absence of separate authorization (e.g., an
ESA Section 10 Permit, a Biological Opinion with "incidental take" provisions, etc.) from the
USFWS or the NMFS, both lethal and non-lethal "takes" of protected species are in violation of
the ESA. Information on the location of threatened and endangered species and their critical
habitat can be obtained directly £rom the offices of the USFWS and NMFS or their world wide web
pages at http://w~vw.fws.gov/rPendspp/endspp.html and
http://~zww.nfms.noaa.gov/prot_res/overview/es.html respectively.
12. Historic Properties. No activity which may affect historic properties listed, or
eligible for listing, in the National Register of Historic Places is authorized, until the
District Engineer has complied with the provisions of 33 CFR part 325, Appendix C. The
prospective permlttee must notify the District Engineer if the authorized activity may affect any
historic properties listed, determined to be eligible, or which the prospective permittee has
reason to believe may be eligible for listing on the National Register of Nistoric Places, and
shall not begin the activity until notified by the District Engineer that the requirements of the
National Historic Preservation Act have been satisfied and that the activity is authorized.
I~formation on the location and existence of historic resources can be obtained from the State
Historic Preservation Office and the National Register of Historic Places {see 33 CFR 330.4(g)).
For activities that may affect historic properties listed in, or eligible for listing in, the
National Register of Nistoric Places, the notification must state which historic property may be
affected by the proposed work or include a vicinity map indicating the location of the historic
property.
13. Notification.
{a) Timing; where required by the terms of the NWP, the prospective permlttee must notify the
District Engineer with a preconstruction notification (PCN) as early as possible. The District
Engineer must determine if the notification is complete within 30 days of the date of receipt and
can request additional information necessary to make the PCN complete only once. However, if the
prospective pelmittee does not provide all of the requested information, then the District
Engineer will notify the prospective pezmittee that the notification is still incomplete and the
PCN review process will not commence until all of the requested information has been received by
the District Engineer. The prospective permittee ~hall not begin the activity:
{1) until notified in writing by the District Engineer that the activity may proceed under
the NWP with any special conditions imposed by the District or Division Engineer; or
(2) If notified in writing by the District or Division Engineer that an Individual Permit is
required; or
(3) Unless 45 days have passed from the District Engineer's receipt of the complete
notification and the prospective pel~nittee has not received written notice from the District or
Division Engineer. Subsequently, the permittee's right to proceed under the NWP may be modified,
suspended, or revoked only in accordance with the procedure set forth in 33 CFR 330.5(d) (2) .
{b) Contents of Notification: The notification must be in writing and include the following
information:
(1) Name, address and telephone nu~ers of the prospective permittee;
(2) Location of the proposed project;
(3) Brief description of the proposed project; the project's purpose; direct and indirect
adverse environmental effects the project would cause; any other NWP(s), Regional General
Pezmit{s), or Individual Permit(s) used or intended to be used to authorize any part of the
proposed project or any related activity. Sketches should he provided when necessary to show
that the activity complies with the terms of the NWP (Sketches usually clarify the project and
when provided result in a quicker decision.);
(4) For NWPs 7, 12, 14, 18, 21, 34, 38, 39, 40, 41, 42, and 43, the PCN must also include a
delineation of affected special aquatic sites, including wetlands, vegetated shallows (e.g.,
submerged aquatic vegetation, seagrass beds), and riffle and pool complexes (see paragraph
13 (f));
(5) For ~P 7 (Outfall Structures and Maintenance), the PCN must include information
regarding the original design capacities and configurations of those areas of the facility where
maintenance dredging or excavation is proposed;
(6) For NWP 14 (Linear Transportation Projects), the PCN must include a compensatory
mitigation proposal to offset permanent losses of waters of the US and a statement describing how
temporary losses of waters of the US will be minimized to the maximum extent practicable;
(7) For NWp 21 (Surface Coal Mining Activities), the PCN must include an office of Surface
Mining (OSM) or state-approved mitigation plan, if applicable. TO be authorized by this NWP, the
District Engineer must determine that the activity complies with the terms and conditions of the
A~4P and that the adverse environmental effects are minimal both individually and cumulatively and
must notify the project sponsor of this determination in writing;
(8) For NWP 27 (Stream and Wetland Restoration Activities), the PCN must include
documentation of the prior condition of the site that will be reverted by the permittee; (9) For NWP 29 (Single-Family Rousing), the PCN must also include:
(i) Any past use of this NWP by the Individual Permittee and/or the permittee's spouse;
{ii} A statement that the single-family housing activity is for a personal residence of the
permittee;
(iii) A description of the entire parcel, including its size, and a delineation of wetlands.
For the purpose of this NWp, parcels of land measuring 1/4 acre or less will not require a fo~ntal
on-site delineation. However, the applicant shall provide an indication of where the wetlands
are and the amount of wetlands that exists on the property. For parcels greater than 1/4-acre in
17
size, formal wetland delineation must be prepared in accordance with the current method required
by the Corps. (See paragraph 13(f));
(iv) A written description Of all land (including, if available, legal descriptions) owned by
the prospective permittee and/or the prospective permittee's spouse, within a one mile radius of
the parcel, in any form of ownership (including any land owned as a partner, corporation, joint
tenant, co tenant, or as a tenant-by-the-entirety) and any land on which a purchase and sale
agreement or other contract for sale or purchase has been executed;
(10) For NWP 31 (Maintenance of Existing Flood Control Facilities), the prospective permittee
must either notify the District Engineer with a PCN prior to each maintenance activity or submit
a five year (or less) maintenance plan. In addition, the PCN must include all of the following:
(i) Sufficient baseline information identifying the approved channel depths and
configurations and existing facilities. Minor deviations are authorized, provided the approved
flood control protection or drainage is not increased;
(ii) A delineation of any affected special aquatic sites, including wetlands; and,
(iii) Location of the dredged material disposal site;
(11) For NWP 33 (Temporary Construction, Access, and Dewatering), the PCN must also include a
restoration plan of reasonable measures to avoid and minimize adverse effects to aquatic
resources;
(12) For NWPs 39, 43 and 44, the PCN must also include a written statement to the District
Engineer e~laining how avoidance and minimization for losses of waters of the US were achieved
on the project site;
(13) For NWP 39 and NWP 42, the PCN must include a compensatory mitigation proposal to offset
losses of waters of the US or justification explaining why compensatory mitigation should not be
required. For discharges that cause the loss of greater than 300 linear feet of an intermittent
stream bed, to be authorized, the District Engineer must determine that the activity complies
with the other terms and conditions of the NWP, determine adverse environmental effects are
minimal both individually and cumulatively, and waive the limitation on stream impacts in writing
before the permittee may proceed;
(14) For NWP 40 (Agricultural Activities), the PCN must include a compensatory mitigation
proposal to offset losses of waters of the US. This NWP does not authorize the relocation of
greater than 300 linear feet of existing serviceable drainage ditches constructed in non-tidal
streams unless, for drainage ditches constructed in intermittent non-tidal streams, the District
Engineer waives this criterion in writing, and the District Engineer has determined that the
project complies with all terms and conditions of this NWP, and that any adverse impacts of the
project on the aquatic environment are minimal, both individually and cumulatively;
(15) For NWP 43 (Stormwater Management Facilities), the PCN must include, for the
construction of new stormwater management facilities, a maintenance plan (in accordance with
state and local requirements, if applicable) and a compensatory mitigation proposal to offset
losses of waters of the US. For discharges that cause the loss of greater than 300 linear feet
of an intermittent stream bed, to be authorized, the District Engineer must determine that the
activity complies with the other terms and conditions of the NWP, determine adverse environmental
effects are minimal both individually and cumulatively, and waive the limitation on stream
impacts in writing before the permlttee may proceed;
(16) For NWP 44 (Mining Activities), the PCN must include a description of all waters of the
US adversely affected by the project, a description of measures taken to minimize adverse effects
to waters of the US, a description of measures taken to comply with the criteria of the NWP, and
a reclamation plan (for all aggregate mining activities in isolated waters and non-tidal wetlands
adjacent to headwaters and any hard rock/mineral mining activities);
(17) For activities that may adversely affect Federally-listed endangered or threatened
species, the PCN must include the name(s) of those endangered or threatened species that may be
affected by the proposed work or utilize the designated critical habitat that may be affected by
the proposed work; and
(18) For activities that may affect historic properties listed in, or eligible for listing
in, the National Register of Historic Places, the PCN must state which historic property may be
affected by the proposed work or include a vicinity map indicating the location of the historic
property.
(c) Form of Notification: The standard Individual Permit application form (Form ENG 4345) may
be used as the notification but must clearly indicate that it is a PCN and must include all of
the information required in (b) (1)-(18) of General Condition 13. A letter containing the
requisite information may also be used.
(d) District Engineer's Decision: In reviewing the PCN for the proposed activity, the
District Engineer will determine whether the activity authorized by the NWP will result in more
than minimal individual or cumulative adverse environmental effects or may be contrary to the
public interest. The prospective permittee may submit a proposed mitigation plan with the PCN to
expedite the process. The District Engineer will consider any proposed compensatory mitigation
the applicant has included in the proposal in determining whether the net adverse environmental
effects to the aquatic environment of the proposed work are minimal. If the District Engineer
determines that the activity complies with the terms and conditions of the NWP and that the
adverse effects on the aquatic environment are minimal, after considering mitigation, the
District Engineer will notify the permittee and include any conditions the District Engineer
deems necessary. The District Engineer must approve any compensatory mitigation proposal before
the permittee commences work. If the prospective permittee is required to s%fomit a compensatory
mitigation proposal with the PCN, the proposal may be either conceptual or detailed. If the
prospective permittee elects to submit a compensatory mitigation plan with the PCN, the District
Engineer will expeditiously review the proposed compensatory mitigation plan. The District
Engineer must review the plan within 45 days of receiving a complete PCN and determine whether
the conceptual or specific proposed mitigation would ensure no more than minimal adverse effects
18
on the aquatic environment. If the net adverse effects of the project on the aquatic environment
(after consideration of the compensatory mitigation proposal) are determined by the District
Engineer to be minimal, the District Engineer will provide a timely written response to the
applicant. The response will state that the project can proceed under the texT, S and conditions
of the NWP.
If the District Engineer determines that the adverse effects of the proposed work are more
than minimal, then the District Engineer will notify the applicant either: (1) That the project
does not qualify for authorization under the NWP and instruct the applicant on the procedures to
seek authorization under an Individual Permit; (2) that the project is authorized under the NWp
subject to the applicant's submission of a mitigation proposal that would reduce the adverse
effects on the aquatic environment to the minimal level; or (3) that the project is authorized
under the NWP with specific modifications or conditions. Where the District Engineer determines
that mitigation is required to ensure no more than minimal adverse effects occur to the aquatic
environment, the activity will be authorized within the 45-day PCN period. The authorization
will include the necessary conceptual or specific mitigation or a requirement that the applicant
submit a mitigation proposal that would reduce the adverse effects on the aquatic environment to
the minimal level. When conceptual mitigation is included, or a mitigation plan is required
under item (2) above, no work in waters of the US will occur until the District Engineer has
approved a specific mitigation plan.
(e) Agency Coordination: The District Engineer will consider any comments from Federal and
state agencies concerning the proposed activity's compliance with the terms and conditions of the
NWPs and the need for mitigation to reduce the project's adverse environmental effects to a
minimal level.
For activities requiring notification to the District Engineer that result in the loss of
greater than 1/2-acre of waters of the US, the District Engineer will provide immediately
(e.g., via facsimile transmission, overnight mail, or other expeditious manner) a copy to the
appropriate Federal or state offices (USFWS, state natural resource or water quality agency, EPA,
State Historic Preservation Officer {SHPO), and, if appropriate, the NMFS) . With the exception
of NWP 37, these agencies will then have 10 calendar days from the date the material is
transmitted to telephone or fax the District Engineer notice that they intend to provide
substantive, site-specific comments. If so contacted by an agency, the District Engineer will ,
wait an additional 15 calendar days before making a decision on the notification. The District
Engineer will fully consider agency comments received within the specified time frame, but will
provide no response to the resource agency, except as provided below. The District Engineer will
indicate in the administrative record associated with each notification that the resource
agencies' concerns were considered. As required by section 305(b) (4) (B) of the Magnuson-Stevens
Fishery Conservation and Management Act, the District Engineer will provide a response to NMFS
within 30 days of receipt of any Essential Fish Habitat conservation recommendations. Applicants
are encouraged to provide the Corps multiple copies of notifications to expedite agency
notification.
(f) Wetland Delineations: Wetland delineations must be prepared in accordance with the
current method required by the Corps (For NWP 29 see paragraph (b) (9) (iii) for parcels less than
(1/4 acre in size). The permittee may ask the Corps to delineate the special aquatic site.
There may be some delay if the Corps does the delineation. Furthermore, the 45-day period will
not start until the wetland delineation has been completed and submitted to the Corps, where
appropriate.
14. Compliance Certification. Every permittee who has received NWP verification from the
Corps will submit a signed certification regarding the completed work and any required
mitigation. The certification will be forwarded by the corps with the authorization letter and
will include:
(a) A statement that the authorized work was done in accordance with the Corps authorization,
including any general or specific conditions;
(b) A statement that any required mitigation was completed in accordance with the permit
conditions; and
(c) The signature of the permittee certifying the completion of the work and mitigation.
15. Use of Multiple Nationwide PernUts. The use of more than one NWP for a single and
complete project is prohibited, except when the acreage loss of waters of the US authorized by
the NWPs does not exceed the acreage limit of the NWP with the highest specified acreage limit
(e.g. if a road crossing over tidal waters is constructed under NWP 14, with associated bank
stabilization authorized by NWp 13, the maximum acreage loss of waters of the US for the total
project cannot exceed 1/3-acre).
16. Water Supply Intakes. No activity, including structures and work in navigable waters of
the US or discharges of dredged or fill material, may occur in the proximity of a public water
supply intake except where the activity is for repair of the public water supply intake
structures or adjacent bank stabilization.
17. Shellfish Beds. NO activity, including structures and work in navigable waters of the
US or discharges of dredged or fill material, may occur in areas of concentrated shellfish
populations, unless the activity is directly related to a shellfish harvesting activity
authorized by NWp 4.
18. Suitable Material. NO activity, including structures and work in navigable waters of
the US or discharges of dredged or fill material, may consist of unsuitable material
19
(e.g., trash, debris, car bodies, asphalt, etc.) and material used for construction or discharged
must be free from toxic pollutants in toxic amounts (see section 307 of the CWA).
19. M±tigation. The District Engineer will consider the factors discussed below when
determining the acceptability of appropriate and practicable mitigation necessary to offset
adverse effects on the aquatic environment that are more than minimal.
(a) The project must be designed and constructed to avoid and minimize adverse effects to
waters of the US to the maximum extent practicable at the project site (i.e., on site).
(b) Mitigation in all its forms (avoiding, minimizing, rectifying, reducing or compensating)
will be required to the extent necessary to ensure that the adverse effects to the aquatic
environment are minimal.
(c) Compensatory mitigation at a minimum one-for-one ratio will be required for all wetland
impacts requiring a PCN, unless the District Engineer determines in writing that some other form
of mitigation would be more environmentally appropriate and provides a project-specific waiver of
this requirement. Consistent with National policy, the District Engineer will establish a
preference for restoration of wetlands as compensatory mitigation, with preservation used only ~n
exceptional circumstances.
(d) Compensatory mitigation (i.e., replacement or substitution of aquatic resources for those
impacted) will not be used to increase the acreage losses allowed by the acreage limits of some
of the NWPs. For example, 1/4-acre of wetlands cannot be created to change a 3/4-acre loss of
wetlands to a 1/2-acre loss associated with NWP 39 verification. However, 1/2 acre of created
wetlands can be used to reduce the impacts of a 1/2-acre loss of wetlands to the minimum impact
level in order to meet the minimal impact requirement associated with NWPs.
(e) TO be practicable, the mitigation must be available and capable of being done considering
costs, existing technology, and logistics in light of the overall project purposes. Examples of
mitigation that may be appropriate and practicable include, but are not limited to: reducing the
size of the project; establishing and maintaining wetland or upland vegetated buffers to protect
open waters such as streams; and replacing losses of aquatic resource functions and values by
creating, restoring, enhancing, or preserving similar functions and values, preferably in the
same watershed.
(f) Compensatory mitigation plans for projects in or near streams or other open waters will
normally include a requirement for the establishment, maintenance, and legal protection
(e.g., easements, deed restrictions) of vegetated buffers to open waters. In many cases,
vegetated buffers will be the only compensatory mitigation required. Vegetated buffers should
consist of native species. The width of the vegetated buffers required will address documented
water quality or aquatic habitat loss concerns. Normally, the vegetated buffer will be
25 to 50 feet wide on each side of the stream, but the District Engineers may require slightly
wider vegetated buffers to address documented water quality or habitat loss concerns. Where both
wetlands and open waters exist on the project site, the Corps will determine the appropriate
compensatory mitigation (e.g., stream buffers or wetlands compensation) based on what is best for
the aquatic environment on a watershed basis. In cases where vegetated buffers are determined to
be the most appropriate form of compensatory mitigation, the District Engineer may waive or
reduce the requirement to provide wetland compensatory mitigation for wetland impacts.
(g) Compensatory mitigation proposals submitted with the "notification" may be either
conceptual or detailed. If conceptual plans are approved under the verification, then the Corps
will condition the verification to require detailed plans be submitted and approved by the Corps
prior to construction of the authorized activity in waters of the US. ·
(h) Permittees may propose the use of mitigation banks, in lieu fee arrangements or separate
activity-specific compensatory mitigation. In all cases that require compensatory mitigation,
the mitigation provisions will specify the party responsible for accomplishing and/or complying
with the mitigation plan.
20. Spawning Areas. Activities, including structures and work in navigable waters of the US
or discharges of dredged or fill material, in spawning areas during spa%ming seasons must be
avoided to the maximum extent practicable. Activities that result in the physical destruction
(e.g., excavate, fill, or smother downstream by substantial turbidity) of an important spawning
area are not authorized.
21. Management of Water Flows. TO the maximum extent practicable, the activity must be
designed to maintain preconstruction downstream flow conditions (e.g., location, capacity, and
flow rates). Furthermore, the activity must not permanently restrict or impede the passage of
normal or expected high flows (unless the primary purpose of the fill is to impound waters) and
the structure or discharge of dredged or fill material must withstand expected high flows. The
activity must, to the maximum extent practicable, provide for retaining excess flows from the
site, provide for maintaining surface flow rates from the site similar to preconstruction
conditions, and provide for not increasing water flows from the project site, relocating water,
or redirecting water flow beyond preconstruction conditions. Stream channelizing will be reduced
to the minimal amount necessary, and the activity must, to the maximum extent practicable, reduce
adverse effects such as flooding or erosion do~%stream and upstream of the project site, unless
the activity is part of a larger system designed to manage water flows. In most cases, it will
not be a requirement to conduct detailed studies and monitoring of water flow.
This condition is only applicable to projects that have the potential to affect waterflows.
While appropriate measures must be taken, it is not necessary to conduct detailed studies to
identify such measures or require monitoring to ensure their effectiveness. Normally, the Corps
will defer to state and local authorities regarding management of water flow.
20
22. Adverse Effects From Impoundments. If the activity creates an impoundment of water,
adverse effects to the aquatic system due to the acceleration of the passage of water, and/or the
restricting its flow shall be minimized to the maximum extent practicable. This includes
structures and work in navigable waters of the US, or discharges of dredged or fill material.
23. Waterfowl Breeding Areas. Activities, including structures and work in navigable waters
of the US or discharges of dredged or fill material, into breeding areas for migratory waterfowl
must be avoided to the maximum extent practicable.
24. Removal of Temporary Fills. A~y temporary fills must be removed in their entirety and
the affected areas returned to their preexisting elevation.
25. Designated Critical Resource Waters. Critical resource waters include, NOAA-designated
marine sanctuaries, National Estuarine Research Reserves, National Wild and Scenic Rivers,
critical habitat for Federally listed threatened and endangered species, coral reefs, state
natural heritage sites, and outstanding national resource waters or other waters officially
designated by a state as having particular environmental or ecological significance and
identified by the District Engineer after notice and opportunity for public comment. The
District Engineer may also designate additional critical resource waters after notice and
opportunity for comment.
(a) Except as noted below, discharges of dredged or fill material into waters of the US are
not authorized by NWPs 7, 12, 14, 16, 17, 21, 29, 31, 35, 39, 40, 42, 43, and 44 for any activity
within, or directly affecting, critical resource waters, including wetlands adjacent to such
waters. Discharges of dredged or fill materials into waters of the US may be authorized by the
above NWPs in National wild and Scenic Rivers if the activity complies with General Condition 7.
Further, such discharges may be authorized in designated critical habitat for Federally listed
threatened or endangered species if the activity complies with General Condition 11 and the USFWS
or the NMFS has concurred in a determination of compliance with this condition.
(b) For NWPs 3, 8, 10, 13, 15, 18, 19, 22, 23, 25, 27, 28, 30, 33, 34, 36, 37, and 38,
notification is required in accordance with General Condition 13, for any activity proposed in
the designated critical resource waters including wetlands adjacent to those waters. The
District Engineer may authorize activities under these NWPs only after it is determined that the
impacts to the critical resource waters will be no more than minimal.
26. Fills Within 100-Year Floodplains. For purposes of this General Condition, 100-year
floodplains will be identified through the existing Federal Emergency Management Agency's {FEMA)
Flood Insurance Rate Maps or FEMA approved local floodplain maps.
(a) Discharges in Floodplain; Below Headwaters. Discharges of dredged or fill material into
waters of the US within the mapped 100 year floodplain, below headwaters (i.e. five cfs),
resulting in permanent above-grade fills, are not authorized by NWPs 39, 40, 42, 43, and 44.
(b) Discharges in Floodway; Above Headwaters. Discharges of dredged or fill material into
waters of the US within the FEMA or locally mapped floodway, resulting in permanent above grade
fills, are not authorized by NWPs 39, 40, 42, and 44.
(c) The permittee must comply with any applicable FEMA approved state or local floodplain
management requirements.
27. Construction Period. For activities that have not been verified by the Corps and the
project was commenced or under contract to commence by the expiration date of the NWP (or
modification or revocation date), the work must be completed within 12-months after such date
(including any modification that affects the project).
For activities that have been verified and the project was commenced or under contract to
commence within the verification period, the work must be completed by the date determined by the
Corps.
For projects that have been verified by the Corps, an extension of a Corps approved
completion date maybe requested. This request must be submitted at least one month before the
previously approved completion date.
D. Further Information
1. District Engineers have authority to determine if an activity complies with the terms and
conditions of an NWp.
2. NWPs do not obviate the need to obtain other Federal, state, or local pex~nits, approvals,
or authorizations required by law.
3. NWPs do not grant any property rights or exclusive privileges.
4. NWPs do not authorize any injury to the property or rights of others.
5. NWPs do not authorize interference with any existing or proposed Federal project.
E. Definitions
Best Management Practices (BMFs): BMPS are policies, practices, procedures, or structures
implemented to mitigate the adverse environmental effects on surface water quality resulting from
development. BMPS are categorized as structural or non structural. A BMP policy may affect the
limits on a development.
21
Compensatory Mitigation: For purposes of Section 10/404, compensatory mitigation is the
restoration, creation, enhancement, or in exceptional circumstances, preservation of wetlands
and/or other aquatic resources for the purpose of compensating for unavoidable adverse impacts,
which remain after all appropriate and practicable avoidance and minimization has been achieved.
Creation: The establishment of a wetland or other aquatic resource where one did not formerly
exist.
Enhancement: Activities conducted in existing wetlands or other aquatic resources that
increase one or more aquatic functions.
Ephemeral Stream: An ephemeral stream has flowing water only during and for a short duration
after, precipitation events in a typical year. Ephemeral stream beds are located above the water
table year-round. Groundwater is not a source of water for the stream. Runoff from rainfall is
the primary source of water for stream flow.
Far~ Tract: A unit of contiguous land under one ownership that is operated as a farm or part
of a farm.
Flood Fringe: That portion of the 100-year floodplain outside of the floodway (often referred
to as "floodway fringe").
Floodway: The area regulated by Federal, state, or local requirements to provide for the
discharge of the base flood so the cumulative increase in water surface elevation is no more than
a designated amount (not to exceed one foot as set by the National Flood Insurance Program)
within the 100-year floodplain.
Independent Utility: A test to determine what constitutes a single and complete project in
the Corps regulatory program. A project is considered to have independent utility if it would be
constructed absent the construction of other projects in the project area. Portions of a multi-
phase project that depend upon other phases of the project do not have independent utility.
Phases of a project that would be constructed even if the other phases were not built can be
considered as separate single and complete projects with independent utility.
Intermittent Stream: A/~ intermittent stream has flowing water during certain times of the
year, when groundwater provides water for stream flow. During dry periods, intermittent streams
may not have flowing water. Runoff from rainfall is a supplemental source Of water for stream
flow.
Loss of Waters of the US: Waters of the US that include the filled area and other waters that
are permanently adversely affected by flooding, excavation, or drainage because of the regulated
activity. Permanent adverse effects include permanent above-grade, at-grade, or below-grade
fills that change an aquatic area to dry land, increase the bottom elevation of a waterbody, or
change the use of a waterbody. The acreage of loss of waters of the US is the threshold
measurement of the impact to existing waters for determining whether a project may qualify for an
NWP; it is not a net threshold that is calculated after considering compensatory mitigation that
may be used to offset losses of aquatic functions and values. The loss of stream bed includes
the linear feet of stream bed that is filled or excavated. Impacts to ephemeral streams are not
included in the linear foot measurement of loss of stream bed for the purpose of determining
compliance with the linear foot limits of NWPs 39, 40, 42, and 43. Waters of the US temporarily
filled, flooded, excavated, or drained, but restored to preconstruction contours and elevations
after construction, are not included in the measurement of loss of waters of the US.
Non-tidal Wetland: A non-tidal wetland is a wetland {i.e., a water of the US) that is not
subject to the ebb and flow of tidal waters. The definition of a wetland can be found at
33 CFR 328.3(b). Non-tidal wetlands contiguous to tidal waters are located landward of the high
tide llne (i.e., spring high tide line).
Open Water: An area that, during a year with normal patterns of precipitation, has standing
or flowing water for sufficient duration to establish an ordinary high water mark. Aquatic
vegetation within the area of standing or flowing water is either non-emergent, sparse, or
absent. Vegetated shallows are considered to be open waters. The term "open water" includes
rivers, streams, lakes, and ponds. For the purposes of the NWPs, this term does not include
ephemeral waters.
Perennial Stream: A perennial stream has flowing water year-round during a typical year. The
water table is located above the stream bed for most of the year. Groundwater is the primary
source of water for stream flow. Runoff from rainfall is a supplemental source of water for
stream flow.
Permanent Above-grade Fill: A discharge of dredged or fill material into waters of the US,
including wetlands, that results in a substantial increase in ground elevation and permanently
converts part or all of the waterbody to dry land. Structural fills authorized by NWPs 3, 25,
36, etc. are not included.
Preservation: The protection of ecologically important wetlands or other aquatic resources in
perpetuity through the implementation of appropriate legal and physical mechanisms. Preservation
22
may include protection of upland areas adjacent to wetlands as necessary to ensure protection
and/or enhancement of the overall aquatic ecosystem.
Restoration: Re-establishment of wetland and/or other aquatic resource characteristics and
function(s) at a site where they have ceased to exist, or exist in a substantially degraded
state.
Riffle and Pool Complex: Riffle and pool complexes are special aquatic sites under the
404(b)(1) Guidelines. Riffle and pool complexes sometimes characterize steep gradient sections
of streams. Such stream sections are recognizable by their hydraulic characteristics. The rapid
movement of water over a course substrate in riffles results in a rough flow, a turbulent
surface, and high dissolved oxygen levels in the water. Pools are deeper areas associated with
riffles. A slower stream velocity, a streaming flow, a smooth surface, and a finer substrate
characterize pools.
Single and Complete Project: The term "single and complete project" is defined at
33 CFR 330.2(i) as the total project proposed or accomplished by one owner/developer or
partnership or other association of owners/developers (see definition of independent utility).
For linear projects, the ~'single and complete project" (i.e., a single and complete crossing)
will apply to each crossing of a separate water of the US (i.e., a single waterbody) at that
location. An exception is for linear projects crossing a single waterbody several times at
separate and distant locations: each crossing is considered a single and complete project.
However, individual channels in a braided stream or river, or individual arms of a large,
irregularly shaped wetland or lake, etc., are not separate waterbodies.
Stormwater Management: stormwater management is the mechanism for controlling stormwater
runoff for the purposes of reducing downstream erosion, water quality degradation, and flooding
and mitigating the adverse effects of changes in land use on the aquatic environment.
Storn~ater Management Facilities: Stormwater management facilities are those facilities,
including but not limited to, stormwater retention and detention ponds and BMPS, which retain
water for a period of time to control runoff and/or improve the quality (i.e., by reducing the
concentration of nutrients, sediments, hazardous substances and other pollutants) of stormwater
runoff.
Stream Bed: The substrate of the stream channel between the ordinary high water marks. The
substrate may be bedrock or inorganic particles that range in size from clay to boulders.
Wetlands contiguous to the stream bed, but outside of the ordinary high water marks, are not
considered part of the stream bed.
Stream Channelization: The manipulation of a stream channel to increase the rate of water
flow through the stream channel. Manipulation may include deepening, widening, straightening,
armoring, or other activities that change the stream cross section or other aspects of stream
channel geometry to increase the rate of water flow through the stream channel. A channelized
stream remains a water of the US, despite the modifications to increase the rate of water flow.
Tidal Wetland: A tidal wetland is a wetland (i.e., water of the US) that is inundated by
tidal waters. The definitions of a wetland and tidal waters can be found at 33 CFR 328.3(b) and
33 CFR 328.3(f}, respectively. Tidal waters rise and fall in a predictable and measurable rhythm
or cycle due to the gravitational pulls of the moon and sun. Tidal waters end where the rise and
fall of the water surface can no longer be practically measured in a predictable rhythm due to
masking by other waters, wind, or other effects. Tidal wetlands are located channelward of the
high tide line {i.e., spring high tide llne) and are inundated by tidal waters two times per
lunar month, during spring high tides.
Vegetated Buffer: A vegetated upland or wetland area next to rivers, streams, lakes, or other
open waters which separates the open water from developed areas, including agricultural land.
Vegetated buffers provide a variety of aquatic habitat functions and values (e.g., aquatic
habitat for fish and other aquatic organisms, moderation of water temperature changes, and
detritus for aquatic food webs) and help improve or maintain local water quality. A vegetated
buffer can be established by maintaining an existing vegetated area or planting native trees,
shrubs, and herbaceous plants on land next to open-waters. Mowed lawns are not considered
vegetated buffers because they provide little or no aquatic habitat functions and values. The
establishment and maintenance of vegetated buffers is a method of compensatory mitigation that
can be used in conjunction with the restoration, creation, enhancement, or preservation of
aquatic habitats to ensure that activities authorized by NWPs result in minimal adverse effects
to the aquatic environment. (See General Condition 19.)
Vegetated Shallows: Vegetated shallows are special aquatic sites under the 404(b)(1)
Guidelines. They are areas that are permanently inundated and under normal circumstances have
rooted aquatic vegetation, such as seagrasses in marine and estuarine systems and a variety of
vascular rooted plants in freshwater systems.
Waterhody: A waterbody is any area that in a normal year has water flowing or standing above
ground to the extent that evidence of an ordinary high water mark is established. Wetlands
contiquous to the waterbody are considered part of the waterbody.
23
11 South Gilbert~
P.O. Box 3396
The Greater Iowa City Area Iowa City, Iowa 52244
HBA
Fax: (319) 358-2443
E-mail: hbaofic@cs,com
HOME BUILDERS ASSOCIATION www. iowacityhomes.com
Advocates for homeowners/zip
by prontoting standards for
quality and affordablility
June 11, 2002
Mayor Emie Lehman
Iowa City City Council Members
410 E Washington Street
Iowa City, Iowa 52240
Dear Mayor Lehman and Council Members:
On May 30th, the Greater Iowa City Area Home Builders Association wrote a letter
outlining some of our concerns with the proposed ordinance regulating isolated wetlands.
Among them were concerns with the implementation and regulation as well as the
cost/benefit this particular ordinance. In response to our letter, Development Regulations
Specialist, Julie Tallman sent us a letter dated June 5th with the presumed goal of
clarifying the intent and impact of this ordinance. While we appreciate the timely
response from Ms. Tallman, the HBA still have some concerns about the potential impact
of this ordinance.
First, the letter repeatedly states that this ordinance will be implemented "in precisely the
same manner we regulated them prior to SWANCC". However, prior to the SWANCC
decision, the Army Corps of Engineers was the regulating authority for these isolated
wetlands. Thus, these potential wetland areas will not be regulated in precisely the stone
manner by virtue of the fact that the City of Iowa City will now be the regulating
authority with the necessary determinations being made by individuals within the
Planning Department; not the Corps of Engineers. Additionally, the letter repeatedly
references "qualified professionals" and/or "wetland specialists", however, no
information is provided as to who they might be, or more appropriately, who in the
estimation of the Planning Department, qualifies as an expert. Furthermore, nothing is
mentioned in regards to the review process itself. The letter states "City staff would
require a field investigation to confirm or deny the presence of wetlands". Our question
would be: what is the objective criteria used in this assessment and who will have the
final authority to make the determination if a wetland exists and by extension, what
mitigation, if any, will be required?
It should also be pointed out that in the memo from Assistant City Attorney, Mitch Behr
to the Planning and Zoning Commission dated April 22, 2002, that "compensatory
Affiliated with National Association of Home Builders & Home Builders Association of Iowa
Page 2
Iowa City City Council
mitigation is a complex regulatory process that requires time, work and expense related to
the location, completion and subsequent monitoring of the compensatory mitigation sites.
The COE has significant staffwith expertise devoted to the compensatory mitigation
regulatory process. The City of Iowa City has never engaged in regulation by way of
compensatory mitigation." We can only infer that the City of Iowa City has no intention
of engaging in mitigation of these wetlands. As such, this raises the issue of whether or
not we are sacrificing our communities more valuable pristine wetlands for those of
marginal ecological benefit.
As examples of wetlands that have lost their protected status, the letter references three
projects: the Braverman/Kermedy, the Aviation Commercial Park, and the Scott
Boulevard extension. What the letter fails to recognize, however, is that both the
Braverman/Kennedy project and the Aviation Commercial Park, in consultation with the
Army Corps of Engineers, were scheduled to be filled prior to the Supreme Court
decision with the intent of providing compensatory wetlands.
Ms. Tallman's letter goes on to say that the City of Iowa City "cannot afford" to hire a
wetland specialist to conduct a comprehensive and thorough inventory of isolated
wetlands in our area to "assess the impact of the proposed wetland regulations." This is a
disturbing comment to the building industry and should be alarming to all citizens of
Iowa City. In general, the HBA believes the city should not engage in regulation if there
is no clear indication or comprehension of the potential impact, either beneficial or
detrimental, of such regulation.
The letter dismisses the HBA's request for a cost/benefit analyses completely. Rather
than addressing the issue, the letter simply reiterates the benefits of wetlands such as
water quality, storm water management, and flood control. The HBA could not agree
more with the benefits of wetlands. However, what the letter fails to address is that not
all wetlands are of the same ecological value. In Lon Drake's testimony to the Council at
an October 22nd work session, he states "I doubt you would find a pristine wetland out
there in the isolated category. They still serve some useful purposes in terms of handling
a little bit of storm water - not as much as they could." So our concern in regards to the
cost of regulating these isolated wetlands in relation to their benefit still remains. We do
not believe it is feasible, nor is it to the communities benefit to spend significant amounts
of staff time and other city resources protecting marginally beneficial wetland areas at the
expense of more valuable pristine wetlands.
According to the state of Iowa's blueprint for wetland regulation entitled "Iowa Wetlands
and Riparian Conservation Plan, a plan which some of our local developers and builders
as well as Ms. Tallman were involved in drafting, the summary of the plan states under
Issue2 that "the degree to which any particular wetland or riparian area performs specific
functions is usually uncertain. More information about these functions and values is
Page 3
Iowa City City Council
needed, especially information that is based on good data, and tailored to local, state,
and/or regional conditions. This can help people make informed decisions about the
values of wetlands, and the costs and benefits associated with their protection,
restoration, management, and mitigation." Furthermore, the League of Cities national
agenda item number 2.05 National Wetlands Policy states as its national goal "of
preserving the value of and function of America's wetlands," a goal the HBA fully
supports. The policy statement continues though to say, "all wetlands, however, are not
of equal ecological function and value" and further, "where individual wetlands areas
perform relatively marginal or insignificant ecological functions, their development
should be allowed to proceed in a streamlined manner."
Finally, we would like to reiterate the majority position of the Planning Department as
stated in a memo from Director of Planning, Karin Franklin to City Manager, Steve
Atkins dated July 26, 2001 when she states; "Our evaluation of the change was that there
would be minimal impact in terms of wetlands mitigation in Iowa City, but to require
further review if we were to change the Sensitive Areas Ordinance would mean
expenditures in terms of time and money on the part of the City and the private sector
that would not be justified by what was achieved."
With these concerns in mind, the Association believes a balanced approach needs to be
pursued, one that recognizes the growing demands for quality affordable housing while
maintaining and protecting our valuable wetland areas. We request the Council to
continue regulating wetlands in accordance with the Army Corps of Engineers, at least
until such time is required for the city staff to have a more thorough and developed
wetlands policy that completely addresses the concerns of the building and construction,
as well as the entire Iowa City community.
Sincerely,
Kevin Hochstedler
President
The Greater Iowa City Area Home Builders Assn.
AMENDMENT TO THE PROPOSED SENSITIVE AREAS
ORDINANCE AMENDMENTS
Proposed by ~teven Kanner
Whereas
The goal of the Sensitive Areas Ordinance Amendments (SAOA) is to
regulate Iowa City's isolated wetlands in the same manner as they were before the
SWANCC decision; and
Whereas
The current proposed SAOA do not protect wetlands in the same manner as
previous to the SWANCC decision. This is noted in the following excerpt from
Mitchel Behr, Assistant City Attorney dated 4/26/02, "It should be noted that
despite amendment of the SAO to make it applicable to isolated wetlands as
proposed above, small amounts of isolated wetlands, between 1/10 and ½ of an
acre, will not be subject to regulation as they may have been before the SWANCC
decision. The COE had the authority to require 'compensatory mitigation' when
there was disturbance of between 1/10 and ½ of an acre of wetlands by 'residential,
commercial and institutional development' activities. Compensatory mitigation is
the replacement of disturbed wetlands by the creation and/or enhancement, and
maintenance, of wetlands at another site..."; and
Whereas
The US Army Corps of Engineers (Rock Island District Fact Sheet No. 5,
Section 39 does indeed appears to offer protection to wetlands as small as 1/10 of
an acre.
Therefore,
The SAOA Section 14-6K-1-D "Exemptions", in order to bring Iowa City
isolated wetland regulation into the same standard of regulation as before the
SWANCC decision, should be further amended to read:
6. Other Activities: Activities that disturb less than 1/10 ~/:
acre of wetlands. Activities that disturb 1/10 to ½ acre of
wetland will be subject to compensatory mitigation or
payment in lieu of mitigation. Final approval of the
mitigation plan or payment in lieu of mitigation shall be
made by the Iowa City Planning & Community
Development Dept. Director.
Prepared by: John Yapp, PCD, 410 E. Washington Street, Iowa City, IA 52240; 319-356-5247 (REZ02-00003)
ORDINANCE NO.
AN ORDINANCE CHANGING THE ZONING DESIGNATION FROM LOW DENSITY MULITFAMILY
RESIDENTIAL, RM-12, TO SENSITIVE AREAS OVERLAY-LOW-DENSITY MULTIFAMILY
RESIDENTIAL, OSA/RM-12, FOR LOT 2 OF FIRST AND ROCHESTER SUBDIVISION, PART 1, A 38,041
SQUARE FOOT PROPERTY LOCATED WEST OF 1sT AVENUE, NORTH OF ROCHESTER AVENUE
WHEREAS, Lot 2 of 1st and Rochester Subdivision Part 1 is owned by Marathon Construction, and contains
steep and critical slopes; and
WHEREAS, the Sensitive Areas Ordinance requires a Sensitive Areas Overlay zone and Sensitive Areas
Development Plan to be approved prior to development activity occurring on propedies with steep and critical slopes;
and
WHEREAS, the proposed development of a 12-unit multifamily building and associated parking will disturb
approximately 35% of the critical slopes and 55% of the steep slopes as a result of the proposed development
project; and
WHEREAS, given the layout of the proposed development, the applicant has worked to minimize disturbance to
the steep and critical slopes, as is required under the Sensitive Areas Ordinance; and
WHEREAS, the Sensitive Areas Development Plan is in technical compliance with the Sensitive Areas
Ordinance.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CiTY OF IOWA CITY, IOWA:
~ The property described below is hereby reclassified from its current designation of
Low Density Multifamily Residential, RM-12, to Sensitive Areas Overlay, OSA/RM-12, and the associated Sensitive
Areas Development Plan is hereby approved:
Lot 2, 1st and Rochester Subdivision Part 1, in accordance with the plat recorded in Book 23, Page 78, at the
Johnson County Recorder's Office, Iowa City, Iowa.
SECTION II. ZONING MAP. The building official is hereby authorized and directed to change the zoning map of
the City of Iowa City, Iowa to conform to this amendment upon the final passage, approval and publication of this
ordinance as provided by law.
SECTION Ill. CERTIFICATION AND RECORDING. The City Clerk is hereby authorized and directed to certify a
copy of this ordinance and a copy of the Sensitive Areas Development Plan for this property, and record the same in
the Office of the County Recorder, Johnson County, Iowa, at the Owner's expense, upon the final passage, approval
and publication of this ordinance, as provided by law.
SECTION IV REPEALER. All ordinances and pads of ordinances in conflict with the provisions of this
Ordinance are hereby repealed.
SECTION V. SEVERABtLITY. If any section, provision or pad of the Ordinance shall be adjudged to be invalid
or unconstitutional, such adjudication shall not affect the validity of the Ordinance as a whole or any section, provision
or pad thereof not adjudged invalid or unconstitutional.
SECTION VI EFFECTIVE DATE This Ordinance shall be in effect after its final passage, approval and
publication, as provided by law.
Passed and approved this __ day of ., 20
MAYOR
ATTEST:
CITY CLERK
City ~AL~O~I(.~y*~'O ffic~'- ppdadm/ord/lstRochOSA-RMl 2.doc
Prepared by: John Yapp, PCD, 410 E. Washington Street, Iowa City, IA 52240; 319-356-5247,
ORDINANCE NO.
ORDINANCE CHANGING THE ZONING DESIGNATION FROM LOW D MULITFAMILY
RM-12, TO SENSITIVE AREAS MULTIFAMILY
R IDENTIAL, OSA/RM-12, FOR LOT 2 OF FIRST PART 1, A 38,041
LOCATED WEST OF IsT AVENUE, NORTH £ ;HESTER AVENUE
Lot 2 of 1st and Rochester Subdivision Pad 1 is owned Construction, and contains
steel ~lopes; and
WHEREAS Sensitive Areas Ordinance requires a Overlay zone and Sensitive Areas
Development and critical slopes;
and
WHEREAS, the development of a 12-unit building and associated parking will disturb
approximately 35% of slopes and 55% ef the stee 3es as a result of the proposed development
project; and
WHEREAS, given the applicant has worked to minimize disturbance to
the steep and critical slopes, as uired under the Sensi Ordinance; and
WHEREAS, the Sensitive Development is in technical compliance with the Sensitive Areas
Ordinance.
NOW, THEREFORE, BE IT ITY-COUNCIL OF THE CITY OF IOWA CITY, IOWA:
~ The below is hereby reclassified from its current designation of
Low Density Multifamily Residential, RM-12, Areas Overlay, OSA/RM-12, and the associated Sensitive
Areas Development Plan is hereby approved:
Lot 2, 1st and Rochester Subdivision with the plat recorded in Book 23, Page 78, at the
Johnson County Recorder's Office, Iowa
SECTION I1. ZONING MAP. The builc official ~ authorized and directed to change the zoning map of
the City of Iowa City, Iowa to conform the final passage, approval and publication of this
ordinance as provided by law.
Clerk is hereby authorized and directed to certify a
copy of this ordinance and record same in the Office of County Recorder, Johnson County, Iowa, at the
Owner's expense, upon the final passage, approval and publicatic as provided by law.
SECTION IV. REPEALER:' All ordinances and parts of in conflict with the provisions of this
Ordinance are hereby repeale.d,:~
If any section, provision Ordinance shall be adjudged to be invalid
or unconstitutiona ~nce as a whole or any section, provision
or part thereof not or unconstitutional.
SECTION VI. EFFE/CTIVE DATE This Ordinance shall be in its final passage, approval and
publication, as provide/d~y law.
/
Passed and 7roved this __ day of ,20
/
MAYOR (
ATTEST:
CITY CLERK
APp~vefl- by ~ ~ /~?
(City Att.~-ney~:~¢~ic~./ ~ ~'
~ ~-~ _,~ ~ '~ -(-~ ppdadm/ord/1stRochOSA-RM12doc
/
City of Iowa City
MEMORANDUM
Date: April 26, 2002 (for May 2 Planning and Zoning Commission meeting)
To: Planning and Zoning Commission
From: John Yapp, Associate Planner.--~/r.~..,
Re: Sensitive Areas Rezoning for Lot 2, First and Rochester Part One
With the latest Sensitive Areas site plan submitted by MMS Consultants for the 12-unit
building proposed on Lot 2, First and Rochester Part One, the applicant has shifted the
building to the south and east from the original submittal. Staff has worked with the
applicant's engineer to move the proposed building approximately 22 feet south and
approximately 16 feet to the east from the original submittal. This results in less
disturbance to the critical and steep slopes, and leaves more of the wooded slopes at
the north and northwest sides of the property undisturbed.
The calculation of slope disturbance, as submitted by the applicant, is that approximately
35% of the critical slopes, and approximately 55% of the steep slopes will be disturbed.
The applicant will submit sight distance information for the proposed driveway onto First
Avenue, and staff will review it prior to the Commissions May 2 meeting.
STAFF REPORT
To: Planning and Zoning Commission Prepared by: John Yapp
Item: REZ02-00003 Date: April 12, 2002
Lot 2, First and Rochester
Subdivision Part 1
GENERAL INFORMATION:
Applicant: Marathon Construction Co.
3274 N. Dubuque Street
Iowa City, IA 52240
Applicants Engineer: MMS Consultants
Attn: Duane Musser
1917 South Gilbert Street
Iowa City, IA 52240
Phone: 351-8282
Applicants Attorney: John Cruise
920 S. Dubuque Street
Iowa City, IA 52240
Requested Action: Sensitive Area Overlay Rezoning
Purpose: To permit the development of a 12-unit residential
building on a lot containing critical (25-39% steep)
slopes.
Location: West side of First Avenue, north of Rochester
Avenue
Size: 38,041 square feet
Existing Land Use and Zoning: Undeveloped; RM-12
Surrounding Land Use and Zoning: North: Undeveloped; RM-12
South: Residential; RM-12
East: Residential; RM-12
West: School; RS-5
Comprehensive Plan: This property is in the Central Planning District; the
Comprehensive Plan Land Use Map identifies this
property as appropriate for medium density
residential development
File Date: March 28, 2002
45 Day Limitation Period: May 12, 2002
2
BACKGROUND INFORMATION:
The applicant, Marathon Construction, is applying for a Sensitive Areas Overlay rezoning in
conjunction with a Sensitive Areas Development Plan, for a proposed residential building with
twelve 2-bedroom units, on Lot 2 of First and Rochester Subdivision, located west of First Avenue,
north of Rochester Avenue. The property is zoned Low Density Multi-Family residential, and the
proposed 12-unit building conforms with the existing zoning. A Sensitive Areas Overlay Rezoning
is required due to the proposed disturbance of critical slopes (25-39% steep) on the properly.
ANALYSIS:
Critical Slopes
The Sensitive Areas Ordinance states that grading and excavation shall be minimized on steep
and critical slopes, and that cut slopes shall be constructed to eliminate sharp angles of
intersection with the existing terrain, and shall be rounded and contoured as necessary to blend
with existing topography to the maximum extent possible. Existing vegetation shall be retained
to the maximum extent possible (14-6K-11(4)).
The site plan submitted shows the building situated approximately 85 feet from the south lot
line. Short of redesigning the building, staff has identified a number of ways to bring the
building 20 to 25 feet further south, in order to minimize disturbance to the steep and critical
slopes. For example, the side yard setback, garage depth, parking lot width, and separation
between the building and parking area can all be reduced. Bringing the proposed building
further south will help minimize disturbance to the steep and critical slopes on the north end of
the site, and will reduce the amount of fill and size of retaining walls needed to create a
relatively flat site for the proposed 12-unit structure. The applicant's engineer has informed
staff that they are working to bring the building fudher south. Staff has asked the applicants
engineer to submit the percent of the steep and critical slopes proposed to be disturbed,
compared to the percent preserved. This information will help the Commission evaluate the
extent of proposed disturbance to the slopes.
An alternative approach would be to design a new building and site layout that takes into account
the topographical features of the property.
There is a mature Oak tree on the east side of the property that is proposed to be preserved.
The proposed site design identifies the area around the drip-line of the Oak tree as outside of
the construction limits.
Proposed driveway location
Staff has asked the applicants engineer to submit sight distance information for the proposed
driveway location. This information will be reviewed by City Transportation Staff.
STAFF RECOMMENDATION:
Staff recommends that REZ02-00003 a request for a rezoning from Low Density Multi-Family
residential to Sensitive Areas Overlay, SAO-12, for Lot 2 of First and Rochester Subdivision, Part
1, be deferred, pending the submittal of a revised Sensitive Areas Development Plan that
addresses the concerns listed below.
3
DEFICIENCIES AND DISCREPANCIES:
1. The second sentence of the third note has a grammatical error.
2. The building site should be shifted to the south as far as possible in order to minimize
disturbance to the steep and critical slopes on the north side of the property, as is required in
the Sensitive Areas Ordinance.
3. Sight distance information for the proposed driveway should be submitted.
4. The percentage of proposed disturbance to the steep and critical slopes should be submitted.
Approved by:
Robert Miklo, Senior Planner,
Department of Planning and Community Development
ATTACHMENTS:
1. Location map
2. Sensitive Areas Development Plan
PDH 5
REGINA
SCHOOL
SITE LOCATION: Lot 2, First and Rochester Part 1 REZ02-O0003
Sensitive Area
Development Plan
Lot 2 First a
Roches[er, Part 1
~ ............
Prepared by: Mitchel T. Behr, Asst. City Atty., 410 E. Washington St., Iowa City, IA 52240 (319) 356-5030
NOTICE OF PUBLIC HEARING
Notice is hereby given that the City Council of
Iowa City will hold a public hearing on the 11th day
of June, 2002, at 7:00 p.m. in the Civic Center,
Emma Harvat Hall, 410 E. Washington Street,
Iowa City, Iowa, or if said meeting is cancelled, at
the next meeting of the City Council thereafter as
posted by the City Clerk; at which hearing the
Council will consider a resolution of intent to
approve a purchase agreement for condominium
unit 1-C in Tower Place and Parking facility.
Copies of the proposed resolution are on file for
public examination in the office of the City Clerk,
Civic Center, 410 E. Washington St., Iowa City,
Iowa. Persons wishing to make their views known
for Council consideration are encouraged to
appear at the above-mentioned time and place.
MARIAN K. KARR, CITY CLERK
Mitch~d:\towrplaCe\l cuay~uaynph.doc
NOTICE OF PUBLIC HEARING ON PLANS,
SPECIFICATIONS, FORM OF CONTRACT
AND ESTIMATED COST FOR
CITY OF IOWA CITY
FIRE STATION 3 ADDITION AND
RENOVATION PROJECT
IN THE CITY OF IOWA CITY, IOWA
AND
PLANS SPECIFICATIONS, FORM OF CONTRACT AND
ESTIMATED COST FOR THE CONSTRUCTION OF
THE FY02 LANDFILL CELL PROJECT IN THE CITY OF
IOWA CITY, IOWA
TO ALL TAXPAYERS Of THE CITY OF IOWA
CITY, IOWA, AND TO OTHER INTERESTED
PERSONS:
Public notice is hereby given that the City Council
of the City of Iowa City, Iowa, will conduct public
hearings on plans, specifications, form of contract
and estimated cost for the construction of the City
of Iowa City Fire Station 3 Addition and
Renovation Project and construction of the FY02
Landfill Cell Construction Project in said City at
7:00 p.m. on the 11~h day of June, 2002, said
meeting to be held in the Emma J. Harvat Hall in
the Civic Center in said City, or if said meeting is
cancelled, at the next meeting of the City Council
thereafter as posted by the City Clerk.
Said plans, specifications, form of contract and
estimated cost are now on file in the office of the
City Clerk in the Civic Center in Iowa City, Iowa,
and may be inspected by any interested persons.
Any interested persons may appear at said
meeting of the City Council for the purpose of
making objections to and comments concerning
said plans, specifications, contract or the cost of
making said improvement.
This notice is given by order of the City Council
of the City of Iowa City, Iowa and as provided by
law.
MARIAN K. KARR, CITY CLERK
R-1
NOTICE OF PUBLIC HEARING ON PLANS,
SPECIFICATIONS, FORM OF CONTRACT
AND ESTIMATED COST FOR
CITY OF IOWA CITY
FIRE STATION 3 ADDITION AND
RENOVATION PROJECT
IN THE CITY OF IOWA CITY, IOWA
AND
PLANS SPECIFICATIONS, FORM OF CONTRACT AND
ESTIMATED COST FOR THE CONSTRUCTION OF
THE FY02 LANDFILL CELL PROJECT IN THE CITY OF
IOWA CITY, IOWA
TO ALL TAXPAYERS OF THE CITY OF IOWA
CITY, IOWA, AND TO OTHER INTERESTED
PERSONS:
Public notice is hereby given that the City Council
of the City of Iowa City, Iowa, will conduct public
hearings on plans, specifications, form of contract
and estimated cost for the construction of the City
of Iowa City Fire Station 3 Addition and
Renovation Project and construction of the FY02
Landfill Cell Construction Project in said City at
7:00 p.m. on the 11th day of June, 2002, said
meeting to be held in the Emma J. Harvat Hall in
the Civic Center in said City, or if said meeting is
cancelled, at the next meeting of the City Council
thereafter as posted by the City Clerk.
Said plans, specifications, form of contract and
estimated cost are now on file in the office of the
City Clerk in the Civic Center in Iowa City, Iowa,
and may be inspected by any interested persons.
Any interested persons may appear at said
meeting of the City Council for the purpose of
making objections to and comments concerning
said plans, specifications, contract or the cost of
making said improvement.
This notice is given by order of the City Council
of the City of Iowa City, Iowa and as provided by
law.
MARIAN K. KARR, CITY CLERK
R-1