Stratford Manor-CS 970211 NATIONWIDE PERMIT 26
· Headwaters and Isolated Waters Discharges
Effective Date: February Il. 1997
Discharges of dredged or fill material into headwaters and isolated waters provided that the activity meets all of the following
criteria:
a. The discharge does not cause the loss of more than 3 acres of waters of the United States nor cause the loss of waters of
the United States for a distance greater than 500 linear feet of the stream bed;
b. For discharges causing the loss of greater than 1/3 acre of waters of the United States, the permittee notifies the District
Engineer in accordance with the "Notification" general condition;
c. For discharges causing a loss of I/3 acre or less of waters of the United States the permittee must submit a report within
30 days of completion of the work, containing the information listed below;
d. For discharges in special aquatic sites, including wetlands, the notification must also include a delineation of affected
special aquatic sites, including wetlands (Also see 33 CFR 330. l(e)); and .
e. The discharge, including all attendant features, both temporary and permanent, is part of a single and complete project.
Note, this NWP will expire on December 13, 1998.
For the purposes of this NWP. the acreage of loss of waters of the United States includes the filled area plus waters of the United
States that are adversely affected by flooding, excavation or drainage as a result of the project. The 3 acre and 1/3 acre limits of
NWP 26 are absolute, and cannot be increased by any mitigation plan offered by the applicant or required by the District Engineer.
Whenever any other NWP is used in conjunction with this NWP, the total acreage of impacts to waters of the United States of all
NWPs combined, can not exceed 3 acres.
Subdivisions: For any real estate subdivision created or subdivided after October 5, 1984, a notification pursuant to subsection (b)
of this NWP is required for any discharge which would cause the aggregate total loss of waters of the United States for the entire
subdivision to exceed I/3 acre. Any discharge in any real estate subdivision which would cause the aggregate total loss of waters of
the United States in the subdivision to exceed 3 acres is not authorized by this NWP; unless the District Engineer exempts a
particular subdivision or parcel by making a written determination that: (I) the individual and cumulative adverse environmental
effects would be minimal and the property owner had. after October 5, 1984, but prior to February 1 i, 1997, committed substantial
resources in reliance on NWP 26 with regard to a subdivision, in circumstances where it would be inequitable to frustrate the
property owner s investment-backed expectations, or (2) that the individual and cumulative adverse environmental effects would be
minimal, high quality wetlands would not be adversely affected, and there would be an overall benefit to the aquatic environment.
Once the exemption is established for a subdivision, subsequent lot development by individual property owners may proceed using
NWP 26. For purposes of NWP 26, the term "real estate subdivision" shall be interpreted to include circumstances where a
landowner or developer divides a tract of land into smaller parcels for the purpose of selling, conveying, transferring, leasing, or
developing said parcels. This would include the entire area of a residential, commercial or other real estate subdivision, including
all parcels and parts thereofi
Report: For discharges causing the loss of 1/3 acre or less of waters of the United States the permittee must submit a report within
30 days of completion of the work, containing the following information:
a. Name, address, and telephone number of the permittee:
b. Location of the work;
c. Description of the work; and.
d. Type and acreage (or square feet) of the loss of waters of the United States (e.g., 1/10 acre of marsh and 50 Square feet
of a stream.) (Section 404)
NATIONWIDE PERMIT CONDITIONS
GENERAL CONDITIONS: The following general conditions must be followed in order for any authorization by a N\\-'P to be
valid:
I. Navigation: No activity may cause more than a minimal adverse effect on navigation.
2. Proper M'aintenance: Any structure or fill authorized shall be properly maintained, including maintenance to ensure public
safety.
3. Erosion and Siltation Controls: Appropriate erosion and siltation 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.
4. Aquatic I'_ife M'ovements: No activity may substantially disrupt the movement of those species of aquatic life indigenous to
the waterbody, including those species which normally migrate through the area, unless the activity s primary purpose is to
impound water.
5. Equipment: Heavy equipment working in wetlands must be placed on mats, or other measures must be taken to minimize
soil disturbance.
6. Regional and Case-by-Case Conditions: The activity must comply with any regional conditions which may have been added
by the Division Engineer (see 33 CFR 330.4(e)) and with any case specific conditions added by the Corps or by the state or tribe in
its section 401 water quality certification.
7. Wild and Scenic Rivers: No activity may occur in a component of the National Wild and Scenic River System; or in a river
officially designated by Congress as a "study 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 effect the Wild and Scenic River designation, or study status. Information on Wild and Scenic
Rivers may be obtained from the appropriate Federal land management agency in the area (e.g., National Park Service, U.S. Forest
Service, Bureau of Land Management, U.S. Fish and Wildlife Service.)
8. Tribal Rights: No activity or its operation may impair t'eserved tribal rights, including, but not limited to, reset'ed water
rights and treaty fishing and hunting rights.
9. Water Oualitv Certification: In certain states, an individual Section 401 water quality certification must be obtained or
waived (see 33 CFR 330.4(c)).
10. Coastal Zone Management: In certain states, an individual state coastal zone management consistency concurrence must be
obtained or waived (see Section 330.4(d)).
I 1. Endangered Species:
A. No activity is authorized under any NWP which is likely to jeopardize the continued existence of a threatened or
endangered species or a species proposed for such designation, as identified under the Federal Endangered Species Act, or which is
likely to destroy or adversely modify the critical habitat of such species. Non-federal permittees shall noti~' the District Engineer if
any listed species or critical habitat might be affected or is in the vicinity of the project, and shall not begin work on the activity
until notified by the District Engineer that the requirements of the Endangered Species Act have been satisfied and'that the activity
is authorized.
B. Authorization of an activity by a nationwide permit does not authorize the take of a threatened or endangered species as
defined under the Federal Endangered Species Act. In the absence of separate authorization (e.g., an ESA Section 10 Permit, a
Biological Opinion with incidental take provisions, etc.) from the U.S. Fish and Wildlife Service or the National Marine Fisheries
Service, both lethal and non-lethal takes of protected species are in violation of the Endangered Species Act. Information on the
location of threatened and endangered species and their critical habitat can be obtained directly from the offices of the U.S. Fish
and Wildlife Service and National Marine Fisheries Service or their world wide web pages at
http://www.fws.gov/-rgendspp/endspp.html and http://kingfish.spp.mnfs.gov/tmcintyr/prot_res.html#ES and RecoveD,.
respectively.
12. Historic Properties: No activity which may affect historic properties listed, or eligible for listing, in the National Register of
Historic Places is authorized, until the DE has complied with the provisions of 33 CFR Part 325, Appendix C. The prospective
permittee must noti~' the District Engineer if the authorized activity ma)' affect any historic properties listed, determined to be
eligible, or which the prospective permittee has reason to believe ma.,,' be eligible for listing on the National Register of Historic
· Places. and shall not begin the activity until notified by the District Engineer that the requirements of the National Historic
Preservation Act have been satisfied and that the activity is authorized. Information on the location and existence of historic
resources can be obtained from the State Historic Preservation Office and t~.e National Register of Historic Places {see 53 CFR
330.4ig)).
13. Notification:
A. Timing: Where required by the terms of the NWP, the prospective permittee must notiO' the District Engineer w'ith a
Pre-Construction Notification (PCN) as early as possible and shall not begin the activity:
1. Until notified by the District Engineer that the activity may proceed under the NWP with an.,,.' special conditions
imposed by the District or Division Engineer: or
2. If notified by the District or Division Engineer that an individual permit is required: or
3. Unless 30 days (or 45 days for NWP 26 only) have passed from the District Engineer's receipt of the notification
and the prospective perminee has not received notice from the District or Division Engineer. Subsequently, the permittee's right to
proceed under the NWP may be modified, suspended, or revoked only in accordance with the procedure set forth in 33 CFR
330.5(d)(2).
B. Contents of Notification: The notification must be in writing and include the following information:
I. Name. address and telephone numbers of the prospective permittee;
2. Location of the proposed project;
3. Brief description of the proposed project; the project's purpose; direct and indirect adverse environmental effects
the project would cause: any other NWP(s). regional general permit(s) or individual permit(s) used or intended to be used to
authorize any part of the proposed project or any related activity; and
4. For NWPs 14, 18, 21,26, 29, 34, and 38, the PCN must also include a delineation of affected special aquatic
sites, including wetlands (see paragraph 13(f));
5. For NWP 21 - Surface Coal Mining Activities, the PCN must include an OSM or state approved mitigation plan.
6. For NWP 29-Single-Family Housing. the PCN must also include:
i. Any past use of this NWP by the individual permittee and/or the perminee's spouse;
ii. A statement that the single-family housing activity is for a personal residence of the permittee:
iii. A description of the entire parcel, including its size. and a delineation of wetlands. For the purpose of this
NWP. parcels of land measuring 0.5 acre or less will not require a formal on-site delineation. However, the applicant shall provide
an indication of where the wetlands are and the amount of wetlands that exists on the property. For parcels greater than 0.5 acre in
size, a formal wetland delineation must be prepared in accordance with the current method required by the Corps. (See paragraph
13fl)):
iv. A written description of all land (including, if available, legal descriptions) owned by the prospective
permittee and/or the prospective permittee s spouse, within a one mile radius of the parcel, in any form of ownership (including any
land owned as a partner, corporation, joint tenant, co-tenant, or as a tenant-by-the- entirety) and any land on which a purchase and
sale agreement or other contract for sale or purchase has been executed;
7. For NWP 31 - Maintenance of Existing Flood Control Projects, the prospective permittee must either noti~' the
District Engineer with a Pre-Construction Notification (PCN) prior to each maintenance activity or submit a five year (or less)
maintenance plan. In addition, the PCN must include all of the following:
i. Sufficient baseline information so as to identify the approved channel depths and configurations and existing
facilities. Minor deviations are authorized, provided that the approved flood control protection or drainage is not increased:
ii. A delineation of any affected special aquatic sites, including wetlands: and,
iii. Location of the dredged material disposal site.
8. For NWP 33 - Temporary Constr'action. Access, and Dewatering, the PCN must also include a restoration plan
of reasonable measures to avoid and minimize adverse effects to aquatic resources.
C. Form of Notification: The standard individual permit application form (Form ENG 434.5) may be used as the
notification but must clearly indicate that it is a PCN and must include all of the information required in (b) (1)-(7) of General
Condition 13. A letter may also be used.
D. District Engineer's Decision: in reviewing the pre-construction notification for the proposed activity, the District
Engineer will determine whether the activity authorized by the NWP will result in more than minimal individual or cumulative.
adverse environmental effects or may be contrary to the public interest. The prospective permittee may, optionally, submit a
proposed mitigation plan with the pre-construction notification to expedite the process and the District Engineer will consider any
optional mitigation the applicant has included in the proposal in determining whether the net adverse environmental effects of the
proposed work are minimal. If the District Engineer determines that the activity complies with the terms and conditions of the
NWP and that the adverse effects are minimal, the District Engineer will notify the permittee and include any conditions the DE
deems necessa~'.
Any mitigation proposal must be approved by the District Engineer prior to commencing work. If the prospective permittee elects
to submit a mitigation plan. the District Engineer will expeditiously review the proposed mitigation plan, but will not commence a
second 30-day (or 45-day for NWP 26) notification procedure. If the net adverse effects of the project (with the mitigation
proposal) are determined by the District Engineer to be minimal, the District Engineer will provide a timely written response to the
applicant stating that the project can proceed under the terms and conditions of the nationwide permit.
If the District Engineer determines that the adverse effects of the proposed work are more than minimal, then he will noti~' the
applicant either: (1) that the project does not qualif.v for authorization under the NWP and instruct the applicant on the procedures
to seek authorization under an individual permit: (2) that the project is authorized under the NWP subject to the applicant's
submitting a mitigation proposal that would reduce the adverse effects to the minimal level; or (3) that the project is authorized
under the NWP with specific modifications or conditions.
E. Aeencv Coordination: The District Engineer will consider any comments from Federal and State agencies concerning
the proposed activity's compliance with the terms and conditions of the NWPs and the need for mitigation to reduce the project's
adverse environmental effects to a minimal level.
l. For NWP 14, 21,26 (between I and 3 acres of impact), 29, 33, 37, and 38. The District Engineer will, upon
receipt of a notification, provide immediately, e.g.. facsimile transmission, overnight mail or other expeditious manner, a copy to
the appropriate offices of the Fish and Wildlife Setw'ice, State natural resource or water quality agency. EPA, State Historic
Preservation Officer (SHPO), and, if appropriate, the National Marine Fisheries Service. With the exception of NWP 37. these
agencies will then have 5 calendar days from the date the material is transmitted to telephone or fax the District Engineer notice
that they intend to provide substantive, site-specific comments. If so contacted by an agency, the District Engineer will wait an
additional I0 calendar days (16 calendar days for NWP 26 PCNs) before making a decision on the notification. The District
Engineer will fully consider agency comments received within the specified time frame, but will provide no response to the
resource agency. The District Engineer will indicate in the administrative record associated with each notification that the resource
agencies' concerns were considered. Applicants are encouraged to provide the Corps multiple copies of notifications to expedite
agency notification.
2. Optional Agency Coordination. For NWPs 5, 7, 12, 13. 17, 18.27, 3 I, and 34, where a Regional Administrator
of EPA. a Regional Director of USFWS, or a Regional Director of NMFS has formally requested general notification from the
District Engineer for the activities covered by any of these NWPs, the Corps will provide the requesting agency with notification
on the particular NWPs. However, where the agencies have a record of not generally submitting substantive comments on activities
covered by any of these NWPs, the Corps district may discontinue providing notification to those regional agency offices. The
District Engineer will coordinate with the resources agencies to identify which activities involving a PCN that the agencies will
provide substantive comments to the Corps. The District Engineer may also request comments from the agencies on a case by case
basis when the District Engineer determines that such comments would assist the Corps in reaching a decision whether effects are
more than minimal either indi¥idually or cumulatively.
3. Optional Agency Coordination, 401 Denial. For NWP 26 only, where the state has denied its 401 water quality
certification for activities with less than 1 acre of wetland impact, the EPA regional administrator may request agency coordination
of PCNs between 1/3 and I acre. The request may only include acreage limitations within the 1/3 to I acre range for which the state
has denied water quality certification. In cases where the EPA has requested coordination of projects as described here. the Corps
will forward the PCN to EPA only. The PCN will then be for~:arded to the Fish and Wildlife Service and the National Marine
Fisheries Service by EPA under agreements among those agencies. Any agency receiving the PCN will be bound by the EPA
· timeframes for providing comments to the Corps.
F. Wetlands Delineations: Wetland delineations must be prepared in accordance with the current method required by the
Corps. For NWP 29 see paragraph (b)(6)i i) for parcels less than 0.5 acres in size. The permittee may ask the Corps to delineate
the special aquatic site. There may be some delay if the Corps does the delineation. Furthermore. the 30-day period (45 days for
NWP 26) will not start until the wetland delineation has been completed and submitted to the Corps, where appropriate.
G. Mitigation: Factors that the District Engineer will consider when determining the acceptability of appropriate and
practicable mitigation include, but are not limited to:
I. To be practicable, the mitigation must be available and capable of being done considering costs, existing
technology, and logistics in light of the overall project purposes;
2. To the extent appropriate, permittees should consider mitigation banking and other forms of mitigation includinu
contributions to wetland trust funds, in lieu fees to organizations such as The Nature Conservancy. state or county natural resource
management agencies, where such fees contribute to the restoration, creation, replacement, enhancement, or preservation of
wetlands. Furthermore, examples of mitigation that may be appropriate and practicable include but are not limited to: reducing the
size of the project: establishing wetland or upland buffer zones to protect aquatic resource values: and replacing the loss of aquatic
resource values by creating, restoring, and enhancing similar functions and values. In addition, mitigation must address wetland
impacts, such as functions and values, and cannot be simply used to offset the acreage of wetland losses that would occur in order
to meet the acreage limits of some of the NWPs (e.g., for NWP 26, 5 acres of wetlands cannot be created to change a 6-acre loss of
wetlands to a I acre loss; however. 2 created acres can be used to reduce the impacts of a 3-acre loss.).
14. Compliance Certification: Every. perminee who has received a Nationwide permit verification from the Corps will submit a
signed certification regarding the completed work and any required mitigation. The certification will be forwarded to the Corps
with the authorization letter and will include: a.) A statement that the authorized work was done in accordance with the Corps
authorization, including any general or specific conditions; b.) A statement that any required mitigation was completed in
accordance with the permit conditions: c.) The signature of the permittee certifying the completion of the work and mitigation.
15. Multiple Use of Nationwide Permits: In any case where any NWP number 12 through 40 is combined with any other NWP
number 12 through 40. as part of a single and complete project, the permittee must notify the District Engineer in accordance with
paragraphs a. b, and c on the Notification General Condition number 13. Any NWP number I through I 1 may be combined with
any other NWP without notification to the Corps, unless notification is otherwise required by the terms of the NWPs. As provided
at 33 CFR 330.6(c) two or more different NWPs can be combined to authorize a single and complete project. However, the same
NWP cannot be used more than once for a single and complete project.
SECTION 404 ONLY CONDITIONS: In addition to the General Conditions, the following conditions apply only to activities that
involve the discharge of dredged or ill! material into waters of the U.S., and must be followed in order for authorization by the
NWPs to be valid:
1. Water Sut~ply Intakes: No discharge of dredged or fill material may occur in the proximity of a public water supply intake
except where the discharge is for repair of the public water supply intake structures or adjacent bank stabilization.
2. Shellfish Production: No discharge of dredged or fill material may occur in areas of concentrated shellfish production, unless
the discharge is directly related to a shellfish harvesting activity authorized by NWP 4.
3. Suitable Material: No discharge of dredged or fill material may consist of unsuitable material (e.g., trash, debris, car bodies.
asphalt, etc.) and material discharged must be free from toxic pollutants in toxic amounts (see Section 307 of the Clean Water Act).
4. Mitigation: Discharges of dredged or fill material into waters of the United States must be minimized or avoided to the
maximum extent practicable at the project site (i.e.. on-site), unless the District Engineer approves a compensation plan that the
District Engineer determines is more beneficial to the environment than on-site minimization or avoidance measures.
5. Spawnin~ Areas: Discharges in spawning areas during spawning seasons must be avoided to the maximum extent
practicable.
6. Ohstmction of High Flows: To the maximum extent practicable, discharges must not permanently restrict or impede the
passage of normal or expected high flows or cause the relocation of the water (unless the primary purpose of the fill is to impound
waters).
· 7. Adverse Effects From Impoundments: If the discharge creates an impoundment of water, adverse effects on the aquatic '
system caused by the accelerated passage of water and/or the restriction of its flow shall be minimized to the maximum extent
practicable.
8. Waterfowl Breeding Areas: Discharges into breeding areas for migrator)' waterfowl must be avoided to the maximum extent
practicable.
9. Removal of Temoorarv Fills: Any temporary fills must be removed in their entirety and the affected areas returned to their
preexisting elevation.
NATIONWIDE PERMITS
The following is a list of the nationwide permits that became effective on Februa~' 11, 1997:
1. Aids to Navigation
2. Structures in Artificial Canals
3. Maintenance
4. Fish and Wildlife Harvesting, Enhancement, and Attraction Devices and Activities
5. Scientific Measurement Devices
6. Survey Activities
7. Outfall Structures
8. Oil and Gas Structures
9. Structures in Fleeting and Anchorage Areas
10. Mooting Buoys
11. Temporary Recreational Structures
12. Utility Line Discharges
13. Bank Stabilization
14. 'Road Crossings
15. U.S. Coast Guard Approved Bridges
16. Return Water from Upland Contained Disposal Areas
17. Hydropower Projects
18. Minor Discharges
19. Minor Dredging
20. Oil Spill Cleanup
21. Surface Coal Mining Activities
22. Removal of Vessels
23. Approved Categorical Exclusions
24. State Administered Section 404 Programs
25. Structural Discharges
26. Headwaters and Isolated Waters Discharges
27. Wetland and Riparian Restoration and Creation Activities
28. Modifications of Existing Marinas
29. Single-Family Housing
30. Moist Soil Management for Wildlife
31. Maintenance of Existing Flood Control Projects
32. Completed Enforcement Actions
33. Temporats' Construction, Access and Dewatering
34. Cranberry Production Activities
35. Maintenance Dredging of Existing Basins
36. Boat Ramps
37. Emergency Watershed Protection and Rehabilitation
38. Cleanup of Hazardous and Toxic Waste
39. Reserved
40. Farm Buildings