HomeMy WebLinkAboutH_Wetland Determination USACE 9-6-16 f
DEPARTMENT OF THE ARMY
CORPS OF ENGINEERS,OMAHA DISTRICT
MISSOULA REGULATORY OFFICE
1600 NORTH AVENUE WEST,SUITE 105
MISSOULA,MONTANA 59801-5500
REPLY TO
ATTENTION OF
September 6, 2016
Regulatory Branch
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Montana State Program
Corps No. NWO-2013-021 1 0-MTB
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Subject: Bridge Peaks Village —Walton's Stream/Ditch — Commercial/Residential
Development
Jim McLeod
Farran Realty Partners, LLC
101 East Front, Suite 304
Missoula, Montana 59802
Dear Mr. McLeod:
This is in reference to the Montana joint application submitted on behalf of your
organization by Mr. Erik S. Nyquist of Power Engineers, Inc. to our Montana Regulatory
Office which was received in our office on August 9, 2016. Mr. Nyquist's letter and
application described the Bridger Peaks Village proposed Commercial/Residential
development project in Bozeman, Montana.
The application was reviewed for Department of the Army (DA) authorization to
impact wetlands abutting and adjacent to Walton Stream/Ditch. The proposed work is
located in Section 1, Township 2 South, Range 5 East, Gallatin County, Montana.
Specifically, authorization was requested to fill 0.25 acres of wetlands out of the
0.70 acres of wetlands and waterways delineated on the 11.85 acre project site. An
effort was made to avoid and maintain waterways and wetlands on site but it was
determined that the some fill was necessary to undertake the planned residential
(apartment complex) and associated infrastructure (parking areas, access roads,
utilities, etc.) development.
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Under the authority of Section 404 of the Clean Water Act (CWA), DA permits j
are required for the discharge of fill material into waters of the U.S. Waters of the U.S.
include the area below the ordinary high water mark of stream channels and lakes or i
ponds connected to the tributary system, and wetlands adjacent to these waters.
Isolated waters and wetlands, as well as man-made channels, may be waters of the
U.S. in certain circumstances, which must be determined on a case-by-case basis. It
appears that your proposed activities will impact approximately 0.25 acres of waters of
the U.S.
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An approved jurisdictional determination (JD) has been completed for your
project. The JD will be made available to you upon request, or it may be viewed at our
website at:
http://www.nwo.usace.armv.mil/Missions/Regulatory-Program/Montana/Jurisdictional-
Determination/
The JD will be available on the website within 30 days. If you are not in
agreement with the JD, you may request an administrative appeal under Corps of
Engineers regulations found at 33 C.F.R. 331. The Request for Appeal must be
received within 60 days from the date of this correspondence. If you would like more
information on the jurisdictional appeal process, contact this office. It is not necessary
to submit a Request for Appeal if you do not object to the JD.
Based on the information provided we have determined that the proposed work is
authorized by DA Nationwide Permit (NWP) 29, found in the February 21, 2012 Federal
Register (76 FR 9174), Reissuance of Nationwide Permits. Enclosed is a fact sheet that
fully describes this NWP and lists the General and Regional Conditions that must be
adhered to for this authorization to remain valid. Please note that deviations from the
original plans and specifications of your project could require additional authorization from
this office.
In addition to the conditions referenced above, the following Special Conditions
apply to the authorized project:
Special Description
Condition
Farran Realty Partners, LLC, is required to purchase 0.25 acres of
1 mitigation credits from the Upper Missouri Mitigation Bank in order to
mitigate for the 0.25 acres of wetland impacts resulting from the Bridger
Peaks Valley development project described above.
Documentation that the required mitigation bank credits have been
2 purchased must be provided to the Montana Regulatory Office before
the wetland impacts authorized by this Nationwide Permit verification
letter occur.
Although an Individual DA permit involving a public interest review will not be
required for the project, this does not eliminate the requirement that you obtain any
other applicable Federal, state, tribal, and local permits as required. The Montana
Department of Environmental Quality provided the enclosed CWA Section 401water
quality certification for this NWP (see General Condition 21 on the enclosed fact sheet)
which includes General Conditions, all of which must be complied with for that
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certification to remain valid. This does not eliminate the need to obtain other permits
that may be required by that agency.
This verification is valid until the NWP is modified, reissued, or revoked. All of
the existing NWPs are scheduled to be modified, reissued, or revoked prior to March
18, 2017. It is incumbent upon you to remain informed of changes to the NWPs. We
will issue a public notice when the NWPs are reissued. If you commence or are under
contract to commence this activity before the date that the relevant NWP is modified or
revoked, you will have twelve (12) months from the date of the modification or
revocation of the NWP to complete the activity under the present terms and conditions
of this NWP.
In compliance with General Condition 30, the enclosed Compliance
Certification form must be signed and returned to the address listed upon
completion of the authorized work and any required mitigation.
A copy of this letter will be provided to your agent Mr. Erik Nyquist, POWER
Engineers, Inc., 122 Dogwood Drive, Bozeman, Montana 59718. Please contact
Matthew Bilodeau at (307) 251-9860, if you have any questions and reference Corps
File Number NWO-2013-021 1 0-MTB.
Sincerely,
C0LE.R0BERT.H.`oN 1gU1j,,n.a�aEwoaE�,H,z�,3 ,0
- - n4 a=000,a�rsy
1266139710 _SSA.
u�i¢:ieawue i3:oxzi ouno
Robert Cole
Montana Program Manager
Enclosures:
Compliance Certification Form
NWP 29 Fact Sheet with Regional Conditions
MT DEQ 401 WQC
Copies furnished:
Erik S. Nyquist
Power Engineers, Inc.
122 Dogwood Drive
Bozeman, MT 59718
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Phillip Saccoccia, Managing Member
Saccoccia Lands LLC
1234 Springhill Road
Belgrade, MT 59714
MT DEQ 401 WQC i
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COMPLIANCE CERTIFICATION
Corps File Number: NWO-2013-021 1 0-MTB
Name of Permittee: Farran Realty Partners, LLC --Attn: Jim McLeod
County: Gallatin
Date of Issuance: September 6, 2016
Corps Project Manager: Matthew Bilodeau
Upon completion of the activity authorized by this permit and any mitigation required by the
permit, sign this certification and return it to the following address:
US Army Corps of Engineers I
Helena Regulatory Office
10 West 15th Street, Suite 2200
Helena, Montana 59626-9705
Please note that your permitted activity is subject to a compliance inspection by a U.S.
Army Corps of Engineers representative. If you fail to comply with the conditions of this
permit, you are subject to permit suspension, modification, or revocation.
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I hereby certify that the work authorized by the above referenced permit has been
completed in accordance with the terms and conditions of the said permit, and required
mitigation was completed in accordance with the permit conditions.
Signature of Permittee
Date
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APPROVED JURISDICTIONAL DETERMINATION FORM
U.S.Army Corps of Engineers
This form should be completed by following the instructions provided in Section IV of the JD Form Instructional Guidebook.
SECTION 1: BACKGROUND INFORMATION
A. REPORT COMPLETION DATE FOR APPROVED JURISDICTIONAL DETERMINATION(JD): 26 August 2016
B. DISTRICT OFFICE,FILE NAME,AND NUMBER:Omaha District,Montana Regulatory Office,Bridger Peaks Village,File#
N WO-2013-02110-MTB
C. PROJECT LOCATION AND BACKGROUND INFORMATION:
Name of water body evaluated on this form: Walton Stream/Ditch and adjacent wetlands.Two wetland polygons adjacent to Walton
Stream/Ditch identified Wetland Areas W-1 and W-2 as described in the wetland delineation report submitted by applicant titled
"Bridger Peaks Village Lot-5 Wetland and Waterway Delineation Report",prepared by Mr.Erik Nyquist,PWS,Power Engineers,Inc.,
dated July 12,2016.
State: Montana County/parish/borough: Gallatin City:Bozeman
Center coordinates of site(lat/long in degree decimal format): Lat.45.6957008797718°N,Long.-111.058025532847°W.
Universal Transverse Mercator:Zone 12
Name of nearest water body:Walton Stream/Ditch
Name of nearest Traditional Navigable Water(TNW)into which the aquatic resource flows:Gallatin River
Name of watershed or Hydrologic Unit Code(HUC):Lower East Gallatin River 1002000813
® Check if map/diagram of review area and/or potential jurisdictional areas is/are available upon request.
Check if other sites(e.g.,offsite mitigation sites,disposal sites,etc.)are associated with this action and are recorded on a different
JD form.
D. REVIEW PERFORMED FOR SITE EVALUATION(CHECK ALL THAT APPLY):
® Office(Desk)Determination. Date: 26 August 2016
❑ Field Determination. Date(s):
SECTION II: SUMMARY OF FINDINGS
A. RHA SECTION 10 DETERMINATION OF JURISDICTION.
There Are no "navigable waters of the U.S."within Rivers and Harbors Act(RHA)jurisdiction(as defined by 33 CFR part 329)in the
review area. [Required]
❑ Waters subject to the ebb and flow of the tide.
❑ Waters are presently used,or have been used in the past,or may be susceptible for use to transport interstate or foreign commerce.
Explain:
B. CWA SECTION 404 DETERMINATION OF JURISDICTION.
There Are"waters of the U.S."within Clean Water Act(CWA)jurisdiction(as defined by 33 CFR part 328)in the review area. [Required]
1. Waters of the U.S.
a. Indicate presence of waters of U.S.in review area(check all that apply): '
❑ TNWs,including territorial seas
❑ Wetlands adjacent to TNWs
El Relatively permanent waters2(RPWs)that flow directly or indirectly into TNWs
❑ Non-RPWs that flow directly or indirectly into TNWs
Wetlands directly abutting RPWs that flow directly or indirectly into TNWs
Wetlands adjacent to but not directly abutting RPWs that flow directly or indirectly into TNWs
Wetlands adjacent to non-RPWs that flow directly or indirectly into TNWs
Impoundments of jurisdictional waters
❑ Isolated(interstate or intrastate)waters,including isolated wetlands
b. Identify(estimate)size of waters of the U.S.in the review area:
Non-wetland waters: linear feet: width(ft)and/or acres.
Wetlands:0.72 acres.
c.Limits(boundaries)of jurisdiction based on:Established by OHWM.
Elevation of established OHWM(if known):
2. Non-regulated waters/wetlands(check if applicable):'
[] Potentially jurisdictional waters and/or wetlands were assessed within the review area and determined to be not jurisdictional.
Explain:
Boxes checked below shall be supported by completing the appropriate sections in Section III below.
Z For purposes of this form,an RPW is defined as a tributary that is not a TN W and that typically flows year-round or has continuous flow at least"seasonally"
(e.g.,typically 3 months).
3 Supporting documentation is presented in Section III.F.
SECTION III: CWA ANALYSIS
A. TNWs AND WETLANDS ADJACENT TO TNWs
The agencies will assert jurisdiction over TNWs and wetlands adjacent to TNWs. If the aquatic resource is a TNW,complete
Section III.A.1 and Section III.D.I.only;if the aquatic resource is a wetland adjacent to a TNW,complete Sections III.A.1 and 2
and Section III.D.1.otherwise,see Section III.B below.
1. TNW
Identify TNW:
Summarize rationale supporting determination:
2. Wetland adjacent to TNW
Summarize rationale supporting conclusion that wetland is"adjacent":
B. CHARACTERISTICS OF TRIBUTARY(THAT IS NOT A TNW)AND ITS ADJACENT WETLANDS(IF ANY):
This section summarizes information regarding characteristics of the tributary and its adjacent wetlands,if any,and it helps
determine whether or not the standards for jurisdiction established under Rapanos have been met.
The agencies will assert jurisdiction over non-navigable tributaries of TNWs where the tributaries are"relatively permanent
waters"(RPWs),i.e.tributaries that typically flow year-round or have continuous flow at least seasonally(e.g.,typically 3
months).A wetland that directly abuts an RPW is also jurisdictional.If the aquatic resource is not a TNW,but has year-round
(perennial)flow,skip to Section III.D.2.If the aquatic resource is a wetland directly abutting a tributary with perennial flow,
skip to Section III.D.4.
A wetland that is adjacent to but that does not directly abut an RPW requires a significant nexus evaluation.Corps districts and
EPA regions will include in the record any available information that documents the existence of a significant nexus between a
relatively permanent tributary that is not perennial(and its adjacent wetlands if any)and a traditional navigable water,even
though a significant nexus finding is not required as a matter of law.
If the water body4 is not an RPW,or a wetland directly abutting an RPW,a JD will require additional data to determine if the
water body has a significant nexus with a TNW.If the tributary has adjacent wetlands,the significant nexus evaluation must
consider the tributary in combination with all of its adjacent wetlands.This significant nexus evaluation that combines,for
analytical purposes,the tributary and all of its adjacent wetlands is used whether the review area identified in the JD request is
the tributary,or its adjacent wetlands,or both.If the JD covers a tributary with adjacent wetlands,complete Section III.B.1 for
the tributary,Section III.B.2 for any onsite wetlands,and Section III.B.3 for all wetlands adjacent to that tributary,both onsite
and offsite.The determination whether a significant nexus exists is determined in Section III.0 below.
1. Characteristics of non-TNWs that flow directly or indirectly into TNW
(i) General Area Conditions:East Gallatin River Watershed
Watershed size: 148 square miles
Drainage area:
Average annual rainfall: 16 inches
Average annual snowfall:50 inches
(ii) Physical Characteristics:
(a) Relationship with TNW:
❑Tributary flows directly into TNW.
®Tributary flows through the East Gallatin River before entering the TNW,i.e.,the Gallatin River.
Project waters are 30(or more)river miles from TNW.
Project waters are 1(or less)river miles from RPW.
Project waters are 30(or more)aerial(straight)miles from TNW.
Project waters are 1(or less)aerial(straight)miles from RPW.
Project waters cross or serve as state boundaries.Explain:
Identify flow route to TNW 5:Walton Stream/Ditch flows into the East Gallatin River,tributary to the Gallatin River,the
TNW.
Tributary stream order,if known:
(b) General Tributary Characteristics(check all that apply):
Tributary is: ❑Natural
❑Artificial(man-made). Explain:
4 Note that the Instructional Guidebook contains additional information regarding swales,ditches,washes,and erosion features generally and in the and West.
5 Flow route can be described by identifying,e.g.,tributary a,which flows through the review area,to flow into tributary b,which then flows into TNW.
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®Manipulated (man-altered). Explain:Walton Stream/Ditch is a natural waterway that has been
altered to also serve as a local ditch and storm drain for a commercial and residential area in
Bozeman,MT.
Tributary properties with respect to top of bank(estimate):
Average width:2.5 feet
Average depth:.5 feet
Average side slopes:Vertical(1:1 or less).
Primary tributary substrate composition(check all that apply):
® Silts ❑ Sands ❑Concrete
❑Cobbles ❑ Gravel ❑ Muck
❑Bedrock ❑ Vegetation. Type/%cover:
❑ Other.Explain:
Tributary condition/stability[e.g.,highly eroding,sloughing banks]. Explain:Stable.Low flow most of the time.
Presence of run/riffle/pool complexes. Explain:Very low gradient urban waterway.
Tributary geometry 1vltanct044g
Tributary gradient(approximate average slope): %
(c) Flow:
Tributary provides for:Relatively permanent flow
Estimate average number of flow events in review area/year:2-5
Describe flow regime:Flows year around with greater flows during seasonal runoff and local precipitation events.
Other information on duration and volume:
Surface flow is:Discrete and confined. Characteristics:
Subsurface flow:Pick List. Explain findings
❑Dye(or other)test performed:
Tributary has(check all that apply):
®Bed and banks
®OHWM6(check all indicators that apply):
® clear,natural line impressed on the bank ❑ the presence of litter and debris
❑ changes in the character of soil ❑ destruction of terrestrial vegetation
❑ shelving ❑ the presence of wrack line
® vegetation matted down,bent,or absent ® sediment sorting
❑ leaf litter disturbed or washed away ® scour
® sediment deposition ❑ multiple observed or predicted flow events
❑ water staining ❑ abrupt change in plant community
❑ other(list):
❑Discontinuous OHWM.7 Explain:
If factors other than the OHWM were used to determine lateral extent of CWA jurisdiction(check all that apply):
High Tide Line indicated by: ❑ Mean High Water Mark indicated by:
❑ oil or scum line along shore objects ❑survey to available datum;
❑ fine shell or debris deposits(foreshore) ❑physical markings;
❑ physical markings/characteristics ❑vegetation lines/changes in vegetation types.
❑ tidal gauges
❑ other(list):
(iii) Chemical Characteristics:
Characterize tributary(e.g.,water color is clear,discolored,oily film;water quality;general watershed characteristics,etc.).
Explain:Water is clear in actual creek.Storm drainageway feature is largely wetland vegeation with little open water.
Identify specific pollutants,if known:Ecoli from runoff in Bozeman.
(iv) Biological Characteristics. Channel supports(check all that apply):
® Riparian corridor. Characteristics(type,average width):
® Wetland fringe. Characteristics:
® Habitat for:
❑ Federally Listed species. Explain findings:
® Fish/spawn areas.Explain findings:A few small rainbow trout as well as local minnow and other non-game species
are likely found in the creek.
❑Other environmentally-sensitive species. Explain findings:
'A natural or man-made discontinuity in the OHWM does not necessarily sever jurisdiction(e.g.,where the stream temporarily flows underground,or where
the OHWM has been removed by development or agricultural practices). Where there is a break in the OHWM that is unrelated to the waterbody's flow
regime(e.g.,flow over a rock outcrop or through a culvert),the agencies will look for indicators of flow above and below the break.
'ibid.
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®Aquatic/wildlife diversity. Explain findings:Small mammals,amphibians,snakes and bird species make use of the
riparian habitat corridor available in this urban setting.
2. Characteristics of wetlands adjacent to non-TNW that flow directly or indirectly into TNW
(i) Physical Characteristics:
(a) General Wetland Characteristics:
Properties:
Wetland size:Two wetland polygons were located adjacent to the creek which were identified as W-1 and W-2.W-1
is about 0.26 acres and W-2 is about 0.44 acres. The area of the creek bed(S-1)was determined to be 0.02 acre.
Wetland type. Explain:Palustrine,emergent,persistent,seasonally flooded(PEM1C)in accordance with the
Cowardin Classification System.
Wetland quality. Explain:Degraded-acting as a contaminant and sediment sink in the urban environment.
Project wetlands cross or serve as state boundaries.Explain:
(b) General Flow Relationship with Non-TNW:
Flow is:Perennial flow.Explain:
Surface flow is: Discrete and confined
Characteristics:Shallow low flow during summer months.
Subsurface flow:Pick List. Explain findings:
❑Dye(or other)test performed:
(c) Wetland Adjacency Determination with Non-TNW:
®Directly abutting W-I.
®Not directly abutting W-2.
® Discrete wetland hydrologic connection. Explain: S-1 and W-1 were observed to be hydrologically connected to
the East Gallatin River.W-2 is within 100 feet of W-1.
❑ Ecological connection. Explain:
❑ Separated by berm/barrier. Explain:
(d) Proximity(Relationship)to TNW
Project wetlands are 30(or more)river miles from TNW.
Project waters are 30(or more)aerial(straight)miles from TNW.
Flow is from:Wetland to navigable waters.
Estimate approximate location of wetland as within the 50-100-year tloodplain.
(ii) Chemical Characteristics:
Characterize wetland system(e.g.,water color is clear,brown,oil film on surface;water quality;general watershed
characteristics;etc.). Explain:
Identify specific pollutants,if known:
(iii)Biological Characteristics. Wetland supports(check all that apply):
® Riparian buffer. Characteristics(type,average width).Palustrine emergent wetland,ranges in width estimate 5-30 feet.
® Vegetation type/percent cover. Explain:Reed canary grass and cattails.90-100%cover.
® Habitat for:
❑Federally Listed species. Explain findings:
❑Fish/spawn areas.Explain findings:
❑Other environmentally-sensitive species. Explain findings:
®Aquatic/wildlife diversity. Explain findings: Small mammals,amphibians,snakes and bird species make use of the
riparian habitat corridor available in this urban setting.
3. Characteristics of all wetlands adjacent to the tributary(if any)
All wetland(s)being considered in the cumulative analysis:2
Approximately 0.70 acres in total are being considered in the cumulative analysis.
For each wetland,specify the following:
Directly abuts?WN) Size(in acres) Directly abuts?(Y/N) Size(in acres)
W-1 0.26 Y 0.26
W-2 0.44 N 0.44
Summarize overall biological,chemical and physical functions being performed:This small waterway and its'associated
wetlands provides some habitat for local bird and wildlife species in this developed and expanding urban environment.The
waterway functions as a sediment and nutrient trap for downstream tributaries and waterways.It has some limited function in
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use as a storm water drainage wa
capturing and modifying pollutants from the local commercial and residential development.Its'u, g y
also functions in attenuating local flooding during runoff events.
C. SIGNIFICANT NEXUS DETERMINATION
A significant nexus analysis will assess the flow characteristics and functions of the tributary itself and the functions performed
by any wetlands adjacent to the tributary to determine if they significantly affect the chemical,physical,and biological integrity
of a TNW. For each of the following situations,a significant nexus exists if the tributary,in combination with all of its adjacent
wetlands,has more than a speculative or insubstantial effect on the chemical,physical and/or biological integrity of a TNW.
Considerations when evaluating significant nexus include,but are not limited to the volume,duration,and frequency of the flow
of water in the tributary and its proximity to a TNW,and the functions performed by the tributary and all its adjacent
wetlands. It is not appropriate to determine significant nexus based solely on any specific threshold of distance(e.g.between a
tributary and its adjacent wetland or between a tributary and the TNW).Similarly,the fact an adjacent wetland lies within or
outside of a floodplain is not solely determinative of significant nexus.
Draw connections between the features documented and the effects on the TNW,as identified in the Rapanos Guidance and
discussed in the Instructional Guidebook.Factors to consider include,for example:
• Does the tributary,in combination with its adjacent wetlands(if any),have the capacity to cant'pollutants or flood waters to
TNWs,or to reduce the amount of pollutants or flood waters reaching a TNW?
• Does the tributary,in combination with its adjacent wetlands(if any),provide habitat and lifecycle support functions for fish and
other species,such as feeding,nesting,spawning,or rearing young for species that are present in the TNW?
• Does the tributary, in combination with its adjacent wetlands(if any),have the capacity to transfer nutrients and organic carbon that
support downstream food webs?
• Does the tributary, in combination with its adjacent wetlands(if any),have other relationships to the physical,chemical,or
biological integrity of the TNW?
Note: the above list of considerations is not inclusive and other functions observed or known to occur should be documented
below:
1. Significant nexus findings for non-RPW that has no adjacent wetlands and flows directly or indirectly into TNWs. Explain
findings of presence or absence of significant nexus below,based on the tributary itself,then go to Section III.D:
2. Significant nexus findings for non-RPW and its adjacent wetlands,where the non-RPW flows directly or indirectly into
TNWs. Explain findings of presence or absence of significant nexus below,based on the tributary in combination with all of its
adjacent wetlands,then go to Section III.D:
3. Significant nexus findings for wetlands adjacent to an RPW but that do not directly abut the RPW.Explain findings of
presence or absence of significant nexus below,based on the tributary in combination with all of its adjacent wetlands,then go to
Section III.D:
D. DETERMINATIONS OF JURISDICTIONAL FINDINGS.THE SUBJECT WATERS/WETLANDS ARE(CHECK ALL
THAT APPLY):
1. TNWs and Adjacent Wetlands. Check all that apply and provide size estimates in review area:
❑TNWs: linear feet width(ft),Or, acres.
❑ Wetlands adjacent to TNWs: acres.
2. RPWs that flow directly or indirectly into TNWs.
19 Tributaries of TNWs where tributaries typically flow year-round are jurisdictional.Provide data and rationale indicating that
tributary is perennial:Water was observed flowing in Walton Stream/Ditch,the RPW,on June 29,2016.It was also observed
as being hydrologically connected to East Gallatin River as reported on page 9 of the Power Engineers wetland delineation
report dated July 12,2016.The East Gallatin River is tributary to the Gallatin River which is a TNW in Montana.
El Tributaries of TNW where tributaries have continuous flow"seasonally"(e.g.,typically three months each year)are
jurisdictional. Data supporting this conclusion is provided at Section III.B. Provide rationale indicating that tributary flows
seasonally:
Provide estimates for jurisdictional waters in the review area(check all that apply):
❑ Tributary waters:539 linear feet 2.5 width(ft).
❑ Other non-wetland waters: acres.
Identify type(s)of waters:
3. Non-RPWs'that flow directly or indirectly into TNWs.
❑ Waterbody that is not a TNW or an RPW,but flows directly or indirectly into a TNW,and it has a significant nexus with a
TNW is jurisdictional.Data supporting this conclusion is provided at Section III.C.
'See Footnote#3.
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Provide estimates for jurisdictional waters within the review area(check all that apply):
❑ Tributary waters: linear feet width(11).
❑ Other non-wetland waters: acres.
Identify type(s)of waters:
4. Wetlands directly abutting an RPW that flow directly or indirectly into TNWs.
® Wetlands directly abut RPW and thus are jurisdictional as adjacent wetlands.
® Wetlands directly abutting an RPW where tributaries typically flow year-round. Provide data and rationale
indicating that tributary is perennial in Section III.D.2,above.Provide rationale indicating that wetland is
directly abutting an RPW: Wetland identified as W-I directly abuts the creek as reported on page 9 of the Power
Engineers wetland delineation report dated July 12,2016.The East Gallatin River is tributary to the Gallatin River which
is a TNW in Montana.
❑ Wetlands directly abutting an RPW where tributaries typically flow"seasonally." Provide data indicating that tributary is
seasonal in Section III.13 and rationale in Section III.D.2,above.Provide rationale indicating that wetland is directly
abutting an RPW:
Provide acreage estimates for jurisdictional wetlands in the review area:0.26 acres.
5. Wetlands adjacent to but not directly abutting an RPW that flow directly or indirectly into TNWs.
® Wetlands that do not directly abut an RPW,but when considered in combination with the tributary to which they are adjacent
and with similarly situated adjacent wetlands,have a significant nexus with a TNW are jurisidictional.Data supporting
this conclusion is provided at Section III.C. Wetland identified as W-2 is located within 100 feet of the creek as
reported on page 9 of the Power Engineers wetland delineation report dated July 12,2016.The East Gallatin River is
tributary to the Gallatin River which is a TNW in Montana.
Provide acreage estimates for jurisdictional wetlands in the review area:0.44 acres.
6. Wetlands adjacent to non-RPWs that flow directly or indirectly into TNWs.
El Wetlands adjacent to such waters,and have when considered in combination with the tributary to which they are adjacent and
with similarly situated adjacent wetlands,have a significant nexus with a TNW are jurisdictional.Data supporting this
conclusion is provided at Section III.C.
Provide estimates for jurisdictional wetlands in the review area: acres.
7. Impoundments of jurisdictional waters.9
As a general rule,the impoundment of a jurisdictional tributary remains jurisdictional.
❑ Demonstrate that impoundment was created from"waters of the U.S.,"or
❑ Demonstrate that water meets the criteria for one of the categories presented above(I-6),or
❑ Demonstrate that water is isolated with a nexus to commerce(see E below).
E. ISOLATED[INTERSTATE OR INTRA-STATE]WATERS,INCLUDING ISOLATED WETLANDS,THE USE,
DEGRADATION OR DESTRUCTION OF WHICH COULD AFFECT INTERSTATE COMMERCE,INCLUDING ANY
SUCH WATERS(CHECK ALL THAT APPLY):`
❑ which are or could be used by interstate or foreign travelers for recreational or other purposes.
❑ from which fish or shellfish are or could be taken and sold in interstate or foreign commerce.
❑ which are or could be used for industrial purposes by industries in interstate commerce.
❑ Interstate isolated waters. Explain:
❑ Other factors. Explain:
Identify water body and summarize rationale supporting determination: j
Provide estimates for jurisdictional waters in the review area(check all that apply):
El Tributary waters: linear feet width(fl).
�] Other non-wetland waters: acres.
Identify type(s)of waters:
El Wetlands: acres.
9 To complete the analysis refer to the key in Section III.D.6 of the Instructional Guidebook.
10 Prior to asserting or declining CWA jurisdiction based solely on this category,Corps Districts will elevate the action to Corps and EPA HQ for
review consistent with the process described in the Corps/EPA Memorandum Regarding CWA Act Jurisdiction Following Rapanos.
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F. NON-JURISDICTIONAL WATERS,INCLUDING WETLANDS(CHECK ALL THAT APPLY):
❑ I f potential wetlands were assessed within the review area,these areas did not meet the criteria in the 1987 Corps of Engineers
Wetland Delineation Manual and/or appropriate Regional Supplements.
❑ Review area included isolated waters with no substantial nexus to interstate(or foreign)commerce.
❑ Prior to the Jan 2001 Supreme Court decision in"SPVANCC,"the review area would have been regulated based solely on the
"Migratory Bird Rule"(MBR).
❑ Waters do not meet the"Significant Nexus"standard,where such a finding is required for jurisdiction. Explain:
❑ Other:(explain,if not covered above):
Provide acreage estimates for non jurisdictional waters in the review area,where the sole potential basis of jurisdiction is the MBR
factors(i.e.,presence of migratory birds,presence of endangered species,use of water for irrigated agriculture),using best professional
judgment(check all that apply):
❑ Non-wetland waters(i.e.,rivers,streams): linear feet width(ft).
❑ Lakes/ponds: acres.
❑ Other non-wetland waters: acres.List type of aquatic resource:
❑ Wetlands: acres.
Provide acreage estimates for non jurisdictional waters in the review area that do not meet the"Significant Nexus"standard,where such
a finding is required for jurisdiction(check all that apply):
0 Non-wetland waters(i.e.,rivers,streams): linear feet, width(ft).
0 Lakes/ponds: acres.
El Other non-wetland waters: acres. List type of aquatic resource:
Wetlands: acres.
SECTION IV: DATA SOURCES.
A. SUPPORTING DATA. Data reviewed for JD(check all that apply-checked items shall be included in case file and,where checked
and requested,appropriately reference sources below):
Z Maps,plans,plots or plat submitted by or on behalf of the applicant/consultant:Plans and drawings submitted by applicant
consultant on August 8,2016 for the Bridger Peaks Village Lot 5 project.
® Data sheets prepared/submitted by or on behalf of the applicant/consultant.
®Office concurs with data sheets/delineation report. "Bridger Peaks Village Lot-5 Wetland and Waterway Delineation Report",
prepared by Mr.Erik Nyquist,PWS,Power Engineers,Inc.,dated July 12,2016.
❑Office does not concur with data sheets/delineation report.
❑ Data sheets prepared by the Corps:
❑ Corps navigable waters'study:
® U.S.Geological Survey Hydrologic Atlas.
❑USGS NHD data.
®USGS 8 and 12 digit HUC maps.
® U.S.Geological Survey map(s).Cite scale&quad name:Bozeman,Montana 7.5'(1:24,000)quadrangles.
® USDA Natural Resources Conservation Service Soil Survey.Citation:NRCS Soil Survey
® National wetlands inventory map(s). Cite name:Bozeman,Montana 7.5'(1:24,000)NWI Maps.
❑ State/Local wetland inventory map(s):
❑ FEMA/FIRM maps:
❑ 100-year Floodplain Elevation is: (National Geodectic Vertical Datum of 1929)
Photographs:❑Aerial(Name&Date):
or❑Other(Name&Date):
❑ Previous determination(s). File no.and date of response letter.
❑ Applicable/supporting case law:
❑ Applicable/supporting scientific literature:
Other information(please specify):
I. "Lower Gallatin Watershed Restoration Plan",prepared for the Greater Gallatin Watershed Council,RESPEC Consulting and Services,
Jeff Dunn,Karen Filipovich,and Katherine Boyk,December 22,2014.
2. "Wetland and Riparian Resource Assessment of the Gallatin Valley and Bozeman Creek Watershed,Gallatin County,Montana",
prepared for the Montana Department of Environmental Quality,Alan English and Corey Baker,Gallatin Local Water Quality District,
June 2004.
ADDITIONAL COMMENTS TO SUPPORT JD:
Wetlands on the Bridge Peaks Village property as described above are adjacent or abut Walton Stream/ditch a relative permanent waterway,
tributary to in turn the East Gallatin River,and Gallatin River which the Corps has determined to be a Traditional Navigable Water(TNW)
based on historic and current interstate commerce use.Accordingly,they are by Corps regulatory definition as set forth in CFR Part 328.3
waters of the U.S.subject to Corps regulatory jurisdiction.
7
Montana Department of
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U ENVMONMENT a UALrff SrIon Schweitzer,Governor
P.o.Box 200901 Helena,MT 59620-0901 (406)444-2544 Website: WWW.deq.mt.gov
April 20, 2012
Water Quality Certification In Accordance With Section 401 of the Clean Water Act For
The 2012 Nationwide Permits in Montana
A. Certification
DEQ is granting Section 401 Water Quality Certification(certification)for Nationwide Permits
1,2,4-11, 15-22, 24-25,28-36, 38-44 and 46-50 with the general conditions in}part D, below, j
B.Special Conditions for Specific Nationwide Permits
1)DEQ is granting certification for Nationwide Permits 43, #14,and 423 with the general
conditions in part D. below and the following condition: DEQ Water Protection Bureau—
Discharge Permitting Program must be notified by the permittee within 48 hours of
commencement of the regulated activity.Notification must be sent to
WPBPublieNotices@rnt.gov or fax(406)444-1374 Attention Water Protection Bureau,
Notification shall include at minimum(a)the permittee name, (b).the project name,(c)the
Nationwide Permit used and Army Corp.of Engineers file number for the project, (d)the
Township, Range and Section, and(e)the project or regulated activity location in decimal
latitude and longitude to the millionth degree(six significant figures to the right of the decimal
point).
2)DEQ is granting certification of Nationwide Permit#12(utility line activities)with the general
conditions in part D. below for projects where a static or vibratory plow is used.For all other
projects that qualify under this Nationwide Permit,DEQ denies certification.
3)DEQ is granting certification of Nationwide Permit#13 (bank stabilization),Nationwide
Permit#37 (emergency watershed protection and rehabilitation), and Nationwide Permit#45
(repair of uplands damaged by discrete events)with the general conditions in part D. below for
all projects equal to or less than 300 feet in length.
C. Denial
DEQ denies certification for Nationwide Permit#27 (stream and wetland restoration),
Nationwide Permit#51 (land based renewable energy generation facilities),and Nationwide
Permit 452 (water based energy renewable energy generation facilities). {'
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D. General Conditions for Nationwide Permits
The following general conditions apply to all certified Nationwide Permits as provided in A and
B above,
1) This certification does not authorize the placement or construction of septic/leach/stormwater
systems or other sewage treatment facilities in wetlands.
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2)This certification does not authorize construction of dams,except for aquatic restoration
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projects and temporary dams associated with construction activity. i
3)This certification requires that materials used in stream bank or shore stabilization projects
adhere to the Montana Department of Environmental Quality's December 5,2000 guidelines for i
materials for stream bank stabilization(also attached). Tires may not be used to stabilize any
banks or shores in state waters.
4) This certification requires that all equipment be inspected for oil, gas,diesel, anti-freeze,
hydraulic fluid and other petroleum leaks. Equipment cannot continue operating in or near the
water if a leak is discovered.All such leaks will be properly repaired prior to equipment being
allowed on the project. Leaks that occur after the equipment is moved to the project site will be
fixed that same day or the next day or be removed from the project area.If equipment is to be
operated in or near water, a spill containment kit shall be available at the project site.
5) This certification requires that all permittees shall,to the maximum extent practicable,
incorporate and construct design features that eliminate bridge deck run-off containing sediment,
salt,or other pollutants from discharging directly into state water. To the extent practicable,
bridge deck discharge, should be directed to a detention basin of unspecified size prior to
discharge into state waters.
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5) This certification requires that riprap projects,to the extent practicable,avoid the use of
geotextile fabric as riprap underlayment. To the extent practicable,riprap voids shall incorporate
approximately 30-50%fines/soil and viable plant material and/or root-stock. (A technique
specification example is available upon request).
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Policy on Streambank Stabilization
This policy outlines the guidelines for approved materials to be used for streambank stabilization f
in Montana. This policy and a draft Environment Assessment were provided to the public for
comment via public notice MT-00-10 issued September 18,2000. Comments were accepted until
October 17,2000. The draft Environmental Assessment is adopted as the final Environmental
Assessment with the Responses to Comments incorporated.
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Signed into policy 12/05/00 by Bonnie Lovelace, Chief,Water Protection Bureau and 12/06/00
by Jan Sensibaugh,Administrator,Permitting&Compliance Division.
For answers to questions or copies of the Response to Comments by mail or e-mail,contact
Marilyn Pelo,Water Protection Bureau, at(406)444-0574 or mpelo@state.mt.us.
GUIDELINES FOR MATERIALS FOR STREAMBANK STABILIZATION
The following guidelines represent the efforts of a work group composed of Conservation District
representatives,natural resource consultants,environmental interests,and state and federal regulatory
agencies.They are suggested by the Montana Department of Environmental Quality and not necessarily
endorsed by all the work group members.These guidelines are only for use in areas where the use of
high-density,angular rock is not practicable.(The term"practicable"means available and capable of
being done after taking into consideration cost,existing technology,and logistics in light of overall
project purposes[40 CFR 230.3(q)]). Sandstone or broken concrete may be acceptable alternatives to
high-density,angular rock in certain situations,although local regulation may prohibit their use.The use
of any'river training device/structure may directly or cumulatively alter the ecology of Montana rivers and
streams.Cumulative impact considerations may preclude the use of any river training device.
Bank stabilization projects are sometimes authorized under the following jurisdictions:Local
Conservation District—Natural Streambed&Land Conservation Act(310);Montana Department of Fish
Wildlife and Parks—Stream Protection Act(SPA124);County Floodplain Administrator—Floodplain
Permit;U.S. Army Corps of Engineers—Section 404/10 Permit;Montana Department of Environmental
Quality—75-5-318,MCA Authorization;Montana Department of Natural Resources and Conservation —
Navigable Rivers Land Use License/Easement.
The following optional design concepts should be considered in conjunction with the guidelines to
minimize environmental/aesthetic concerns:
• Utilize rock only in the lower*portion or the of the riprap with woody structures./features,
biodegradable fabric,etc.in the upper*portions.
The elevation at which the mean annual flow occurs is the division between"upper"and"lower."
• Incorporate soil in the upper portions of the project with appropriate woody(usually Willow)
plantings as near average water elevations as possible and herbaceous plantings elsewhere.
» Provide a temporary or permanent buffer strip(streamside area where protection promotes growth
and sustenance of woody vegetation)along the project length to provide for vegetation stability where
grazing or recreational use may impact plant growth.
• Preferably,plantings should be on slopes of 3:1 or flatter and irrigated, if possible.
(Note:Numerous documents with more detailed information are available.Contact the Natural Resource
Conservation Service or the Department of Natural Resources and Conservation for their"Stream Project I
Manual.")
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COMPLIANCE CERTIFICATION I
Project: (Please attach copy of the completed "Joint Application for Proposed Work in Montana's II
Streams, Wetlands,Floodplains,and Other Water Bodies.")
Upon completion of project activity,sign this certificate and return it to the following address:
Montana Department of Environmental Quality
Permitting&Compliance Division/Water Protection Bureau
Box 200901
Helena,MT 59620-0901
Please answer the following questions:
l. What is the source of the concrete rubble?
2. What is the type of concrete rubble(curb/gutter,foundation,etc.)? {
3. What was the cost of the nibble?
(The recipient of the rubble cannot be compensated for accepting the rubble without a landfill
license.)
I hereby certify that the project work.performed is in compliance with all applicable permits and in I
compliance with the"Guidelines for Materials for Streambank Stabilization."
Signature of Project Owner Date
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I hereby certify that I provided the concrete rubble used in the project and that I did not compensate the
owner for accepting the rubble.
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Signature of Concrete Rubble Provider Date
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Effective 19 March 2012
Nationwide Permit 29
Residential Developments
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Discharges of dredged or fill material into non-tidal waters of the United States for the construction or expansion of
a single residence,a multiple unit residential development,or a residential subdivision,This NWP authorizes the
construction of building foundations and building pads and attendant features that are necessary for the use of the
residence or residential development.Attendant features may include but are not limited to roads,parking lots,
garages,yards,utility lines,storm water management facilities,septic fields,and recreation facilities such as
playgrounds,playing fields,and golf courses(provided the golf course is an integral part of the residential
development), j
The discharge must not cause the loss of greater than 1/2-acre of non-tidal waters of the United States, t
including the loss of no more than 300 linear feet of stream bed,unless for intermittent and ephemeral stream beds s
the district engineer waives the 300 linear foot limit by making a written determination concluding that the discharge
will result in minimal adverse effects, This NWP does not authorize discharges into non-tidal wetlands adjacent to
tidal waters.
Subdivisions:For residential subdivisions,the aggregate total loss of waters of United States authorized by
this NWT cannot exceed 1/2-acre.This includes any loss of waters of the United States associated with development
of individual subdivision lots.
Notification:The permittee must submit a pre-construction notification to the district engineer prior to
commencing the activity.
(Sections 10 and 404)
Nationwide Permit General Conditions
Note:To qualify for NWP authorization,the prospective permittee must comply with the following general
conditions,as applicable,in addition to any regional or case-specific conditions imposed by the division engineer or
district engineer.
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-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 1
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. !
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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. j
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Effective 19 March 2012
4.Migratory Bird Breeding Areas.Activities in waters of the United States that serve as breeding areas s
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 f
restoration activity authorized by NWP 27. i
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 impouindment of water,adverse effects
to the aquatic system due to accelerating the passage of water,and/or restricting its flow must be miniinized 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 and storm water management activities,except as provided below.The activity must be constricted
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 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 Flood lains.The activity must comply with applicable FEMA-approved state
or local floodplain management requirements.
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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 to encouraged perform work within waters of the United States during
g p g periods of low-flow or i
no-flow.
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13.Removal of Temporary Fills.Temporary fills must be removed in their entirety and the affected areas
returned to pre-constriction elevations.The affected areas must be revegetated,as appropriate.
14.Proper Maintenance.Any authorized structure or fill shaft be properly maintained,including 3
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.
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16.Wild and Scenic Rivers.No activity may occur in a component of the National Wild and Scenic River j
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.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).
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Effective 19 March 2012
17.Tribal Rights.No activity or its operation may impair reserved tribal rights,including,but not limited
to,reserved water rights and treaty fishing and hunting rights.
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 i
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 Section 7 consultation addressing the effects of the proposed
activity has been completed.
(b)Federal agencies should follow their own procedures for complying with the requirements of the ESA.
Federal permittees must provide the district engineer with the appropriate documentation to demonstrate compliance
with those requirements.The district engineer will review the documentation and determine whether it is sufficient
to address ESA compliance for the NWP activity,or whether additional ESA consultation is necessary.
(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 project,or if.the project is located
in designated critical habitat,and shall not begin work on the activity until notified by the district engineer that the j
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 work or
that utilize the designated critical habitat that might be affected by the proposed work.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 project,and has so notified the Corps,the applicant
shall not begin work until the Corps has provided notification the proposed activities will have"no effect"on listed
species or critical habitat,or until 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 regional endangered species conditions to the NWPs. i
(e)Authorization of an activity by a NWP does not authorize the"take"of a threatened or endangered
species as defined under the ESA.In the absence of separate authorization(e.g.,an ESA Section 10 Permit,a '•
Biological Opinion with"incidental take"provisions,etc.)from the U.S.FWS or the NMFS,The Endangered i
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)Information on the location of threatened and endangered species and their critical habitat can be
obtained directly from the offices of the U.S.FWS and NMFS or their world wide web pages at
http://www.fws.gov/or hq;//www,fws.goYApac and http:/Iw,�vw.noaa.gcoy/fisheiies.lrttnl respectively.
19.Migratory Birds and Bald and Golden Eagles.The permittee is responsible for obtaining any"take"
permits required under the U.S.Fish and Wildlife Service's regulations governing compliance with the Migratory
Bird Treaty Act or the Bald and Golden Eagle Protection Act.The permittee should contact the appropriate local
office of the U.S.Fish and Wildlife Service to determine if such"take"permits'are required for a particular activity.
20.Historic Properties.(a)In cases where the district engineer determines that the activity may affect
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. j
(b)Federal permittees should follow their own procedures for complying with the requirements of Section 1
106 of the National Historic Preservation Act.Federal peimittees must provide the district engineer with the
appropriate documentation to demonstrate compliance with those requirements.The district engineer will review the
documentation and determine whether it is sufficient to address section 106 compliance for the NWP activity,or
whether additional section 106 consultation is necessary.. ,
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Effective 19 March 2012
(c)Non-federal pemuttees must submit a pre-construction notification to the district engineer if the
authorized activity may have the potential to cause effects to any historic properties listed on, determined to be
eligible for listing on,or potentially eligible for Isting on the National Register of Historic Places,including
previously unidentified properties. For such activities,the pre-construction notification must state which historic
properties may be affected by the proposed work or include a vicinity map indicating the location of the historic
properties or the potential for the presence of historic properdes.Assistance regarding information on the location of
or potential for the presence of historic resources can be sought from the State Historic Preservation Officer or
Tribal Historic Preservation Officer,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 and these efforts,the district engineer shall determine whether the proposed activity has
the potential to cause an effect on the historic properties.Where the non-Federal applicant has identified historic
properties on which the activity may 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 or that consultation under Section 106 of the NHPA has been completed.
(d) The district engineer will notify the prospective permittee within 45 days of receipt of a complete pre- j
construction notification whether NHPA Section 106 consultation is required. Section 106 consultation is not
required when the Corps determines that the activity does not have the potential to cause effects on historic
properties(see 36 CFR§800,3(a)). if NHPA section 106 consultation is required and will occur,the district j
engineer will notify the non-Federal applicant that he or she cannot begin work until Section 106 consultation is i
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 I I Ok of the NHPA(16 U.S.C.470h-2(k))prevents
the Corps from granting a permit or other assistance to an applicant who,with intent to avoid the requirements of j
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 circuumstances 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,
your 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. i
22.DesiuJnated 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. I
(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,and 38,notification is required
in accordance with general condition 31,for any activity proposed in the designated critical resource waters
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Effective 19 March 2012
including wetlands adjaeent.to those waters.The district engineer may authorize activities under these NWPs only j
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 adverse effects on the aquatic environment are 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 j
losses)will be required to the extent necessary to ensure that the adverse effects to the aquatic environment are j
minimal. _
(c)Compensatory mitigation at a minimum one-for-one ratio will be required for all wetland losses that j
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 effects of the
proposed activity are ntinimal,,and provides a project-specific waiver of this requirement.For wetland losses of
1/1 0-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 minimal adverse effects on the
aquatic environment.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 minimal adverse effects on the aquatic
environment.
(2)Since the likelihood of success is greater and the impacts to potentially valuable uplands are reduced,
wetland restoration should be the first compensatory mitigation option considered.
(3)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)—(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
3323(k)(3)),
(4)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.
(5)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.
(d)For losses of streams or other open waters that require pre-constriction notification,the district
engineer may require compensatory mitigation,such as stream rehabilitation,enhancement,or preservation,to
ensure that the activity results in minimal adverse effects on the aquatic enviromnent.
(e)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 project
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 a project already meeting the established acreage limits also satisfies the minimal
impact requirement associated with the NWPs.
(f)Compensatory mitigation plans for projects in or near streams or other open waters will normally
include a requirement for the restoration or establishment,maintenance,and legal protection(e.g.,conservation
easements)of riparian areas next to open waters.In some cases,riparian areas may be the only compensatory
mitigation required.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 establish a riparian area on both sides of a
stream,or if the waterbody is a lake or coastal waters,then restoring or establishing 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
Effective 14 March 2012
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to be the most appropriate form of compensatory mitigation,the district engineer may waive or reduce the
requirement to provide wetland compensatory mitigation for wetland losses.
(g)Permittees may propose the use of mitigation banks,in-lieu fee programs,or separate permittee-
responsible mitigation.For activities resulting in the loss of marine or estuarine resources,pennittee-responsible
compensatory 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
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long-term management, i
(h)Where certain functions and services of waters of the United States are permanently adversely affected, i
such as the conversion of 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 effects of the project to the 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 j
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 i
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. i
27. Re oval 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 constricted 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 I
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)
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Effective 19 March 2012
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(Date) ---
30.Compliance Certification.Each permittee who receives an NWP verification letter from the Corps
1
must provide a signed certification documenting completion of the authorized activity and 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 work was done in accordance with the NWP authorization,including i
any general,regional,or activity-specific conditions;
(b)A statement that the implementation of any required compensatory mitigation was completed in I
accordance with the permit conditions.If credits from a mitigation bank or in-lieu fee program are used to satisfy the !I
compensatory mitigation requirements,the certification must include the documentation required by 33 CFR
332.3(1)(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 work and mitigation.
31.Pre-Construction Notification.(a)Timing.Where required by the terms of the NWP,the prospective 1
permittee must notify the district engineer by submitting a pre-construction notification(PCN)as early as possible. j
The district engineer must determine if the PCN is complete within 45 calendar days of the date of receipt and,if the
PCN is determined to be incomplete,notify the prospective permittee within that 45 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 continence 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 in the vicinity of the project,or to notify the Corps pursuant to general condition 20 that the
activity may 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(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 i
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 ntunbers of the prospective permittee;
(2)Location of the proposed project;
(3)A description of the proposed project;the project's purpose;direct and indirect adverse environmental
effects the project would cause,including the anticipated amount of loss of water of the United States expected to
result from the NWP activity,in acres,linear feet,or other appropriate unit of measure; any other NWP(s),regional
general permit(s),or individual permits)used or intended to be used to authorize any part of the proposed project or
any related activity.The description should be sufficiently detailed to allow the district engineer to determine that
the adverse effects of the project will be minimal and to determine the need for compensatory mitigation. Sketches
should be provided when necessary to show that the activity complies with the terms of the NWP.(Sketches usually
clarify the project and when provided results in a quicker decision.Sketches should contain sufficient detail to
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Effective 19 March 2012
provide an illustrative description of the proposed activity(e.g.,a conceptual plan),but do not need to be detailed
engineering plans);
(4)The PCN must include a delineation of wetlands,other special aquatic sites,and other waters,such as
fakes 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 waters of the United States.Furthermore,the 45
day period will not start until the delineation has been submitted to or completed by the Corps,as appropriate; j
(5)If the proposed activity will result in the loss of greater than 1/1 0-acre of wetlands and a PCN is i
required,the prospective permittee must submit a statement describing how the mitigation requirement will be i
satisfied,or explaining why the,adverse effects are minimal and why compensatory mitigation should not be
required.As an alternative,the prospective permittee may submit a conceptual or detailed mitigation plan.
(6)If any listed species or designated critical habitat might be affected or is in the vicinity of the project,or
if the project is located in designated critical habitat,for non-Federal applicants the PCN must include the name(s)
of those endangered or threatened species that might be affected by the proposed work or utilize the designated
critical habitat that may be affected by the proposed work.Federal applicants must provide documentation
demonstrating compliance with the Endangered Species Act;and
(7)For an activity that may affect a historic property listed on,determined to be eligible for listing on,or
potentially eligible for listing on,the National Register of Historic Places,for non-Federal applicants the PCN must i
state which historic property may be affected by the proposed work or include a vicinity snap indicating the location
of the historic property.Federal applicants must provide documentation demonstrating compliance with Section 106
of the National Historic Preservation Act.
(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 a PCN and must include all of
the information required in paragraphs.(b)(1)through(7)of this general condition.A letter containing the required
information may also be used.
(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 project's adverse environmental effects to a minimal level.
(2)For 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,for 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,and for all
NWP 48 activities that require pre-construction notification,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(U.S.FWS,state natural resource or water quality
agency,EPA,State Historic Preservation Officer(SHPO)or Tribal Historic Preservation Office(THPO),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 telephone or fax the district engineer notice that they intend to provide substantive,site-
specific comments.The comments must explain why the agency believes the adverse effects will be more than
minimal.If so contacted by an agency,the district engineer will wait an additional 15 calendar days before malting a
decision on the pre-construction notification.The district engineer will fully consider agency comments received
within the specified time fi•ame 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 to the aquatic environment
of the proposed activity are 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 revolted in
accordance with the procedures at 33 CFR 330.5. j
(3)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.
(4)Applicants are encouraged to provide the Corps with either electronic files or multiple copies of pre-
construction notifications to expedite agency coordination.
Effective 19 March 2012
Further Information
1.District Engineers have authority to determine if an activity complies with the terms and conditions of an
NWP.
2.NWPs do not obviate the need to obtain other federal,state,or local permits, approvals,or authorizations i
required by law.
3.NWPs do not grant any property rights or exclusive privileges:
4.NWPs do not authorize any injury to the property or rights of others.
5.NWPs do not authorize interference with any existing or proposed Federal project.
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Montana Regional Conditions—Nationwide Permits Effective 19 March 2012
2012 Nationwide Permits
Regional Conditions
Omaha District
State of Montana
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The following Nationwide Permit regional conditions will be used in the State of Montana. Regional conditions are
placed on Nationwide Permits to ensure projects result in less than minimal adverse impacts to the aquatic
environment and to address local resources concerns.
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Wetlands Classified as Peatlands—Revoked for Use
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All Nationwide Permits,with the exception of 3,5,6,20, 27, 32,and 38,are revolted for use in peatlands in
Montana.
"Peatlands"are waterlogged areas with a surface accumulation of peat(organic matter)30 centimeters(12 inches)
or more thick. Any type of peat-covered terrain,including fens,bogs,and muskegs,are all peatlands
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Wetlands Classified as Peatlands-Pre-construction„Notification Reauirement
For Nationwide Permits 3,5,6,20,27,32,and 38 permittees must notify the Corps in accordance with General
Condition No.31 (Notification)prior to initiating any regulated activity impacting peatlands in Montana.
Waters_Adiacent to Natural Sprints—Pre-construction Notification Requirement
For all Nationwide Permits,permittees must notify the Corps in accordance with General Condition No.31
(Notification)for regulated activities located within 100 feet of the water source in natural spring areas in Montana.
For purposes of this condition,a spring is defined as any location where there is groundwater flow emanating from a
distinct point. Springs do not include seeps or other groundwater discharge areas where there is no distinct point
source.
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Riffle and Pool Complexes—Pre-construction Notification Requirement
For all Nationwide Permits,permittees must notify the Corps in accordance with General Condition No.31
(Notification)prior to initiating any regulated activity involving the discharge of dredge or fill material into riffle
and pool complexes.
Riffle and pool complexes are special aquatic sites and sometimes characterize steep gradient sections of streams.
The rapid movement of water over a coarse substrate in riffles results in a rough flow,a turbulent surface,and high
dissolved oxygen levels in the water.Pools are deeper areas adjacent to riffles and are characterized by slower
stream velocities, a smooth water surface,and finer substrate material.
i
Scrub-Shrub and Forested Wetlands—Pre-construction Notification Requirement
For all Nationwide Permits,permittees must notify the Corps in accordance with General Condition No.31
(Notification)prior to initiating any regulated activity involving the discharge of dredge or fill material into scrub-
shrub and/or forested wetlands. l
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Montana Regional Conditions—Nationwide Permits Effective 19 March 2012
Forested wetlands are characterized by woody vegetation that is 20 feet tall or taller and normally possess an
overstory of trees and an understory of young trees or shrubs and an herbaceous layer. Scrub-shrub wetlands
include areas dominated by wood vegetation that is less than 20 feet tall including true shrubs,young trees,and trees
or shrubs that are small or stunted because of environmental conditions.
Yellowstone River(including the Special River Management Zone)—Pre-construction Notification
ReRe ui� �rement
For all Nationwide Permits,permittees must notify the Corps in accordance with General Condition No.31
(Notification)for regulated activities within the Yellowstone River and impoundments.
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Mille River,Missouri River,Bitterroot River,Clark Fork River(tributary to the Columbia River),the i
Flathead River above Flathead Lake,and Flathead Lake--Pre-construction Notification Requirement
For all Nationwide Pennits,permittees must notify the Corps in accordance with General Condition No.31 j
(Notification)for regulated activities in these waterways and their impoundments. I
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Indian Reservations in Montana—Pre-construction Notification Re uirement j
For all Nationwide Permits,permittees must notify the Corps in accordance with General Condition No.31(
Notification)for regulated activities within the boundaries of any Indian Reservation in Montana.
Channel Straightening and Relocation Activities—Pre-construction Notification Requirement
For all Nationwide Permits,permittees must notify the Corps in accordance with General Condition No.31
(Notification)prior to straightening,relocating and/or shortening an existing perennial stream channel. For all
nationwide permits,except NWP 27,the total channel length reduction for all ephemeral,intermittent or perennial
channels must be less than 100 feet. This requirement may be waived by the Corps for impacts to man-made
ditches,canals or conveyances on a case-specific basis.
Bank and Shoreline Stabilization Activities(except activities located in the Special River Management Zone
of the upper Yellowstone River)—Pre-construction Notification Requirement
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For all Nationwide Permits,permittees must notify the Corps in accordance with General Condition No,31
(Notification)prior to initiating any non-bioengineered bank stabilization activity involving all new bank or
shoreline stabilization,including activities extending the length of previously stabilized areas. The following
additional requirements apply to all bank and shoreline stabilization for all Nationwide Permits:
For bank revetments such as riprap,root wads,rock or log toes,or any bioengineered revetment,a,through
C. apply: !
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a.The revetment must conform to the existing bankline.
b.The revetment must not extend above the elevation of the existing top of the bank(i,e.,no new levees).
c.The revetment must not wholly or partially block flows from entering a side channel or an overflow f
channel.
For bank stabilization structures that project into the stream,such as weirs,barbs or vanes,d.through i.
apply.
d.The bank-end of the structure can be no higher than the ordinary high water mark.
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Montana Regional Conditions—Nationwide Permits Effective 19 March 2012
e,The top of the structure must decrease in elevation as it extends away from the bank. ;
f.The structure must angle upstream from the bank. ?
g.The structure must be keyed into the bed and the bank, f
h.The structure must not wholly or partially block flows from entering a side channel or an overflow
channel.
i.The structure cannot extend out more than 25%of the bankfull channel width from the existing bank.
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For the purposes of this condition,bioengineering is defined as bank stabilization methods utilizing j
predominantly live and/or dead vegetation, Bioengineering can sometimes include minor amounts of soil,rock, j
and/or large deadwood. Il
Special River Management Zone of the Upper Yellowstone River—Bank Stabilization Activities-All l
Nationwide Pernnits j
For bank stabilization activities associated with any Nationwide Permit,including maintenance of bank
stabilization,the following apply:
For bank revetments such as riprap,root wads or any bioengineered revetment,a.through e.apply:
a.Revetments must conform to the existing eroded or eroding bankline,unless such work
is determined by the Corps to be biologically or geomorphically beneficial for the upper Yellowstone River,
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b.Revetment slopes must be flatter than the angle of repose for the selected revetment material. For
example,rock riprap normally needs to be placed on a slope flatter than 1.5H:1V(1.5 Horizontal to 1 Vertical).
c.Revetments are only permittable under Nationwide Permits if they are parallel to and near the lateral
boundaries of the Special River Management Zone.
d.Revetments trust not extend above the elevation of the adjacent natural bank height(i.e.,no new levees).
e.Revetments must not wholly or partially block flows from entering a side channel,secondary channel,or
an overflow channel,unless such work is determined by the Corps to be necessary for maintaining or restoring the
geomorphic integrity of the upper Yellowstone River.
For bank stabilization structures that project into the stream,such as weirs,barbs,hard points,or vanes,f.
through k.apply:
f.Bank stabilization structures must not wholly or partially block flows from entering a side channel,
secondary channel,or an overflow channel,unless such work is determined by the Corps to be necessary for
maintaining or restoring the geomorphic integrity of the upper Yellowstone River.
g.Bank stabilization structures are only permittable under Nationwide Permits if they result in an effective
bankline that is approximately parallel to and near the lateral boundaries of the Channel Migration Zone.
h.Bank stabilization structures must be keyed into the bank far enough to prevent flanking.
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i.Batik stabilization structures cannot occupy more than 10%of the bankfuli channel area. Bankfull j
channel area pertains to the specific primary or secondary channel in question,and is not the aggregate channel area I
of all primary and secondary channels in multi-channel reaches. {
j.Bank stabilization structures must not present hazardous obstructions to boating,floating,or other river
uses.
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k,Bank stabilization strictures that are low in elevation,project only a short distance out from the bank, '
and angle upstream are more likely to qualify for Nationwide Permits because they typically result in less adverse
impact on aquatic resources than strictures that are tall,long,and point downstream, I
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Montana Regional Conditions—Nationwide Permits Effective 19 March 2012
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Special River Management Zone of the Upper Yellowstone River-Sediment Management—All Nationwide
Permits -
Sediment removal is allowable only to maintain fiinction of existing facilities and structures,or as necessary to
maintain or restore the geomorphic integrity of the upper Yellowstone River. Diversion or removal of sediment or
alluvium from the river channel and adjacent wetlands for other purposes is not allowed in the Special River i
Management Zone(SRMZ)under a Nationwide Permit. Examples of sediment diversion or removal not allowed i
under a Nationwide Permit include hydraulic dredging and mining and mechanical excavation to obtain aggregate,fill
material,or minerals,including gold. Processing of material for the purpose of obtaining select minerals or a specific
gradation of material,where only a portion of the sediment or alluvium is removed and the remainder returned to the
SRMZ,is not allowed under a Nationwide Permit in the SRMZ.
Special River Management Zone of the Upper Yellowstone River—Dams—All Nationwide Permits
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New dams,diversions,and/or impoundments are not authorized under a Nationwide Permit in the Special River
Management Zone. These projects typically have more than minimal adverse impacts and must be reviewed under
standard(individual)permit procedures,
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Special River Management Zone of the Upper Yellowstone River-Constructed Ponds and Stream Channels
—All Nationwide Permits
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Construction of ponds and new artificial stream channels is prohibited under a Nationwide Permit in the Special
River Management Zone,unless they are necessary and appropriate elements of a stream or wetland restoration
project.
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Special River Management Zone of the Upper Yellowstone River-Placement and Removal of Temporary
Fills—All Nationwide Permits
Temporary fills in waters of the United States must be placed on a horizontal marker layer such.as fabric or certified j
weed-free straw to delineate the pre-proj ect ground elevation and facilitate complete fill removal and site
restoration.
Borrow Site Identification—All Nationwide Permits
The permittee is responsible for ensuring that the Corps is notified of the location of any borrow site that will be
used in conjunction with the construction of the authorized activity so that the Corps may evaluate the site for
potential impacts to aquatic resources,historic properties,and endangered species. For projects where there is {
another lead Federal agency,the permittee shall provide the Corps documentation indicating that the lead Federal
agency has complied with the National Historic Preservation Act and Endangered Species Act for the borrow site.
The permittee shall not initiate work at the borrow site in conjunction with the authorized activity until approval is
received from the Corps.
Temporary Vegetation Impacts—All Nationwide Permits
Limit clearing of riparian or wetland vegetation to the absolute minimum'necessary. Where temporary riparian or
wetland vegetation impacts are unavoidable,mow or cut off the vegetation above the ground,leaving the topsoil and
root mass intact. Restore disturbed areas to original or pre-construction contours and use seeding and planting as
necessary to re-establish desirable vegetative cover,utilizing native species in areas where native species were i
innpacted.
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Montana Regional Conditions—Nationwide Permits Effective 19 March 2012
Erosion and Sediment Control Blanket—All Nationwide Permits
All erosion control blanket or fabric used in or adjacent to waters of the U.S.must be comprised of degradable material
to ensure decomposition. Do not use material that includes stabilized netting or stabilized open mesh,as those products
take a long time to degrade and they can trap small animals,birds,amphibians and fish. This prohibition also applies to i
mesh materials used for wattles,rolled materials,and bank wraps. Erosion control blanket or fabrics that break down j
within 24 months are acceptable. Non-degradable blankets or fabric may be allowed on a case-specific basis if it will
be buried beneath riprap or structures and it is not likely to be exposed. Non-degradable blanket or fabric that becomes j
exposed within waters of the U.S,must be removed. i
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Counter-Sinking Riprap Associated with Culvert Installation—All Nationwide Permits
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When riprap inlet and outlet protection is used below the ordinary high water mark,it must be placed to match the
adjacent culvert bottom elevations. Where culvert bottom elevations are lower than the stream bed elevation,the riprap
must be lower than the stream bed and match the culvert elevation.
Minimum Culvert Size—All Nationwide Permits
Culverts installed in ephemeral,intermittent,and perennial streams must completely span the bankfiill width of the
stream channel. This requirement can be waived by the Corps for culverts installed in man-made ditches or canals. For
the purpose of this condition bankfull width is defined as the width of the channel at the elevation where overbanlc or
out-of-bank flow begins.
REGIONAL CONDITIONS APPLICABLE TO SPECIFIC NATIONWIDE PERMITS
Nationwide Permit 7—Outfall Structures and Associated Intake Structures and
Nationwide Permit 12—Utility Line Activities-Intakes in the Yellowstone River or the Missouri River in
Blaine,Chouteau,Custer,Dawson,Fergus,Garfield,McCone,Petroleum,Phillips,Prairie,Richland,Roosevelt,
Valley and Wibaux Counties._Inlet screens will be installed on all pump intakes,with a screen mesh opening size no
Iarger than 0.25 inches. Water intake velocities must not to exceed 0.5 feet per second through the mesh. Intakes must
be located in the deepest water available and be elevated off the bottom of the river bed. s
Nationwide Permit 11—Temporary Recreational Structures. Temporary recreational structures within the
Special River Management Zone of the upper Yellowstone River can be installed no earlier than 7 calendar days in
advance of an event and must be removed no later than 7 calendar days after the event concludes.
Nationwide Permit 12—Utility Line Activities. Trench excavation and backfill for utility lines is prohibited i
within the Ordinary High Water Mark of main and secondary flow channels and in adjacent wetlands within the
Special River Management Zone of the upper Yellowstone River.
Nationwide Permit 12-Utility Line Activities_Permittees must notify the Corps in accordance with General
Condition No.31 (Pre-Construction Notification)prior to initiating any utility line activity that involves the j
discharge of dredged or fill material into open water such as lakes,ponds and perennial streams,or into wetlands,
intermittent streams,or ephemeral streams when surface water is present.
The following activities normally do not usually involve a discharge of dredged or fill material and do not normally
require a Section 404 permit:
1) Utility line activities involving only directional drilling or boring under the waterway where the bed and
banks of the waterway and wetlands are not disturbed;
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Montana Regional Conditions---Nationwide Permits Effective 19 March 2012 s
2)Utility line suspension over the waterway where wetlands and the bed and banks of the waterway are not
disturbed;
3)Plowing or knifmg methods of utility line installation where the soil or substrate is briefly separated and
the utility line placed in the crease before the soil falls back into place;and
4)Permits are required for all of the above activities(1 through 3)in waters regulated under Section 10 of
the Rivers and Harbors Act.
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Nationwide Permit 13—Bank Stabilization—Special River Management Zone of the Upper Yellowstone
River s
a,Temporary bank stabilization is prohibited during spring runoff.
b.Constriction of temporary or permanent levees is prohibited within the Special River Management Zone.
c.Only bank stabilization that is parallel to and adjacent to the valley wall and/or Special River
Management Zone boundary is allowed. All other bank stabilization must be reviewed under Standard Permit
procedures. Bank stabilization along roads,ditches,fills,or structures already located along the valley wall is j
allowed under this Nationwide Permit.
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Nationwide Permit 14—Linear Transportation Prolects. The construction of new transportation facilities in
waters of the U.S.within the Special River Management Zone(SRMZ)of the upper Yellowstone River is prohibited
tinder this Nationwide Permit and must be reviewed under Standard Permit procedures. The replacement,
reconstruction,and upgrading of existing transportation facilities are allowed under this Nationwide Permit within
the SRMZ.
_Nationwide Permit 17—Hydropower Protects.—This Nationwide Pen-nit has been revoked within the 48-mile
Special River Management Zone of the upper Yellowstone River.
Nationwide Permit 21—Surface Coal Mining Activities. This Nationwide Permit has been revolted within the
48-mile Special River Management Zone of the tipper Yellowstone River.
Nationwide Permit 23—Approved Cateizorical_Exclusions. All permittees must notify the Corps in accordance
with the General Condition No.31 (Pre-Construction Notification)prior to initiating any activities authorized under
this permit.
Nationwide Permit 27—Aquatic Habitat Restoration,Establishment,and Enhancement Activities. The i
construction of water control strictures,dikes,berms,current deflectors,bank stabilization,and ponds is prohibited
within the Channel Migration Zone of the upper Yellowstone River unless it is demonstrated that the proposed
features contribute to the restoration or rehabilitation of previously lost or impaired functions of the upper
Yellowstone River and adjacent aquatic areas.
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Nationwide Permit 27-A uatic Habitat Restoration Establishment and Enhancement Activities. All
permittees must notify the Corps in accordance with the General Condition No.31 (Pre-Construction Notification)
prior to initiating any aquatic habitat restoration,establishment or enhancement activities. f
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Notifications for pond projects must demonstrate there will be no net loss of emergent wetlands(if present)once the
pond site matures in order for the project to qualify for NWP 27. Monitoring will be required to assure no net loss
of emergent wetlands. j
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Montana Regional Conditions—Nationwide Permits Effective 19 March 2012
NWP 27 will not be used to authorize berms,dams,or similar structures for on-stream ponds on perennial,
intermittent,or ephemeral streams unless they are necessary and appropriate elements of a stream or wetland
restoration project.
Post-construction monitoring is required for wetland restoration,establishment,and enhancement projects exceeding
acre in size,and for stream restoration, establishment,and enhancement projects exceeding 500 feet in length.
Nationwide Permit 29-Residential Developments._This Nationwide Permit has been revoked within the 48-mile
Special River Management Zone of the upper Yellowstone River.
Nationwide Permit 30—Moist Soil Management for Wildlife. Fire breaks within the Channel Migration Zone of
the upper Yellowstone River must be reclaimed and restored within six months after the fire event ends.
Nationwide Permit 33—Temporary Construction,Access,and Dewatering.
a.Temporary bank stabilization is prohibited during spring runoff within the Special River Management
Zone of the tipper Yellowstone River.
b. Construction of temporary levees is prohibited within the Special River Management Zone.
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Nationwide Permit 39- Commercial and Institutional Developments
This Nationwide Permit has been revoked within the 48-mile Special River Management Zone of the tipper
Yellowstone River.
Nationwide Permit 40—Agricultural Activities. Only those activities associated with the reduction of existing
adverse impacts on the upper Yellowstone River are authorized by this Nationwide Permit. Examples of allowable
projects include work associated with livestock management,moving livestock watering areas off the river or out of
the Channel Migration Zone,removal of irrigation systems from the Channel Migration Zone,and the removal or
conversion of irrigation systems from flood irrigation to sprinkler irrigation.
Nationwide Permit 42- Recreational Facilities. This Nationwide Pen-nit has been revolted within the 48-mile
Special River Management Zone of the tipper Yellowstone River.
Nationwide Permit 43- Stormwater Management Facilities. This Nationwide Permit has been revoked within
the 48-mile Special River Management Zone of the tipper Yellowstone River.
Nationwide Permit 44- Mining Activities. This Nationwide Permit has been revoked within the 48-mile Special J
River Management Zone of the upper Yellowstone River. !
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Nationwide Permit 45- Repair of Uplands Damaged by Discrete Events. This Nationwide Permit has been
revoked within the 48-mile Special River Management Zone of the tipper Yellowstone River,
Nationwide Permit 49—Coal Remining Activities._This Nationwide Permit has been revoked within the 48-mile
Special River Management Zone of the tipper Yellowstone River.
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Montana Regional Conditions---Nationwide Permits Effective 19 March 2012
Nationwide Permit 50—Underground Coal Mining Activities. This Nationwide Permit has been revolted within
the 48-mile Special River Management Zone of the upper Yellowstone River.
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GENERAL CONDITIONS(REGIONAL ADDITIONS) i
General Condition 6—Suitable Material j
The use of precast or cast in place concrete materials or structures for permanent stream bank or shoreline 1
stabilization,or as a component of a stream channelization or relocation project,is prohibited in Montana.
Articulated concrete matting or similar material may be used on a case-specific basis such as for boat ramps,bridge
pier scour protection,low water fords,culvert aprons,etc.
The use of clean brick,broken concrete and cinder block(in lien of rock riprap)for fill can be considered on a case- j
specific basis. A list of materials prohibited or restricted as fill material in waters of the United States within
Montana can be found at lit ://www.nwo.usace.arm .mil/html/od-nnt/nIts eciftc.html.
DEFINITIONS
"Discrete Event,"as used in Nationwide Permit 3—Maintenance and Nationwide Permit 45—Repair of Uplands
Damaged by Discrete Events does not include runoff or stream flow events equal to or less than the bankfuli discharge.
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