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HomeMy WebLinkAbout2000198-04 Silt Removal 2026 Special Provisions_Final SPECIAL PROVISIONS FOR CITY OF SAN LUIS OBISPO Silt Removal 2026 Specification No. 2000198-04 June 2026 PUBLIC WORKS DEPARTMENT ENGINEERING DIVISION 919 Palm Street San Luis Obispo, CA 93401 (805) 781-7200 Silt Removal 2026 Specification No. 2000198-04 Approval Date: June 4, 2026 Anthony Ramos June 4, 2026 Brian A. Nelson, City Engineer June 4, 2026 TABLE OF CONTENTS NOTICE TO BIDDERS ..................................................................................................... I BID SUBMISSION ...................................................................................................................................... I BID DOCUMENTS .................................................................................................................................... II PROJECT INFORMATION ........................................................................................................................ II QUALIFICATIONS .................................................................................................................................... IV AWARD ..................................................................................................................................................... V ACCOMMODATION ................................................................................................................................. VI BID FORMS .................................................................................................................... A BID ITEM LIST FOR SILT REMOVAL 2026, SPECIFICATION NO. 2000198-04 .................................... A LIST OF SUBCONTRACTORS ................................................................................................................ C LABOR CODE SECTION 1725.5 STATEMENTS ................................................................................... D NONCOLLUSION DECLARATION ........................................................................................................... E BIDDER ACKNOWLEDGEMENTS ........................................................................................................... F QUALIFICATIONS .................................................................................................................................... G ATTACH BIDDER'S BOND TO ACCOMPANY BID ................................................................................. H SPECIAL PROVISIONS .................................................................................................. 1 DIVISION I GENERAL PROVISIONS ....................................................................................................... 1 1 GENERAL ........................................................................................................................................... 1 3 CONTRACT AWARD AND EXECUTION ........................................................................................... 1 4 SCOPE OF WORK ............................................................................................................................. 1 5 CONTROL OF WORK ........................................................................................................................ 2 7 LEGAL RELATIONS AND RESPONSIBILITY TO THE PUBLIC ....................................................... 2 8 PROSECUTION AND PROGRESS ................................................................................................... 2 9 PAYMENT ........................................................................................................................................... 3 DIVISION II GENERAL CONSTRUCTION ............................................................................................... 3 13 WATER POLLUTION CONTROL ..................................................................................................... 3 14 ENVIRONMENTAL STEWARDSHIP ............................................................................................... 5 DIVISION III EARTHWORK AND LANDSCAPE ....................................................................................... 6 17 GENERAL ......................................................................................................................................... 6 19 EARTHWORK................................................................................................................................... 6 21 EROSION CONTROL ....................................................................................................................... 7 ADD DIVISION XIII APPENDICES ........................................................................................................... 7 APPENDIX A - FORM OF AGREEMENT ....................................................................... 0 APPENDIX B – CALIFORNIA DEPARTMENT OF FISH AND WILDLIFE AGREEMENT 4 APPENDIX C – CALIFORNIA REGIONAL WATER QUALITY CONTROL BOARD PERMIT ........................................................................................................................... 5 APPENDIX D – ARMY CORPS OF ENGINEERS PERMIT ............................................ 6 NOTICE TO BIDDERS i NOTICE TO BIDDERS BID SUBMISSION Sealed bids will be received by the City of San Luis Obispo at the Public Works Administration Office located at 919 Palm Street, San Luis Obispo, California 93401, until 11:30 a.m. on July 2, 2026 at which time they will be publicly opened and read aloud. Public bid opening may also be viewed via Microsoft Teams video conference and conference call. Use the following link: https://teams.microsoft.com/meet/274022511046006?p=7pgUczXzsULXIRqte3 or join by phone with this number: 1 (209) 645-4165 with Conference ID: 312 592 717# Submit bid in a sealed envelope plainly marked: Silt Removal 2026, Specification No. 2000198-04 Any bid received after the time and date specified will not be considered and will be returned to the bidder unopened. Bids received by Fax or Email will not be considered. By submission of bid you agree to comply with all instruction and requirements in this notice and the contract documents. All bids must be submitted on the Bid Item List form(s) provided and submitted with all other Bid Forms included in these Special Provisions. Each bid must be accompanied by either a: 1. certified check 2. cashier's check 3. bidder's bond made payable to the City of San Luis Obispo for an amount equal to ten percent of the bid amount as a guaranty. Guaranty will be forfeited to the City San Luis Obispo if the bidder, to whom the contract is awarded, fails to enter into the contract. The City of San Luis Obispo reserves the right to accept or reject any or all bids or waive any immaterial irregularities in a bid. All bids are to be compared based on the City Engineer's estimate of the quantities of work to be done, as shown on the Bid Item List. Bids will only be accepted from bidders that are licensed in compliance with the provisions of Chapter 9, Division III of Business and Professions Code. NOTICE TO BIDDERS NOTICE TO BIDDERS ii The award of the contract, if awarded, will be to the lowest responsive bid submitted by a responsible contractor whose bid complies with the requirements prescribed. If the contract is awarded, the contract will be awarded within 60 calendar days after the opening of the bids. Failure to raise defects in the notice to bidders or bid forms prior to bid opening constitute a waiver of those defects. BID DOCUMENTS A copy of the plans and special provisions may be downloaded, free of charge, from the City’s website at: www.slocity.org/government/department-directory/public-works/public-works-bids- proposals No printed copies are available for purchase at the City office. Request must include Specification Number. The office of the City Engineer is located at: 919 Palm Street San Luis Obispo, CA 93401 Standard Specifications and Engineering Standards referenced in the Special Provisions may be downloaded, free of charge, from the City’s website at: www.slocity.org/government/department-directory/public-works/documents- online/construction-documents You are responsible to obtain all issued addenda prior to bid opening. Addenda will be available to download at the City’s website listed above or at the office of the City Engineer. All questions must be submitted through BidNet, and if the City determines that a response is necessary, the City will post an addendum on BidNet. Contact the project manager, Anthony Ramos at 805-783-7875 or the Public Works and Utilities Department at (805) 781-7200 prior to bid opening to verify the number of addenda issued. You are responsible to verify your contact information is correct on the plan holders list located on the City’s website at: www.slocity.org/government/department-directory/public-works/public-works-bids- proposals. PROJECT INFORMATION In general, the project includes the removal of dry sediment that has built up in the creek bed and can imped natural water flow NOTICE TO BIDDERS NOTICE TO BIDDERS iii The project estimated construction cost and contract time established for the project is as follow: BASE BID: $62,000 5 working days ADDITIVE ALTERNATIVE “1”: $48,000 5 working days ADDITIVE ALTERNATIVE “2”: $80,000 5 working days ADDITIVE ALTERNATIVE “3”: $55,000 5 working days TOTAL PROJECT BID (BASE BID + ADD ALT. “1” + ADD ALT “2” + ADD ALT “3”): $245,000 Base Bid Contract time is established as 5 working days. Award of Additive Alternative “1” will add an additional 5 days to the contract length. Award of Additive Alternative “2” will add an additional 5 days to the contract length. Award of Additive Alternative “3” will add an additional 5 working days to the contract length, for a total possible contract length of 20 working days. The fixed liquidated damages amount is established at $500 per day for failure to complete the work within the contract time. Pursuant to Labor Code section 1720 et seq., the project is subject to the prevailing wage requirements applicable to the locality in which the work is to be performed for each craft, classification or type of worker needed to perform the work, including employer payments for health and welfare, pension, vacation, apprenticeship and similar purposes. In compliance with section 1773 of the Labor Code, the State of California Department of Industrial Relations (“DIR”) has established prevailing hourly wage rates for each type of workman. Current wage rates are on file with the City and may also be obtained from the DIR’s website at: https://www.dir.ca.gov/oprl/DPreWageDetermination.htm Each contractor and subcontractor must pay no less than the specified rates to all workers employed to work on the project. The schedule of per diem wages is based upon a working day of eight hours. The rate for holiday and overtime work must be at least time and one-half. This project is subject to compliance monitoring and enforcement by the DIR. There will be an nonmandatory site walk for Additive Alternative “2”, Area 3, SLO Creek at LOVR on Wednesday, June 17, 2026 at 9:00 am. Bidders should meet at the proposed staging area off Los Osos Valley Road as shown on the plans. Areas 1, 2, and 4 may be viewed from bridge decks and paths adjacent to the project sites. Please contact the Project Manager for directions, if needed. NOTICE TO BIDDERS NOTICE TO BIDDERS iv QUALIFICATIONS You must possess a valid Class A or C-12 Contractor's License at the time of the bid opening. You and any subcontractors must be registered with the DIR pursuant to section 1725.5 of the Labor Code. Subject to limited legal exceptions for joint venture bids and federally-funded projects, City may not accept a bid from a bidder without proof that the bidder is registered with the DIR to perform public work under Labor Code section 1725.5. You must have experience constructing projects similar to the work specified for this project. Provide three similar reference projects completed as either the prime or subcontractor. All referenced projects must have been completed within the last five years from this project’s bid opening date. One of the three reference projects must have been completed as prime contractor under contract with a city, county, state or federal government agency. One of the reference projects must be for work within a creek complying with environmental permitting conditions. One of the reference projects must be for earthwork including removal and hauling of excavated material. Failure to provide reference projects as specified in this section and as required on the qualification form may be cause to reject a bid. The City reserves the right to reject any bid based on non-responsiveness if a bidder fails to provide a bid that complies with all bidding instructions. The City reserves the right to reject a responsive bid based on the non-responsibility of the bidder if the Director of Public Works and Utilities or Designee finds, after providing notice and a hearing to the bidder, that the bidder lacks the 1. knowledge 2. experience, 3. or is otherwise not responsible as defined in Section 3.24 of the San Luis Obispo Municipal Code to complete the project in the best interest of the City. Rejected bidders may appeal this determination. Appeal must comply with the requirements in this Notice to Bidders. It is the City of San Luis Obispo’s intent to award the contract to the lowest responsive bid submitted by a responsible bidder. If in the bidder’s opinion the contract may be improperly awarded, the bidder may protest the contract award. NOTICE TO BIDDERS NOTICE TO BIDDERS v Only a bidder who has actually submitted a bid is eligible to submit a bid protest against another bidder. Subcontractors are not eligible to submit bid protests. A bidder may not rely on the bid protest submitted by another bidder, but must timely pursue its own protest. Protests must be filed no later than five working days after the bid opening date. Protest must be in writing and received by the project manager located at: 919 Palm Street San Luis Obispo, CA 93401. Valid protests must contain the following information: 1. basis for the protest. The protest must refer to the specific portion or portions of the Contract Documents upon which the protest is based 2. all supporting documentation 3. the ruling expected by the City to remedy the protest. Any protest not containing all required information will be deemed invalid and rejected. The City will consider additional documentation or other supporting information regarding the protest if submitted in compliance with the specified time limits. Anything submitted after the specified time limit may not be considered. The Director of Public Works and Utilities or Designee may request additional information to be submitted, unless otherwise specified, and will notify the protester of ruling. If the protester is not satisfied with ruling, the protester may appeal the ruling to the City Council in compliance with Chapter 1.20 of the City of San Luis Obispo Municipal Code. The procedure and time limits set forth in this Section are mandatory and are the bidder’s sole and exclusive remedy in the event of a bid protest. A bidder’s failure to comply with these procedures will constitute a waiver of any right to further pursue a bid protest, including appeal of the ruling to the City Council, filing a Government Code Claim, or initiation of legal proceedings. City reserves the right, acting in its sole discretion, to reject any bid protest that it determines lacks merit, to award the Contract to the bidder it has determined to be the responsible bidder submitting the lowest responsive bid, and to issue a Notice to Proceed with the Work notwithstanding any pending or continuing challenge to its determination. Pursuant to the Public Records Act (Government Code § 7920.000 et seq.), the City will make public records available upon request. AWARD The lowest bidder will be determined in compliance with Public Contract Code Section 20103.8(c) with the Publicly Disclosed Funding Amount of $350,000 using either: NOTICE TO BIDDERS NOTICE TO BIDDERS vi • TOTAL PROJECT BID, if bid for Base Bid + Add. Alt. “1” + Add. Alt. “2” + Add. Alt. “3” is less than $350,000; or • BASE BID + ADD. ALT. “1” + ADD. ALT. “2”, if bid for Base Bid + Add. Alt. “1” + Add. Alt. “2” is less than $350,000 and Total Project Bid is greater than $350,000; or • BASE BID + ADD. ALT. “1”, if bid for Base Bid + Add. Alt. “1” is less than $350,000 and Base Bid + Add. Alt. “1” + Add. Alt. “2” is greater than $350,000; or • BASE BID, if Base Bid is less than $350,000 and Base Bid + Add. Alt. “1” is greater than $350,000. As a condition to executing a contract with the City, a payment bond and performance bond each equal to one hundred percent of the total contract price are required in compliance with Section 3-1.05 of the Standard Specifications. Each bond must be issued and executed by a surety admitted in California. You may substitute securities in lieu of retention under the contract in compliance with the provisions of the Public Contract Code § 22300. ACCOMMODATION If any accommodations are needed to participate in the bid process, please contact Kelly Paonessa at (805) 781-7200 or by Telecommunications Device for the Deaf at (805) 781- 7107. Requests should be made as early as possible in the bidding process to allow time for accommodation. BID FORMS A BID FORMS All bid forms must be completed and submitted with your bid. Failure to submit these forms and required bid guaranty (bid bond, cashier’s check, or certified check) may be cause to reject the bid as nonresponsive. Staple all bid forms together. THE UNDERSIGNED, agrees that they have carefully examined: 1. the location of the proposed work 2. the plans and specifications 3. read the accompanying instructions to bidders and propose to furnish all: 1. materials 2. labor to complete all the required work satisfactorily in compliance with 3. plans 4. specifications 5. special provisions for the prices set forth in the bid item list: BID ITEM LIST FOR SILT REMOVAL 2026, SPECIFICATION NO. 2000198-04 Item Item Unit of Estimated Item Price Total No. SS(1) Description Measure Quantity (in figures) (in figures) BASE BID ITEMS (AREA 1 – TANK FARM AT HOLLYHOCK) 1 5, 14 AREA 1 – COMPLY WITH PERMITS AND CEQA LS 1 ------- 2 13 AREA 1 – EROSION CONTROL MEASURES LS 1 ------- 3* 19 AREA 1 – SILT REMOVAL CY 150 4 7, 12 AREA 1 – TRAFFIC CONTROL LS 1 ------- 5 20, 77 AREA 1 – TREE REMOVAL EA 5 7 13 AREA 1 – DEWATERING LS 1 ------- 8 AREA 1 – CONSTRUCT AND REMOVE TEMPORARY BERM LS 1 ------- Base Bid Total $ ADDITIVE ALTERNATIVE #1 (AREA 2 – PREFUMO AT MADONNA PHASE II) 2-1 5, 14 AREA 1 – COMPLY WITH PERMITS AND CEQA LS 1 ------- 2-2 13 AREA 1 – EROSION CONTROL MEASURES LS 1 ------- 2-3* 19 AREA 1 – SILT REMOVAL CY 190 2-4 7, 12 AREA 1 – TRAFFIC CONTROL LS 1 ------- 2-5 20, 77 AREA 1 – TREE TRIMMING BRANCH REMOVAL EA 2 2-6 17 VEGETATION REMOVAL (CLEAR AND GRUB) LS 1 ------- 2-7 13 AREA 1 – DEWATERING LS 1 ------- BID FORMS BID FORMS B Item Item Unit of Estimated Item Price Total No. SS(1) Description Measure Quantity (in figures) (in figures) 2-8 AREA 1 – REMOVE AND REPLACE (E) ROCKS LS 1 ------- Additive Alternative #1 Bid Total $ ADDITIVE ALTERNATIVE #2 (AREA 3 – SLO CREEK AT LOVR) 3-1 5, 14 AREA 3 – COMPLY WITH PERMITS AND CEQA LS 1 ------- 3-2 13 AREA 3 – EROSION CONTROL MEASURES LS 1 ------- 3-3* 19 AREA 3 – SILT REMOVAL CY 400 3-4 7, 12 AREA 3 – TRAFFIC CONTROL LS 1 ------- 3-5 20, 77 AREA 3 – TREE REMOVAL EA 7 Additive Alternative #2 Bid Total $ ADDITIVE ALTERNATIVE #3 (AREA 4 – LARKSPUR AT GOLDENROD) 4-1 5, 14 AREA 4 – COMPLY WITH PERMITS AND CEQA LS 1 ------- 4-2 13 AREA 4 – EROSION CONTROL MEASURES LS 1 ------- 4-3* 19 AREA 4 – SILT REMOVAL CY 150 4-4 7, 12 AREA 4 – TRAFFIC CONTROL LS 1 ------- 4-5 20, 77 AREA 4 – TREE REMOVAL EA 11 4-6 13 AREA 4 – DEWATERING LS 1 ------- 4-7 77 POTHOLING EA 3 Additive Alternative #3 Bid Total $ Base Bid Total $ Base Bid + Add. Alt. “1” Total $ Base Bid + Add. Alt. “1” + Add. Alt. “2” Total $ Total Project Bid = (Base Bid + Add. Alt. 1 + Add. Alt. 2 + Add Alt. 3) $ Company Name: (1) refers to section in the Standard Specifications, with modifications in the Special Provisions, that describe required work. * Bid item exempt from Section 9-1.06B and 9-1.06C of the Standard Specifications. The unit price will not be adjusted regardless of the final bid item quantity. BID FORMS BID FORMS C LIST OF SUBCONTRACTORS Pursuant to Section 4100 of the Public Contract Code and section 2-1.33C of the standard specifications, the Bidder is required to furnish the following information for each Subcontractor performing more than 1/2 percent (0.5%) of the total base bid. Do not list alternative subcontractors for the same work. Subcontracting must not total more than fifty percent (50%) of the submitted bid except as allowed in section 5-1.13 of the standard specifications. For Streets & Highways projects, subcontractors performing less than ten thousand dollars ($10,000) worth of work need not be mentioned. Subcontractors must be registered with the Department of Industrial Relations pursuant to Labor Code section 1725.5 to be listed. NOTE: If there are no subcontractors, write “NONE” and submit with bid. Name Under Which Subcontractor is Licensed License Number DIR Public Works Registration Number Address and Phone Number of Office, Mill or Shop Specific Description of Subcontract % of Total Base Bid Attach additional sheets as needed. BID FORMS BID FORMS D LABOR CODE SECTION 1725.5 STATEMENTS The bidder has delinquent liability to an employee or the state for any assessment of back wages or related damages, interest, fines, or penalties pursuant to any final judgment, order, or determination by a court or any federal, state, or local administrative agency, including a confirmed arbitration award. Any judgment, order, or determination that is under appeal is excluded, provided that the contractor has secured the payment of any amount eventually found due through a bond or other appropriate means. Yes No The bidder is currently debarred under Section 1777.1 or under any other federal or state law providing for the debarment of contractors from public works. Yes No NOTE: The above Statements are part of the Bid. Signing this Bid on the signature portion constitute signature of this Statement. Bidders are cautioned that making a false certification may subject the certifier to criminal prosecution. BID FORMS BID FORMS E NONCOLLUSION DECLARATION TO BE EXECUTED BY BIDDER AND SUBMITTED WITH BID The undersigned declares: I am the ____________________ [title] of _____________________________________ [business name], the party making the foregoing bid. The bid is not made in the interest of, or on behalf of, any undisclosed person, partnership, company, association, organization, or corporation. The bid is genuine and not collusive or sham. The bidder has not directly or indirectly induced or solicited any other bidder to put in a false or sham bid. The bidder has not directly or indirectly colluded, conspired, connived, or agreed with any bidder or anyone else to put in a sham bid, or to refrain from bidding. The bidder has not in any manner, directly or indirectly, sought by agreement, communication, or conference with anyone to fix the bid price of the bidder or any other bidder, or to fix any overhead, profit, or cost element of the bid price, or of that of any other bidder. All statements contained in the bid are true. The bidder has not, directly or indirectly, submitted his or her bid price or any breakdown thereof, or the contents thereof, or divulged information or data relative thereto, to any corporation, partnership, company, association, organization, bid depository, or to any member or agent thereof, to effectuate a collusive or sham bid, and has not paid, and will not pay, any person or entity for such purpose. Any person executing this declaration on behalf of a bidder that is a corporation, partnership, joint venture, limited liability company, limited liability partnership, or any other entity, hereby represents that he or she has full power to execute, and does execute, this declaration on behalf of the bidder. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this declaration is executed on _______________ [date], at __________________________________ [city], _______ [state]. s/________________________________________ __________________________________________ Name [print] BID FORMS BID FORMS F BIDDER ACKNOWLEDGEMENTS By signing below, the bidder acknowledges and confirms that this bid is based on the information contained in all contract documents, including the notice to bidders, plans, specifications, special provisions, and addendum number(s) . (Note: You are responsible to verify the number of addenda prior to the bid opening.) The undersigned further agrees that in case of default in executing the required contract, with necessary bonds, within ten days, (not including Saturdays, Sundays, and legal holidays), after having received a mailed notice that the contract is ready for signature, the proceeds of the check or bond accompanying his bid will become the property of the City of San Luis Obispo. Licensed in accordance with an act providing for the registration of contractors, License No. , Expiration Date . The above statement is made under penalty of perjury, and any bid not containing this information may be considered non-responsive and may be rejected by the City. Signature of Bidder (Print Name and Title of Bidder) DIR– Public Works Registration No: Business Name (DBA): Owner/Legal Name: Indicate One: Sole-proprietor  Partnership Corporation List Partners/Corporate Officers: Name Title Name Title Name Title Business Address Street Address Mailing Address City, State, Zip Code Phone Number Fax Number Email Address Date BID FORMS BID FORMS G QUALIFICATIONS Failure to furnish complete reference information ON THIS FORM, as specified in this project’s Notice to Bidders and indicated below, may be cause to reject the bid. Additional information may be attached but is not a substitute for this form. Reference Number 1 Customer Name & Contact Individual Telephone & Email Project Name (Site Address): Is this similar to the project being bid and did this project include work within a creek environment and compliance with permits Yes □ No □ Describe the services provided and how this project is similar to that which is being bid: Date project completed: Was this contract for a public agency? Yes □ No □ Reference Number 2 Customer Name & Contact Individual Telephone & Email Project Name (Site Address): Is this similar to the project being bid and did this project include earthwork including the removal and hauling of excavated material. Yes □ No □ Describe the services provided and how this project is similar to that which is being bid: Date project completed: Was this contract for a public agency? Yes □ No □ Reference Number 3 Customer Name & Contact Individual Telephone & Email Project Name (Site Address): Is this similar to the project being bid? Yes □ No □ Describe the services provided and how this project is similar to that which is being bid: Date project completed: Was this contract for a public agency? Yes □ No □ BID FORMS BID FORMS H ATTACH BIDDER'S BOND TO ACCOMPANY BID Know all men by these presents: That we ____________________________________________, AS PRINCIPAL, and _______________________________________________________, AS SURETY, are held and firmly bound unto the City of San Luis Obispo in the sum of: ____________________________________________________ Dollars (_____________) to be paid to said City or its certain attorney, its successors and assigns; for which payment, well and truly to be made, we bind ourselves, our heirs, executors and administrators, successors or assigns, jointly and severally, firmly by these presents: THE CONDITION OF THIS OBLIGATION IS SUCH, that if the certain bid of the above bounden ______________________________________________________________________ to construct ___________________________________________________________________ (insert name of street and limits to be improved or project) dated _____________________ is accepted by the City of San Luis Obispo, and if the above bounden _______________________________________________________, his heirs, executors, administrators, successors, and assigns shall duly enter into and execute a contract for such construction and shall execute and deliver the two bonds described within ten (10) days (not including Saturdays, Sundays, or legal holidays) after the above bounden, ______________________________________________________, has received notice by and from the said City of San Luis Obispo that said contract is ready for execution, then this obligation shall become null and void; otherwise, it shall be and remain in full force and virtue. IN WITNESS WHEREOF, we hereunto set our hands and seals this ___ day of ______, 20____. Bidder Principal: Signature Date Title: Surety: Bidder's signature is not required to be notarized. Surety's signature must be notarized. Equivalent form may be substituted (Rev. 6-30-14) SPECIAL PROVISIONS 1 SPECIAL PROVISIONS ORGANIZATION Special provisions are under headings that correspond with the main section heading of the Standard Specifications. Each special provision begins with a revision clause that describes or introduces a revision to the Standard Specifications. Any paragraph added or deleted by a revision clause does not change the paragraph number of the Standard Specifications for any other reference to a paragraph of the Standard Specifications. DIVISION I GENERAL PROVISIONS 1 GENERAL Add to Section 1-1.01 GENERAL: The work must be done in compliance with the City of San Luis Obispo, Department of Public Works and Utilities: 1. Silt Removal 2026 Special Provisions 2. City of San Luis Obispo Standard Specifications and Engineering Standards – 2025 edition 3. State of California, Department of Transportation Standard Specifications and Standard Plans – 2024 edition In case of conflict between documents, governing ranking must comply with section 5- 1.02 of the City of San Luis Obispo’s Standard Specifications. Failure to comply with any obligation under the contract documents constitutes a breach of contract. Add to Section 1-1.07 DEFINITIONS, Glossary: Contract Documents: The executed Contract, including the component parts listed in Article III of the Agreement. 3 CONTRACT AWARD AND EXECUTION Replace 1st and 2nd paragraph in Section 3-1.18 CONTRACT EXECUTION with: Upon notification of project award, return: 1. executed contract 2. insurance 3. contract bonds within five business days after the bidder receives the contract. 4 SCOPE OF WORK Add to Section 4-1.03 WORK DESCRIPTION: Comply with the provisions of Sections 5, 7, 12, 13, 14, 17, 19, 20, and 77 for general, material, construction, and payment specifics. SPECIAL PROVISIONS SPECIAL PROVISIONS 2 5 CONTROL OF WORK Add to Section 5-1.02D CONTRACT COMPONENTS, Sequencing: Work within Area 4 – Larkspur at Goldenrod shall not commence prior to September 21, 2026, unless otherwise authorized by the Engineer. Add to Section 5-1.20B PERMITS, LICENSES AND CERTIFICATIONS: The City will obtain permits from the following agencies which govern work within the project area: 1. California Department of Fish and Wildlife 2. California Regional Water Quality Control Board 3. Army Corps of Engineers Conditions associated with the regulatory permits, and any modifications to those agreements or permits will be fully binding to you. The provisions of this section must be made a part of every subcontract executed pursuant to this contract. Any penalties associated with a violation by you are your responsibility. The contractor shall use the conditions in the example permits located in Appendices B, C and D to determine the lump sum price for Bid Items 1, 2-1, 3-1, and 4-1. “Comply with Permits and CEQA” will be paid in lump sum and shall include all the necessary labor, tools, materials, and equipment required to comply with all permits, as specified in the Standard Specifications and Section 5 of these Special Provisions. 7 LEGAL RELATIONS AND RESPONSIBILITY TO THE PUBLIC Add to Section 7-1.03B PUBLIC CONVENIENCE, Traffic Control Plan Normal working hours are 7:00 a.m. to 4:00 p.m. Monday to Friday. Provide traffic control plan and traffic control application at or before the preconstruction meeting. Traffic control plan must be drawn to scale. Traffic control application may be obtained on the City’s website: www.slocity.org/government/department-directory/public-works/documents- online/construction-documents Upon approval of the traffic control plan, the City will issue a no-fee Encroachment Permit. Permittee is responsible to comply with all conditions of the traffic control plan. Complete work using due diligence to restore free flowing of traffic. 8 PROSECUTION AND PROGRESS Add to Section 8-1.04B START OF JOB SITE ACTIVITIES, Standard Start: Contract time shall start the first Monday after the preconstruction conference and no later than August 31, 2026. SPECIAL PROVISIONS SPECIAL PROVISIONS 3 9 PAYMENT Add to Section 9-1.06 CHANGED QUANTITY PAYMENT ADJUSTMENTS, General: Unit price adjustments specified per Section 9-1.06B, “Increases of More than 25 Percent” and Section 9-1.06C, “Decreases of More than 25 Percent,” of the Standard Specifications will not apply to Bid Items 3, 2-3, 3-3, and 4-3. Payment for increased or decreased quantities shall be made at the bid item price. DIVISION II GENERAL CONSTRUCTION 13 WATER POLLUTION CONTROL Add to Section 13-1.01A SUMMARY Maintain and fuel all equipment in the appropriate staging area shown on the project plans. All vehicles and equipment must be well maintained and free from leaks. You are responsible to check for leaks at the beginning of each work day. If a project related spill of hazardous materials occurs within or adjacent to the project area, clean it up immediately. Always keep an approved spill prevention plan and clean up materials onsite. Provide the Engineer a copy of the spill prevention plan at the preconstruction conference. Add Section 13-12 DEWATERING SYSTEM: 13-12.01 GENERAL 13-12.01A Summary Section 13-12 includes specifications for constructing, maintaining, reconstructing, and removing dewatering, and restoring creek bed to original condition. 13-12.01B Definitions Not Used 13-12.01C Submittals Submit a certificate of compliance for: 1. Gravel 2. Discharge hose material 13-12.01C(1) Dewatering System The Dewatering will be discussed during the pre-construction meeting. During the pre- construction meeting, the Contractor must address the following: 1. Installation and removal process, including equipment, platforms for equipment, and access locations. 2. Locations of dewatering sump pumps. 3. Materials proposed for use 4. Temporary BMP implementation as part of the Construction Site BMP strategy and Water Pollution Control Plan to ensure applicable water quality objectives are met. SPECIAL PROVISIONS SPECIAL PROVISIONS 4 5. Details of the pumping system, if used, including power source, debris handling, fish screens, and monitoring requirements. 6. Contingency plan to remove workers, equipment, materials, fuels, and any other work items that will cause pollution or violation of Permits, Licenses, Agreements, and Certifications (PLACs) during a rain event out of the flow area. There will be a field meeting prior to the installation to finalize the Dewatering. Final locations and system must be approved by the Engineer prior to implementation. 13-12.01D Quality Assurance Not Used 13-12.02 MATERIALS 13-12.02A Gravel Gravel must: 1. Be river run gravel obtained from a river or creek bed with gradation of 100 percent passing a 3/4-inch sieve and 0% passing a 3/8-inch sieve. 2. Be clean, hard, sound, durable, uniform in quality, and free of any detrimental quantity of soft, thin, elongated or laminated pieces, disintegrated material, organic matter, or other deleterious substances. 3. Be composed entirely of particles that have no more than 1 fractured face. 4. Have a cleanliness value of at least 85, as determined by California Test 227. 13-12.02B Plastic Pipes and Discharge Hose Plastic pipe must comply with section 61-3.01 and must: 1. Be clean, uncoated, in good condition free of rust, paint oil dirt or other residues that could potentially contribute to water pollution 2. Be adequately supported for planned loads 3. Use watertight joints under section 61-2.01. 4. Be made of a material or combination of materials that are suitable for clean water and which do not contain banned, hazardous, or unlawful substances. 13-12.02C Sump Pumping System Sump pumping system must: 1. Comply with section 74-2.02B 2. Ensure discharge water conform with PLACs or is treated on site 3. Be free of fuel and oil leaks 13-12.02H Discharge Water Energy Dissipation and Erosion Control Discharge water from pumps, pipes, ditches, or other conveyances must have BMPs to dissipate the flows and velocity of water discharged from the temporary dewatering system if erosion would otherwise occur. Energy dissipation measures: 1. Discharge water from dewatering system into silt bag SPECIAL PROVISIONS SPECIAL PROVISIONS 5 13-12.03 CONSTRUCTION 13-12.03A General Do not use motorized equipment or vehicles in areas of flowing or standing water for the construction or removal of the dewatering system in compliance with section 13-4.03. Place silt bag at outlet of discharge hose. Do not construct or reconstruct the dewatering system if the 72-hour forecasts predict a 50 percent or greater chance of rain in the project area. Stop all work and remove all material and equipment from the creek if the 72-hour forecasts predict a 50 percent or greater chance of rain in the project area. Contact water agencies that discharge to the construction area to ensure that unexpected water is not discharged during construction which could compromise the dewatering system. 13-12.03B Maintenance Prevent kinks in the dewatering system. 13-12.03C Removal When no longer required, remove all components of the dewatering system. Backfill ground disturbance, including holes and depressions caused by the installation and removal of the dewatering system with native creek material. Maintain the original line and grade of the creek bed. 13-12.04 PAYMENT As shown on the bid item list, Dewatering will be paid in lump sum and shall include all the necessary labor, tools, materials, and equipment required to do all the work shown on the Plans, as specified in the Standard Specifications and Section 13 of these Special Provisions. 14 ENVIRONMENTAL STEWARDSHIP Add to Section 14-1.01 GENERAL: The City will retain a qualified biological monitor to conduct pre-construction surveys to determine the presence of special status species, to remove special status species from the work site, to monitor construction activities and monitor for compliance with all environmental permits. This biological monitor will complete post construction monitoring and reporting. The biological monitor will not direct your operations but will have the authority to stop work if a violation of the various permits is suspected. You must comply with any and all SPECIAL PROVISIONS SPECIAL PROVISIONS 6 stop work orders. Work must not resume in affected areas until all suspected violations have been addressed and resolved. Prior to the start of work, the City will conduct an overnight survey. If any California Red Legged Frogs, Steelhead Trout, or Southwestern Pond Turtles are noted in the work area during construction, halt all work within the affected area until an approved biologist authorizes work to continue. The City will provide you on-site training prior to the start of work. Expect this training to be one hour in length. This training is mandatory for anyone working at the project site. Prior to starting the project, the monitor will identify and flag all herbaceous invasive, exotic plant species from the immediate vicinity of the project site, which the Contractor is responsible to remove, bag, and dispose of in a landfill (not to be disposed of as green waste). Add to Section 14-1.02 ENVIRONMENTALLY SENSITIVE AREA: Do not expand the work area into adjacent riparian areas which have not been designated as part of the project site. Mark the boundaries of the proposed work area prior to and during construction using highly visible flagging or fencing. The monitor may make adjustments to the work area depending on the biological survey. DIVISION III EARTHWORK AND LANDSCAPE 17 GENERAL Replace 2nd paragraph in Section 17-2.03B CONSTRUCTION, Clearing with: Do not cut tree branches without City permission. Replace Section 17-2.03D CONSTRUCTION, Disposal of Materials with: Dispose of materials resulting from clearing and grubbing at a City approved facility. Green waste resulting from these activities will be separated and disposed of. 19 EARTHWORK Add to Section 19-1.03A CONSTRUCTION, General: Equipment access to the project site is as noted in the project plans. Sediment removal is limited to the area outside of any flowing water. Keep all construction equipment, debris, materials, and stockpiles from entering any flowing water within the creek by use of best management practices. All trash must be properly contained and disposed of daily. Remove and dispose of: 1. sediment 2. clearing and grubbing of organic material 3. vegetation 4. trash SPECIAL PROVISIONS SPECIAL PROVISIONS 7 as noted in the plans. Dispose of all materials in accordance with section 5-1.20B “Permits, Licenses, Agreements, and Certifications”, of the Standard Specifications. The disposal site must be in an upland location outside the riparian corridor so as not to be reintroduced into the creek system. City must review and approve of each disposal site prior to its use. Add to Section 19-1.04 PAYMENT: Payment for grading activities will be by the cubic yard excavated and properly disposed of. Payment shall include all the necessary labor, tools, materials, and equipment required to do all the work. Truck load quantities used for payment shall be based on load tickets, and the method for determining truck capacities and load volumes shall be agreed upon by the Contractor and the Engineer prior to the start of grading operations. 21 EROSION CONTROL Replace Section 21-2.03D CONSTRUCTION, Hydromulch and Hydroseed: Revegetate all disturbed soil areas via hand seed casting. Do not seed within one foot of any running water. Final location of seed application to be confirmed by Engineer or Biologist. Seed mix must be spread at a rate of one pound per 1000 square feet or equivalent as determined by the environmental monitor. Apply seed to the sediment removal areas shown on the project plans to be revegetated. Seed mix must meet specifications in the table below: SPECIES Pounds per acre California Brome, Bromus carinatus 20 Small fescue Festuca microstachys 8 Tomcat clover Trifolium cilolatum 4 ADD DIVISION XIII APPENDICES Appendix A: Form of Agreement Appendix B: California Department of Fish and Wildlife Agreement Example Appendix C: California Regional Water Quality Control Board Permit Example Appendix D: Army Corps of Engineers Permit Example APPENDIX APPENDIX 0 APPENDIX A - FORM OF AGREEMENT THIS AGREEMENT, made on _____________, by and between the City of San Luis Obispo, a municipal corporation and charter city, San Luis Obispo County, California (hereinafter called the City) and COMPANY NAME (hereinafter called the Contractor). WITNESSETH: That the City and the Contractor for the consideration stated herein agree as follows: ARTICLE 1, SCOPE OF WORK: The Contractor shall perform everything required to be performed, shall provide and furnish all of the labor, materials, necessary tools, expendable equipment, and all utility and transportation services required to complete all the work of construction of NAME OF PROJECT, SPEC NO. in strict compliance with the plans and specifications therefor, including any and all Addenda, adopted by the City, in strict compliance with the Contract Documents hereinafter enumerated. It is agreed that said labor, materials, tools, equipment, and services shall be furnished and said work performed and completed under the direction and supervision and subject to the approval of the City or its authorized representatives. ARTICLE II, CONTRACT PRICE: The City shall pay the Contractor as full consideration for the faithful performance of this Contract, subject to any additions or deductions as provided in the Contract Documents, the contract prices as follows: Item No. Item Unit of Measure Estimated Quantity Item Price (in figures) Total (in figures) 1. 2. 3. BID TOTAL: $ .00 Payments are to be made to the Contractor in compliance with and subject to the provisions embodied in the documents made a part of this Contract. If any dispute arises regarding the work or contract price, Contractor must follow the procedures in the contract documents, including the requirements on change order requests and dispute resolution. APPENDIX APPENDIX 1 ARTICLE III, COMPONENT PARTS OF THIS CONTRACT: The Contract consists of the following documents, all of which are as fully a part thereof as if herein set out in full, and if not attached, as if hereto attached: 1. Notice to Bidders and Information for Bidders 2. Standard Specifications and Engineering Standards 3. Special Provisions, any Addenda, Plans and Contract Change Orders 4. Caltrans Standard Specifications and Standard Plans 2024 5. Accepted Bid and Bid Bond 6. List of Subcontractors 7. Labor Code Section 1725.5 Statements 8. Bidder Acknowledgements 9. Qualifications 10. Noncollusion Declaration 11. Agreement and Bonds 12. Insurance Requirements and Forms ARTICLE IV INDEMNIFICATION: The Contractor shall indemnify, defend with legal counsel approved by City, and hold harmless City, its officers, officials, employees and volunteers from and against all liability, loss, damage, expense, cost (including without limitation reasonable legal counsel fees, expert fees and all other costs and fees of litigation) of every nature arising out of or in connection with the acts or omissions of Contractor, its employees, subcontractors, representatives, or agents, in bidding or performing the work or in failing to comply with any obligation of Contractor under this Agreement, except such loss or damage which is caused by the sole or active negligence or willful misconduct of the City. Should conflict of interest principles preclude a single legal counsel from representing both the City and the Contractor, or should the City otherwise find the Contractor’s legal counsel unacceptable, then the Contractor shall reimburse the City its costs of defense, including without limitation reasonable legal counsel fees, expert fees and all other costs and fees of litigation. The Contractor shall promptly pay any final judgment rendered against the City (and its officers, officials, employees and volunteers) with respect to claims determined by a trier of fact to have been the result of the Contractor’s acts or omissions in bidding or performing the work or in failing to comply with any obligation of Contractor under this Agreement. It is expressly understood and agreed that the foregoing provisions are intended to be as broad and inclusive as is permitted by the law of the State of California and will survive termination of this Agreement. The Contractor obligations under this section apply regardless of whether such claim, charge, damage, demand, action, proceeding, loss, stop notice, cost, expense, judgment, civil fine or penalty, or liability was caused in part or contributed to by an Indemnitee. However, without affecting the rights of the City under any provision of this agreement, the Contractor shall not be required to indemnify and hold harmless the City for liability attributable to the active negligence of City, provided such active negligence is determined by agreement between the parties or by the findings of a court of competent jurisdiction. In instances where the City is shown to have been actively negligent and where the City’s active negligence accounts for only a percentage of the liability involved, the obligation of APPENDIX APPENDIX 2 the Contractor will be for that entire portion or percentage of liability not attributable to the active negligence of the City. ARTICLE V: It is further expressly agreed by and between the parties hereto that should there be any conflict between the terms of this instrument and the bid of said Contractor, then this instrument shall control and nothing herein shall be considered as an acceptance of the said terms of said bid conflicting herewith. ARTICLE VI LABOR CODE COMPLIANCE: This Agreement is subject to all applicable requirements of Chapter 1 of Part 7 of Division 2 of the Labor Code, including requirements pertaining to wages, working hours and workers’ compensation insurance, as further specified in the contract documents. The project is subject to the prevailing wage requirements applicable to the locality in which the work is to be performed for each craft, classification or type of worker needed to perform the work, including employer payments for health and welfare, pension, vacation, apprenticeship and similar purposes. Copies of these prevailing rates are on file with the City and are available online at http://www.dir.ca.gov/DLSR. City may not enter into the Agreement with a bidder without proof that the bidder and its subcontractors are registered with the DIR to perform public work pursuant to Labor Code section 1725.5, subject to limited legal exceptions. Pursuant to Labor Code § 1861, by signing this Agreement, Contractor certifies as follows: “I am aware of the provisions of Labor Code § 3700 which require every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the work on this contract.” IN WITNESS WHEREOF, the parties to these presents have hereunto set their hands this year and date first above written. CITY OF SAN LUIS OBISPO A Municipal Corporation __________________________________ Whitney McDonald, City Manager APPROVED AS TO FORM CONTRACTOR: Name of Company ________________________________ By:________________________________ J. Christine Dietrick City Attorney Name of CAO/President Its: CAO/PRESIDENT APPENDIX APPENDIX 3 (2nd signature required if Corporation): By:________________________________ Name of Corporate Officer Its: ____________________ APPENDIX APPENDIX 4 APPENDIX B – CALIFORNIA DEPARTMENT OF FISH AND WILDLIFE AGREEMENT EXA M P L E EXA M P L E EXA M P L E EXA M P L E EXA M P L E EXA M P L E EXA M P L E EXA M P L E EXA M P L E EXA M P L E EXA M P L E EXA M P L E EXA M P L E EXA M P L E EXA M P L E EXA M P L E EXA M P L E EXA M P L E EXA M P L E EXA M P L E EXA M P L E EXA M P L E EXA M P L E EXA M P L E EXA M P L E EXA M P L E EXA M P L E EXA M P L E EXA M P L E EXA M P L E EXA M P L E EXA M P L E EXA M P L E EXA M P L E EXA M P L E EXA M P L E EXA M P L E EXA M P L E EXA M P L E EXA M P L E EXA M P L E EXA M P L E EXA M P L E EXA M P L E APPENDIX APPENDIX 5 APPENDIX C – CALIFORNIA REGIONAL WATER QUALITY CONTROL BOARD PERMIT Central Coast Regional Water Quality Control Board April 1, 2021 Freddy Otte VIA ELECTRONIC MAIL City of San Luis Obispo 919 Palm Street San Luis Obispo, CA 93401 Email: fotte@slocity.org Dear Mr. Otte: WATER QUALITY CERTIFICATION NO. 34019WQ10 FOR CITY OF SAN LUIS OBISPO URBAN STREAMS ROUTINE MAINTENANCE PROJECT, SAN LUIS OBISPO COUNTY Thank you for the opportunity to review your May 24, 2019 application for water quality certification of the City of San Luis Obispo Urban Streams Routine Maintenance Project (Project). The application was completed on September 10, 2019. All supplemental information requested was received on September 16, 2020, and total application fee was received on January 29, 2021. The project, if implemented as described in your application and with the additional mitigation and other conditions required by this Clean Water Act Section 401 Water Quality Certification (Certification), appears to be protective of beneficial uses of State waters. We are issuing the enclosed Certification. Should new information come to our attention that indicates a water quality problem, we may require additional monitoring and reporting, issue waste discharge requirements, or take other action. Your Certification application and submitted documents indicate that project activities have the potential to affect beneficial uses and water quality. The Central Coast Regional Water Quality Control Board (Central Coast Water Board) issues this Certification to protect water quality and associated beneficial uses from project activities. We need reports to determine compliance with this Certification. All technical and monitoring reports requested in this Certification, or any time after, are required per section 13383 of the California Water Code. Failure to submit reports required by this Certification, or failure to submit a report of technical quality acceptable to the Executive Officer, may subject you to enforcement action per section 13385 of the California Water Code. Any person affected by this Central Coast Water Board action may petition the State Water Resources Control Board (State Water Board) to review this action in accordance with California Water Code section 13320; and Title 23, California Code of Regulations, sections 2050 and 3867-3869. The State Water Board, Office of Chief Counsel, PO Box 100, Sacramento, CA 95812, must receive the petition within 30 days of the date of this Certification. We will provide upon request copies of the law and regulations applicable to filing petitions. EXA M P L E City of San Luis Obispo Certification No. 34019WQ10 April 1, 2021 2 If you have questions please contact Kathleen Hicks at (805) 549-3458 or via email at Kathleen.Hicks@waterboards.ca.gov, or Phil Hammer at (805) 549-3882. Please mention the above certification number in all future correspondence pertaining to this project. Sincerely, for Matthew T. Keeling Executive Officer Enclosure: Action on Request for CWA Section 401 Water Quality Certification cc: With enclosures Brooke Langle Terra Verde Environmental Consulting, Inc. E-mail: blangle@terraverdeweb.com Gerardo Hidalgo U.S. Army Corps of Engineers E-mail: Gerardo.L.Hidalgo@usace.army.mil Julie Vance California Department of Fish and Wildlife E-mail: Julie.Vance@wildlife.ca.gov Linda Connolly California Department of Fish and Wildlife E-mail: Linda.Connolly@wildlife.ca.gov Melissa Scianni U.S. Environmental Protection Agency E-mail: scianni.melissa@epa.gov CWA Section 401 WQC Program Division of Water Quality State Water Resources Control Board E-mail: Stateboard401@waterboards.ca.gov Tessa Gallagher Central Coast Water Board E-mail: Tessa.Gallagher@waterboards.ca.gov Harvey Packard Central Coast Water Board Email: Harvey.Packard@waterboards.ca.gov Kathleen Hicks Central Coast Water Board Email: Kathleen.Hicks@waterboards.ca.gov R:\RB3\Shared\401\Certifications\San Luis Obispo\2019\34019WQ10_SLO Urban Streams Routine Maintenance\R3_SLO Urban Streams Routine Maintenance_34019WQ10_DRAFTCert rev2.docx EXA M P L E City of San Luis Obispo Certification No. 34019WQ10 April 1, 2021 1 Action on Request for Clean Water Act Section 401 Water Quality Certification for Discharge of Dredged and/or Fill Materials PROJECT:City of San Luis Obispo Urban Streams Routine Maintenance PERMITTEE:Freddy Otte City of San Luis Obispo 919 Palm Street San Luis Obispo, CA 93401 ACTION: 1. Order for Standard Certification 2.Order for Technically-Conditioned Certification 3. Order for Denial of Certification STANDARD CONDITIONS: 1. This Certification action is subject to modification or revocation upon administrative or judicial review, including review and amendment per section 13330 of the California Water Code and section 3867 of Title 23 of the California Code of Regulations (23 CCR). 2. This Certification action is not intended to apply to any discharge from any activity involving a hydroelectric facility requiring a Federal Energy Regulatory Commission (FERC) license or an amendment to a FERC license unless the pertinent Certification application was filed per 23 CCR subsection 3855(b) and the application specifically identified that a FERC license or amendment to a FERC license was being sought. 3. The validity of any non-denial Certification action (Actions 1 and 2) is conditioned upon total payment of the fee required under 23 CCR section 3833, unless otherwise stated in writing by the certifying agency. ADMINISTRATIVE CONDITIONS: 1. This Certification is subject to the acquisition of all local, regional, state, and federal permits and approvals as required by law. Failure to meet any conditions contained herein or any conditions contained in any other permit or approval issued by the State of California or any subdivision thereof may result in the revocation of this Certification and civil or criminal liability. 2. In the event of a violation or threatened violation of this Certification, the violation or threatened violation shall be subject to any remedies, penalties, process or sanctions as provided for under state law. For purposes of section 401(d) of the Clean Water Act, the applicability of any state law authorizing remedies, penalties, process or sanctions for the violation or threatened violation constitutes a limitation necessary to assure compliance with the water quality standards and other pertinent requirements incorporated into this Certification. EXA M P L E City of San Luis Obispo Certification No. 34019WQ10 April 1, 2021 2 3. In response to a suspected violation of any condition of this Certification, the Central Coast Water Board may require the holder of any permit or license subject to this Certification to furnish, under penalty of perjury, any technical or monitoring reports the Central Coast Water Board deems appropriate, provided that the burden, including costs, of the reports shall have a reasonable relationship to the need for the reports and the benefits obtained from the reports. 4. In response to any violation of the conditions of this Certification, the Central Coast Water Board may add to or modify the conditions of this Certification as appropriate to ensure compliance. 5. The Central Coast Water Board reserves the right to suspend, cancel, or modify and reissue this Certification, after providing notice to the Permittee, if the Central Coast Water Board determines that the Project fails to comply with any of the terms or conditions of this Certification. 6. A copy of this Certification, the application, and supporting documentation must be available at the Project site during construction for review by site personnel and agencies. A copy of this Certification must also be provided to the contractor and all subcontractors who will work at the Project site. All personnel performing work on the proposed Project shall be familiar with the content of this Certification and its posted location on the Project site. 7. The Permittee shall grant Central Coast Water Board staff, or an authorized representative, upon presentation of credentials and other documents as may be required by law, permission to enter the Project site at reasonable times, to ensure compliance with the terms and conditions of this Certification and/or to determine the impacts the Project may have on waters of the State. 8. The Permittee must, at all times, fully comply with the application, engineering plans, specifications, and technical reports submitted to support this Certification; all subsequent submittals required as part of this Certification; and the attached Project Information and Conditions. The conditions within this Certification and attachment(s) supersede conflicting provisions within Permittee submittals. 9. The Permittee shall notify the Central Coast Water Board within 24 hours of any unauthorized discharge to waters of the U.S. and/or State; measures that were implemented to stop and contain the discharge; measures implemented to clean-up the discharge; the volume and type of materials discharged and recovered; and additional BMPs or other measures that will be implemented to prevent future discharges. 10. This Certification is not transferable to any person except after notice to the Executive Officer of the Central Coast Water Board. The Permittee shall submit this notice in writing at least 30 days in advance of any proposed transfer. The notice must include a written agreement between the existing and new responsible party containing a specific date for the transfer of this Certification's responsibility and coverage between the current responsible party and the new responsible party. This agreement shall include an acknowledgement that the existing responsible party is liable for compliance and violations up to the transfer date and that the new responsible party is liable from the transfer date on. 11. This Order and all of its conditions contained herein continue to have full force and effect regardless of the expiration or revocation of any federal license or permit issued for the EXA M P L E City of San Luis Obispo Certification No. 34019WQ10 April 1, 2021 3 Project. For purposes of Clean Water Act, section 401(d), this condition constitutes a limitation necessary to assure compliance with the water quality standards and other pertinent requirements of state law. This Order authorizes stream maintenance only until December 31, 2025. Compensatory mitigation implementation, monitoring, maintenance, and reporting requirements and conditions of this Certification remain in effect until the City complies with all such requirements and conditions. This Certification is subject to review by Central Coast Water Board staff following the fifth year of maintenance activities and submittal of a Final Five-Year Implementation Report. Central Coast Water Board staff will assess the implementation and effectiveness of the Project and consider modifications or amendment to this Certification to extend the Certification for another five-year permit term. 12. The total certification fee for this project is $33,180. The remaining certification fee payable to the Central Coast Water Board is $0. Annual fees may apply. CALIFORNIA ENVIRONMENTAL QUALITY ACT FINDINGS: 1. Environmental Review On October 21, 2003, the City of San Luis Obispo, as lead agency, certified a Final Environmental Impact Report (FEIR)) (State Clearinghouse (SCH) No. 2002091075) for the Project and filed a Notice of Determination (NOD) at the SCH on February 10, 2004. The Central Coast Water Board is a responsible agency under CEQA (Pub. Resources Code, § 21069) and in making its determinations and findings, presumes that the City of San Luis Obispo’s certified environmental document comports with the requirements of CEQA and is valid. (Pub. Resources Code, § 21167.3.) The Central Coast Water Board has reviewed and considered the environmental document and finds that the environmental document prepared by the City of San Luis Obispo addresses the Project’s water resource impacts. (Cal. Code Regs., tit. 14, § 15096, subd. (f).) The environmental document includes the mitigation monitoring and reporting program (MMRP) developed by the City of San Luis Obispo for all mitigation measures that have been adopted for the Project to reduce potential significant impacts. (Pub. Resources Code, § 21081.6, subd. (a)(1); Cal. Code Regs., tit. 14, § 15091, subd. (d).) 2. Incorporation by Reference Pursuant to CEQA, these Findings of Facts (Findings) support the issuance of this Order based on the FEIR, the application for this Order, and other supplemental documentation, including the Conceptual Mitigation and Monitoring Plan. All CEQA project impacts, including those discussed in subsection C below, are analyzed in detail in the FEIR which is incorporated herein by reference. Requirements under the purview of the Central Coast Water Board in the MMRP are incorporated herein by reference. The Permittee’s application for this Order, including all supplemental information provided, is incorporated herein by reference. 3. Findings The FEIR describes the potential significant environmental effects to water resources. Having considered the whole of the record, the Central Coast Water Board makes the following findings: a. Findings regarding impacts that will be avoided or mitigated to a less than significant level. (Pub. Resources Code, § 21081, subd. (a)(1); Cal. Code Regs., tit. 14, § 15091, subd. (a)(1).) EXA M P L E City of San Luis Obispo Certification No. 34019WQ10 April 1, 2021 4 Changes or alterations have been required in, or incorporated into, the Project which avoid or substantially lessen the significant environmental effect as identified in the FEIR. i. Potential Significant Impact: The Project may affect stream geomorphology, hydrology, soil erosion and sedimentation, aquatic stream and riparian habitat, and water quality through sediment removal, repair, modification, or replacement of hydraulic structures, bank stabilization projects, or vegetation management. Facts in Support of Finding: This impact will be reduced to a less than significant level by application of a Watershed Management Plan and through mitigation measures described in the Conceptual Mitigation and Monitoring Plan. Best management practices (BMPs) will be implemented to regulate impacts. Permitting will require implementation of an Annual Work Plan that assures mitigation. ii. Potential Significant Impact: The Project may result in cumulative impacts to biological resources, including riparian and stream habitat, from conducting activities simultaneously in multiple areas of the watershed. Facts in Support of Finding: This impact will be reduced to a less than significant level through review and implementation of an Annual Work Plan to temporally and spatially place activities to reduce cumulative impacts, as well as through implementation of BMPs. 4. Determination The Central Coast Water Board has determined that the Project, when implemented in accordance with the MMRP and the conditions in this Order, will not result in any significant adverse water quality or supply impacts. (Cal. Code Regs., tit. 14, § 15096, subd. (h).) CENTRAL COAST WATER BOARD CONTACT PERSON: Kathleen Hicks (805) 549-3458 Kathleen.Hicks@waterboards.ca.gov Please refer to the above certification number when corresponding with the Central Coast Water Board concerning this project. WATER QUALITY CERTIFICATION: I hereby issue an order certifying that as long as all the conditions listed in this Certification are met, any discharge from the City of San Luis Obispo Urban Streams Routine Maintenance Project shall comply with the applicable provisions of sections 301 ("Effluent Limitations"), 302 ("Water Quality Related Effluent Limitations"), 303 ("Water Quality Standards and Implementation Plans"), 306 ("National Standards of Performance"), and 307 ("Toxic and Pretreatment Effluent Standards") of the Clean Water Act. This discharge is also regulated pursuant to State Water Board Water Quality Order No. 2003-0017-DWQ, which requires compliance with all conditions of this Certification. EXA M P L E City of San Luis Obispo Certification No. 34019WQ10 April 1, 2021 5 Except insofar as may be modified by any preceding conditions, all Certification actions are contingent on (a) the discharge being limited and all proposed mitigation being completed in strict compliance with the Permittee’s project description, Certification conditions, and the attached Project Information and Conditions, and (b) compliance with all applicable requirements of the Central Coast Water Board’s policies and Water Quality Control Plan (Basin Plan). for April 1, 2021 Matthew T. Keeling Date Executive Officer Central Coast Water Board EXA M P L E City of San Luis Obispo Certification No. 34019WQ10 April 1, 2021 6 PROJECT INFORMATION AND CONDITIONS Application Date Received: May 24, 2019 Completed: September 10, 2019 Permittee Freddy Otte City of San Luis Obispo 919 Palm Street San Luis Obispo, CA 93401 fotte@slocity.org 805-781-7511 Permittee Representatives Brooke Langle Terra Verde Environmental Consulting, Inc. 3765 South Higuera Street Suite 102 San Luis Obispo, CA 93401 blangle@terraverdeweb.com 805-896-5479 Project Name City of San Luis Obispo Urban Streams Routine Maintenance Application Number 34019WQ10 Type of Project Bank and Channel and Beach Modification: Routine Channel and Flood Control Maintenance Activities by local agencies Project Location San Luis Obispo Latitude: various Longitude: various County San Luis Obispo Receiving Water(s) San Luis Obispo Creek East Fork San Luis Obispo Creek Prefumo Creek Froom Creek Stenner Creek Brizziolari Creek See Canyon Creek Old Garden Creek Davenport Creek Various unnamed creeks and tributaries in the San Luis Obispo Creek watershed 310 Estero Bay Hydrologic Unit Water Body Type Streambed, riparian EXA M P L E City of San Luis Obispo Certification No. 34019WQ10 April 1, 2021 7 Designated Beneficial Uses Municipal and Domestic Supply (MUN) Agricultural Supply (AGR) Ground Water Recharge (GWR) Water Contact Recreation (REC-1) Non-Contact Recreation (REC-2) Wildlife Habitat (WILD) Cold Fresh Water Habitat (COLD) Migration of Aquatic Organisms (MIGR) Spawning, Reproduction, and/or Early Development (SPWN) Rare, Threatened or Endangered Species (RARE) Commercial and Sport Fishing (COMM) Project Description (purpose/goal) The purpose of this project is to ensure flow capacity, prevent flooding, remediate flood damage, address bank instability, and restore degraded riparian habitat. Maintenance will occur in 14 discrete project sites in the San Luis Obispo Creek watershed within city limits. Central Coast Regional Water Quality Control Board (Central Coast Water Board) staff understands that the project includes the following activities: 1. The use of front loaders, skip loaders, small bulldozers, excavators, and dump trucks from the top of bank where feasible or within the channel. 2. Vegetation trimming or removal for access and vegetation removal from in-channel sediment bars. 3. Removal of sediment and re-establishment of a thalweg. 4. Disposal of sediment and debris in an approved disposal facility, based on soil testing for chromium VI at the Prefumo Creek site below Los Osos Valley Road. 5. Management of soil disturbance with erosion control seed mix. 6. Installation of offsite mitigation for cumulative impacts. U.S. Army Corps of Engineers Permit No. Nationwide Permit 31 – Maintenance of Existing Flood Control Facilities SPL-2014-00675-GLH Dept. of Fish and Wildlife Streambed Alteration Agreement Streambed Alteration Agreement file no. 1600-2018-0028-R4 issued September 18, 2018 CEQA Information Environmental Impact Report Lead Agency: City of San Luis Obispo Total Certification Application Fee $33,180 Total Authorized Project Fill/Excavation Quantity Aquatic Resource Type Temporary Impact Permanent Impact Physical Loss of Area Degradation of Ecological Condition Acres CY 1 LF1 Acres CY LF Acres CY LF Riparian Zone 0.15 0 648 Stream Channel 2.29 7,230 4,724 1 Cubic Yards (CY); Linear Feet (LF) EXA M P L E City of San Luis Obispo Certification No. 34019WQ10 April 1, 2021 8 Required Project Mitigation Quantity for Temporary Impacts Aquatic Resource Type Units Method2 Est. Re-est. Reh. Enh. Pres. Riparian Zone Acres 0.30 LF 1,296 Stream Channel Acres 4.58 LF 9,448 Compensatory Mitigation Requirements 1. Erosion control seed mix shall be applied to temporarily impact areas. Areas temporarily impacted shall be mitigated at a 2:1 ratio by rehabilitation of riparian zone and stream channel habitat, to be achieved by offsite French broom removal. Individual plants removed shall be replaced at a 3:1 ratio at the Prefumo Creek eroding bank mitigation site. The Permittee shall submit a Final Mitigation and Monitoring Plan prior to mitigation implementation (by December 31, 2022 at the latest) for Central Coast Water Board staff review and approval. The Final Mitigation and Monitoring Plan shall supplement the Conceptual Mitigation and Monitoring Plan revised September 2020 by adding French broom survey results and final proposed mitigation area acreage. The Permittee shall implement compensatory mitigation installation, maintenance, and monitoring as described in the approved Final Mitigation and Monitoring Plan. 2. Onsite compensatory mitigation shall be installed within 12 months of completion of each year’s project activities. 3. Offsite compensatory mitigation shall be installed by October 1, 2023. Project Requirements The Permittee shall comply with the following requirements: 1. The Permittee shall implement maintenance projects in accordance with the current approved Annual Work Plan. 2. All personnel who engage in construction activities or their oversight at the project site (superintendent, construction manager, foreman, crew, contractor, biological monitor, etc.) must attend trainings on the conditions of this Certification and how to perform their duties in compliance with those conditions. Every person shall attend an initial training within five working days of their start date at the project site and follow-up trainings every year until the project is completed. Trainings shall be conducted by a qualified individual with expertise in 401 Water Quality Certification conditions and compliance. 3. All work performed within waters of the State shall be completed in a manner that minimizes impacts to beneficial uses and habitat. Measures shall be employed to minimize land disturbances that will adversely impact the water quality of waters of the State. Disturbance or removal of vegetation shall not exceed the minimum necessary to complete Project implementation. 3. Portions of the project that occur below top of creek banks or in other waters of the State shall be stabilized for the winter prior to October 1 of each year, either by completing construction of those portions of the project (including installation of permanent erosion control measures) or by implementing winterization stabilization measures capable of 2 Methods: establishment (Est.), reestablishment (Re-est.), rehabilitation (Reh.), enhancement (Enh.), preservation (Pres.) EXA M P L E City of San Luis Obispo Certification No. 34019WQ10 April 1, 2021 9 effectively stabilizing the area and preventing erosion under winter rain and flow conditions generated by the 10-year 24-hour storm event. No construction activities shall be conducted below top of creek banks or in other waters of the State during the winter period (October 1 – May 30), unless prior written approval has been obtained from Central Coast Water Board staff. Requests to conduct construction activities below top of creek banks or in other waters of the State during the winter period shall be submitted to Central Coast Water Board staff at least 21 days prior to the planned winter period work date. If approval is obtained, the Permittee shall implement the approved winter work as specified in the Central Coast Water Board staff approval and as described in any documentation submitted by the Permittee while seeking the approval. 4. Erosion and sediment control measures shall be on site prior to the start of construction and kept on site at all times so they are immediately available for installation in anticipation of rain events. 5. The Permittee shall implement and maintain an effective combination of erosion and sediment control measures (e.g., revegetation, fiber rolls, erosion control blankets, hydromulching, compost, straw with tackifiers, temporary basins) to prevent erosion and capture sediment. The Permittee shall implement and maintain washout, trackout, dust control, and any other applicable source control BMPs. 6. Erosion and sediment control measures and other construction BMPs shall be implemented and maintained in accordance with all specifications governing their proper design, installation, operation, and maintenance. 7. At any time of year, the Permittee shall not conduct construction activities below top of creek banks or in other waters of the State during rain events or on any day for which the National Weather Service has predicted a 25% or more chance of at least 0.1 inch rain in 24 hours (Predicted Rain Event). The Permittee shall install effective erosion control, sediment control, and other protective measures no later than the day prior to the Predicted Rain Event, and prior to the start of any rainfall. Construction activities below top of creek banks or in other waters of the State may resume after the rain has ceased, the National Weather Service predicts clear weather for at least 24 hours, and site conditions are dry enough to continue work without discharge of sediment or other pollutants from the project site. 8. Any material stockpiled that is not actively being used during construction shall be covered and surrounded with a linear sediment barrier. 9. The Permittee shall retain a spill plan and appropriate spill control and clean up materials (e.g., oil absorbent pads) onsite in case spills occur. 10. The Permittee shall confine all trash and debris in appropriate enclosed bins and dispose of the trash and debris at an approved site at least weekly. 11. All construction vehicles and equipment used on site shall be well maintained and checked daily for fuel, oil, and hydraulic fluid leaks or other problems that could result in spills of toxic materials. 12. The Permittee shall designate a staging area for equipment and vehicle fueling and storage at least 100 feet away from waterways, in a location where fluids or accidental discharges cannot flow into waterways. 13. All vehicle fueling and maintenance activity shall occur at least 100 feet away from waterways and in designated staging areas, unless a EXA M P L E City of San Luis Obispo Certification No. 34019WQ10 April 1, 2021 10 requested exception on a case-by case basis granted by prior written approval has been obtained from Central Coast Water Board staff. 14. Dewatering and stream diversion measures are not authorized based on the application. If the project requires dewatering or diversion, the Permittee shall submit detailed dewatering/diversion plans for Central Coast Water Board staff approval at least 21 days prior to any dewatering or diversion. Dewatering/diversion plans shall include the area to be dewatered, timing of dewatering, and method of dewatering to be implemented. All temporary dewatering/diversion methods shall be designed to have the minimum necessary impacts to waters of the State to isolate the immediate work area. All dewatering/diversion methods shall be installed such that natural flow is maintained upstream and downstream of the project area. Any temporary dams or diversions shall be installed such that the diversion does not cause sedimentation, siltation, or erosion upstream or downstream of the project area. All dewatering/diversion methods shall be removed immediately upon completion of dewatering/diversion activities. Dewatering or diversion shall not commence until the Permittee has obtained Central Coast Water Board staff approval of the dewatering/diversion plans. Any dewatering/diversion must be implemented in compliance with approved dewatering/diversion plans. 15. All construction-related equipment, materials, and any temporary BMPs no longer needed shall be removed and cleared from the site upon completion of the project. 16. Central Coast Water Board staff shall be notified if mitigations as described in the 401 Water Quality Certification application for this project are altered by the imposition of subsequent permit conditions by any local, state or federal regulatory authority. The Permittee shall inform Central Coast Water Board staff of any modifications that interfere with compliance with this Certification. 17. The Permittee shall implement the project each year in accordance with the approved Annual Work Plan. Monitoring and Reporting Requirements The Permittee shall conduct the following monitoring: 1. Visually inspect each project site and areas of waters of the State adjacent to project impact areas following completion of project construction at each site and for three subsequent rainy seasons to ensure that each project site is not causing excessive erosion, stream instability, or other water quality problems. If a project site does cause water quality problems, contact the Central Coast Water Board staff member overseeing the project. You will be responsible for obtaining any additional permits necessary for implementing plans for restoration to prevent further water quality problems. 2. Monitor the French broom removal and eroding bank repair compensatory mitigation sites for three years. If success criteria are not achieved within that time, continue annual monitoring and maintenance until success criteria are achieved. Compensatory mitigation monitoring shall include assessment of growth, survival, signs of reproduction, slope stability, percent reduction in population density of French broom, progress towards achieving success criteria, and any other measures identified in the approved Final Mitigation and Monitoring Plan. EXA M P L E City of San Luis Obispo Certification No. 34019WQ10 April 1, 2021 11 The Permittee shall provide the following reporting to RB3_401Reporting@waterboards.ca.gov [Note: Annual fees are based on submittal and approval of reporting item 2 below]: 1. Annual Work Plan – By June 1 of each year, the Permittee shall submit a plan for Central Coast Water Board staff review and approval that includes the following for each site: a. Engineered drawings; b. Estimated volume of sediment to be removed; c. Site-specific excavation, vegetation management, and materials management methods to be implemented; d. Expected vegetation impacts; e. Project schedule; f. Current site photographs; and g. Any revegetation and erosion control BMPs to be implemented. 2. Certification Termination Report – To terminate Certification coverage, the Permittee must submit for Central Coast Water Board staff review and approval a Certification Termination Report demonstrating compensatory mitigation success criteria achievement and monitoring completion. The Certification Termination Report shall include all information required for Annual Project Status Reports as specified below. The Certification Termination Report may serve as the final Annual Project Status Report. The Certification Termination Report submittal must include “Certification Termination Report” in the title. 3. Final Mitigation and Monitoring Plan – The Permittee shall submit for Central Coast Water Board staff review and approval a Final Mitigation and Monitoring Plan prior to mitigation installation (by December 31, 2022 at the latest). The Final Mitigation and Monitoring Plan shall supplement the Conceptual Mitigation and Monitoring Plan revised September 2020 by adding French broom survey results, final total project impact acreage, and final proposed mitigation area acreage, locations, and treatment methods. 4. Annual Project Status Report – The Permittee shall submit to the Central Coast Water Board an Annual Project Status Report by May 31 of each year following the issuance of this Certification, regardless of whether project maintenance has started or not. At a minimum, Annual Project Status Reports shall address activities conducted during the prior calendar year. The Permittee shall submit Annual Project Status Reports until the Permittee has conducted all required monitoring, mitigation has achieved all success criteria, and the Permittee has submitted a Certification Termination Report. Each Annual Project Status Report shall include at a minimum: a. The status of each maintenance location: maintenance not started, maintenance started, or maintenance complete. b. The date of maintenance initiation, if applicable. c. The date of maintenance completion, if applicable. d. For each year that maintenance occurs: i. Identification of the waterbodies and locations of maintenance activities; ii. A summary of daily activities, monitoring and inspection observations, and problems incurred and actions taken; EXA M P L E City of San Luis Obispo Certification No. 34019WQ10 April 1, 2021 12 iii. Identification of when site personnel trainings occurred, description of the topics covered during trainings, and confirmation that every person that engaged in construction activities or their oversight at the project site was trained initially and every year thereafter; iv. Quantification of volume of sediment removed, vegetation impacts, and of area of impacts, v. A description of how disturbed areas were stabilized at each site; vi. Quantification of cumulative total program impact area; vii. A description of the results of the annual visual inspection of the project site and areas of waters of the State adjacent to project impact areas, including: 1. Erosion conditions; 2. Stream stability conditions; 3. Water quality and beneficial use conditions; 4. Clearly identified photo-documentation of all areas of temporary impact, prior to and after project construction; and 5. Clearly identified representative photo-documentation of other project areas, prior to and after project construction. 6. If the visual inspection monitoring period is over, but water quality problems persist, the Annual Report shall identify corrective measures to be undertaken, including extension of the monitoring period until the project is no longer causing excessive erosion, stream instability, or other water quality problems. e. Mitigation reporting, if mitigation installation has started, including the following information: i. Date of initiation of mitigation installation and date mitigation installation was completed; ii. If mitigation installation was completed, a description of mitigation that was installed. iii. If mitigation installation was completed, confirmation mitigation was installed according to the requirements of this Certification and as described in the application, City of San Luis Obispo Routine Maintenance Agreement Final Mitigation and Monitoring Plan, and any other associated submittals; iv. Analysis of monitoring data collected in the field; v. Quantification of growth, survival, signs of reproduction, slope stability, percent reduction in population density of French broom, and documentation of progress toward achieving all mitigation performance criteria; vi. Qualitative and quantitative comparisons of current mitigation conditions with preconstruction conditions and previous mitigation monitoring results; vii. Any remedial or maintenance actions taken or needed; viii. Any additional information specified in the City of San Luis Obispo Routine Maintenance Agreement Final Mitigation and Monitoring Plan; and ix. Annual photo-documentation representative of all mitigation areas, taken from vantage points from which Central Coast Water Board staff can identify changes in size and cover of plants. Compare EXA M P L E City of San Luis Obispo Certification No. 34019WQ10 April 1, 2021 13 photos of installed mitigation with photos of the mitigation areas prior to installation. f. A description of mitigation completion status that identifies the amount of mitigation monitoring and maintenance remaining, or certifies and demonstrates that mitigation is complete and all required mitigation monitoring and maintenance has been conducted and all success criteria achieved. If the monitoring period is over, but all success criteria have not been achieved, the Annual Project Status Report shall identify corrective measures to be undertaken, including extension of the monitoring period until the criteria are met. 5. Final Five-Year Implementation Report – The Permittee shall submit to the Central Coast Water Board by December 31, 2025 a summary report describing cumulative impacts and all mitigation implemented. The report shall note any difficulties with implementing the project or with mitigation installation, any corrective actions taken, and project management lessons learned. EXA M P L E APPENDIX APPENDIX 6 APPENDIX D – ARMY CORPS OF ENGINEERS PERMIT DEPARTMENT OF THE ARMY LOS ANGELES DISTRICT, U.S. ARMY CORPS OF ENGINEERS 2151 ALESSANDRO DRIVE, SUITE 110 VENTURA, CALIFORNIA 93001-3766 April 10, 2018 SUBJECT: Nationwide Permit (NWP) Verification Violeta Esparza-Reniere City of San Luis Obispo 919 Palm Street San Luis Obispo, California 93401 Dear Ms. Esparza-Reniere: I am responding to your request (SPL-2014-00675-GLH) for a Department of the Army permit for the proposed Prefumo Creek Arm at Los Osos Valley Road Sediment Removal Project. The proposed project is located within Prefumo Creek, in the city and county of San Luis Obispo, California (Lat. 35.2615°, Long. -120.6945°). Because this project would result in a discharge of dredged material into waters of the U.S., a Department of the Army permit is required pursuant to Section 404 of the Clean Water Act (33 USC 1344; 33 CFR parts 323 and 330). I have determined construction of your proposed project, if constructed as described in your application, would comply with NWP 31 –Maintenance of Existing Flood Control Facilities . Specifically, and as shown in the enclosed figures, you are authorized to: 1. Temporarily impact 0.369 acre non-wetland waters of the U.S. by removing approximately 1,320 cubic yards of sediment for maintenance sediment removal within Prefumo Creek. Sediment removed from Prefumo Creek shall be disposed of at an upland site. For this NWP verification letter to be valid, you must comply with all of the terms and conditions in Enclosure 1. Furthermore, you must comply with the non-discretionary Special Conditions listed below: 1. This permit is contingent upon the issuance of a Section 401 Water Quality Certification (WQC) from the Central Coast Regional Water Quality Control Board (RWQCB). The Permittee shall abide by the terms and conditions of the Clean Water Act Section 401 WQC. The Permittee shall submit the Section 401 WQC to the Corps Regulatory Division (preferably via email) within two weeks of receipt from the issuing state agency. The Permittee shall not proceed with construction until receiving an email or other written notification from Corps Regulatory Division acknowledging the Clean Water Act 401 WQC has been received, reviewed, and EXA M P L E - 2 - determined to be acceptable. If the RWQCB fails to act on a request for certification within 60 days after receipt of a complete application, please notify the Corps so we may consider whether a waiver of water quality certification is warranted pursuant to 33 CFR 325.2(b)(1)(ii). 2. The Permittee shall clearly mark the limits of the workspace with flagging or similar means to ensure mechanized equipment does not enter preserved waters of the U.S. and riparian wetland/habitat areas. Adverse impacts to waters of the U.S. beyond the Corps-approved construction footprint are not authorized. Such impacts could result in permit suspension and revocation, administrative, civil or criminal penalties, and/or substantial, additional, compensatory mitigation requirements. 3. No later than one month following completion of authorized work in waters of the U.S., the permittee shall ensure all sites within waters of the U.S. subject to authorized, temporary impacts are restored to pre-project alignments, elevation contours, and conditions to the maximum extent practicable to ensure expeditious resumption of aquatic resource functions. No later than 45 calendar days following completion of authorized work in waters of the U.S., the permittee shall submit a memorandum documenting compliance with this special condition. 4. Within 45 calendar days of completion of authorized work in waters of the U.S., the Permittee shall submit to the Corps Regulatory Division a post-project implementation memorandum including the following information: A) Date(s) work within waters of the U.S. was initiated and completed; B) Summary of compliance status with each special condition of this permit (including any noncompliance that previously occurred or is currently occurring and corrective actions taken or proposed to achieve compliance); C) Color photographs (including map of photopoints) taken at the project site before and after construction for those aspects directly associated with permanent impacts to waters of the U.S. such that the extent of authorized fills can be verified; D) One copy of "as built" drawings for the entire project. Electronic submittal (Adobe PDF format) is preferred. All sheets must be signed, dated, and to-scale. If submitting paper copies, sheets must be no larger than 11 x 17 inches; and E) Signed Certification of Compliance (attached as part of this permit package). 5. This Corps permit does not authorize you to take any threatened or endangered species, in particular the California red-legged frog (Rana draytonii) or South-Central California Distinct Population Segment of steelhead (Oncornhynchus mykiss) or adversely modify its designated critical habitat. In order to legally take a listed species, you must have separate authorization under the Endangered Species Act (ESA) (e.g. ESA Section 10 permit, or a Biological Opinion (BO) under ESA Section 7, with "incidental take" provisions with which you must comply). Pursuant to the EXA M P L E - 3 - FWS correspondence dated January 20, 2015 and the NMFS correspondence dated January 20, 2015, including the required avoidance and minimization measures, the Corps Regulatory Division has determined and both the FWS and the NMFS have concurred that your activity is not likely to adversely affect the above species. Your authorization under this Corps permit is conditional upon your compliance with all of the required avoidance and minimization measures, which are incorporated by reference in this permit. Failure to comply with the required avoidance and minimization measures would constitute non-compliance with your Corps permit. 6. Pursuant to 36 C.F.R. section 800.13, in the event of any discoveries during construction of either human remains, archeological deposits, or any other type of historic property, the Permittee shall notify Corps’ Regulatory Staff (Jerry Hidalgo at 805-585-2145) and Corps' Archeology Staff within 24 hours (Danielle Storey at 213- 452-3855 OR Meg McDonald at 213-452-3849). The Permittee shall immediately suspend all work in any area(s) where potential cultural resources are discovered. The Permittee shall not resume construction in the area surrounding the potential cultural resources until the Corps Regulatory Division re-authorizes project construction, per 36 C.F.R. section 800.13. This verification is valid through March 18, 2022. If on March 18, 2022 you have commenced or are under contract to commence the permitted activity you will have an additional twelve (12) months to complete the activity under the present NWP terms and conditions. However, if I discover noncompliance or unauthorized activities associated with the permitted activity I may request the use of discretionary authority in accordance with procedures in 33 CFR part 330.4(e) and 33 CFR part 330.5(c) or (d) to modify, suspend, or revoke this specific verification at an earlier date. Additionally, at the national level the Chief of Engineers, any time prior to March 18, 2022, may choose to modify, suspend, or revoke the nationwide use of a NWP after following procedures set forth in 33 CFR part 330.5. It is incumbent upon you to comply with all of the terms and conditions of this NWP verification and to remain informed of any change to the NWPs. A NWP does not grant any property rights or exclusive privileges. Additionally, it does not authorize any injury to the property, rights of others, nor does it authorize interference with any existing or proposed Federal project. Furthermore, it does not obviate the need to obtain other Federal, state, or local authorizations required by law. EXA M P L E - 4 - Thank you for participating in the Regulatory Program. If you have any questions, please contact Jerry Hidalgo at (805) 585-2145 or via e-mail at Gerardo.L.Hidalgo@usace.army.mil. Please help me to evaluate and improve the regulatory experience for others by completing the customer survey form at http://corpsmapu.usace.army.mil/cm_apex/f?p=regulatory_survey. Sincerely, Antal Szijj Team Lead Ventura Field Office Regulatory Division Enclosures EXA M P L E LOS ANGELES DISTRICT U.S. ARMY CORPS OF ENGINEERS CERTIFICATE OF COMPLIANCE WITH DEPARTMENT OF THE ARMY NATIONWIDE PERMIT Permit Number:SPL-2014-00675-GLH Name of Permittee:City of San Luis Obispo, Violeta Esparza-Reniere Date of Issuance:April 10, 2018 Upon completion of the activity authorized by this permit and the mitigation required by this permit, sign this certificate, and return it by ONE of the following methods; 1) Email a digital scan of the signed certificate to Gerardo.L.Hidalgo@usace.army.mil OR 2) Mail the signed certificate to U.S. Army Corps of Engineers ATTN: Regulatory Division SPL-2014-00675-GLH 2151 Alessandro Drive, Suite 110 Ventura, California 93001-3766 I hereby certify that the authorized work and any required compensatory mitigation has been completed in accordance with the NWP authorization, including all general, regional, or activity- specific conditions. Furthermore, if credits from a mitigation bank or in-lieu fee program were used to satisfy compensatory mitigation requirements I have attached the documentation required by 33 CFR 332.3(l)(3) to confirm that the appropriate number and resource type of credits have been secured. ___________________________________ ________________________________ Signature of Permittee Date EXA M P L E Enclosure 1: NATIONWIDE PERMIT NUMBER(S) NWP 31 Maintenance of Existing Flood Control Facilities 1. Nationwide Permit(s) NWP 31 Maintenance of Existing Flood Control Facilities Terms : 31. Maintenance of Existing Flood Control Facilities. Discharges of dredged or fill material resulting from activities associated with the maintenance of existing flood control facilities, including debris basins, retention/detention basins, levees, and channels that: (i) were previously authorized by the Corps by individual permit, general permit, or 33 CFR 330.3, or did not require a permit at the time they were 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. Discharges of dredged or fill materials associated with maintenance activities in flood control facilities in any watercourse that have previously been determined to be within the maintenance baseline are authorized under this NWP. To the extent that a Corps permit is required, this NWP authorizes the removal of vegetation from levees associated with the flood control project. This NWP does not authorize the removal of sediment and associated vegetation from natural water courses except when these activities have been included in the maintenance baseline. All dredged and excavated material must be deposited and retained in an area that has no waters of the United States unless otherwise specifically approved by the district engineer under separate authorization. Proper sediment controls must be used. 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. 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 approved and constructed design capacities of the flood control facility. If no evidence of the constructed capacity exists, the approved capacity will be used. The documentation will also include best management practices to ensure that the adverse environmental impacts caused by the maintenance activities are no more than 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 cannot 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 NWP 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. A flood control facility will not be considered abandoned if the prospective permittee is in the process of obtaining other authorizations or approvals required for maintenance activities and is experiencing delays in obtaining those authorizations or approvals. 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 EXA M P L E mitigation will be required when necessary to ensure that adverse environmental effects 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 (see Note, below). 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 mitigation and/or best management practices 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. Notification: The permittee must submit a pre-construction notification to the district engineer before any maintenance work is conducted (see general condition 32). The pre-construction 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. The pre-construction notification must include a description of the maintenance baseline and the disposal site for dredged or excavated material. (Authorities: Sections 10 and 404) Note: If the maintenance baseline was approved by the district engineer under a prior version of NWP 31, and the district engineer imposed the one-time compensatory mitigation requirement on maintenance for a specific reach of a flood control project authorized by that prior version of NWP 31, during the period this version of NWP 31 is in effect (March 19, 2017, to March 18, 2022) the district engineer will not require additional compensatory mitigation for maintenance activities authorized by this NWP in that specific reach of the flood control project. 2. General Conditions: The following general conditions must be followed in order for any authorization by an NWP to be valid: 1. Navigation. (a) No activity may cause more than a minimal adverse effect on navigation. (b) Any safety lights and signals prescribed by the U.S. Coast Guard, through regulations or otherwise, must be installed and maintained at the permittee's expense on authorized facilities in navigable waters of the United States. (c) The permittee understands and agrees that, if future operations by the United States require the removal, relocation, or other alteration, of the structure or work herein authorized, or if, in the opinion of the Secretary of the Army or his authorized representative, said structure or work shall cause unreasonable obstruction to the free navigation of the navigable waters, the permittee will be required, upon due notice from the Corps of Engineers, to remove, relocate, or alter the structural work or obstructions caused thereby, without EXA M P L E expense to the United States. No claim shall be made against the United States on account of any such removal or alteration. 2. Aquatic Life Movements. No activity may substantially disrupt the necessary life cycle movements of those species of aquatic life indigenous to the waterbody, including those species that normally migrate through the area, unless the activity's primary purpose is to impound water. All permanent and temporary crossings of waterbodies shall be suitably culverted, bridged, or otherwise designed and constructed to maintain low flows to sustain the movement of those aquatic species. If a bottomless culvert cannot be used, then the crossing should be designed and constructed to minimize adverse effects to aquatic life movements. 3. Spawning Areas. Activities in spawning areas during spawning seasons must be avoided to the maximum extent practicable. Activities that result in the physical destruction (e.g., through excavation, fill, or downstream smothering by substantial turbidity) of an important spawning area are not authorized. 4. Migratory Bird Breeding Areas. Activities in waters of the United States that serve as breeding areas for migratory birds must be avoided to the maximum extent practicable. 5. Shellfish Beds. No activity may occur in areas of concentrated shellfish populations, unless the activity is directly related to a shellfish harvesting activity authorized by NWPs 4 and 48, or is a shellfish seeding or habitat restoration activity authorized by NWP 27. 6. Suitable Material. No activity may use unsuitable material (e.g., trash, debris, car bodies, asphalt, etc.). Material used for construction or discharged must be free from toxic pollutants in toxic amounts (see section 307 of the Clean Water Act). 7. Water Supply Intakes. No activity may occur in the proximity of a public water supply intake, except where the activity is for the repair or improvement of public water supply intake structures or adjacent bank stabilization. 8. Adverse Effects From Impoundments. If the activity creates an impoundment of water, adverse effects to the aquatic system due to accelerating the passage of water, and/or restricting its flow must be minimized to the maximum extent practicable. 9. Management of Water Flows. To the maximum extent practicable, the pre-construction course, condition, capacity, and location of open waters must be maintained for each activity, including stream channelization, storm water management activities, and temporary and permanent road crossings, except as provided below. The activity must be constructed to withstand expected high flows. The activity must not restrict or impede the passage of normal or high flows, unless the primary purpose of the activity is to impound water or manage high flows. The activity may alter the pre-construction course, condition, capacity, and location of open waters if it benefits the aquatic environment (e.g., stream restoration or relocation activities). 10. Fills Within 100-Year Floodplains. The activity must comply with applicable FEMA-approved state or local floodplain management requirements. 11. Equipment. Heavy equipment working in wetlands or mudflats must be placed on mats, or other measures must be taken to minimize soil disturbance. EXA M P L E 12. Soil Erosion and Sediment Controls. Appropriate soil erosion and sediment controls must be used and maintained in effective operating condition during construction, and all exposed soil and other fills, as well as any work below the ordinary high water mark or high tide line, must be permanently stabilized at the earliest practicable date. Permittees are encouraged to perform work within waters of the United States during periods of low-flow or no-flow, or during low tides. 13. Removal of Temporary Fills. Temporary fills must be removed in their entirety and the affected areas returned to pre-construction elevations. The affected areas must be revegetated, as appropriate. 14. Proper Maintenance. Any authorized structure or fill shall be properly maintained, including maintenance to ensure public safety and compliance with applicable NWP general conditions, as well as any activity-specific conditions added by the district engineer to an NWP authorization. 15. Single and Complete Project. The activity must be a single and complete project. The same NWP cannot be used more than once for the same single and complete project. 16. Wild and Scenic Rivers. (a) No NWP activity may occur in a component of the National Wild and Scenic River System, or in a river officially designated by Congress as a “study river” for possible inclusion in the system while the river is in an official study status, unless the appropriate Federal agency with direct management responsibility for such river, has determined in writing that the proposed activity will not adversely affect the Wild and Scenic River designation or study status. (b) If a proposed NWP activity will occur in a component of the National Wild and Scenic River System, or in a river officially designated by Congress as a “study river” for possible inclusion in the system while the river is in an official study status, the permittee must submit a pre-construction notification (see general condition 32). The district engineer will coordinate the PCN with the Federal agency with direct management responsibility for that river. The permittee shall not begin the NWP activity until notified by the district engineer that the Federal agency with direct management responsibility for that river has determined in writing that the proposed NWP activity will not adversely affect the Wild and Scenic River designation or study status. (c) Information on Wild and Scenic Rivers may be obtained from the appropriate Federal land management agency responsible for the designated Wild and Scenic River or study river (e.g., National Park Service, U.S. Forest Service, Bureau of Land Management, U.S. Fish and Wildlife Service). Information on these rivers is also available at: http://www.rivers.gov/. 17. Tribal Rights. No NWP activity may cause more than minimal adverse effects on tribal rights (including treaty rights), protected tribal resources, or tribal lands. 18. Endangered Species. (a) No activity is authorized under any NWP which is likely to directly or indirectly jeopardize the continued existence of a threatened or endangered species or a species proposed for such designation, as identified under the Federal Endangered Species Act (ESA), or which will directly or indirectly destroy or adversely modify the critical habitat of such species. No activity is authorized under any NWP which “may affect” a listed species or critical habitat, unless ESA section 7 consultation addressing the effects of the proposed activity has been completed. Direct effects are the immediate effects on listed species EXA M P L E and critical habitat caused by the NWP activity. Indirect effects are those effects on listed species and critical habitat that are caused by the NWP activity and are later in time, but still are reasonably certain to occur. (b) Federal agencies should follow their own procedures for complying with the requirements of the ESA. If pre-construction notification is required for the proposed activity, the Federal permittee must provide the district engineer with the appropriate documentation to demonstrate compliance with those requirements. The district engineer will verify that the appropriate documentation has been submitted. If the appropriate documentation has not been submitted, additional ESA section 7 consultation may be necessary for the activity and the respective federal agency would be responsible for fulfilling its obligation under section 7 of the ESA. (c) Non-federal permittees must submit a pre-construction notification to the district engineer if any listed species or designated critical habitat might be affected or is in the vicinity of the activity, or if the activity is located in designated critical habitat, and shall not begin work on the activity until notified by the district engineer that the requirements of the ESA have been satisfied and that the activity is authorized. For activities that might affect Federally-listed endangered or threatened species or designated critical habitat, the pre- construction notification must include the name(s) of the endangered or threatened species that might be affected by the proposed activity or that utilize the designated critical habitat that might be affected by the proposed activity. The district engineer will determine whether the proposed activity “may affect” or will have “no effect” to listed species and designated critical habitat and will notify the non-Federal applicant of the Corps’ determination within 45 days of receipt of a complete pre-construction notification. In cases where the non-Federal applicant has identified listed species or critical habitat that might be affected or is in the vicinity of the activity, and has so notified the Corps, the applicant shall not begin work until the Corps has provided notification that the proposed activity will have “no effect” on listed species or critical habitat, or until ESA section 7 consultation has been completed. If the non-Federal applicant has not heard back from the Corps within 45 days, the applicant must still wait for notification from the Corps. (d) As a result of formal or informal consultation with the FWS or NMFS the district engineer may add species-specific permit conditions to the NWPs. (e) Authorization of an activity by an NWP does not authorize the “take” of a threatened or endangered species as defined under the ESA. In the absence of separate authorization (e.g., an ESA Section 10 Permit, a Biological Opinion with “incidental take” provisions, etc.) from the FWS or the NMFS, the Endangered Species Act prohibits any person subject to the jurisdiction of the United States to take a listed species, where "take" means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. The word “harm” in the definition of “take'' means an act which actually kills or injures wildlife. Such an act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering. (f) If the non-federal permittee has a valid ESA section 10(a)(1)(B) incidental take permit with an approved Habitat Conservation Plan for a project or a group of projects that includes the proposed NWP activity, the non-federal applicant should provide a copy of that ESA section 10(a)(1)(B) permit with the PCN required by paragraph (c) of this general condition. The district engineer will coordinate with the agency that issued the ESA section 10(a)(1)(B) permit to determine whether the proposed NWP activity and the associated incidental take were considered in the internal ESA section 7 consultation conducted for the ESA section 10(a)(1)(B) permit. If that coordination results in concurrence from the agency that the proposed NWP activity and the associated incidental take were considered in the internal ESA section 7 consultation for the ESA EXA M P L E section 10(a)(1)(B) permit, the district engineer does not need to conduct a separate ESA section 7 consultation for the proposed NWP activity. The district engineer will notify the non-federal applicant within 45 days of receipt of a complete pre-construction notification whether the ESA section 10(a)(1)(B) permit covers the proposed NWP activity or whether additional ESA section 7 consultation is required. (g) Information on the location of threatened and endangered species and their critical habitat can be obtained directly from the offices of the FWS and NMFS or their world wide web pages at http://www.fws.gov/ or http://www.fws.gov/ipac and http://www.nmfs.noaa.gov/pr/species/esa/ respectively. 19. Migratory Birds and Bald and Golden Eagles. The permittee is responsible for ensuring their action complies with the Migratory Bird Treaty Act and the Bald and Golden Eagle Protection Act. The permittee is responsible for contacting appropriate local office of the U.S. Fish and Wildlife Service to determine applicable measures to reduce impacts to migratory birds or eagles, including whether “incidental take” permits are necessary and available under the Migratory Bird Treaty Act or Bald and Golden Eagle Protection Act for a particular activity. 20. Historic Properties. (a) In cases where the district engineer determines that the activity may have the potential to cause effects to properties listed, or eligible for listing, in the National Register of Historic Places, the activity is not authorized, until the requirements of Section 106 of the National Historic Preservation Act (NHPA) have been satisfied. (b) Federal permittees should follow their own procedures for complying with the requirements of section 106 of the National Historic Preservation Act. If pre-construction notification is required for the proposed NWP activity, the Federal permittee must provide the district engineer with the appropriate documentation to demonstrate compliance with those requirements. The district engineer will verify that the appropriate documentation has been submitted. If the appropriate documentation is not submitted, then additional consultation under section 106 may be necessary. The respective federal agency is responsible for fulfilling its obligation to comply with section 106. (c) Non-federal permittees must submit a pre-construction notification to the district engineer if the NWP activity might have the potential to cause effects to any historic properties listed on, determined to be eligible for listing on, or potentially eligible for listing on the National Register of Historic Places, including previously unidentified properties. For such activities, the pre-construction notification must state which historic properties might have the potential to be affected by the proposed NWP activity or include a vicinity map indicating the location of the historic properties or the potential for the presence of historic properties. Assistance regarding information on the location of, or potential for, the presence of historic properties can be sought from the State Historic Preservation Officer, Tribal Historic Preservation Officer, or designated tribal representative, as appropriate, and the National Register of Historic Places (see 33 CFR 330.4(g)). When reviewing pre-construction notifications, district engineers will comply with the current procedures for addressing the requirements of section 106 of the National Historic Preservation Act. The district engineer shall make a reasonable and good faith effort to carry out appropriate identification efforts, which may include background research, consultation, oral history interviews, sample field investigation, and field survey. Based on the information submitted in the PCN and these identification efforts, the district engineer shall determine whether the proposed NWP activity has the potential to cause effects on the historic properties. Section 106 consultation is not required when the district engineer determines that the activity does not have the potential to cause effects on historic properties (see 36 CFR 800.3(a)). Section 106 consultation is required when the EXA M P L E district engineer determines that the activity has the potential to cause effects on historic properties. The district engineer will conduct consultation with consulting parties identified under 36 CFR 800.2(c) when he or she makes any of the following effect determinations for the purposes of section 106 of the NHPA: no historic properties affected, no adverse effect, or adverse effect. Where the non-Federal applicant has identified historic properties on which the activity might have the potential to cause effects and so notified the Corps, the non- Federal applicant shall not begin the activity until notified by the district engineer either that the activity has no potential to cause effects to historic properties or that NHPA section 106 consultation has been completed. (d) For non-federal permittees, the district engineer will notify the prospective permittee within 45 days of receipt of a complete pre-construction notification whether NHPA section 106 consultation is required. If NHPA section 106 consultation is required, the district engineer will notify the non-Federal applicant that he or she cannot begin the activity until section 106 consultation is completed. If the non-Federal applicant has not heard back from the Corps within 45 days, the applicant must still wait for notification from the Corps. (e) Prospective permittees should be aware that section 110k of the NHPA (54 U.S.C. 306113) prevents the Corps from granting a permit or other assistance to an applicant who, with intent to avoid the requirements of section 106 of the NHPA, has intentionally significantly adversely affected a historic property to which the permit would relate, or having legal power to prevent it, allowed such significant adverse effect to occur, unless the Corps, after consultation with the Advisory Council on Historic Preservation (ACHP), determines that circumstances justify granting such assistance despite the adverse effect created or permitted by the applicant. If circumstances justify granting the assistance, the Corps is required to notify the ACHP and provide documentation specifying the circumstances, the degree of damage to the integrity of any historic properties affected, and proposed mitigation. This documentation must include any views obtained from the applicant, SHPO/THPO, appropriate Indian tribes if the undertaking occurs on or affects historic properties on tribal lands or affects properties of interest to those tribes, and other parties known to have a legitimate interest in the impacts to the permitted activity on historic properties. 21. Discovery of Previously Unknown Remains and Artifacts. If you discover any previously unknown historic, cultural or archeological remains and artifacts while accomplishing the activity authorized by this permit, you must immediately notify the district engineer of what you have found, and to the maximum extent practicable, avoid construction activities that may affect the remains and artifacts until the required coordination has been completed. The district engineer will initiate the Federal, Tribal, and state coordination required to determine if the items or remains warrant a recovery effort or if the site is eligible for listing in the National Register of Historic Places. 22. Designated Critical Resource Waters. Critical resource waters include, NOAA-managed marine sanctuaries and marine monuments, and National Estuarine Research Reserves. The district engineer may designate, after notice and opportunity for public comment, additional waters officially designated by a state as having particular environmental or ecological significance, such as outstanding national resource waters or state natural heritage sites. The district engineer may also designate additional critical resource waters after notice and opportunity for public comment. (a) Discharges of dredged or fill material into waters of the United States are not authorized by NWPs 7, 12, 14, 16, 17, 21, 29, 31, 35, 39, 40, 42, 43, 44, 49, 50, 51, and 52 for any activity within, or directly affecting, critical resource waters, including wetlands adjacent to such waters. EXA M P L E (b) For NWPs 3, 8, 10, 13, 15, 18, 19, 22, 23, 25, 27, 28, 30, 33, 34, 36, 37, 38, and 54, notification is required in accordance with general condition 32, 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. 23. Mitigation. The district engineer will consider the following factors when determining appropriate and practicable mitigation necessary to ensure that the individual and cumulative adverse environmental effects are no more than minimal: (a) The activity must be designed and constructed to avoid and minimize adverse effects, both temporary and permanent, to waters of the United States to the maximum extent practicable at the project site (i.e., on site). (b) Mitigation in all its forms (avoiding, minimizing, rectifying, reducing, or compensating for resource losses) will be required to the extent necessary to ensure that the individual and cumulative adverse environmental effects are no more than minimal. (c) Compensatory mitigation at a minimum one-for-one ratio will be required for all wetland losses that exceed 1/10-acre and require pre-construction notification, unless the district engineer determines in writing that either some other form of mitigation would be more environmentally appropriate or the adverse environmental effects of the proposed activity are no more than minimal, and provides an activity-specific waiver of this requirement. For wetland losses of 1/10-acre or less that require pre-construction notification, the district engineer may determine on a case-by-case basis that compensatory mitigation is required to ensure that the activity results in only minimal adverse environmental effects. (d) For losses of streams or other open waters that require pre-construction notification, the district engineer may require compensatory mitigation to ensure that the activity results in no more than minimal adverse environmental effects. Compensatory mitigation for losses of streams should be provided, if practicable, through stream rehabilitation, enhancement, or preservation, since streams are difficult-to-replace resources (see 33 CFR 332.3(e)(3)). (e) Compensatory mitigation plans for NWP activities in or near streams or other open waters will normally include a requirement for the restoration or enhancement, maintenance, and legal protection (e.g., conservation easements) of riparian areas next to open waters. In some cases, the restoration or maintenance/protection of riparian areas may be the only compensatory mitigation required. Restored riparian areas should consist of native species. The width of the required riparian area will address documented water quality or aquatic habitat loss concerns. Normally, the riparian area will be 25 to 50 feet wide on each side of the stream, but the district engineer may require slightly wider riparian areas to address documented water quality or habitat loss concerns. If it is not possible to restore or maintain/protect a riparian area on both sides of a stream, or if the waterbody is a lake or coastal waters, then restoring or maintaining/protecting a riparian area along a single bank or shoreline may be sufficient. Where both wetlands and open waters exist on the project site, the district engineer will determine the appropriate compensatory mitigation (e.g., riparian areas and/or wetlands compensation) based on what is best for the aquatic environment on a watershed basis. In cases where riparian areas are determined to be the most appropriate form of minimization or compensatory mitigation, the district engineer may waive or reduce the requirement to provide wetland compensatory mitigation for wetland losses. EXA M P L E (f) Compensatory mitigation projects provided to offset losses of aquatic resources must comply with the applicable provisions of 33 CFR part 332. (1) The prospective permittee is responsible for proposing an appropriate compensatory mitigation option if compensatory mitigation is necessary to ensure that the activity results in no more than minimal adverse environmental effects. For the NWPs, the preferred mechanism for providing compensatory mitigation is mitigation bank credits or in-lieu fee program credits (see 33 CFR 332.3(b)(2) and (3)). However, if an appropriate number and type of mitigation bank or in-lieu credits are not available at the time the PCN is submitted to the district engineer, the district engineer may approve the use of permittee-responsible mitigation. (2) The amount of compensatory mitigation required by the district engineer must be sufficient to ensure that the authorized activity results in no more than minimal individual and cumulative adverse environmental effects (see 33 CFR 330.1(e)(3)). (See also 33 CFR 332.3(f)). (3) Since the likelihood of success is greater and the impacts to potentially valuable uplands are reduced, aquatic resource restoration should be the first compensatory mitigation option considered for permittee- responsible mitigation. (4) If permittee-responsible mitigation is the proposed option, the prospective permittee is responsible for submitting a mitigation plan. A conceptual or detailed mitigation plan may be used by the district engineer to make the decision on the NWP verification request, but a final mitigation plan that addresses the applicable requirements of 33 CFR 332.4(c)(2) through (14) must be approved by the district engineer before the permittee begins work in waters of the United States, unless the district engineer determines that prior approval of the final mitigation plan is not practicable or not necessary to ensure timely completion of the required compensatory mitigation (see 33 CFR 332.3(k)(3)). (5) If mitigation bank or in-lieu fee program credits are the proposed option, the mitigation plan only needs to address the baseline conditions at the impact site and the number of credits to be provided. (6) Compensatory mitigation requirements (e.g., resource type and amount to be provided as compensatory mitigation, site protection, ecological performance standards, monitoring requirements) may be addressed through conditions added to the NWP authorization, instead of components of a compensatory mitigation plan (see 33 CFR 332.4(c)(1)(ii)). (g) Compensatory mitigation will not be used to increase the acreage losses allowed by the acreage limits of the NWPs. For example, if an NWP has an acreage limit of 1/2-acre, it cannot be used to authorize any NWP activity resulting in the loss of greater than 1/2-acre of waters of the United States, even if compensatory mitigation is provided that replaces or restores some of the lost waters. However, compensatory mitigation can and should be used, as necessary, to ensure that an NWP activity already meeting the established acreage limits also satisfies the no more than minimal impact requirement for the NWPs. (h) Permittees may propose the use of mitigation banks, in-lieu fee programs, or permittee-responsible mitigation. When developing a compensatory mitigation proposal, the permittee must consider appropriate and practicable options consistent with the framework at 33 CFR 332.3(b). For activities resulting in the loss of marine or estuarine resources, permittee-responsible mitigation may be environmentally preferable if there are no mitigation banks or in-lieu fee programs in the area that have marine or estuarine credits available for sale or EXA M P L E transfer to the permittee. For permittee-responsible mitigation, the special conditions of the NWP verification must clearly indicate the party or parties responsible for the implementation and performance of the compensatory mitigation project, and, if required, its long-term management. (i) Where certain functions and services of waters of the United States are permanently adversely affected by a regulated activity, such as discharges of dredged or fill material into waters of the United States that will convert a forested or scrub-shrub wetland to a herbaceous wetland in a permanently maintained utility line right-of-way, mitigation may be required to reduce the adverse environmental effects of the activity to the no more than minimal level. 24. Safety of Impoundment Structures. To ensure that all impoundment structures are safely designed, the district engineer may require non-Federal applicants to demonstrate that the structures comply with established state dam safety criteria or have been designed by qualified persons. The district engineer may also require documentation that the design has been independently reviewed by similarly qualified persons, and appropriate modifications made to ensure safety. 25. Water Quality. Where States and authorized Tribes, or EPA where applicable, have not previously certified compliance of an NWP with CWA section 401, individual 401 Water Quality Certification must be obtained or waived (see 33 CFR 330.4(c)). The district engineer or State or Tribe may require additional water quality management measures to ensure that the authorized activity does not result in more than minimal degradation of water quality. 26. Coastal Zone Management. In coastal states where an NWP has not previously received a state coastal zone management consistency concurrence, an individual state coastal zone management consistency concurrence must be obtained, or a presumption of concurrence must occur (see 33 CFR 330.4(d)). The district engineer or a State may require additional measures to ensure that the authorized activity is consistent with state coastal zone management requirements. 27. Regional and Case-By-Case Conditions. The activity must comply with any regional conditions that may have been added by the Division Engineer (see 33 CFR 330.4(e)) and with any case specific conditions added by the Corps or by the state, Indian Tribe, or U.S. EPA in its section 401 Water Quality Certification, or by the state in its Coastal Zone Management Act consistency determination. 28. Use of Multiple Nationwide Permits. The use of more than one NWP for a single and complete project is prohibited, except when the acreage loss of waters of the United States authorized by the NWPs does not exceed the acreage limit of the NWP with the highest specified acreage limit. For example, if a road crossing over tidal waters is constructed under NWP 14, with associated bank stabilization authorized by NWP 13, the maximum acreage loss of waters of the United States for the total project cannot exceed 1/3-acre. 29. Transfer of Nationwide Permit Verifications. If the permittee sells the property associated with a nationwide permit verification, the permittee may transfer the nationwide permit verification to the new owner by submitting a letter to the appropriate Corps district office to validate the transfer. A copy of the nationwide permit verification must be attached to the letter, and the letter must contain the following statement and signature: EXA M P L E “When the structures or work authorized by this nationwide permit are still in existence at the time the property is transferred, the terms and conditions of this nationwide permit, including any special conditions, will continue to be binding on the new owner(s) of the property. To validate the transfer of this nationwide permit and the associated liabilities associated with compliance with its terms and conditions, have the transferee sign and date below.” _____________________________________________ (Transferee) _____________________________________________ (Date) 30. Compliance Certification. Each permittee who receives an NWP verification letter from the Corps must provide a signed certification documenting completion of the authorized activity and implementation of any required compensatory mitigation. The success of any required permittee-responsible mitigation, including the achievement of ecological performance standards, will be addressed separately by the district engineer. The Corps will provide the permittee the certification document with the NWP verification letter. The certification document will include: (a) A statement that the authorized activity was done in accordance with the NWP authorization, including any general, regional, or activity-specific conditions; (b) A statement that the implementation of any required compensatory mitigation was completed in accordance with the permit conditions. If credits from a mitigation bank or in-lieu fee program are used to satisfy the compensatory mitigation requirements, the certification must include the documentation required by 33 CFR 332.3(l)(3) to confirm that the permittee secured the appropriate number and resource type of credits; and (c) The signature of the permittee certifying the completion of the activity and mitigation. The completed certification document must be submitted to the district engineer within 30 days of completion of the authorized activity or the implementation of any required compensatory mitigation, whichever occurs later. 31. Activities Affecting Structures or Works Built by the United States. If an NWP activity also requires permission from the Corps pursuant to 33 U.S.C. 408 because it will alter or temporarily or permanently occupy or use a U.S. Army Corps of Engineers (USACE) federally authorized Civil Works project (a “USACE project”), the prospective permittee must submit a pre-construction notification. See paragraph (b)(10) of general condition 32. An activity that requires section 408 permission is not authorized by NWP until the appropriate Corps office issues the section 408 permission to alter, occupy, or use the USACE project, and the district engineer issues a written NWP verification. 32. Pre-Construction Notification. (a) Timing. Where required by the terms of the NWP, the prospective permittee must notify the district engineer by submitting a pre-construction notification (PCN) as early as EXA M P L E possible. The district engineer must determine if the PCN is complete within 30 calendar days of the date of receipt and, if the PCN is determined to be incomplete, notify the prospective permittee within that 30 day period to request the additional information necessary to make the PCN complete. The request must specify the information needed to make the PCN complete. As a general rule, district engineers will request additional information necessary to make the PCN complete only once. However, if the prospective permittee does not provide all of the requested information, then the district engineer will notify the prospective permittee that the PCN 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 shall not begin the activity until either: (1) He or she is 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) 45 calendar days have passed from the district engineer’s receipt of the complete PCN and the prospective permittee has not received written notice from the district or division engineer. However, if the permittee was required to notify the Corps pursuant to general condition 18 that listed species or critical habitat might be affected or are in the vicinity of the activity, or to notify the Corps pursuant to general condition 20 that the activity might have the potential to cause effects to historic properties, the permittee cannot begin the activity until receiving written notification from the Corps that there is “no effect” on listed species or “no potential to cause effects” on historic properties, or that any consultation required under Section 7 of the Endangered Species Act (see 33 CFR 330.4(f)) and/or section 106 of the National Historic Preservation Act (see 33 CFR 330.4(g)) has been completed. Also, work cannot begin under NWPs 21, 49, or 50 until the permittee has received written approval from the Corps. If the proposed activity requires a written waiver to exceed specified limits of an NWP, the permittee may not begin the activity until the district engineer issues the waiver. If the district or division engineer notifies the permittee in writing that an individual permit is required within 45 calendar days of receipt of a complete PCN, the permittee cannot begin the activity until an individual permit has been obtained. 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 Pre-Construction Notification: The PCN must be in writing and include the following information: (1) Name, address and telephone numbers of the prospective permittee; (2) Location of the proposed activity; (3) Identify the specific NWP or NWP(s) the prospective permittee wants to use to authorize the proposed activity; (4) A description of the proposed activity; the activity’s purpose; direct and indirect adverse environmental effects the activity would cause, including the anticipated amount of loss of wetlands, other special aquatic sites, and other waters expected to result from the NWP activity, in acres, linear feet, or other appropriate unit of measure; a description of any proposed mitigation measures intended to reduce the adverse environmental effects caused by the proposed activity; and any other NWP(s), regional general permit(s), or individual permit(s) used or intended to be used to authorize any part of the proposed project or any related activity, including other separate and distant crossings for linear projects that require Department of the Army authorization but do not require pre-construction notification. The description of the proposed activity and any EXA M P L E proposed mitigation measures should be sufficiently detailed to allow the district engineer to determine that the adverse environmental effects of the activity will be no more than minimal and to determine the need for compensatory mitigation or other mitigation measures. For single and complete linear projects, the PCN must include the quantity of anticipated losses of wetlands, other special aquatic sites, and other waters for each single and complete crossing of those wetlands, other special aquatic sites, and other waters. Sketches should be provided when necessary to show that the activity complies with the terms of the NWP. (Sketches usually clarify the activity and when provided results in a quicker decision. Sketches should contain sufficient detail to provide an illustrative description of the proposed activity (e.g., a conceptual plan), but do not need to be detailed engineering plans); (5) The PCN must include a delineation of wetlands, other special aquatic sites, and other waters, such as lakes and ponds, and perennial, intermittent, and ephemeral streams, on the project site. Wetland delineations must be prepared in accordance with the current method required by the Corps. The permittee may ask the Corps to delineate the special aquatic sites and other waters on the project site, but there may be a delay if the Corps does the delineation, especially if the project site is large or contains many wetlands, other special aquatic sites, and other waters. Furthermore, the 45 day period will not start until the delineation has been submitted to or completed by the Corps, as appropriate; (6) If the proposed activity will result in the loss of greater than 1/10-acre of wetlands and a PCN is required, the prospective permittee must submit a statement describing how the mitigation requirement will be satisfied, or explaining why the adverse environmental effects are no more than minimal and why compensatory mitigation should not be required. As an alternative, the prospective permittee may submit a conceptual or detailed mitigation plan. (7) For non-Federal permittees, if any listed species or designated critical habitat might be affected or is in the vicinity of the activity, or if the activity is located in designated critical habitat, the PCN must include the name(s) of those endangered or threatened species that might be affected by the proposed activity or utilize the designated critical habitat that might be affected by the proposed activity. For NWP activities that require pre- construction notification, Federal permittees must provide documentation demonstrating compliance with the Endangered Species Act; (8) For non-Federal permittees, if the NWP activity might have the potential to cause effects to a historic property listed on, determined to be eligible for listing on, or potentially eligible for listing on, the National Register of Historic Places, the PCN must state which historic property might have the potential to be affected by the proposed activity or include a vicinity map indicating the location of the historic property. For NWP activities that require pre-construction notification, Federal permittees must provide documentation demonstrating compliance with section 106 of the National Historic Preservation Act; (9) For an activity that will occur in a component of the National Wild and Scenic River System, or in a river officially designated by Congress as a “study river” for possible inclusion in the system while the river is in an official study status, the PCN must identify the Wild and Scenic River or the “study river” (see general condition 16); and (10) For an activity that requires permission from the Corps pursuant to 33 U.S.C. 408 because it will alter or temporarily or permanently occupy or use a U.S. Army Corps of Engineers federally authorized civil works project, the pre-construction notification must include a statement confirming that the project proponent EXA M P L E has submitted a written request for section 408 permission from the Corps office having jurisdiction over that USACE project. (c) Form of Pre-Construction Notification: The standard individual permit application form (Form ENG 4345) may be used, but the completed application form must clearly indicate that it is an NWP PCN and must include all of the applicable information required in paragraphs (b)(1) through (10) of this general condition. A letter containing the required information may also be used. Applicants may provide electronic files of PCNs and supporting materials if the district engineer has established tools and procedures for electronic submittals. (d) Agency Coordination: (1) 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 activity’s adverse environmental effects so that they are no more than minimal. (2) Agency coordination is required for: (i) all NWP activities that require pre-construction notification and result in the loss of greater than 1/2-acre of waters of the United States; (ii) NWP 21, 29, 39, 40, 42, 43, 44, 50, 51, and 52 activities that require pre-construction notification and will result in the loss of greater than 300 linear feet of stream bed; (iii) NWP 13 activities in excess of 500 linear feet, fills greater than one cubic yard per running foot, or involve discharges of dredged or fill material into special aquatic sites; and (iv) NWP 54 activities in excess of 500 linear feet, or that extend into the waterbody more than 30 feet from the mean low water line in tidal waters or the ordinary high water mark in the Great Lakes. (3) When agency coordination is required, the district engineer will immediately provide (e.g., via e- mail, facsimile transmission, overnight mail, or other expeditious manner) a copy of the complete PCN to the appropriate Federal or state offices (FWS, state natural resource or water quality agency, EPA, and, if appropriate, the NMFS). With the exception of NWP 37, these agencies will have 10 calendar days from the date the material is transmitted to notify the district engineer via telephone, facsimile transmission, or e-mail that they intend to provide substantive, site-specific comments. The comments must explain why the agency believes the adverse environmental effects will be more than minimal. If so contacted by an agency, the district engineer will wait an additional 15 calendar days before making a decision on the pre-construction notification. The district engineer will fully consider agency comments received within the specified time frame concerning the proposed activity’s compliance with the terms and conditions of the NWPs, including the need for mitigation to ensure the net adverse environmental effects of the proposed activity are no more than minimal. The district engineer will provide no response to the resource agency, except as provided below. The district engineer will indicate in the administrative record associated with each pre-construction notification that the resource agencies’ concerns were considered. For NWP 37, the emergency watershed protection and rehabilitation activity may proceed immediately in cases where there is an unacceptable hazard to life or a significant loss of property or economic hardship will occur. The district engineer will consider any comments received to decide whether the NWP 37 authorization should be modified, suspended, or revoked in accordance with the procedures at 33 CFR 330.5. (4) In cases of where the prospective permittee is not a Federal agency, the district engineer will provide a response to NMFS within 30 calendar days of receipt of any Essential Fish Habitat conservation recommendations, as required by section 305(b)(4)(B) of the Magnuson-Stevens Fishery Conservation and Management Act. EXA M P L E (5) Applicants are encouraged to provide the Corps with either electronic files or multiple copies of pre- construction notifications to expedite agency coordination. 3. Regional Conditions for the Los Angeles District: 1. For all activities in waters of the U.S. that are suitable habitat for federally listed fish species, including designated critical habitat for such species, the permittee shall design all new or substantially reconstructed linear transportation crossings (e.g. roads, highways, railways, trails, bridges, culverts) to ensure that the passage and/or spawning of fish is not hindered. In these areas, the permittee shall employ bridge designs that span the stream or river, including pier- or pile-supported spans, or designs that use a bottomless arch culvert with a natural stream bed, unless determined to be impracticable by the Corps. 2. Nationwide Permits (NWP) 3, 7, 12-15, 17-19, 21, 23, 25, 29, 35, 36, or 39-46, 48-54 cannot be used to authorize structures, work, and/or the discharge of dredged or fill material that would result in the "loss" of wetlands, mudflats, vegetated shallows or riffle and pool complexes as defined at 40 CFR Part 230.40-45. The definition of "loss" for this regional condition is the same as the definition of "loss of waters of the United States" used for the Nationwide Permit Program. Furthermore, this regional condition applies only within the State of Arizona and within the Mojave and Sonoran (Colorado) desert regions of California. The desert regions in California are limited to four USGS Hydrologic Unit Code (HUC) accounting units (Lower Colorado -150301, Northern Mojave-180902, Southern Mojave-181001, and Salton Sea-181002). 3. When a pre-construction notification (PCN) is required, the Los Angeles District shall be notified in accordance with General Condition 32 using either the South Pacific Division PCN Checklist or a signed application form (ENG Form 4345) with an attachment providing information on compliance with all of the General and Regional Conditions. The PCN Checklist and application form are available at: http://www.spl.usace.army.mil/Missions/Regulatory/PermitProcess.aspx . In addition, unless specifically waived by the Los Angeles District, the PCN shall include: a. A written statement describing how the activity has been designed to avoid and minimize adverse effects, both temporary and permanent, to waters of the United States; b. Drawings, including plan and cross-section views, clearly depicting the location, size and dimensions of the proposed activity as well as the location of delineated waters of the U.S. on the site. The drawings shall contain a title block, legend and scale, amount (in cubic yards) and area (in acres) of fill in Corps jurisdiction, including both permanent and temporary fills/structures. The ordinary high water mark or, if tidal waters, the mean high water mark and high tide line, should be shown (in feet), based on National Geodetic Vertical Datum (NGVD) or other appropriate referenced elevation. All drawings shall follow the Updated Map and Drawing Standards for the South Pacific Division Regulatory Program (Feb 2016), or most recent update (available at the South Pacific Division website at: http://www.spd.usace.army.mil/Missions/Regulatory/PublicNoticesandReferences.aspx/); c. Numbered and dated pre-project color photographs showing a representative sample of waters proposed to be impacted on the project site, and all waters proposed to be avoided on and EXA M P L E immediately adjacent to the project site. The compass angle and position of each photograph shall be documented on the plan-view drawing required in subpart b of this regional condition. d. Delineation of aquatic resources in accordance with the current Los Angeles District’s Minimum Standards for Acceptance of Aquatic Resources Delineation Reports (available at: http://www.spl.usace.army.mil/Missions/Regulatory/Jurisdictional-Determination/). 4. Submission of a PCN pursuant to General Condition 32 and Regional Condition 3 shall be required for specific regulated activities in the following locations: a. All perennial waterbodies and special aquatic sites throughout the Los Angeles District as well as intermittent waters within the State of Arizona for any regulated activity that would result in a loss of waters of the United States. The definition of “loss of waters of the United States” for this regional condition is the same as the definition used for the Nationwide Permit Program. b. All areas designated as Essential Fish Habitat (EFH) by the Pacific Fishery Management Council, and that would result in an adverse effect to EFH, in which case the PCN shall include an EFH assessment and extent of proposed impacts to EFH. EFH Assessment Guidance and other supporting information can be found at: http://www.westcoast.fisheries.noaa.gov/habitat/fish_habitat/efh_consultations_go.html . c. All watersheds in the Santa Monica Mountains in Los Angeles and Ventura counties bounded by Calleguas Creek on the west, by Highway 101 on the north and east, and by Sunset Boulevard and Pacific Ocean on the south. d. The Santa Clara River watershed in Los Angeles and Ventura counties, including but not limited to Aliso Canyon, Agua Dulce Canyon, Sand Canyon, Bouquet Canyon, Mint Canyon, South Fork of the Santa Clara River, San Francisquito Canyon, Castaic Creek, Piru Creek, Sespe Creek and the main-stem of the Santa Clara River. e. The Murrieta and Temecula Creek watersheds in Riverside County, California for any regulated activity that would result in a loss of waters of the U.S. The definition of “loss of waters of the United States” for this regional condition is the same as the definition used for the Nationwide Permit Program. f. All waterbodies designated by the Arizona Department of Environmental Quality as Outstanding Arizona Waters (OAWs), within 1600 meters (or 1 mile) upstream and/or 800 meters (1/2 mile) downstream of a designated OAW, and on tributaries to OAWs within 1600 meters of the OAW (see http://www.azdeq.gov/index.html). g. All waterbodies designated by the Arizona Department of Environmental Quality as 303(d)-impaired surface waters, within 1600 meters (or 1 mile) upstream and/or 800 meters (1/2 mile) downstream of EXA M P L E a designated impaired surface water, and on tributaries to impaired waters within 1600 meters of the impaired water (see http://www.azdeq.gov/index.html). 5. Individual Permits shall be required for all discharges of fill material in jurisdictional vernal pools, with the exception that discharges for the purpose of restoration, enhancement, management or scientific study of vernal pools may be authorized under NWPs 5, 6, and 27 with the submission of a PCN in accordance with General Condition 32 and Regional Condition 3. 6. Within the Murrieta Creek and Temecula Creek watersheds in Riverside County the use of NWPs 29, 39, 42 and 43, and NWP 14 combined with any of those NWPs shall be restricted. The loss of waters of the U.S. cannot exceed 0.25 acre. The definition of “loss of waters of the United States” for this regional condition is the same as the definition used for the Nationwide Permit Program. 7. Individual Permits (Standard Individual Permit or 404 Letter of Permission) shall be required in San Luis Obispo Creek and Santa Rosa Creek in San Luis Obispo County for bank stabilization projects, and in Gaviota Creek, Mission Creek and Carpinteria Creek in Santa Barbara County for bank stabilization projects and grade control structures. 8. In conjunction with the Los Angeles District's Special Area Management Plans (SAMPs) for the San Diego Creek Watershed and San Juan Creek/Western San Mateo Creek Watersheds in Orange County, California, the Corps' Division Engineer, through his discretionary authority has revoked the use of the following 26 selected NWPs within these SAMP watersheds: 03, 07, 12, 13, 14, 16, 17, 18, 19, 21, 25, 27, 29, 31, 33, 39, 40, 41, 42, 43, 44, 46, 49, and 50. Consequently, these NWPs are no longer available in those watersheds to authorize impacts to waters of the United States from discharges of dredged or fill material under the Corps' Clean Water Act section 404 authority. 9. Any requests to waive the applicable linear foot limitations for NWPs 13, 21, 29, 39, 40 and 42, 43, 44, 51, 52, and 54, must include the following: a. A narrative description of the affected aquatic resource. This should include known information on: volume and duration of flow; the approximate length, width, and depth of the waterbody and characters observed associated with an Ordinary High Water Mark (e.g. bed and bank, wrack line, or scour marks) or Mean High Water Line; a description of the adjacent vegetation community and a statement regarding the wetland status of the associated vegetation community (i.e. wetland, non- wetland); surrounding land use; water quality; issues related to cumulative impacts in the watershed, and; any other relevant information. b. An analysis of the proposed impacts to the waterbody in accordance with General Condition 32 and Regional Condition 3; c. Measures taken to avoid and minimize losses, including other methods of constructing the proposed project; and d. A compensatory mitigation plan describing how the unavoidable losses are proposed to be compensated, in accordance with 33 CFR Part 332. EXA M P L E 10. The permittee shall complete the construction of any compensatory mitigation required by special condition(s) of the NWP verification before or concurrent with commencement of construction of the authorized activity, except when specifically determined to be impracticable by the Corps. When mitigation involves use of a mitigation bank or in-lieu fee program, the permittee shall submit proof of payment to the Corps prior to commencement of construction of the authorized activity. 4. Further information: 1. Congressional Authorities: You have been authorized to undertake the activity described above pursuant to: ( ) Section 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. 403). (X) Section 404 of the Clean Water Act (33 U.S.C. 1344). ( ) Section 103 of the Marine Protection, Research and Sanctuaries Act of 1972 (33 U.S.C. 1413). 2. Limits of this authorization. (a) This permit does not obviate the need to obtain other Federal, state, or local authorizations required by law. (b) This permit does not grant any property rights or exclusive privileges. (c) This permit does not authorize any injury to the property or rights of others. (d) This permit does not authorize interference with any existing or proposed Federal project. 3. Limits of Federal Liability. In issuing this permit, the Federal Government does not assume any liability for the following: (a) Damages to the permitted project or uses thereof as a result of other permitted or unpermitted activities or from natural causes. (b) Damages to the permitted project or uses thereof as a result of current or future activities undertaken by or on behalf of the United States in the public interest. (c) Damages to persons, property, or to other permitted or unpermitted activities or structures caused by the activity authorized by this permit. (d) Design or construction deficiencies associated with the permitted work. (e) Damage claims associated with any future modification, suspension, or revocation of this permit. 4. Reliance on Applicant's Data: The determination of this office that issuance of this permit is not contrary to the public interest was made in reliance on the information you provided. 5. Reevaluation of Permit Decision. This office may reevaluate its decision on this permit at any time the circumstances warrant. Circumstances that could require a reevaluation include, but are not limited to, the following: (a) You fail to comply with the terms and conditions of this permit. (b) The information provided by you in support of your permit application proves to have been false, incomplete, or inaccurate (See 4 above). (c) Significant new information surfaces which this office did not consider in reaching the original public interest decision. Such a reevaluation may result in a determination that it is appropriate to use the suspension, modification, and revocation procedures contained in 33 CFR 330.5 or enforcement procedures such as those contained in 33 CFR 326.4 and 326.5. The referenced enforcement procedures provide for the issuance of an administrative order requiring you to comply with the terms and conditions of your EXA M P L E permit and for the initiation of legal action where appropriate. You will be required to pay for any corrective measure ordered by this office, and if you fail to comply with such directive, this office may in certain situations (such as those specified in 33 CFR 209.170) accomplish the corrective measures by contract or otherwise and bill you for the cost. 6. This letter of verification is valid for a period not to exceed two years unless the nationwide permit is modified, reissued, revoked, or expires before that time. 7. You must maintain the activity authorized by this permit in good condition and in conformance with the terms and conditions of this permit. You are not relieved of this requirement if you abandon the permitted activity, although you may make a good faith transfer to a third party in compliance with General Condition H below. Should you wish to cease to maintain the authorized activity or should you desire to abandon it without a good faith transfer, you must obtain a modification of this permit from this office, which may require restoration of the area. 8. You must allow representatives from this office to inspect the authorized activity at any time deemed necessary to ensure that it is being or has been accomplished with the terms and conditions of your permit. EXA M P L E ^ Sources: Esri, HERE, DeLorme, TomTom, Intermap, increment P Corp., GEBCO, USGS, FAO, NPS, NRCAN, GeoBase, IGN, Kadaster NL, Ordnance Survey, Esri Japan, METI, Esri China (Hong Kong), swisstopo, MapmyIndia, © OpenStreetMap contributors, and the GIS User Community Prefumo Creek Arm at LOVR Sediment Removal Project Figure 1: Project Vicinity Map 0 10.5 Miles ¯^Project Location 23 Jan 2018 ^ Project Location EXA M P L E Source: Esri, DigitalGlobe, GeoEye, Earthstar Geographics, CNES/Airbus DS, USDA, USGS, AEX, Getmapping, Aerogrid, IGN, IGP, swisstopo, and the GIS User Community Prefumo Creek Arm at LOVR Sediment Removal Project Project Workspace Map 0 10050 Feet ¯ Ordinary high water mark Existing access and staging Overland access and staging Sediment removal area Prefumo Creek (mapped by Terra Verde) 12 Jan 2018 ^ Project Location EXA M P L E EXA M P L E EXA M P L E EXA M P L E EXA M P L E EXA M P L E EXA M P L E DEPARTMENT OF THE ARMY U.S. ARMY CORPS OF ENGINEERS LOS ANGELES DISTRICT 60 CALIFORNIA STREET, SUITE 201 VENTURA, CALIFORNIA 93001 September 23, 2021 SUBJECT: Nationwide Permit (NWP) Verification Freddy Otte City of San Luis Obispo 990 Palm Street San Luis Obispo, California 93401 Dear Mr. Otte: I am responding to your request dated for a Department of the Army permit for your proposed projects, City of San Luis Obispo Sediment Removal Projects (File No. SPL- 2021-00341-GLH). The proposed projects include the Prefumo Creek at Madonna Road project (35.259072°, -120.683635°) in Prefumo Creek, and the San Luis Obispo Creek Bypass at Prefumo Creek project (35.243378°, -120.680877°) in San Luis Obispo Creek. Both projects are located in the city and County of San Luis Obispo, California. Because these projects would result in a discharge of dredged and/or fill material into waters of the U.S., a Department of the Army permit is required pursuant to Section 404 of the Clean Water Act (33 USC 1344; 33 CFR parts 323 and 330). I have determined construction of your proposed projects, if constructed as described in your application, would comply with NWP 31 Maintenance of Existing Flood Control Facilities. Specifically, and as shown in the enclosed figures, you are authorized to conduct the following activities at each of the proposed project locations: Prefumo Creek at Madonna Road: The project site is located in Prefumo Creek at the outlet of Laguna Lake, immediately downstream of the Madonna Road Bridge, in an engineered flood control channel that is approximately 45-feet wide. Approximately 0.17-acres and 560 linear feet of waters of the U.S. will be temporarily impacted as part of this project. The proposed project will involve removal of approximately 200 cubic yards of accumulated material, creating a defined low flow channel to concentrate flows exiting Laguna Lake. The first project component will remove material from an area 40- feet wide by 40-feet long immediately downstream of the Madonna Road Bridge concrete apron. A second project component will create a 10-foot wide by 560-foot-long low flow channel beginning downstream of an existing concrete apron, to aid in the passage of stormflows through the project area. An existing access road will be utilized to complete the project. Native riparian vegetation will be completely avoided. Excavated material will be directly loaded into dump trucks for transport to a City- approved upland disposal facility. Any vegetated areas that are disturbed as a result of EXA M P L E - 2 - sediment removal activities will be stabilized with a native erosion control seed mix appropriate for the site. Best Management Practices (e.g., installation of fiber rolls, seeding, etc.) will be implemented immediately following construction or if a storm is imminent (48 hour forecast of a 0.50-inch or greater storm). Equipment to be used includes front loaders, skip loaders, small dozers, excavators and dump trucks. All equipment will be staged above top of bank, along the existing access road. The project is anticipated to take approximately 10 days to accomplish. Construction will be completed during the driest time of year, between June 1st and October 31st. San Luis Obispo Creek Bypass at Prefumo Creek: The project site is located in San Luis Obispo Creek immediately upstream of the Los Osos Valley Road bridge. Approximately 0.16-acre and 200 linear feet of non-wetland waters including 0.03-acre of in-stream wetland will be temporarily impacted as a part of the project. Approximately 800 cubic yards of sediment will be removed. Sediment removal will occur within an area approximately 60 feet wide by 200 feet long. Equipment will access the site from an existing driveway and agricultural field. Vegetation removal and trimming will be required to support equipment access to the bypass channel and during project activities. Sediment will be directly loaded into dump trucks for transport to a City-approved upland disposal facility. Any vegetated areas disturbed as a result of sediment removal activities will be stabilized with a native erosion control seed mix appropriate for the site. Best Management Practices (e.g., installation of fiber rolls, seeding, etc.) will be implemented immediately following construction or if a storm is imminent. Equipment to be used includes front loaders, skip loaders, small dozers, excavators and dump trucks. All equipment will be staged above top of bank, along the existing access road. The project is anticipated to take approximately 10 days to accomplish. Construction will be completed during the driest time of year, between June 1st and October 31st. For this NWP verification letter to be valid, you must comply with all of the terms and conditions in Enclosure 1. Furthermore, you must comply with the non-discretionary Special Conditions listed below: 1. Within 30 days of completion of the authorized work, you must sign and return the enclosed Certificate of Compliance (in accordance with General Condition 30). 2. Pursuant to 36 C.F.R. section 800.13, in the event of any discoveries during construction within waters within the Corps Permit Area (PM insert permit area/APE map) of either human remains, archaeological deposits, or any other type of historic property, the Permittee shall notify the Corps Regulatory Project Manager (insert PM at insert PM Phone number) and the Corps' Regulatory Archaeology Staff (Daniel Grijalva at 760-520- 4736) within 24 hours. The Permittee shall immediately suspend all work in any area(s) where potential cultural resources are discovered. The Permittee shall not resume Lisa Mangione EXA M P L E - 3 - construction in the area surrounding the potential cultural resources until the Corps Regulatory Division re-authorizes project construction, per 36 C.F.R. Section 800.13. This verification is valid through March 18, 2022. If on March 18, 2022 you have commenced or are under contract to commence the permitted activity you will have an additional twelve (12) months to complete the activity under the present NWP terms and conditions. However, if I discover noncompliance or unauthorized activities associated with the permitted activity I may request the use of discretionary authority in accordance with procedures in 33 CFR part 330.4(e) and 33 CFR part 330.5(c) or (d) to modify, suspend, or revoke this specific verification at an earlier date. Additionally, at the national level the Chief of Engineers, any time prior to March 18, 2022, may choose to modify, suspend, or revoke the nationwide use of a NWP after following procedures set forth in 33 CFR part 330.5. It is incumbent upon you to comply with all of the terms and conditions of this NWP verification and to remain informed of any change to the NWPs. A NWP does not grant any property rights or exclusive privileges. Additionally, it does not authorize any injury to the property, rights of others, nor does it authorize interference with any existing or proposed Federal project. Furthermore, it does not obviate the need to obtain other Federal, state, or local authorizations required by law. Thank you for participating in our regulatory program. If you have any questions, please contact me at (805) 585-2150 or via email at Lisa.Mangione@usace.army.mil. Please help me to evaluate and improve the regulatory experience for others by completing the customer survey form at https://regulatory.ops.usace.army.mil/customer- service-survey/. Sincerely, Lisa Mangione Senior Project Manager North Coast Branch Enclosures EXA M P L E LOS ANGELES DISTRICT U.S. ARMY CORPS OF ENGINEERS CERTIFICATE OF COMPLIANCE WITH DEPARTMENT OF THE ARMY NATIONWIDE PERMIT Permit Number: SPL-2021-00341-GLH Name of Permittee: Freddy Otte, City of San Luis Obispo Date of Issuance: September 23, 2021 Upon completion of the activity authorized by this permit and the mitigation required by this permit, sign this certificate, and email it to Lisa.Mangione@usace.army.mil. I hereby certify that the authorized work and any required compensatory mitigation has been completed in accordance with the NWP authorization, including all general, regional, or activity-specific conditions. Furthermore, if credits from a mitigation bank or in-lieu fee program were used to satisfy compensatory mitigation requirements I have attached the documentation required by 33 CFR 332.3(l)(3) to confirm that the appropriate number and resource type of credits have been secured. ___________________________________ ________________________________ Signature of Permittee Date EXA M P L E EXA M P L E EXA M P L E Enclosure 1: NATIONWIDE PERMIT NUMBER(S) NWP 31 Maintenance of Existing Flood Control Facilities 1. Nationwide Permit(s) NWP 31 Maintenance of Existing Flood Control Facilities Terms: 31. Maintenance of Existing Flood Control Facilities. Discharges of dredged or fill material resulting from activities associated with the maintenance of existing flood control facilities, including debris basins, retention/detention basins, levees, and channels that: (i) were previously authorized by the Corps by individual permit, general permit, or 33 CFR 330.3, or did not require a permit at the time they were 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. Discharges of dredged or fill materials associated with maintenance activities in flood control facilities in any watercourse that have previously been determined to be within the maintenance baseline are authorized under this NWP. To the extent that a Corps permit is required, this NWP authorizes the removal of vegetation from levees associated with the flood control project. This NWP does not authorize the removal of sediment and associated vegetation from natural water courses except when these activities have been included in the maintenance baseline. All dredged and excavated material must be deposited and retained in an area that has no waters of the United States unless otherwise specifically approved by the district engineer under separate authorization. Proper sediment controls must be used. 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. 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 approved and constructed design capacities of the flood control facility. If no evidence of the constructed capacity exists, the approved capacity will be used. The documentation will also include best management practices to ensure that the adverse environmental impacts caused by the maintenance activities are no more than 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 cannot 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 NWP 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. A flood control facility will not be considered abandoned if the prospective permittee is in the process of obtaining other authorizations or approvals required for maintenance activities and is experiencing delays in obtaining those authorizations or approvals. 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 EXA M P L E when necessary to ensure that adverse environmental effects 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 onetime 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 (see Note, below). 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 mitigation and/or best management practices 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. Notification: The permittee must submit a pre- construction notification to the district engineer before any maintenance work is conducted (see general condition 32). The pre-construction 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. The pre-construction notification must include a description of the maintenance baseline and the disposal site for dredged or excavated material. (Authorities: Sections 10 and 404) Note: If the maintenance baseline was approved by the district engineer under a prior version of NWP 31, and the district engineer imposed the one-time compensatory mitigation requirement on maintenance for a specific reach of a flood control project authorized by that prior version of NWP 31, during the period this version of NWP 31 is in effect (March 19, 2017, to March 18, 2022) the district engineer will not require additional compensatory mitigation for maintenance activities authorized by this NWP in that specific reach of the flood control project. 2. General Conditions: The following general conditions must be followed in order for any authorization by an NWP to be valid: 1. Navigation. (a) No activity may cause more than a minimal adverse effect on navigation. (b) Any safety lights and signals prescribed by the U.S. Coast Guard, through regulations or otherwise, must be installed and maintained at the permittee's expense on authorized facilities in navigable waters of the United States. (c) The permittee understands and agrees that, if future operations by the United States require the removal, relocation, or other alteration, of the structure or work herein authorized, or if, in the opinion of the Secretary of the Army or his authorized representative, said structure or work shall cause unreasonable obstruction to the free navigation of the navigable waters, the permittee will be required, upon due notice from the Corps of Engineers, to remove, relocate, or alter the structural EXA M P L E work or obstructions caused thereby, without expense to the United States. No claim shall be made against the United States on account of any such removal or alteration. 2. Aquatic Life Movements. No activity may substantially disrupt the necessary life cycle movements of those species of aquatic life indigenous to the waterbody, including those species that normally migrate through the area, unless the activity's primary purpose is to impound water. All permanent and temporary crossings of waterbodies shall be suitably culverted, bridged, or otherwise designed and constructed to maintain low flows to sustain the movement of those aquatic species. If a bottomless culvert cannot be used, then the crossing should be designed and constructed to minimize adverse effects to aquatic life movements. 3. Spawning Areas. Activities in spawning areas during spawning seasons must be avoided to the maximum extent practicable. Activities that result in the physical destruction (e.g., through excavation, fill, or downstream smothering by substantial turbidity) of an important spawning area are not authorized. 4. Migratory Bird Breeding Areas. Activities in waters of the United States that serve as breeding areas for migratory birds must be avoided to the maximum extent practicable. 5. Shellfish Beds. No activity may occur in areas of concentrated shellfish populations, unless the activity is directly related to a shellfish harvesting activity authorized by NWPs 4 and 48, or is a shellfish seeding or habitat restoration activity authorized by NWP 27. 6. Suitable Material. No activity may use unsuitable material (e.g., trash, debris, car bodies, asphalt, etc.). Material used for construction or discharged must be free from toxic pollutants in toxic amounts (see section 307 of the Clean Water Act). 7. Water Supply Intakes. No activity may occur in the proximity of a public water supply intake, except where the activity is for the repair or improvement of public water supply intake structures or adjacent bank stabilization. 8. Adverse Effects From Impoundments. If the activity creates an impoundment of water, adverse effects to the aquatic system due to accelerating the passage of water, and/or restricting its flow must be minimized to the maximum extent practicable. 9. Management of Water Flows. To the maximum extent practicable, the pre-construction course, condition, capacity, and location of open waters must be maintained for each activity, including stream channelization, storm water management activities, and temporary and permanent road crossings, except as provided below. The activity must be constructed to withstand expected high flows. The activity must not restrict or impede the passage of normal or high flows, unless the primary purpose of the activity is to impound water or manage high flows. The activity may alter the pre-construction course, condition, capacity, and location of open waters if it benefits the aquatic environment (e.g., stream restoration or relocation activities). 10. Fills Within 100-Year Floodplains. The activity must comply with applicable FEMA- approved state or local floodplain management requirements. EXA M P L E 11. Equipment. Heavy equipment working in wetlands or mudflats must be placed on mats, or other measures must be taken to minimize soil disturbance. 12. Soil Erosion and Sediment Controls. Appropriate soil erosion and sediment controls must be used and maintained in effective operating condition during construction, and all exposed soil and other fills, as well as any work below the ordinary high water mark or high tide line, must be permanently stabilized at the earliest practicable date. Permittees are encouraged to perform work within waters of the United States during periods of low-flow or no-flow, or during low tides. 13. Removal of Temporary Fills. Temporary fills must be removed in their entirety and the affected areas returned to pre-construction elevations. The affected areas must be revegetated, as appropriate. 14. Proper Maintenance. Any authorized structure or fill shall be properly maintained, including maintenance to ensure public safety and compliance with applicable NWP general conditions, as well as any activity-specific conditions added by the district engineer to an NWP authorization. 15. Single and Complete Project. The activity must be a single and complete project. The same NWP cannot be used more than once for the same single and complete project. 16. Wild and Scenic Rivers. (a) No NWP activity may occur in a component of the National Wild and Scenic River System, or in a river officially designated by Congress as a “study river” for possible inclusion in the system while the river is in an official study status, unless the appropriate Federal agency with direct management responsibility for such river, has determined in writing that the proposed activity will not adversely affect the Wild and Scenic River designation or study status. (b) If a proposed NWP activity will occur in a component of the National Wild and Scenic River System, or in a river officially designated by Congress as a “study river” for possible inclusion in the system while the river is in an official study status, the permittee must submit a pre-construction notification (see general condition 32). The district engineer will coordinate the PCN with the Federal agency with direct management responsibility for that river. The permittee shall not begin the NWP activity until notified by the district engineer that the Federal agency with direct management responsibility for that river has determined in writing that the proposed NWP activity will not adversely affect the Wild and Scenic River designation or study status. (c) Information on Wild and Scenic Rivers may be obtained from the appropriate Federal land management agency responsible for the designated Wild and Scenic River or study river (e.g., National Park Service, U.S. Forest Service, Bureau of Land Management, U.S. Fish and Wildlife Service). Information on these rivers is also available at: http://www.rivers.gov/. 17. Tribal Rights. No NWP activity may cause more than minimal adverse effects on tribal rights (including treaty rights), protected tribal resources, or tribal lands. 18. Endangered Species. (a) No activity is authorized under any NWP which is likely to directly or indirectly jeopardize the continued existence of a threatened or endangered species or a species proposed for such designation, as identified under the Federal Endangered Species Act (ESA), or EXA M P L E which will directly or indirectly destroy or adversely modify the critical habitat of such species. No activity is authorized under any NWP which “may affect” a listed species or critical habitat, unless ESA section 7 consultation addressing the effects of the proposed activity has been completed. Direct effects are the immediate effects on listed species and critical habitat caused by the NWP activity. Indirect effects are those effects on listed species and critical habitat that are caused by the NWP activity and are later in time, but still are reasonably certain to occur. (b) Federal agencies should follow their own procedures for complying with the requirements of the ESA. If pre-construction notification is required for the proposed activity, the Federal permittee must provide the district engineer with the appropriate documentation to demonstrate compliance with those requirements. The district engineer will verify that the appropriate documentation has been submitted. If the appropriate documentation has not been submitted, additional ESA section 7 consultation may be necessary for the activity and the respective federal agency would be responsible for fulfilling its obligation under section 7 of the ESA. (c) Non-federal permittees must submit a pre-construction notification to the district engineer if any listed species or designated critical habitat might be affected or is in the vicinity of the activity, or if the activity is located in designated critical habitat, and shall not begin work on the activity until notified by the district engineer that the requirements of the ESA have been satisfied and that the activity is authorized. For activities that might affect Federally-listed endangered or threatened species or designated critical habitat, the pre-construction notification must include the name(s) of the endangered or threatened species that might be affected by the proposed activity or that utilize the designated critical habitat that might be affected by the proposed activity. The district engineer will determine whether the proposed activity “may affect” or will have “no effect” to listed species and designated critical habitat and will notify the non-Federal applicant of the Corps’ determination within 45 days of receipt of a complete pre-construction notification. In cases where the non-Federal applicant has identified listed species or critical habitat that might be affected or is in the vicinity of the activity, and has so notified the Corps, the applicant shall not begin work until the Corps has provided notification that the proposed activity will have “no effect” on listed species or critical habitat, or until ESA section 7 consultation has been completed. If the non-Federal applicant has not heard back from the Corps within 45 days, the applicant must still wait for notification from the Corps. (d) As a result of formal or informal consultation with the FWS or NMFS the district engineer may add species-specific permit conditions to the NWPs. (e) Authorization of an activity by an NWP does not authorize the “take” of a threatened or endangered species as defined under the ESA. In the absence of separate authorization (e.g., an ESA Section 10 Permit, a Biological Opinion with “incidental take” provisions, etc.) from the FWS or the NMFS, the Endangered Species Act prohibits any person subject to the jurisdiction of the United States to take a listed species, where "take" means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. The word “harm” in the definition of “take'' means an act which actually kills or injures wildlife. Such an act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering. EXA M P L E (f) If the non-federal permittee has a valid ESA section 10(a)(1)(B) incidental take permit with an approved Habitat Conservation Plan for a project or a group of projects that includes the proposed NWP activity, the non-federal applicant should provide a copy of that ESA section 10(a)(1)(B) permit with the PCN required by paragraph (c) of this general condition. The district engineer will coordinate with the agency that issued the ESA section 10(a)(1)(B) permit to determine whether the proposed NWP activity and the associated incidental take were considered in the internal ESA section 7 consultation conducted for the ESA section 10(a)(1)(B) permit. If that coordination results in concurrence from the agency that the proposed NWP activity and the associated incidental take were considered in the internal ESA section 7 consultation for the ESA section 10(a)(1)(B) permit, the district engineer does not need to conduct a separate ESA section 7 consultation for the proposed NWP activity. The district engineer will notify the non-federal applicant within 45 days of receipt of a complete pre-construction notification whether the ESA section 10(a)(1)(B) permit covers the proposed NWP activity or whether additional ESA section 7 consultation is required. (g) Information on the location of threatened and endangered species and their critical habitat can be obtained directly from the offices of the FWS and NMFS or their world wide web pages at http://www.fws.gov/ or http://www.fws.gov/ipac and http://www.nmfs.noaa.gov/pr/species/esa/ respectively. 19. Migratory Birds and Bald and Golden Eagles. The permittee is responsible for ensuring their action complies with the Migratory Bird Treaty Act and the Bald and Golden Eagle Protection Act. The permittee is responsible for contacting appropriate local office of the U.S. Fish and Wildlife Service to determine applicable measures to reduce impacts to migratory birds or eagles, including whether “incidental take” permits are necessary and available under the Migratory Bird Treaty Act or Bald and Golden Eagle Protection Act for a particular activity. 20. Historic Properties. (a) In cases where the district engineer determines that the activity may have the potential to cause effects to properties listed, or eligible for listing, in the National Register of Historic Places, the activity is not authorized, until the requirements of Section 106 of the National Historic Preservation Act (NHPA) have been satisfied. (b) Federal permittees should follow their own procedures for complying with the requirements of section 106 of the National Historic Preservation Act. If pre-construction notification is required for the proposed NWP activity, the Federal permittee must provide the district engineer with the appropriate documentation to demonstrate compliance with those requirements. The district engineer will verify that the appropriate documentation has been submitted. If the appropriate documentation is not submitted, then additional consultation under section 106 may be necessary. The respective federal agency is responsible for fulfilling its obligation to comply with section 106. (c) Non-federal permittees must submit a pre-construction notification to the district engineer if the NWP activity might have the potential to cause effects to any historic properties listed on, determined to be eligible for listing on, or potentially eligible for listing on the National Register of Historic Places, including previously unidentified properties. For such activities, the pre-construction notification must state which historic properties might have the potential to be affected by the proposed NWP activity or include a vicinity map indicating the location of the historic properties or the potential for the presence of historic properties. Assistance regarding information on the location of, EXA M P L E or potential for, the presence of historic properties can be sought from the State Historic Preservation Officer, Tribal Historic Preservation Officer, or designated tribal representative, as appropriate, and the National Register of Historic Places (see 33 CFR 330.4(g)). When reviewing pre-construction notifications, district engineers will comply with the current procedures for addressing the requirements of section 106 of the National Historic Preservation Act. The district engineer shall make a reasonable and good faith effort to carry out appropriate identification efforts, which may include background research, consultation, oral history interviews, sample field investigation, and field survey. Based on the information submitted in the PCN and these identification efforts, the district engineer shall determine whether the proposed NWP activity has the potential to cause effects on the historic properties. Section 106 consultation is not required when the district engineer determines that the activity does not have the potential to cause effects on historic properties (see 36 CFR 800.3(a)). Section 106 consultation is required when the district engineer determines that the activity has the potential to cause effects on historic properties. The district engineer will conduct consultation with consulting parties identified under 36 CFR 800.2(c) when he or she makes any of the following effect determinations for the purposes of section 106 of the NHPA: no historic properties affected, no adverse effect, or adverse effect. Where the non-Federal applicant has identified historic properties on which the activity might have the potential to cause effects and so notified the Corps, the non- Federal applicant shall not begin the activity until notified by the district engineer either that the activity has no potential to cause effects to historic properties or that NHPA section 106 consultation has been completed. (d) For non-federal permittees, the district engineer will notify the prospective permittee within 45 days of receipt of a complete pre-construction notification whether NHPA section 106 consultation is required. If NHPA section 106 consultation is required, the district engineer will notify the non- Federal applicant that he or she cannot begin the activity until section 106 consultation is completed. If the non-Federal applicant has not heard back from the Corps within 45 days, the applicant must still wait for notification from the Corps. (e) Prospective permittees should be aware that section 110k of the NHPA (54 U.S.C. 306113) prevents the Corps from granting a permit or other assistance to an applicant who, with intent to avoid the requirements of section 106 of the NHPA, has intentionally significantly adversely affected a historic property to which the permit would relate, or having legal power to prevent it, allowed such significant adverse effect to occur, unless the Corps, after consultation with the Advisory Council on Historic Preservation (ACHP), determines that circumstances justify granting such assistance despite the adverse effect created or permitted by the applicant. If circumstances justify granting the assistance, the Corps is required to notify the ACHP and provide documentation specifying the circumstances, the degree of damage to the integrity of any historic properties affected, and proposed mitigation. This documentation must include any views obtained from the applicant, SHPO/THPO, appropriate Indian tribes if the undertaking occurs on or affects historic properties on tribal lands or affects properties of interest to those tribes, and other parties known to have a legitimate interest in the impacts to the permitted activity on historic properties. 21. Discovery of Previously Unknown Remains and Artifacts. If you discover any previously unknown historic, cultural or archeological remains and artifacts while accomplishing the activity authorized by this permit, you must immediately notify the district engineer of what you have found, and to the maximum extent practicable, avoid construction activities that may affect the remains and EXA M P L E artifacts until the required coordination has been completed. The district engineer will initiate the Federal, Tribal, and state coordination required to determine if the items or remains warrant a recovery effort or if the site is eligible for listing in the National Register of Historic Places. 22. Designated Critical Resource Waters. Critical resource waters include, NOAA-managed marine sanctuaries and marine monuments, and National Estuarine Research Reserves. The district engineer may designate, after notice and opportunity for public comment, additional waters officially designated by a state as having particular environmental or ecological significance, such as outstanding national resource waters or state natural heritage sites. The district engineer may also designate additional critical resource waters after notice and opportunity for public comment. (a) Discharges of dredged or fill material into waters of the United States are not authorized by NWPs 7, 12, 14, 16, 17, 21, 29, 31, 35, 39, 40, 42, 43, 44, 49, 50, 51, and 52 for any activity within, or directly affecting, critical resource waters, including wetlands adjacent to such waters. (b) For NWPs 3, 8, 10, 13, 15, 18, 19, 22, 23, 25, 27, 28, 30, 33, 34, 36, 37, 38, and 54, notification is required in accordance with general condition 32, 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. 23. Mitigation. The district engineer will consider the following factors when determining appropriate and practicable mitigation necessary to ensure that the individual and cumulative adverse environmental effects are no more than minimal: (a) The activity must be designed and constructed to avoid and minimize adverse effects, both temporary and permanent, to waters of the United States to the maximum extent practicable at the project site (i.e., on site). (b) Mitigation in all its forms (avoiding, minimizing, rectifying, reducing, or compensating for resource losses) will be required to the extent necessary to ensure that the individual and cumulative adverse environmental effects are no more than minimal. (c) Compensatory mitigation at a minimum one-for-one ratio will be required for all wetland losses that exceed 1/10-acre and require pre-construction notification, unless the district engineer determines in writing that either some other form of mitigation would be more environmentally appropriate or the adverse environmental effects of the proposed activity are no more than minimal, and provides an activity-specific waiver of this requirement. For wetland losses of 1/10-acre or less that require pre-construction notification, the district engineer may determine on a case-by-case basis that compensatory mitigation is required to ensure that the activity results in only minimal adverse environmental effects. (d) For losses of streams or other open waters that require pre-construction notification, the district engineer may require compensatory mitigation to ensure that the activity results in no more than minimal adverse environmental effects. Compensatory mitigation for losses of streams should L EXA M P L E be provided, if practicable, through stream rehabilitation, enhancement, or preservation, since streams are difficult-to-replace resources (see 33 CFR 332.3(e)(3)). (e) Compensatory mitigation plans for NWP activities in or near streams or other open waters will normally include a requirement for the restoration or enhancement, maintenance, and legal protection (e.g., conservation easements) of riparian areas next to open waters. In some cases, the restoration or maintenance/protection of riparian areas may be the only compensatory mitigation required. Restored riparian areas should consist of native species. The width of the required riparian area will address documented water quality or aquatic habitat loss concerns. Normally, the riparian area will be 25 to 50 feet wide on each side of the stream, but the district engineer may require slightly wider riparian areas to address documented water quality or habitat loss concerns. If it is not possible to restore or maintain/protect a riparian area on both sides of a stream, or if the waterbody is a lake or coastal waters, then restoring or maintaining/protecting a riparian area along a single bank or shoreline may be sufficient. Where both wetlands and open waters exist on the project site, the district engineer will determine the appropriate compensatory mitigation (e.g., riparian areas and/or wetlands compensation) based on what is best for the aquatic environment on a watershed basis. In cases where riparian areas are determined to be the most appropriate form of minimization or compensatory mitigation, the district engineer may waive or reduce the requirement to provide wetland compensatory mitigation for wetland losses. (f) Compensatory mitigation projects provided to offset losses of aquatic resources must comply with the applicable provisions of 33 CFR part 332. (1) The prospective permittee is responsible for proposing an appropriate compensatory mitigation option if compensatory mitigation is necessary to ensure that the activity results in no more than minimal adverse environmental effects. For the NWPs, the preferred mechanism for providing compensatory mitigation is mitigation bank credits or in-lieu fee program credits (see 33 CFR 332.3(b)(2) and (3)). However, if an appropriate number and type of mitigation bank or in-lieu credits are not available at the time the PCN is submitted to the district engineer, the district engineer may approve the use of permittee-responsible mitigation. (2) The amount of compensatory mitigation required by the district engineer must be sufficient to ensure that the authorized activity results in no more than minimal individual and cumulative adverse environmental effects (see 33 CFR 330.1(e)(3)). (See also 33 CFR 332.3(f)). (3) Since the likelihood of success is greater and the impacts to potentially valuable uplands are reduced, aquatic resource restoration should be the first compensatory mitigation option considered for permittee-responsible mitigation. (4) If permittee-responsible mitigation is the proposed option, the prospective permittee is responsible for submitting a mitigation plan. A conceptual or detailed mitigation plan may be used by the district engineer to make the decision on the NWP verification request, but a final mitigation plan that addresses the applicable requirements of 33 CFR 332.4(c)(2) through (14) must be approved by the district engineer before the permittee begins work in waters of the United States, unless the district engineer determines that prior approval of the final mitigation plan is not practicable or not EXA M P L E necessary to ensure timely completion of the required compensatory mitigation (see 33 CFR 332.3(k)(3)). (5) If mitigation bank or in-lieu fee program credits are the proposed option, the mitigation plan only needs to address the baseline conditions at the impact site and the number of credits to be provided. (6) Compensatory mitigation requirements (e.g., resource type and amount to be provided as compensatory mitigation, site protection, ecological performance standards, monitoring requirements) may be addressed through conditions added to the NWP authorization, instead of components of a compensatory mitigation plan (see 33 CFR 332.4(c)(1)(ii)). (g) Compensatory mitigation will not be used to increase the acreage losses allowed by the acreage limits of the NWPs. For example, if an NWP has an acreage limit of 1/2-acre, it cannot be used to authorize any NWP activity resulting in the loss of greater than 1/2-acre of waters of the United States, even if compensatory mitigation is provided that replaces or restores some of the lost waters. However, compensatory mitigation can and should be used, as necessary, to ensure that an NWP activity already meeting the established acreage limits also satisfies the no more than minimal impact requirement for the NWPs. (h) Permittees may propose the use of mitigation banks, in-lieu fee programs, or permittee- responsible mitigation. When developing a compensatory mitigation proposal, the permittee must consider appropriate and practicable options consistent with the framework at 33 CFR 332.3(b). For activities resulting in the loss of marine or estuarine resources, permittee-responsible mitigation may be environmentally preferable if there are no mitigation banks or in-lieu fee programs in the area that have marine or estuarine credits available for sale or transfer to the permittee. For permittee- responsible mitigation, the special conditions of the NWP verification must clearly indicate the party or parties responsible for the implementation and performance of the compensatory mitigation project, and, if required, its long-term management. (i) Where certain functions and services of waters of the United States are permanently adversely affected by a regulated activity, such as discharges of dredged or fill material into waters of the United States that will convert a forested or scrub-shrub wetland to a herbaceous wetland in a permanently maintained utility line right-of-way, mitigation may be required to reduce the adverse environmental effects of the activity to the no more than minimal level. 24. Safety of Impoundment Structures. To ensure that all impoundment structures are safely designed, the district engineer may require non-Federal applicants to demonstrate that the structures comply with established state dam safety criteria or have been designed by qualified persons. The district engineer may also require documentation that the design has been independently reviewed by similarly qualified persons, and appropriate modifications made to ensure safety. 25. Water Quality. Where States and authorized Tribes, or EPA where applicable, have not previously certified compliance of an NWP with CWA section 401, individual 401 Water Quality Certification must be obtained or waived (see 33 CFR 330.4(c)). The district engineer or State or EXA M P L E Tribe may require additional water quality management measures to ensure that the authorized activity does not result in more than minimal degradation of water quality. 26. Coastal Zone Management. In coastal states where an NWP has not previously received a state coastal zone management consistency concurrence, an individual state coastal zone management consistency concurrence must be obtained, or a presumption of concurrence must occur (see 33 CFR 330.4(d)). The district engineer or a State may require additional measures to ensure that the authorized activity is consistent with state coastal zone management requirements. 27. Regional and Case-By-Case Conditions. The activity must comply with any regional conditions that may have been added by the Division Engineer (see 33 CFR 330.4(e)) and with any case specific conditions added by the Corps or by the state, Indian Tribe, or U.S. EPA in its section 401 Water Quality Certification, or by the state in its Coastal Zone Management Act consistency determination. 28. Use of Multiple Nationwide Permits. The use of more than one NWP for a single and complete project is prohibited, except when the acreage loss of waters of the United States authorized by the NWPs does not exceed the acreage limit of the NWP with the highest specified acreage limit. For example, if a road crossing over tidal waters is constructed under NWP 14, with associated bank stabilization authorized by NWP 13, the maximum acreage loss of waters of the United States for the total project cannot exceed 1/3-acre. 29. Transfer of Nationwide Permit Verifications. If the permittee sells the property associated with a nationwide permit verification, the permittee may transfer the nationwide permit verification to the new owner by submitting a letter to the appropriate Corps district office to validate the transfer. A copy of the nationwide permit verification must be attached to the letter, and the letter must contain the following statement and signature: “When the structures or work authorized by this nationwide permit are still in existence at the time the property is transferred, the terms and conditions of this nationwide permit, including any special conditions, will continue to be binding on the new owner(s) of the property. To validate the transfer of this nationwide permit and the associated liabilities associated with compliance with its terms and conditions, have the transferee sign and date below.” _____________________________________________ (Transferee) _____________________________________________ (Date) 30. Compliance Certification. Each permittee who receives an NWP verification letter from the Corps must provide a signed certification documenting completion of the authorized activity and implementation of any required compensatory mitigation. The success of any required permittee- EXA M P L E responsible mitigation, including the achievement of ecological performance standards, will be addressed separately by the district engineer. The Corps will provide the permittee the certification document with the NWP verification letter. The certification document will include: (a) A statement that the authorized activity was done in accordance with the NWP authorization, including any general, regional, or activity-specific conditions; (b) A statement that the implementation of any required compensatory mitigation was completed in accordance with the permit conditions. If credits from a mitigation bank or in-lieu fee program are used to satisfy the compensatory mitigation requirements, the certification must include the documentation required by 33 CFR 332.3(l)(3) to confirm that the permittee secured the appropriate number and resource type of credits; and (c) The signature of the permittee certifying the completion of the activity and mitigation. The completed certification document must be submitted to the district engineer within 30 days of completion of the authorized activity or the implementation of any required compensatory mitigation, whichever occurs later. 31. Activities Affecting Structures or Works Built by the United States. If an NWP activity also requires permission from the Corps pursuant to 33 U.S.C. 408 because it will alter or temporarily or permanently occupy or use a U.S. Army Corps of Engineers (USACE) federally authorized Civil Works project (a “USACE project”), the prospective permittee must submit a pre-construction notification. See paragraph (b)(10) of general condition 32. An activity that requires section 408 permission is not authorized by NWP until the appropriate Corps office issues the section 408 permission to alter, occupy, or use the USACE project, and the district engineer issues a written NWP verification. 32. Pre-Construction Notification. (a) Timing. Where required by the terms of the NWP, the prospective permittee must notify the district engineer by submitting a pre-construction notification (PCN) as early as possible. The district engineer must determine if the PCN is complete within 30 calendar days of the date of receipt and, if the PCN is determined to be incomplete, notify the prospective permittee within that 30 day period to request the additional information necessary to make the PCN complete. The request must specify the information needed to make the PCN complete. As a general rule, district engineers will request additional information necessary to make the PCN complete only once. However, if the prospective permittee does not provide all of the requested information, then the district engineer will notify the prospective permittee that the PCN 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 shall not begin the activity until either: (1) He or she is 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) 45 calendar days have passed from the district engineer’s receipt of the complete PCN and the prospective permittee has not received written notice from the district or division engineer. However, if the permittee was required to notify the Corps pursuant to general condition 18 that listed EXA M P L E species or critical habitat might be affected or are in the vicinity of the activity, or to notify the Corps pursuant to general condition 20 that the activity might have the potential to cause effects to historic properties, the permittee cannot begin the activity until receiving written notification from the Corps that there is “no effect” on listed species or “no potential to cause effects” on historic properties, or that any consultation required under Section 7 of the Endangered Species Act (see 33 CFR 330.4(f)) and/or section 106 of the National Historic Preservation Act (see 33 CFR 330.4(g)) has been completed. Also, work cannot begin under NWPs 21, 49, or 50 until the permittee has received written approval from the Corps. If the proposed activity requires a written waiver to exceed specified limits of an NWP, the permittee may not begin the activity until the district engineer issues the waiver. If the district or division engineer notifies the permittee in writing that an individual permit is required within 45 calendar days of receipt of a complete PCN, the permittee cannot begin the activity until an individual permit has been obtained. 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 Pre-Construction Notification: The PCN must be in writing and include the following information: (1) Name, address and telephone numbers of the prospective permittee; (2) Location of the proposed activity; (3) Identify the specific NWP or NWP(s) the prospective permittee wants to use to authorize the proposed activity; (4) A description of the proposed activity; the activity’s purpose; direct and indirect adverse environmental effects the activity would cause, including the anticipated amount of loss of wetlands, other special aquatic sites, and other waters expected to result from the NWP activity, in acres, linear feet, or other appropriate unit of measure; a description of any proposed mitigation measures intended to reduce the adverse environmental effects caused by the proposed activity; and any other NWP(s), regional general permit(s), or individual permit(s) used or intended to be used to authorize any part of the proposed project or any related activity, including other separate and distant crossings for linear projects that require Department of the Army authorization but do not require pre- construction notification. The description of the proposed activity and any proposed mitigation measures should be sufficiently detailed to allow the district engineer to determine that the adverse environmental effects of the activity will be no more than minimal and to determine the need for compensatory mitigation or other mitigation measures. For single and complete linear projects, the PCN must include the quantity of anticipated losses of wetlands, other special aquatic sites, and other waters for each single and complete crossing of those wetlands, other special aquatic sites, and other waters. Sketches should be provided when necessary to show that the activity complies with the terms of the NWP. (Sketches usually clarify the activity and when provided results in a quicker decision. Sketches should contain sufficient detail to provide an illustrative description of the proposed activity (e.g., a conceptual plan), but do not need to be detailed engineering plans); (5) The PCN must include a delineation of wetlands, other special aquatic sites, and other waters, such as lakes and ponds, and perennial, intermittent, and ephemeral streams, on the project EXA M P L E site. Wetland delineations must be prepared in accordance with the current method required by the Corps. The permittee may ask the Corps to delineate the special aquatic sites and other waters on the project site, but there may be a delay if the Corps does the delineation, especially if the project site is large or contains many wetlands, other special aquatic sites, and other waters. Furthermore, the 45 day period will not start until the delineation has been submitted to or completed by the Corps, as appropriate; (6) If the proposed activity will result in the loss of greater than 1/10-acre of wetlands and a PCN is required, the prospective permittee must submit a statement describing how the mitigation requirement will be satisfied, or explaining why the adverse environmental effects are no more than minimal and why compensatory mitigation should not be required. As an alternative, the prospective permittee may submit a conceptual or detailed mitigation plan. (7) For non-Federal permittees, if any listed species or designated critical habitat might be affected or is in the vicinity of the activity, or if the activity is located in designated critical habitat, the PCN must include the name(s) of those endangered or threatened species that might be affected by the proposed activity or utilize the designated critical habitat that might be affected by the proposed activity. For NWP activities that require pre-construction notification, Federal permittees must provide documentation demonstrating compliance with the Endangered Species Act; (8) For non-Federal permittees, if the NWP activity might have the potential to cause effects to a historic property listed on, determined to be eligible for listing on, or potentially eligible for listing on, the National Register of Historic Places, the PCN must state which historic property might have the potential to be affected by the proposed activity or include a vicinity map indicating the location of the historic property. For NWP activities that require pre-construction notification, Federal permittees must provide documentation demonstrating compliance with section 106 of the National Historic Preservation Act; (9) For an activity that will occur in a component of the National Wild and Scenic River System, or in a river officially designated by Congress as a “study river” for possible inclusion in the system while the river is in an official study status, the PCN must identify the Wild and Scenic River or the “study river” (see general condition 16); and (10) For an activity that requires permission from the Corps pursuant to 33 U.S.C. 408 because it will alter or temporarily or permanently occupy or use a U.S. Army Corps of Engineers federally authorized civil works project, the pre-construction notification must include a statement confirming that the project proponent has submitted a written request for section 408 permission from the Corps office having jurisdiction over that USACE project. (c) Form of Pre-Construction Notification: The standard individual permit application form (Form ENG 4345) may be used, but the completed application form must clearly indicate that it is an NWP PCN and must include all of the applicable information required in paragraphs (b)(1) through (10) of this general condition. A letter containing the required information may also be used. Applicants may provide electronic files of PCNs and supporting materials if the district engineer has established tools and procedures for electronic submittals. EXA M P L E (d) Agency Coordination: (1) 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 activity’s adverse environmental effects so that they are no more than minimal. (2) Agency coordination is required for: (i) all NWP activities that require pre-construction notification and result in the loss of greater than 1/2-acre of waters of the United States; (ii) NWP 21, 29, 39, 40, 42, 43, 44, 50, 51, and 52 activities that require pre-construction notification and will result in the loss of greater than 300 linear feet of stream bed; (iii) NWP 13 activities in excess of 500 linear feet, fills greater than one cubic yard per running foot, or involve discharges of dredged or fill material into special aquatic sites; and (iv) NWP 54 activities in excess of 500 linear feet, or that extend into the waterbody more than 30 feet from the mean low water line in tidal waters or the ordinary high water mark in the Great Lakes. (3) When agency coordination is required, the district engineer will immediately provide (e.g., via e-mail, facsimile transmission, overnight mail, or other expeditious manner) a copy of the complete PCN to the appropriate Federal or state offices (FWS, state natural resource or water quality agency, EPA, and, if appropriate, the NMFS). With the exception of NWP 37, these agencies will have 10 calendar days from the date the material is transmitted to notify the district engineer via telephone, facsimile transmission, or e-mail that they intend to provide substantive, site-specific comments. The comments must explain why the agency believes the adverse environmental effects will be more than minimal. If so contacted by an agency, the district engineer will wait an additional 15 calendar days before making a decision on the pre-construction notification. The district engineer will fully consider agency comments received within the specified time frame concerning the proposed activity’s compliance with the terms and conditions of the NWPs, including the need for mitigation to ensure the net adverse environmental effects of the proposed activity are no more than minimal. The district engineer will provide no response to the resource agency, except as provided below. The district engineer will indicate in the administrative record associated with each pre-construction notification that the resource agencies’ concerns were considered. For NWP 37, the emergency watershed protection and rehabilitation activity may proceed immediately in cases where there is an unacceptable hazard to life or a significant loss of property or economic hardship will occur. The district engineer will consider any comments received to decide whether the NWP 37 authorization should be modified, suspended, or revoked in accordance with the procedures at 33 CFR 330.5. (4) In cases of where the prospective permittee is not a Federal agency, the district engineer will provide a response to NMFS within 30 calendar days of receipt of any Essential Fish Habitat conservation recommendations, as required by section 305(b)(4)(B) of the Magnuson-Stevens Fishery Conservation and Management Act. (5) Applicants are encouraged to provide the Corps with either electronic files or multiple copies of pre-construction notifications to expedite agency coordination. 3. Regional Conditions for the Los Angeles District: 1. For all activities in waters of the U.S. that are suitable habitat for federally listed fish species, including designated critical habitat for such species, the permittee shall design all new or substantially reconstructed linear transportation crossings (e.g. roads, highways, railways, trails, EXA M P L E bridges, culverts) to ensure that the passage and/or spawning of fish is not hindered. In these areas, the permittee shall employ bridge designs that span the stream or river, including pier- or pile-supported spans, or designs that use a bottomless arch culvert with a natural stream bed, unless determined to be impracticable by the Corps. 2. Nationwide Permits (NWP) 3, 7, 12-15, 17-19, 21, 23, 25, 29, 35, 36, or 39-46, 48-54 cannot be used to authorize structures, work, and/or the discharge of dredged or fill material that would result in the "loss" of wetlands, mudflats, vegetated shallows or riffle and pool complexes as defined at 40 CFR Part 230.40-45. The definition of "loss" for this regional condition is the same as the definition of "loss of waters of the United States" used for the Nationwide Permit Program. Furthermore, this regional condition applies only within the State of Arizona and within the Mojave and Sonoran (Colorado) desert regions of California. The desert regions in California are limited to four USGS Hydrologic Unit Code (HUC) accounting units (Lower Colorado -150301, Northern Mojave-180902, Southern Mojave-181001, and Salton Sea-181002). 3. When a pre-construction notification (PCN) is required, the Los Angeles District shall be notified in accordance with General Condition 32 using either the South Pacific Division PCN Checklist or a signed application form (ENG Form 4345) with an attachment providing information on compliance with all of the General and Regional Conditions. The PCN Checklist and application form are available at: http://www.spl.usace.army.mil/Missions/Regulatory/PermitProcess.aspx . In addition, unless specifically waived by the Los Angeles District, the PCN shall include: a. A written statement describing how the activity has been designed to avoid and minimize adverse effects, both temporary and permanent, to waters of the United States; b. Drawings, including plan and cross-section views, clearly depicting the location, size and dimensions of the proposed activity as well as the location of delineated waters of the U.S. on the site. The drawings shall contain a title block, legend and scale, amount (in cubic yards) and area (in acres) of fill in Corps jurisdiction, including both permanent and temporary fills/structures. The ordinary high water mark or, if tidal waters, the mean high water mark and high tide line, should be shown (in feet), based on National Geodetic Vertical Datum (NGVD) or other appropriate referenced elevation. All drawings shall follow the Updated Map and Drawing Standards for the South Pacific Division Regulatory Program (Feb 2016), or most recent update (available at the South Pacific Division website at: http://www.spd.usace.army.mil/Missions/Regulatory/PublicNoticesandReferences.aspx/ ); c. Numbered and dated pre-project color photographs showing a representative sample of waters proposed to be impacted on the project site, and all waters proposed to be avoided on and immediately adjacent to the project site. The compass angle and position of each photograph shall be documented on the plan-view drawing required in subpart b of this regional condition. d. Delineation of aquatic resources in accordance with the current Los Angeles District’s Minimum Standards for Acceptance of Aquatic Resources Delineation Reports (available at: http://www.spl.usace.army.mil/Missions/Regulatory/Jurisdictional-Determination/). EXA M P L E 4. Submission of a PCN pursuant to General Condition 32 and Regional Condition 3 shall be required for specific regulated activities in the following locations: a. All perennial waterbodies and special aquatic sites throughout the Los Angeles District as well as intermittent waters within the State of Arizona for any regulated activity that would result in a loss of waters of the United States. The definition of “loss of waters of the United States” for this regional condition is the same as the definition used for the Nationwide Permit Program. b. All areas designated as Essential Fish Habitat (EFH) by the Pacific Fishery Management Council, and that would result in an adverse effect to EFH, in which case the PCN shall include an EFH assessment and extent of proposed impacts to EFH. EFH Assessment Guidance and other supporting information can be found at: http://www.westcoast.fisheries.noaa.gov/habitat/fish_habitat/efh_consultations_go.html. c. All watersheds in the Santa Monica Mountains in Los Angeles and Ventura counties bounded by Calleguas Creek on the west, by Highway 101 on the north and east, and by Sunset Boulevard and Pacific Ocean on the south. d. The Santa Clara River watershed in Los Angeles and Ventura counties, including but not limited to Aliso Canyon, Agua Dulce Canyon, Sand Canyon, Bouquet Canyon, Mint Canyon, South Fork of the Santa Clara River, San Francisquito Canyon, Castaic Creek, Piru Creek, Sespe Creek and the main-stem of the Santa Clara River. e. The Murrieta and Temecula Creek watersheds in Riverside County, California for any regulated activity that would result in a loss of waters of the U.S. The definition of “loss of waters of the United States” for this regional condition is the same as the definition used for the Nationwide Permit Program. f. All waterbodies designated by the Arizona Department of Environmental Quality as Outstanding Arizona Waters (OAWs), within 1600 meters (or 1 mile) upstream and/or 800 meters (1/2 mile) downstream of a designated OAW, and on tributaries to OAWs within 1600 meters of the OAW (see http://www.azdeq.gov/index.html). g. All waterbodies designated by the Arizona Department of Environmental Quality as 303(d)- impaired surface waters, within 1600 meters (or 1 mile) upstream and/or 800 meters (1/2 mile) downstream of a designated impaired surface water, and on tributaries to impaired waters within 1600 meters of the impaired water (see http://www.azdeq.gov/index.html). 5. Individual Permits shall be required for all discharges of fill material in jurisdictional vernal pools, with the exception that discharges for the purpose of restoration, enhancement, management or scientific study of vernal pools may be authorized under NWPs 5, 6, and 27 with the submission of a PCN in accordance with General Condition 32 and Regional Condition 3. EXA M P L E 6. Within the Murrieta Creek and Temecula Creek watersheds in Riverside County the use of NWPs 29, 39, 42 and 43, and NWP 14 combined with any of those NWPs shall be restricted. The loss of waters of the U.S. cannot exceed 0.25 acre. The definition of “loss of waters of the United States” for this regional condition is the same as the definition used for the Nationwide Permit Program. 7. Individual Permits (Standard Individual Permit or 404 Letter of Permission) shall be required in San Luis Obispo Creek and Santa Rosa Creek in San Luis Obispo County for bank stabilization projects, and in Gaviota Creek, Mission Creek and Carpinteria Creek in Santa Barbara County for bank stabilization projects and grade control structures. 8. In conjunction with the Los Angeles District's Special Area Management Plans (SAMPs) for the San Diego Creek Watershed and San Juan Creek/Western San Mateo Creek Watersheds in Orange County, California, the Corps' Division Engineer, through his discretionary authority has revoked the use of the following 26 selected NWPs within these SAMP watersheds: 03, 07, 12, 13, 14, 16, 17, 18, 19, 21, 25, 27, 29, 31, 33, 39, 40, 41, 42, 43, 44, 46, 49, and 50. Consequently, these NWPs are no longer available in those watersheds to authorize impacts to waters of the United States from discharges of dredged or fill material under the Corps' Clean Water Act section 404 authority. 9. Any requests to waive the applicable linear foot limitations for NWPs 13, 21, 29, 39, 40 and 42, 43, 44, 51, 52, and 54, must include the following: a. A narrative description of the affected aquatic resource. This should include known information on: volume and duration of flow; the approximate length, width, and depth of the waterbody and characters observed associated with an Ordinary High Water Mark (e.g. bed and bank, wrack line, or scour marks) or Mean High Water Line; a description of the adjacent vegetation community and a statement regarding the wetland status of the associated vegetation community (i.e. wetland, non-wetland); surrounding land use; water quality; issues related to cumulative impacts in the watershed, and; any other relevant information. b. An analysis of the proposed impacts to the waterbody in accordance with General Condition 32 and Regional Condition 3; c. Measures taken to avoid and minimize losses, including other methods of constructing the proposed project; and d. A compensatory mitigation plan describing how the unavoidable losses are proposed to be compensated, in accordance with 33 CFR Part 332. 10. The permittee shall complete the construction of any compensatory mitigation required by special condition(s) of the NWP verification before or concurrent with commencement of construction of the authorized activity, except when specifically determined to be impracticable by the Corps. When mitigation involves use of a mitigation bank or in-lieu fee program, the permittee shall submit proof of payment to the Corps prior to commencement of construction of the authorized activity. EXA M P L E 4. Further information: 1. Congressional Authorities: You have been authorized to undertake the activity described above pursuant to: ( ) Section 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. 403). (X) Section 404 of the Clean Water Act (33 U.S.C. 1344). 2. Limits of this authorization. (a) This permit does not obviate the need to obtain other Federal, state, or local authorizations required by law. (b) This permit does not grant any property rights or exclusive privileges. (c) This permit does not authorize any injury to the property or rights of others. (d) This permit does not authorize interference with any existing or proposed Federal project. 3. Limits of Federal Liability. In issuing this permit, the Federal Government does not assume any liability for the following: (a) Damages to the permitted project or uses thereof as a result of other permitted or unpermitted activities or from natural causes. (b) Damages to the permitted project or uses thereof as a result of current or future activities undertaken by or on behalf of the United States in the public interest. (c) Damages to persons, property, or to other permitted or unpermitted activities or structures caused by the activity authorized by this permit. (d) Design or construction deficiencies associated with the permitted work. (e) Damage claims associated with any future modification, suspension, or revocation of this permit. 4. Reliance on Applicant's Data: The determination of this office that issuance of this permit is not contrary to the public interest was made in reliance on the information you provided. 5. Reevaluation of Permit Decision. This office may reevaluate its decision on this permit at any time the circumstances warrant. Circumstances that could require a reevaluation include, but are not limited to, the following: (a) You fail to comply with the terms and conditions of this permit. (b) The information provided by you in support of your permit application proves to have been false, incomplete, or inaccurate (See 4 above). (c) Significant new information surfaces which this office did not consider in reaching the original public interest decision. Such a reevaluation may result in a determination that it is appropriate to use the suspension, modification, and revocation procedures contained in 33 CFR 330.5 or enforcement procedures such as those contained in 33 CFR 326.4 and 326.5. The referenced enforcement procedures provide for the issuance of an administrative order requiring you to comply with the terms and conditions of your permit and for the initiation of legal action where appropriate. You will be required to pay for any corrective measure ordered by this office, and if you fail to comply with such directive, this office may in certain situations (such as those specified in 33 CFR 209.170) accomplish the corrective measures by contract or otherwise and bill you for the cost. EXA M P L E 6. This letter of verification is valid for a period not to exceed two years unless the nationwide permit is modified, reissued, revoked, or expires before that time. 7. You must maintain the activity authorized by this permit in good condition and in conformance with the terms and conditions of this permit. You are not relieved of this requirement if you abandon the permitted activity, although you may make a good faith transfer to a third party in compliance with General Condition H below. Should you wish to cease to maintain the authorized activity or should you desire to abandon it without a good faith transfer, you must obtain a modification of this permit from this office, which may require restoration of the area. 8. You must allow representatives from this office to inspect the authorized activity at any time deemed necessary to ensure that it is being or has been accomplished with the terms and conditions of your permit. EXA M P L E