HomeMy WebLinkAbout20171616.tiffTETRATECH
February 7, 2017
Chris Mettenbrink, District Wildlife Manager
Colorado Parks and Wildlife
Northeast Regional Office (NERO)
6060 Broadway
Denver, CO 80216
Re: Lancaster to Fort Lupton Natural Gas Pipeline Project, Weld County, Colorado
Dear Mr. Mettenbrink:
Public Service Company of Colorado (PSCo), dba Xcel Energy, is proposing to construct a segment of
new 24 -inch natural gas pipeline referred to as the Lancaster to Fort Lupton Natural Gas Pipeline Project
(Project) in Weld County, Colorado. The Project consists of approximately 4.1 miles of new 24 -inch
natural gas pipeline from a new pressure regulating facility at the Anadarko Lancaster Gathering Facility
on the south side of County Road (CR) 22 between CR 31 and State Highway 37 (40.143046, -
104.744946). The Project's southern terminus is located on the south side of Barley Avenue across from
the Aristocrat Ranch subdivision, at the Fort Lupton Meter Station (40.100704, -104.756107). The Project
lies within Sections 14, 23, 26, 34, and 35, Township 2 North, Range 66 West. The pipeline will be
located in unincorporated Weld County, except at its intersection with Barley Avenue, which is part of the
city of Fort Lupton.
This Project is needed to meet the increased demand for natural gas services as a result of the recent
population growth and urban development. This Project will reinforce the natural gas system
infrastructure and provide improved and reliable service to future and existing customers in the region.
Tetra Tech, Inc. (Tetra Tech) conducted an assessment of biological resources potentially occurring
within the Project and assessed the potential Project impacts on these resources. The methods and
results of this evaluation are included in the attached Biological Resources Assessment Report. The
biological resources assessment evaluated three major categories of resources including special -status
species (including raptors), wetlands and other Waters of the U.S. (WoUS), and Colorado noxious weeds,
which are summarized herein.
On behalf of PSCo, Tetra Tech requests concurrence from Colorado Parks and Wildlife (CPW) with the
conclusions of this biological assessment.
Project Description
The total length of the new gas pipeline segment is approximately 4.1 miles (see Figure 1 in the attached
report). The biological resources assessment was conducted for a survey corridor encompassing the
pipeline preferred route and a short alternative segment of the preferred route. It also includes the
associated tracts for the proposed regulator building, access road, and temporary work areas for the
Project. The biological resources field survey area (depicted in Figures 1, 2, 3, and 4) is referred to
collectively as the Project right-of-way (Project ROW).The final pipeline alignment will be determined as
Tetra Tech, Inc.
Tel Fax
Area 5 Wildlife Manager
Colorado Parks and Wildlife
Lancaster to Fort Lupton Natural Gas Pipeline Project
Page 2 of 4
part of the permitting process, which PSCo anticipates completing by spring 2017. PSCo plans to begin
construction in early summer 2017.
Land use surrounding the Project is primarily agricultural; however, there are some residential
neighborhoods on the south end of Project. Construction activities, including restoration of sites, is
currently anticipated to take place through December 2017, although the schedule is subject to change.
The Project is planned to be constructed primarily using open trenching techniques except for areas that
will make use of horizontal directional drilling to avoid sensitive resources and county roads. The Project
is currently under review by Weld County, Fort Lupton, and Colorado Department of Public Health and
Environment. If required, consultation will occur with the U.S. Army Corps of Engineers (USACE) and the
Colorado Office of Archaeology and Historic Preservation.
Federally Listed Species
The assessment of federally listed species focused on species included in the U.S. Fish and Wildlife
Service Region 6 Information for Planning and Conservation (IPaC) search results for federal and state
listed threatened and endangered species likely to occur near the Project ROW. A desktop analysis
revealed no suitable habitat in the Project ROW for federally listed species.
State -listed Species
The only species listed as state threatened or endangered under Colorado Revised Statute 33-2-105 was
the burrowing owl. Six state species of concern were identified to have suitable habitat in grasslands
within the Project ROW including the ferruginous hawk, mountain plover, swift fox, black tailed prairie
dog, northern pocket gopher, and the common garter snake. These state species of concern have no
formal protections against take. All migratory birds within the Project ROW will be protected against take
under the Migratory Bird Treaty Act.
Burrowing owl surveys in accordance with CPW protocol will be conducted prior to surveys. If burrowing
owls are sighted during surveys or during construction, an evaluation will be made as to where the birds
are nesting relative to the construction footprint and the recommended CPW seasonal non -encroachment
buffer for nesting burrowing owls will be adhered to.
No raptor nests or nests for other species of migratory birds were documented in the Project ROW. The
field survey documented trees and shrubs that could support raptor nests in and around the Project
ROW. CPW-recommended seasonal windows for non -disturbance nest buffers for raptor species would
be used for active nests whose buffers fall within the Project ROW.
Wetlands and Other Potential WoUS
One wetland was mapped in the Project ROW (Table 7 and Figure 4, Sheet Map 3 of the attached
report). The current preferred route permanent and temporary easement would intersect the wetland by
approximately 0.078 acre. At that level of impact, PSCo would not be required to prepare a
preconstruction notification (PCN) for the USACE because the impacts would fall below the Nationwide
Permit (NWP) #12 PCN threshold of 0.10 acre. If impacts to this wetland are unavoidable, PSCo would
follow the general and regional conditions for NWP #12.
TETRA TECH
Area 5 Wildlife Manager
Colorado Parks and Wildlife
Lancaster to Fort Lupton Natural Gas Pipeline Project
Page 3 of 4
Noxious Weeds
One Colorado B -Listed noxious weed and five Colorado C -listed noxious weeds (listed in Table 6 of the
attached report) were observed in the Project ROW.
Conclusions
In summary, disturbance to biological resources present within the Project ROW is expected to be
negligible. On behalf of PSCo, Tetra Tech requests concurrence from CPW with the conclusions of this
assessment. Please do not hesitate to contact me with any questions.
Sincerely,
TETRA TECH, INC.
John Heule
Biologist/Environmental Planner
Office: 303.291.626011 Direct: 303.291.6278
John.Heule@tetratech.com
cc: Cheryl Diedrich, Senior Agent, Right of Way & Permits Department, PSCo
Randy Blank, Project Manager, PSCo
Attachments (1):
1. Biological Resources Assessment Report
TETRA TECH
Area 5 Wildlife Manager
Colorado Parks and Wildlife
Lancaster to Fort Lupton Natural Gas Pipeline Project
Page 4 of 4
This page intentionally left blank.
TETRA TECH
Attachment 1:
Biological Resources Assessment Report
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TETRATECH
February 7, 2017
Drue DeBerry, Acting Colorado Field Supervisor
U.S. Fish and Wildlife Service, Colorado Ecological Services
P.O. Box 25486 DFC (MS 65412)
Denver, CO 80225-0486
Drue DeBerry@fws.gov; coloradoes@fws.gov
Re: Lancaster to Fort Lupton Natural Gas Pipeline Project, Weld County, Colorado
Dear Mr. DeBerry:
Public Service Company of Colorado (PSCo), dba Xcel Energy, is proposing to construct a segment of
new 24 -inch natural gas pipeline referred to as the Lancaster to Fort Lupton Natural Gas Pipeline Project
(Project) in Weld County, Colorado. The Project consists of approximately 4.1 miles of new 24 -inch
natural gas pipeline from a new pressure regulating facility at the Anadarko Lancaster Gathering Facility
on the south side of County Road (CR) 22 between CR 31 and State Highway 37 (40.143046, -
104.744946). The Project's southern terminus is located on the south side of Barley Avenue across from
the Aristocrat Ranch subdivision, at the Fort Lupton Meter Station (40.100704, -104.756107). The Project
lies within Sections 14, 23, 26, 34, and 35, Township 2 North, Range 66 West. The pipeline will be
located in unincorporated Weld County, except at its intersection with Barley Avenue, which is part of the
city of Fort Lupton.
This Project is needed to meet the increased demand for natural gas services as a result of the recent
population growth and urban development. This Project will reinforce the natural gas system
infrastructure and provide improved and reliable service to future and existing customers in the region.
Tetra Tech, Inc. (Tetra Tech) conducted an assessment of biological resources potentially occurring
within the Project and assessed the potential Project impacts on these resources. The methods and
results of this evaluation are included in the attached Biological Resources Assessment Report. The
biological resources assessment evaluated three major categories of resources including special -status
species (including raptors), wetlands and other waters of the U.S. (WoUS), and Colorado noxious weeds,
which are summarized herein.
On behalf of PSCo, Tetra Tech requests concurrence from U.S. Fish and Wildlife Service (USFWS) with
the conclusions of this biological assessment.
Project Description
The total length of the new gas pipeline segment is approximately 4.1 miles (see Figure 1 in the attached
report). The biological resources assessment was conducted for a survey corridor encompassing the
pipeline preferred route and a short alternative segment of the preferred route. It also includes the
associated tracts for the proposed regulator building, access road, and temporary work areas for the
Project. The biological resources field survey area (depicted in Figures 1, 2, 3, and 4) is referred to
collectively as the Project right-of-way (Project ROW).The final pipeline alignment will be determined as
Tetra Tech, Inc.
Tel Fax
Colorado Field Supervisor
U.S. Fish and Wildlife Service
Lancaster to Fort Lupton Natural Gas Pipeline Project
Attachment 1
part of the permitting process, which PSCo anticipates completing by spring 2017. PSCo plans to begin
construction in early summer 2017.
Land use surrounding the Project is primarily agricultural; however, there are some residential
neighborhoods on the south end of Project. Construction activities, including restoration of sites, is
currently anticipated to take place through December 2017, although the schedule is subject to change.
The Project is planned to be constructed primarily using open trenching techniques except for areas that
will make use of horizontal directional drilling to avoid sensitive resources and county roads. The Project
is currently under review by Weld County, Fort Lupton, and Colorado Department of Public Health and
Environment. If required, consultation will occur with the U.S. Army Corps of Engineers (USACE) and the
Colorado Office of Archaeology and Historic Preservation.
Federally Listed Species
The assessment of federally listed species focused on species included in the USFWS Region 6
Information for Planning and Conservation (IPaC) search results for federal and state listed threatened
and endangered species likely to occur near the Project ROW. A desktop analysis revealed no suitable
habitat in the Study Area for federally listed species.
State -listed Species
The only species listed as state threatened or endangered under Colorado Revised Statute 33-2-105 was
the burrowing owl. Six state species of concern were identified to have suitable habitat in grasslands
within the Project ROW including the ferruginous hawk, mountain plover, swift fox, black tailed prairie
dog, northern pocket gopher, and the common garter snake. These state species of concern have no
formal protections against take. All migratory birds within the Project ROW will be protected against take
under the Migratory Bird Treaty Ac.
Burrowing owl surveys in accordance with Colorado Parks and Wildlife (CPW) protocol will be conducted
prior to surveys. If burrowing owls are sighted during surveys or during construction, an evaluation will be
made as to where the birds are nesting relative to the construction footprint and the recommended CPW
seasonal non -encroachment buffer for nesting burrowing owls will be adhered to.
No raptor nests or nests for other species of migratory birds were documented in the Project ROW. The
field survey documented trees and shrubs that could support raptor nests in and around the Project
ROW. CPW-recommended seasonal windows for non -disturbance nest buffers for raptor species would
be used for active nests whose buffers fall within the Project ROW.
Wetlands and other Potential WoUS
One wetland was mapped in the Project ROW (Table 7 and Figure 4, Sheet Map 3 of the attached
report). The current preferred route permanent and temporary easement would intersect the wetland by
approximately 0.078 acres. At that level of impact, PSCo would not be required to prepare a
preconstruction notification (PCN) for the USACE because the impacts would fall below the Nationwide
Permit (NWP) #12 PCN threshold of 0.10 acre. If impacts to this wetland are unavoidable, PSCo would
follow the general and regional conditions for NWP #12.
TETRA TECH
Colorado Field Supervisor
U.S. Fish and Wildlife Service
Lancaster to Fort Lupton Natural Gas Pipeline Project
Attachment 1
Noxious Weeds
One Colorado B -Listed noxious weed and five Colorado C -listed noxious weeds (listed in Table 6 of the
attached report) were observed in the Project ROW.
Conclusions
In summary, disturbance to biological resources present within the Project ROW is expected to be
negligible. On behalf of PSCo, Tetra Tech requests concurrence from the USFWS with the conclusions of
this assessment. Please do not hesitate to contact me with any questions.
Sincerely,
TETRA TECH, INC.
John Heule
Biologist/Environmental Planner
Office: 303.291.626011 Direct: 303.291.6278
John.Heule@tetratech.com
cc: Cheryl Diedrich, Senior Agent, Right of Way & Permits Department, PSCo
Randy Blank, Project Manager, PSCo
Attachments (1):
1. Biological Resources Assessment Report
TETRA TECH
Colorado Field Supervisor
U.S. Fish and Wildlife Service
Lancaster to Fort Lupton Natural Gas Pipeline Project
Attachment 1
Attachment 1:
Biological Resources Assessment Report
TETRA TECH
Lancaster to Fort Lupton Natural Gas Pipeline
Project —Weld County, Colorado
Biological Resources Assessment Report
February 2017
Prepared for: Public Service Company of Colorado dba Xcel Energy
Prepared by:
I I TETRA TECH
350 Indiana Street, Suite 500, Golden, CO, 80401
Lancaster to Fort Lupton Natural Gas Pipeline Project
Biological Resources Report
Contents
Page
1. Introduction 1
1.1 Project Description and Location 1
1.2 Regulatory Setting 2
2. Biological Resources Assessment 6
2.1 Biological Resources Assessment Methods 6
2.2 Biological Resources Assessment Results 8
3. Conclusions and Recommendations 20
3.1 Federal and State Listed Species 20
3.2 Wildlife and Vegetation Resources 20
3.3 Listed Noxious Weeds 21
3.4 Wetlands and Other WoUS 21
4. Literature Cited 22
Figures
Figure 1: Project Location
Figure 2: Desktop Analysis —Water and Wildlife Resources
Figure 3: Desktop Analysis—Landcover Results
Figure 4: Survey Results —Sheet Maps
Lancaster to Fort Lupton Natural Gas Pipeline Project
Biological Resources Report
Tables
Table 1:
Table 2:
Table 4:
Table 5:
Table 6:
Table 7:
Table 8:
Attachment 1:
Attachment 2:
Attachment 3:
Attachment 4:
Colorado Noxious Weed List 3
USFWS IPaC Identified Federally Listed Species and Likelihood of Occurrence 8
USFWS IPaC-Identified Migratory Birds Likely to Occur in the Project Area 15
Vegetation Observed in the Project Right of Way, December 15, 2016 17
Noxious Weed Species Observed during Field Surveys 19
Mapped Wetlands Near or in Project area 20
General Seed Mixes for Weld County, Sandy Site Mix 21
Attachments
USFWS IPAC Output
Photo Log
Wetland Delineation Forms
USACE General and Regional Conditions for Nationwide Permit #12
ii
Lancaster to Fort Lupton Natural Gas Pipeline Project
Biological Resources Report
1. Introduction
Public Service Company of Colorado (PSCo) is proposing to construct and operate the Lancaster to Fort
Lupton Natural Gas Pipeline Project (Project) in Weld County, Colorado. This Project is needed to meet
the increased demand for natural gas services as a result of the recent population growth and urban
development. This Project would reinforce the natural gas system infrastructure and provide improved
and reliable service to future and existing customers in the region. The purpose of this report is to (1)
provide a summary of local, state, and federal regulations that protect biological resources in Weld
County; (2) document findings of the biological resources assessment (including desktop analysis and
field survey); and (3) provide recommendations for management of biological resources, including
measures to avoid, minimize, or mitigate impacts, where necessary and practicable.
1.1 Project Description and Location
The length of the new 24 -inch steel high-pressure pipeline would be approximately 4.1 miles. The pipeline
is planned to be constructed primarily using open trenching techniques except for areas that may be
bored to avoid sensitive resources, other utilities, or crossing of county roads. The location of the Project
is depicted in Figure 1. The Project's northern boundary is located at the proposed gas regulator station
at the Anadarko Lancaster Gathering Facility on the south side of County Road 22 between County Road
31 and State Highway 37 in unincorporated Weld County (40.143046, -104.744946). The Project's
southern terminus is located on the south side of Barley Avenue across from the Aristocrat Ranch
subdivision, at the existing Fort Lupton Meter Station (40.100704, -104.756107). The Project lies within
Sections 14, 23, 26, 34, and 35, Township 2 North, Range 66 West. The pipeline will be located in
unincorporated Weld County, except at its intersection with Barley Avenue, which is part of the city of Fort
Lupton.
The Project consists of construction of the pipeline, a regulator station, and two buildings to house
equipment at the regulator station. The pipeline will tie into an existing meter station located on PSCo's
property. The pipeline will require a 50 -foot -wide permanent easement and a 50 -foot wide temporary
construction easement. The regulator station will be approximately 250 feet by 100 feet in area. The final
pipeline alignment will be determined as part of the permitting process, which PSCo anticipates
completing by summer 2017 and beginning construction in early fall 2017. This report discusses the
biological resources assessment conducted for a survey corridor encompassing the pipeline preferred
route, and two alternative segments of the preferred route. It also includes the area for the proposed
regulator building and associated access road, and temporary work areas for the Project. The biological
resources field survey area (depicted in Figures 1, 2, 3, and 4) is referred to collectively in this report as
the Project right-of-way (Project ROW).
Land use surrounding the Project is primarily agricultural; however, there are some residential
neighborhoods in the vicinity of the pipeline on the south end of the Project. The Project ROW crosses
two maintained county roads (CR 18 and CR 20), and one maintained Fort Lupton road (Barley Avenue).
1
Lancaster to Fort Lupton Natural Gas Pipeline Project
Biological Resources Report
1.2 Regulatory Setting
Several biological resources are protected by federal and state laws. The following subsections briefly
describe these regulations and permitting processes, where applicable.
1.2.1 Special Status Species
The Endangered Species Act (ESA) and its implementing regulations in Title 50 of the Code of Federal
Regulations (CFR) Section 17 prohibit the take of any fish or wildlife species that is federally listed as
threatened or endangered without prior approval pursuant to either Section 7 or Section 10 of the ESA.
The United States Fish and Wildlife Service (USFWS) is responsible for the implementation of the ESA.
Section 3 of the ESA defines "take" as "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or
collect or to attempt to engage in any such conduct" (16 United States Code [USC] § 1532 (19)). Harm, in
this case, means an act that actually kills or injures a federally listed wildlife species, and "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". To harass means to
perform "an intentional or negligent act or omission which creates the likelihood of injury to wildlife by
annoying it to such an extent as to significantly disrupt normal behavioral patterns which include, but are
not limited to, breeding, feeding or sheltering" (50 CFR §17.3). In addition, Section 9 of the ESA details
generally prohibited acts and Section 11 provides for both civil and criminal penalties for violators
regarding species federally listed as threatened or endangered.
Colorado Revised Statute (CRS) 33-2-105 states that it is unlawful to "take, possess, transport, export,
process, sell or offer for sale, or ship" any species listed as threatened or endangered by Colorado Parks
and Wildlife (CPW). According to CRS 33-1-102 "Take" means to acquire possession of wildlife; but such
term shall not include the accidental wounding or killing of wildlife by a motor vehicle, vessel, or train.
Activities that would trigger the need for USFWS or CPW consultation or permitting for the Project are
discussed in more detail in Section 3.
It is unlawful under the Migratory Bird Treaty Act (MBTA) (50 CFR § 10.13) to "pursue, hunt, take, capture
or kill; attempt to take, capture or kill; possess, offer to or sell, barter, purchase, deliver or cause to be
shipped, exported, imported, transported, carried, or received any migratory bird, part, nest, egg, or
product". Birds protected under this act include most native birds, including their body parts (e.g.,
feathers), nests, and eggs.
The Bald and Golden Eagle Protection Act (BGEPA) prohibits the take of bald or golden eagles by any
party. BGEPA defines "take" as "to pursue, shoot, shoot at, poison, wound, kill, capture, trap, collect,
destroy, molest, and disturb individuals, their nests and eggs" (16 USC 668c). "Disturb" is defined by
regulation at 50 CFR 22.3 in 2007 as "to agitate or bother a bald or golden eagle to a degree that
causes...injury to an eagle, a decrease in productivity, or nest abandonment..."
CPW recommends a set of seasonal buffers for specific nesting raptors that commonly occur in Colorado,
including but not limited to bald and golden eagles (CPW 2008). These buffers are for active nests and
2
Lancaster to Fort Lupton Natural Gas Pipeline Project
Biological Resources Report
range from 0.25 mile to 0.5 mile depending on species. Each buffer has an associated date range which
occurs each year.
1.2.2 Noxious Weeds
The state of Colorado promulgated the Colorado Noxious Weed Act (Act) in 1990 within Title 35, Article
5.5, Parts 110 through 119, in 1990. The Act initially created three lists: A, B and C. The state
subsequently added a watch list. The most recent update to the weed lists became effective December
30, 2015.1 The Act requires A -list species be eradicated wherever detected in order to protect
neighboring communities and the state as a whole. There are 25 species on the A list. The B list
represents those species for which the state of Colorado and local governments will develop noxious
weed management plans to stop the continued spread of these species. The B list contains 37 species.
Species on the C list are those species for which the state of Colorado will assist local governing bodies
with educational, research, and biological control resources to manage these plants. The C list includes
16 species. The watch list includes 24 species of weeds that are documented for advisory and
educational purposes only at this time. The state listed noxious weeds are provided in Table 1.
Table 1:
Colorado Noxious Weed List
List
Common Name
Scientific Name
Colorado Llst A
African rue
Peganum harmala
Camelthorn
Alhag! pseudalhag!
Common crupina
Cruprna vulgaris
Cypress spurge
Euphorbia cypariss!as
Dyer's woad
!sails iincioria
Elongated mustard
Brassrca elongate
Flowering rush
Butomus umbeflafus
Gant reed
Arundo donax
Giant saivinia
Salvrnra molesfa
Hairy willowherb
Epilobium hirsufum
Hydrilla
Hydri/la verfrcillafa
Bohemian Knotweed
Polygonrum x bohemicum
Gant Knotweed
Polygonrum sachahnese
Japanese Knotweed
Polygonrum cusprdafum
Meadow knapweed
Centaurea pratensis
Mediterranean sage
Salvia aefhiopis
Medusahead
Taeniatherum capuf-medusae
Myrtle spurge
Euphorbia myrsinifes
Orange hawkweed
Hieracium aurantiacum
Parrotfeather
Myrrophylum aquaficum
Purple loosestrfe
Lythrum salicaria
Rush skeletonweed
Chondrillajuncea
The state noxious weed list can be accessed at https://www.colorado.gov/pacific/agconservation/noxious-weed-
species
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Biological Resources Report
Table 1:
Colorado Noxious Weed List
List
Common Name
Scientific Name
Squarrose knapweed
Centaurea virgata
Tansy ragwort
Senecrojacobaea
Yellow starthistle
Centaurea solstifialis
Colorado Llst B
Absinth wormwood
Arfemrsia absrnfhium
Black henbane
Hyoscyamus urger
Bouncingbet
Saponaria officinalis
Bull thistle
Cirsium vulgare
Canada thistle
Breea arvensis (Cirsium arvense)
Chinese clematis
Clematis orientafrs
Corn chamomile
Anthemrs arvensrs
Mayweed chamomile
Anfhemrs cotula
Scentless chamomile
Trrpleurospermum perforatum
Chinese clematis
Clematis orientafrs
Common tansy
Tanacefum vulgare
Common teasel
Dipsacus fullonum
Corn chamomile
Anfhemrs arvensrs
Common teasel
Dipsacus fullonum
Cutleaf teasel
Dipsacus lacrnrafus
Dalmatian toadflax
Linaria dafmatrca
Dame's rocket
Hesperis matronafrs
Diffuse knapweed
Acosta diffusa (Centaurea diffusa)
Eurasian watermiifoil
Mynophyllum sprcafum
Hoary cress
Cardana draba
Houndstongue
Cynoglossum officinale
Jointed goatgrass
Aegrlops cylindrica
Leafy spurge
Euphorbia esula
Moth mullein
Verbascum blaffarra
Musk thistle
Carduus nutans
Oxeye daisy
Chrysanthemum leucanfhemum
Perennial pepperweed
Leprdrum latrfolum
Plumeless thistle
Carduus acanthoides
Russian knapweed
Acropti!on repens
Russian -olive
Elaeagnus angusfrfofra
Salt cedar
Tamarix chinenss, T.parviflora, and T. ramosissrma
Scentless chamomile
Matricaria perforata
Scotch thistle
Onopordum acanthium, and 0. tauncum
Spotted knapweed
Centaurea maculosa
Sulfur cinquefoil
Potentilla recta
Wild caraway
Carum carvi
Yellow nutsedge
Cyperus esculenfus
Yellow toadflax
Linaria vulgaris
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Lancaster to Fort Lupton Natural Gas Pipeline Project
Biological Resources Report
Table 1:
Colorado Noxious Weed List
List
Common Name
Scientific Name
Colorado Usk C
Bulbous Goatgrass
Poa bulbosa
Chicory
Cichorium intybus
Common burdock
Arctrum minus
Common mullein
Verbascum thapsus
Common St. Johnswort
Hypencum perforatum
Downy brome
Bromus tectorum
Field bindweed
Con volvulus arvensis
Halogeton
Halogeton glomeratus
Perennial sowthistle
Sonchus arvensis
Poison hemlock
Conium maculatum
Puncturevine
Tribulus terrestrrs
Quackgrass
Elymus repens
Redstem fillaree
Erodium crcutarrum
Velvetleaf
Abufilon theephrasti
Wild proso millet
Panicum miiiaceum
1.2.2.1 Weld County Noxious Weed Management
The Weld County Weed Division enforces the Colorado Noxious Weed Act and the Weld County
Enforcement Policy (the Policy). The Policy is outlined in Chapter 15 of the Weld County code. The Policy
gives the Weld County Weed Division Supervisor authorization to inspect private property and issue an
assessment for the whole cost of management of noxious weeds on private lands. Weld County only
actively manages weeds on the Colorado noxious weeds list (Table 1).
1.2.3 Wetlands and other WoUS
Under the U.S. Army Corps of Engineers (USACE) and U.S. Environmental Protection Agency (EPA)
regulations, wetlands are defined as "those areas that are inundated or saturated by surface or
groundwater at a frequency and duration sufficient to support, and that under normal circumstances do
support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands
generally include swamps, marshes, bogs, and similar areas." In non -tidal waters, the lateral extent of
USACE jurisdiction is determined by the ordinary high water mark (OHWM), which is defined as the "line
on the shore established by the fluctuations of water and indicated by physical characteristics such as a
clear, natural line impressed on the bank, shelving, changes in the character of soil, destruction of
terrestrial vegetation, the presence of litter and debris, or other appropriate means that consider the
characteristics of the surrounding areas" (33 CFR 328[e]).
All discharges of dredged or fill material into jurisdictional waters of the United States (WoUS) that result
in permanent or temporary losses of WoUS are regulated by the USACE under Section 404 of the Clean
Water Act (CWA). The USACE regulates projects in navigable water under Section 10 of the Rivers and
Harbors Act. Impacts to wetlands or other WoUS should be avoided or minimized to the extent
practicable.
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Lancaster to Fort Lupton Natural Gas Pipeline Project
Biological Resources Report
2. Biological Resources Assessment
This biological resources assessment featured two components: a desktop analysis and field survey.
These two components were completed by biologists qualified to identify flora and fauna in the Front
Range of Colorado as well as identify WoUS that may be under the jurisdiction of the USACE in the
Project area.
2.1 Biological Resources Assessment Methods
The following subsections describe the methods used to evaluate the presence of biological resources for
the Project ROW.
2.1.1 Desktop Methods
Each of the desktop resources listed below were used in evaluating the biological resources that are in
the vicinity of the Project ROW:
• USFWS Region 6 Information for Planning and Conservation (IPaC) search results for federal and
state listed threatened and endangered species likely to occur near the Project area (Attachment 1)
• CPW bald eagle shapefile (CPW 2016a
• CPW threatened, endangered and species of concern for the state (CPW 2016b
• Colorado Natural Heritage Program (CNHP) Database—CNHP maintains species profiles for
protected species that can be used to identify species of concern within a Project area (CPW 2016c
• U.S. Department of Agriculture (USDA) Farm Service National Agricultural Imagery Program Aerial
photography for Project location (USDA 2015)
• Multi Resolution Land Characteristics Consortium National Land Cover Dataset Compilation (N LCD)
(Fry et al. 2011)
• Hammerson, G.A. 1999. Amphibians and Reptiles in Colorado, 2nd Edition. University Press of
Colorado (Niwot, Colorado) and Colorado Division of Wildlife.
• Sibley, David Allen. 2014. Sibley Guide to Birds. Second Edition. Knopf Publishing Group.
Additionally, several data sets were analyzed to determine the presence of WoUS, including wetlands, as
follows:
• USFWS National Wetland Inventory (USFWS 2016b)
• U.S. Geological Survey (USGS) National Hydrography Dataset (USGS 2015a)
• USGS topographic contours (USGS 2015b)
• U.S. Department of Agriculture (USDA) Natural Resources Conservation Service (NRCS) soils survey
data (NRCS 2016a)
• Hydric Soils (NRCS 2016b)
• Federal Emergency Management Agency (FEMA) Floodplain Dataset (FEMA 2016)
Data from these sources for WoUS are depicted on Figure 2. Results of this desktop analysis are
included in Section 2.2.1.
6
Lancaster to Fort Lupton Natural Gas Pipeline Project
Biological Resources Report
2.1.2 Field Survey Methods
Two biologists qualified to identify Great Plains flora and fauna, noxious weeds, and wetlands and other
WoUS, conducted the field effort. The following subsections provide descriptions of survey methods used
for each component of the field survey by the field team.
2.1.2.1 Listed Species —Habitat Suitability Assessment
Field notes and digital photography were collected from all areas of the Project ROW that presented
suitable habitat characteristics that would support any species listed in Tables 2 and 3.
2.1.2.2 General Wildlife and Vegetation Assessment
Tetra Tech biologists performed a pedestrian field survey through the entirety of the Project ROW,
including all of the preferred route and the preferred route alternative segment. All species of wildlife and
vegetation that were observed during the survey were recorded in a field logbook and photographed as
practicable. Locations of certain resources, such as active black -tailed prairie dog colonies in the ROW,
were mapped using a generic global positioning system (GPS) software loaded on the field tablet
computer.
2.1.2.2.1 Avian Survey Methods
Tetra Tech biologists surveyed the Project ROW for raptor nests and trees that could support raptor
nests. Biologists documented suitable habitat and sightings of individual bird species protected by the
MBTA in the Project ROW. The largest buffer for active raptor nests recommended by CPW is 0.5 mile for
the bald eagle, so only trees within 0.5 mile of the Project ROW were surveyed for nests. Field binoculars
were used to observe trees that could support nests to confirm whether the tree held a nest or bird. CPW
defines an active nest as any nest that is "frequented or occupied by a raptor during the breeding season
or which has been active in any of the five previous breeding seasons" (CPW 2008).
2.1.2.3 Noxious Weed Assessment
The field survey team made careful observations of each occurrence of state listed noxious weeds within
the Project ROW.
2.1.2.4 Wetland and Other WoUS Delineation Methodology
Wetland observations were strictly reconnaissance level because the work was conducted well outside of
the growing season for Weld County. Formal wetland delineations are typically based upon the
methodology contained in the USACE Wetland Delineation Manual (1987) and the Regional Supplement
to the USACE Wetland Delineation Manual: Great Plains Region (Version 2.0) (2010). The delineation
process normally relies on the documentation of dominant vegetation, soils, and hydrology in areas of
interest (i.e., areas with potential intersections between planned Project infrastructure and potential
wetland ecosystems). For a site to be considered wetland, there must be positive indication of dominance
by hydrophytic vegetation, hydric soils, and characteristic wetland hydrology. In normal conditions, if a
sample plot lacks any one of these three criteria, it is considered upland. The dominant vegetation at
each sample plot was keyed to species level and each species was assigned a wetland indicator status
using The National Wetland Plant List (Lichvar 2014). The field team used the Flora of Colorado
7
Lancaster to Fort Lupton Natural Gas Pipeline Project
Biological Resources Report
(Ackerfield 2015) and the Field Guide to Colorado's Wetland Plants (Culver and Lemly 2013) as the field
taxonomic references for keying unknown plant species.
This survey was conducted in December, well outside the growing season, which made proper plant
identification to the level of species extremely difficult. The field survey team noted areas with low
topography, evidence of standing water or OHWMs, and any vegetation that could be reasonably
identified to the level of genus and documented as hydrophytes (facultative and obligate wetland
species). Sample plots that exhibited qualifying characteristics of hydrophytic vegetation, hydric soils, and
wetland hydrology were identified as wetlands. A Wetland Determination Data Form specific to the Great
Plains Region was completed for sample plots. Data forms are included as Attachment 3.
2.2 Biological Resources Assessment Results
The following sections describe the results of the biological resources assessment completed for the
Project ROW.
2.2.1 Desktop Results
2.2.1.1 Federally Listed Species
According to IPaC output for the Project ROW (Attachment 1), four birds, one fish, one mammal, and
three flowering plant species that are federally listed as threatened or endangered by the USFWS should
be considered as part of an effect analysis for the Project. Table 2 lists these species and summarizes
the likelihood of occurrence in the Project ROW. None of the species listed in Table 2 was directly
observed during the field survey. As the table shows, none of the species were judged to have potential
to occur within the Project ROW. There are no USFWS designated critical habitats for any federally listed
species within the Project ROW (USFWS 2016a)
Table 2:
USFWS IPaC Identified Federally Listed Species and Likelihood of Occurrence
Taxonomic
Group
Common Name
Scientific Name
Status
Likelihood of Occurrence in the Project ROW/Habitat Suitability
Birds
Least Tern
(Interior
population)
Sternula
antillarum
FE
Unlikely to occur. Habitat consists of bare sandy shorelines of
reservoirs, lakes, and rivers. These habitat components are not
present in the Project ROW, which Is outside typical breeding and
wintering distribution.
Mexican Spotted
Owl
Sfrix occrdentalrs
fucida
FT
UnIlkely to occur. Habitat consists of old -growth or mature forests,
and canyon -riparian communities, These habitat components are not
present in the Project ROW.
Piping Plover ♦
Charadrius
melodus
FT
UnIlkely to occur. Project ROW outside typical breeding and wintering
distribution. Occurs In the Platte River watershed downstream in
Nebraska. Water for the Project will be obtained from a public water
source. The Project is therefore not expected to cause depletions in
the Platte River watershed
Whooping Crane
A
(Gras
americana)
FE
UnIlkely to occur. Project ROW outside typical distribution. Occurs in
the Platte River watershed downstream in Nebraska. Water for the
Project will be obtained from a public water source. The Project is
therefore not expected to cause depletions in the Platte River
watershed.
8
Lancaster to Fort Lupton Natural Gas Pipeline Project
Biological Resources Report
Table 2:
USFWS IPaC Identified Federally Listed Species and Like ihood of Occurrence
Taxonomic
Group
Common Name
Scientific Name
Status
Likelihood of Occurrence in the Project ROW/Habitat Suitability
Fish
Pallid Sturgeon ♦
(Scaphrrhynchus
albus)
FE
Unlikely to occur. Occurs downstream in the Platte River in the state
of Nebraska. Water for the Project will be obtained from a public
water source. The Project Is therefore not expected to cause
depletions In the Platte River watershed.
Mammals
Preble's Meadow
Jumping Mouse
Zapus hudsonius
prebler
FT
Unlikely to occur. Suitable habitat typically occurs in riparian habitats
with a permanent water source, a multi -storied canopy, an
herbaceous ground cover, and relatively undisturbed grassland
communities adjacent to the riparian zone. The Project does not
cross any permanent water sources with suitable riparian habitat.
Flowering
Plants
Colorado Butterfly
Plant
Gaura
neomexrcana
car. coloradensis
FT
Unlikely to occur. Occurs in northcentral Colorado in wetland habitats
along meandering stream channels Habitat includes sub -Irrigated,
alluvial soils of drainage bottoms surrounded by mixed grass prairie.'
No perennial streams, floodplains with native or undisturbed
vegetation, or riparian wetlands are located within the Project ROW
Ute Ladies'-
tresses orchid
Sprranfhes
difuviafis
FT
Unlikely to occur. Habitat includes riparian edges, sub -irrigated
alluvial soils along streams, gravel bars, and open meadows in
floodplains2 There are no perennial streams or floodplains with
native or undisturbed vegetation present in the Project ROW. South
Platte Floodplaln crossing is within land already disturbed by existing
Cherokee Station Power Plant.
Western Prairie
Fringed Orchid A
Plafanfhera
praeclara
FT
Unlikely to occur. Occurs most often in mesic to wet unplowed
tallgrass prairies and meadows. These habitat components are not
present in the Project ROW3. The nearest occurrence of this species
to the Project area Is downstream on the Platte River system in
Nebraska.
FE = Federal Endangered, FT = Federal Threatened
A Water depletions in the North Platte River, South Platte River, and Laramie River basins may affect the species and/or critical habitat
associated with the Platte River in Nebraska.
1 Source: CNHP (2015a)
2 Source: CNHP (2015b)
3 Source: USFWS (2015)
2.2.1.2 State Listed Species
CPW's threatened and endangered list includes state listed endangered and threatened species (CPW
2016b). This list includes amphibians, birds, fish, mammals, reptiles, and mollusks. Table 3 provides the
state listed species that were evaluated for presence within the Project ROW. Generally, the likelihood of
occurrence was derived from an evaluation of data contained in the CPW threatened and endangered
species profiles (CPW 2016b). Of the species cited in the table, three birds, three mammals, and one
reptile have the potential to occur within the Project ROW.
9
Lancaster to Fort Lupton Natural Gas Pipeline Project
Biological Resources Report
Table 3:
State Listed Species and Their Likelihood of Occurrence Within the Project Area
Taxonomic
group
Common
Name
Scientific Name
State
Status
Likelihood of occurrence within the Project ROW
Amphibians1'2
Boreal toad
Bufo boreas
SE
Unlikely to occur. Habitat Includes mountain lakes, ponds, meadows,
and wetlands in subalpine forest which do not occur within the
Project ROW. Adults often feed in meadows and forest openings
near water but sometimes in drier forest habitats. This species
habitat is exclusively in the mountains of Colorado to the west of the
Project ROW and typically above 8,500 feet above mean sea level.
Couch's
spadefoot
Scaphiopus couchg
SC
Unlikely to occur. Breeds in pools and stock ponds filed by heavy
rains In areas dominated by prairie grassland, Colorado Dlstributlon:
southeastern Colorado, not near the Project ROW.
Great Plains
narrow-
mouthed toad
Gasfrophryne
olvacea
SC
Unlikely to occur. Habitat Includes grassy areas on rocky slopes and
in bottoms of rock -rimmed canyons that do not occur within the
Project ROW. Colorado Distribution: Extreme southeastern
Colorado,
Northern
cricket frog
Acris crepitans
SC
Unlikely to occur. The species Is extremely rare and has not been
seen In Colorado since 1979. Occurs In the vicinity of sunny, muddy,
or marshy edges of permanent or semi -permanent ponds, reservoirs,
and streams and along Irrigation ditches, none of which occur in the
Project ROW.
Northern
leopard frog
RanalL!thobates
ppens
SC
Unlikely to occur. Suitable habitat consists of wetlands and riparian
habitats that are lacking In this Project ROW. May roam far from
water during wet mild weather. The species was once nearly
statewide from 3,500 to 11,000 feet
Plains leopard
frog
Rana/L!thobates
blafi
SC
Unlikely to occur. Colorado distribution: Great Plains portion of the
Arkansas River drainage In southeastern Colorado and the
Republican River drainage in northeastern Colorado, not near the
Project ROW. Habitat includes vicinity of streams, natural and
artfcial ponds, reservoirs, creek pools, Irrigation ditches, and other
bodes of water in plains grassland. May disperse far from water
during wet mild weather.
Wood frog
Rana
sylvatica/L it ho bates
sylvafrcus
SC
Unlikely to occur. Distribution outside the Project ROW. Habitat
includes subalpine zones in marshes, bogs, pothole ponds, beaver
ponds, lakes, stream borders, wet meadows, willow thickets, and
forests (lodgepole pine, spruce, fir, or aspen) bordering these
habitats, Colorado Distribution: Mountains surrounding North Park;
upper tributaries of the Colorado River in Grand County; upper
Laramie River drainage in Larimer County. Mainly at elevations of
7,900 to 9,800 feet, Locally fairly common in suitable habitat.
Blyds1, 3
American
peregrine
falcon
Falco peregrinus
anatum
SC
Unlikely to nest near the Project ROW. Inhabits open spaces usually
associated with high cliffs and bluffs overlooking rivers and coasts,
Cliffs and steep bluffs are lacking in the Project area. In Colorado,
these falcons can be found from the Front Range to the state's
western border.
Bald eagle
Halaeefus
leucocephalus
SC
Unlikely to occur. Bald eagles are usually found near large bodies of
water, which are not found within the ROW, There is documentation
of a bald eagle nest site, but it is more than 0.5 mule east of the
Project ROW. During the breeding season, bald eagles defend
territories and most frequently can be found nesting in large
cottonwood trees. In the winter, bald eagles communally roost in
large trees for warmth and protection. There are no mature trees In
the Project ROW.
10
Lancaster to Fort Lupton Natural Gas Pipeline Project
Biological Resources Report
Table 3:
State Listed Species and Their Likelihood of Occurrence Within the Project Area
Taxonomic
group
Common
Name
Scientific Name
State
Status
Likelihood of occurrence within the Project ROW
Burrowing owl
Athene cunrcularia
ST
Potential to occur. Burrowing owls are known to utilize prairie dog
colonies for habitat. Four colonies of prairie dogs were documented
within the Project ROW.
Columbian
sharp tailed
grouse
Tympanuchus
phasianellus
columbianus
SC
Unlikely to occur. Habitat includes high mountain shrub -grassland
community and associated edges. Project ROW elevation is too low
to maintain this species.
Ferruginous
hawk
Buteo regales
SC
Potential to occur. Habitat includes semi -arid to arid grasslands,
which do occur in in the Project ROW. Hunts small mammals from
perches such as poles or hay bales or on the ground. May hunt by
kiting. Species is a year-round resident on the eastern plains of
Colorado Prey includes black -tailed prairie dogs and other small
mammals, such as rabbits and ground squirrels.
Greater sage
grouse
Centrocercus
urophasianus
SC
Unlikely to occur. Habitat isolated to the northwestern corner of
Colorado, outside the Project ROW. Found only in areas where
sagebrush is abundant at altitudes of 6,000 to 8,500 feet, which does
not occur within the Project ROW.1
Greater
sandhill crane
Grus canadensis
SC
Unlikely to occur. Found in parks with grassy hummocks and
watercourses, beaver ponds, and natural ponds lined with willows or
aspens. No perennial water sources found on within the Project
ROW.
Gunnison
sage grouse
Centrocerus
minimus
SC
Unlikely to occur. Found in southwestern portion of Colorado and
southeastern Utah outside the Project ROW, Species occurrence
highly correlated with areas of expansive sagebrush plains, which
does not exist within the Project area.
Least tern
Sterna antillarum
SE
Unlikely to occur. Breeds in the southern and eastern portion of the
state, generally in the La Junta -Lamar area outside the Project
ROW. Habitat consists of sandy hills and rooftops large rivers in the
great plains and the Atlantic coast.
Lesser prairie
chicken
Tympanuchus
pallidicintus
ST
Unlikely to occur. Occupies the grasslands of Texas, Oklahoma,
New Mexico, Kansas, and southeastern Colorado, outside the
Project ROW.
Long -billed
curlew
Numenrus
americanus
SC
Unlikely to occur. Generally rare in all of Colorado, Not common in
urban areas. Species prefers relatively arid short -grass prairie. Nests
on the ground. Feeds on insects, bird eggs, toads, berries, and
nestlings of other bird species.
Mexican
spotted owl
Strix occidental's
lucida
ST
Unlikely to occur. Habitat consists of mature mixed -conifer, pine -oak,
and riparian forest in canyon habitat. These habitat components are
not present in the Project ROW.
Mountain
plover
Charadnus
montanus
SC
Potential to occur. Mountain plovers inhabit shortgrass prairie
grasslands and arid plains. Nesting plovers choose shortgrass
prairies grazed by prairie dogs, bison, and cattle, as well as
overgrazed tallgrass and fallow fields. In Colorado, major breeding
areas exist at the Pawnee National Grasslands, north of the Project
ROW.
Plains sharp-
tailed grouse
Tympanuchus
phasianellus
jameslr
SE
Unlikely to occur. Found in extreme northern Colorado where
grassland and forest mix. Distribution is outside Project ROW
11
Lancaster to Fort Lupton Natural Gas Pipeline Project
Biological Resources Report
Table 3:
State Listed Species and Their Likelihood of Occurrence Within the Project Area
Taxonomic
group
Common
Name
Scientific Name
State
Status
Likelihood of occurrence within the Project ROW
Piping plover
Charadnus
melodus
circumcinctus
ST
Unlikely to occur. Project ROW outside typical breeding and
wintering distribution Occurs in the Platte River watershed
downstream in Nebraska
Southwestern
willow
flycatcher
Empidonax traillil
exfrmus
SE
Unlikely to occur. Breeding distribution in Colorado is limited to the
southwestern portion of the state in riparian forests.
Western
snowy plover
Charadnus nivosus
ssp. nivosus)
SC
Unlikely to occur. Habitat requires shallow lakes, which are not
present In the Project ROW.
Western
yellow -billed
cuckoo
Coccyzus
americanus
SC
Unlikely to occur. Range linked to southwestern Colorado In riparian
gallery forests of perennial rivers, not near the Project ROW.
Whooping
crane
Grus americana
SE
Unlikely to occur. Project ROW outside typical distribution. Occurs In
the Platte River watershed downstream in Nebraska.
Fish1.4
Arkansas
darter
Efheosfoma
Cragini
ST
Unlikely to occur. There are no perennially flowing streams that
could support the Arkansas darter in the Project ROW.
Bonytail
Gila elegans
SE
Unlikely to occur. There are no perennially flowing streams that
could support the bonytail in the Project ROW.
Brassy
minnow
Hybognathus
hankinsoni
ST
Unlikely to occur. There are no perennially flowing streams that
could support the brassy minnow in the Project ROW.
Colorado
pikeminnow
Ptychocheilus
lucius
ST
Unlikely to occur. There are no perennially flowing streams that
could support the Colorado pikeminnow in the Project ROW,
Colorado River
cutthroat trout
Oncorhynchus
dark pleurificus
SC
Unlikely to occur. There are no perennially flowing streams that
could support the Colorado River cutthroat trout in the Project ROW,
Colorado
roundtail chub
Gila robusta
SC
Unlikely to occur. There are no perennially flowing streams that
could support the Colorado roundtail chub in the Project ROW.
Common
shiner
Luxilus cornutus
ST
Unlikely to occur. Although the species is known to occur In the
South Platte drainage, no perennially flowing streams that could
support the common shiner are located within the Project ROW,
Flathead chub
Plafygobio gracilus
SC
There are no perennially flowing streams that could support the
flathead chub in the Project ROW.
Greenback
cutthroat trout
Oncorhynchus
dark stomias
ST
Unlikely to occur. Prefers clear, cold swift -moving streams No
perennially flowing streams occur in the Project ROW that could
support greenback cutthroat trout.
Humpback
chub
Gila cypha
ST
Unlikely to occur. The distribution of this fish Is outside of the Project
ROW. There are no perennially flowing streams that could support
the humpback chub
Iowa darter
Efheosfoma exile
SC
Unlikely to occur. There are no perennially flowing streams that
could support the Iowa darter in the Project ROW.
Lake chub
Couesius
plumbeus
SE
Unlikely to occur. No perennial streams within the Project ROW.
Mountain
sucker
Catostomus
playfrhynchus
SC
Unlikely to occur. No perennial streams within the Project ROW.
Northern
redbelly dace
Phoxinus eos
SE
Unlikely to occur. No perennial streams within the Project ROW.
Plains minnow
Hybognafhus
placifus
SE
Unlikely to occur. No perennial streams within the Project ROW.
12
Lancaster to Fort Lupton Natural Gas Pipeline Project
Biological Resources Report
Table 3:
State Listed Species and Their Likelihood of Occurrence Within the Project Area
Taxonomic
group
Common
Name
Scientific Name
State
Status
Likelihood of occurrence within the Project ROW
Plains
orangethroat
darter
Etheostoma
specfabrle
SC
Unlikely to occur. No perennial streams within the Project ROW.
Rio Grande
Chub
Gila Pandora
SC
Unlikely to occur. No perennial streams within the Project ROW.
Rio Grande
cutthroat trout
Oncorhynchus
clarkr virginalis
SC
Unlikely to occur. No perennial streams within the Project ROW.
Rio Grande
sucker
Catostomus
plebeius
SE
Unlikely to occur. No perennial streams within the Project ROW.
Razorback
sucker
Xyrauchen texanus
SE
Unlikely to occur. No perennial streams within the Project ROW.
Southern
redbelly dace
Phoxlnus
erythrogaster
SE
Unlikely to occur. No perennial streams within the Project ROW.
Stonecat
Noturus flavus
SC
Unlikely to occur. No perennial streams within the Project ROW.
Suckermouth
minnow
Phenacobius
mirabils
SE
Unlikely to occur. No perennial streams within the Project ROW.
Mamma1st 5
Black -footed
ferret
Mustela nigrrpes
SE
Unlikely to occur. Species is very rare. Habitat once included the
eastern plains, the mountain parks, and the western valleys —
grasslands or shrublands that supported some species of prairie
dog, the ferret's primary prey. Ferrets have been released from the
captive breeding program In Colorado, but not near this Project
ROW.
Black -tailed
prairie dog
Cynomys
ludovicianus
SC
Does occur within the Project ROW. Four discrete colonies were
mapped during the field survey.
Botta's pocket
gopher
Thomomys boffae
rubrdus
SC
Unlikely to occur. Distribution confined to southern Colorado, not
near the Project ROW. Species prefers riparian areas that do not
exist in this ROW.
Gray wolf
Cans lupus
SE
Unlikely to occur. This species Is considered extirpated in Colorado.
Grizzly bear
Ursus arcfos
SE
Unlikely to occur. This species Is considered extirpated in Colorado.
Kit fox
Vulpes macrotls
SE
Unlikely to occur. Range extends from Montrose to Grand Junction
on the western slope of Colorado, not near the Project ROW,
Lynx
Lynx canadensrs
SE
Unlikely to occur. This species Is been released in experimental
populations in the mountains of Colorado. Individuals from this
experimental population have been documented to disperse widely
in Colorado and have even traveled out of state, but the likelihood of
detecting any in the Project ROW is very unlikely.
Northern
pocket gopher
Thomomys
talpoldes macrotis
SC
Likely to occur in the Project ROW. Species may be found In many
different habitat types including agricultural lands, pasture lands,
semi -desert grasslands, and grasslands from lower elevations to the
alpine life zone Evidence of northern pocket gophers (casts on the
surface that are the result of shallow burrows) were observed in
several locations along the Project ROW In both pasture lands and
grasslands. These gophers dig both a system of deep burrows and
more shallow tunnels.
13
Lancaster to Fort Lupton Natural Gas Pipeline Project
Biological Resources Report
Table 3:
State Listed Species and Their Likelihood of Occurrence Within the Project Area
Taxonomic
group
Common
Name
Scientific Name
State
Status
Likelihood of occurrence within the Project ROW
Preble's
meadow
jumping
mouse
Zapus hudsonrus
preblel
ST
Unlikely to occur. Suitable habitat typically occurs in riparian habitats
with a permanent water source, a multi -storied canopy, an
herbaceous ground cover, and relatively undisturbed grassland
communities adjacent to the riparian zone. The Project ROW is
predominantly agricultural lands and pasture, with very little
undisturbed grasslands, and no permanent water sources
River otter
Lontra canadensis
ST
Unlikely to occur. Distribution Includes riparian areas throughout all
of Colorado. No perennial stream habitat located in Project ROW
that could support river otter.
Swift fox
Vulpes velox
SC
Potential to occur. Range Includes eastern slope and grasslands. No
suitable burrows observed during field survey, but the habitat
requirements are abundant In the Project ROW.
Townsend's
big eared bat
Corynorhinus
fownsend!i
pallescens
SC
Unlikely to occur. Townsend's big -eared bat can be found throughout
Colorado except on the eastern plains. Habitat requires caves or
other crevices, which were not found in the Project ROW.
Wolverine
Gulo
SE
Unlikely to occur. Habitat Includes tundra, taga, boreal, and alpine
biomes, which are not present in the Project ROW.
Mollusks1, 6
Cylindrical
papershell
Anodonfordes
ferussacranus
SC
Unlikely to occur. Found in mud or sandy substrate of lakes and
perennial quiet streams No perennial streams located in Project
area,
Rocky
Mountain
capshell
Acroloxus
coloradensis
SC
Unlikely to occur. This species Is restricted to high mountain lakes in
Colorado, which are not present within the Project ROW.
Reptiles' 2
Triploid
checkered
whiptal
Cnemldophorus
neofessefatus
SC
Unlikely to occur. Habitat Includes hillsides, arroyos, and canyons
associated with the Arkansas River valley; the canyon -grassland
transition along the Huerfano River; grassland -surrounded rocky
arroyo habitat along tributaries of the Apishapa River; and roadsides,
shrubby areas, and juniper -grass associations In valleys, arroyos,
and canyons associated with the Purgatoire River and some of Its
tributaries. Project ROW is located outside the typical distribution for
the species.
Midget faded
rattlesnake
Crofalus virds
concolor
SC
Unlikely to occur. Habitat limited to the Green River Formation of
Wyoming, Utah, and Colorado, not near the Project ROW,
Longnose
leopard lizard
Gambelra wislrzeng
SC
Unlikely to occur. Habitat limited to Iocatlons on the western border
of Colorado not near the Project ROW.
Yellow mud
turtle
Kinosternon
flavescens
SC
Unlikely to occur. Habitat localized In areas along the eastern margin
Colorado not near the Project ROW.
Common king
snake
Lampropelt?s getula
SC
Unlikely to occur. Habitat limited to area near Pueblo, Colorado, not
near the Project ROW.
Texas blind
snake
Lepfotyphlops
dulcrs
SC
Unlikely to occur. Known from a few locations In southeastern
Colorado Secretive, burrowing species; abundance uncertain.
Texas horned
lizard
Phrynosoma
cornutum
SC
Unlikely to occur. Habitat limited to southeastern Colorado, almost
entirely south of the Arkansas River not near the Project ROW.
Roundtail
horned lizard
Phrynosoma
modestum
SC
Unlikely to occur. Known from only a few Iocatlons in southeastern
Colorado, not near the Project ROW.
Massasauga
Rattlesnake
Srstrurus catenatus
SC
Unlikely to occur. Habitat encompassed within southeastern
Colorado not near the Project ROW at elevations below about 5,500
feet.
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Biological Resources Report
Table 3:
State Listed Species and Their Likelihood of Occurrence Within the Project Area
Taxonomic
group
Common
Name
Scientific Name
State
Status
Likelihood of occurrence within the Project ROW
Common
garter snake
Thamnophis sirtalis
SC
Potential to occur. Habitat includes grasslands, and especially
wetland habitats and riparian areas.
SE= State endangered, ST=State Threatened, SC=Special Concern, Shading in table = Potential to Occur or Observed to Occur.
1 Source: CPW (2016c)
2 Source: Hammerson (1999)
3 Source: Sibley (2014)
4 Source: Johnson (2007)
5 Source: Fitzgerald et al. (1994)
6 Source: Harold and Guralnick (undated)
2.2.1.3 Migratory Birds
CPW shapefiles were consulted to identify any known potential bald eagle or osprey shapefiles are
located in or near the Project area. The nearest CPW-mapped bald eagle or osprey nest is approximately
1 mile from the Project area, outside the CPW-recommended seasonal buffers for the species. Table 4
lists 22 species of migratory birds that should be considered as part of an effects analysis for this Project
area according to IPaC output (Attachment 1).
Table 4:
USFWS IPaC-Identified Migratory Birds Likely to Occur in the Project Area
Common Name
Scientific Name
Season
American bittern
Botaurus lentiginosus
Breeding
Bald eagle
Haliaeetus leucocephalus
Year-round
Black rosy -finch
Leucosficte atrafa
Year-round
Brewer's sparrow
Spizella brewed
Breeding
Burrowing owl
Athene cuniculana
Breeding
Dickcissel
Spiza Americana
Breeding
Ferruginous hawk
Buteo regalis
Year-round
Golden eagle
Aquila chrysaefos
Year-round
Lark Bunting
Calamospiza melanocorys
Breeding
Lewis's woodpecker
Melanerpes lewis
Breeding
Loggerhead shrike
Lanius ludovicianus
Breeding
Long -billed curlew
Numenius amenicanus
Breeding
Mountain plover
Charadrius montanus
Breeding
Peregrine falcon
Falco peregrinus
Breeding
Prairie falcon
Falco mexicanus
Year-round
Red-headed woodpecker
Melanerpes erythrocephalus
Breeding
Sage thrasher
Oreoscoptes montanus
Breeding
Short -eared owl
Asio flammeus
Wintering
Swalnson's hawk
Buteo swainsoni
Breeding
Virginia's warbler
Vermivora virginiae
Breeding
Western grebe
Aechmophorus occidenfalis
Breeding
Willow flycatcher
Empidonax fraillii
Breeding
15
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2.2.1.4 Wetlands and Other WoUS
Desktop analysis was performed for the Project area and desktop datasets are included on Figure 2. This
figure shows National Wetlands Inventory (NWI) wetlands, and National Hydrography Dataset (NHD)
perennial and intermittent stream lines. No wetlands or surface water bodies intersect the proposed
Project ROW.
The proposed Project would cross Riley Mound, a topographic high point. Precipitation would flow off of
Riley Mound in all directions. Speer Canal lies approximately 0.5 mile east of the Project ROW at its
nearest point and it flows north. Fulton Ditch is the only other nearby surface water, and it is
approximately 1.0 mile to the west of the Project ROW. It also flows to the north without ever intersecting
the Project ROW. No ponds, lakes, or reservoirs were noted within 0.5 mile of the Project ROW.
2.2.1.5 Land Cover
The land cover for the Project area was determined through a desktop analysis of the National Land
Cover Database (Fry et. al 2011). The Project ROW lies within croplands and grasslands according to the
NLCD mapping (Figure 4).
The Project ROW is completely situated in the High Plains Level III Ecoregion. The High Plains Ecoregion
includes four Level IV ecoregions. The Project ROW lies within the Rolling Sand Plains (25b) Level IV
ecoregion (Chapman et al. 2006). This ecoregion is characterized by rolling hills and sandy soils,
including sand dunes in some areas. There are not many wetlands or streams in this ecoregion due to the
well -drained sandy soils. Annual precipitation is approximately 12-20 inches. Natural vegetation consists
of sandsage prairie species such as sand sagebrush (Artemisia filifolia), sand bluestem (Andropogon
hallii), blowout grass (Redfieldia flexuosa), lemon scurfpea (Psoralidium lanceolatum), little bluestem
(Schizachyrium scoparium), rubber rabbitbrush (Ericameria nauseosa), Indian ricegrass (Oryzopsis
hymenoides), and sand dropseed (Sporobolus cryptandrus). Extensive dryland farming occurs in this
ecoregion with areas of scattered irrigated cropland.
2.2.2 Field Survey Results
The field survey was completed on December 15, 2016. The following sections describe the results of this
survey effort.
2.2.2.1 Listed Species —Habitat Suitability Assessment Results
All federally listed species in the USFWS IPaC summary were determined to be unlikely to occur in the
desktop analysis (Table 2). Field surveys confirmed the information provided in Table 2. Desktop analysis
determined that there was potential for seven state -listed species to occur or to have suitable habitat in
the Project ROW. These seven species included burrowing owl, ferruginous hawk, mountain plover,
black -tailed prairie dog, northern pocket gopher, swift fox, and common garter snake.
The field survey effort documented suitable habitat for all six of the state listed species of concern (SC).
The burrowing owl is listed as state threatened, and its habitat was also judged to be present in the
Project ROW. The survey documented the presence of the black -tailed prairie dog in the Project ROW as
well as casts or burrowing evidence from the northern pocket gopher.
16
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Biological Resources Report
The seven species with a listing of "state concern" (SC) have no formal protections against take. The
state does have more formal protection for the burrowing owl and there are established survey protocols
for the bird during its seasonal presence in Colorado (March 15 —Oct. 31 each year). There is also a
regulatory guideline for disturbance buffers for burrowing owl nesting sites (150 feet).
2.2.2.2 General Vegetation Results
The site reconnaissance identified 40 species of native and introduced plants within the Project ROW.
These plant species are listed in Table 5.
Table 5:
Vegetation Observed in the Project Right of Way, December 15, 2016
Common Name
Scientific Name
Notes
Alkali sacaton
Sporobolus airoides
Native grass
Blue grama
Bouteloua grand's
Native grass
Buckwheat
Eriogonum sp.
Native herbaceous species
Cocklebur
Xanthium strumarium
Introduced herbaceous species
Common mullein
Verbascum thapsus
Listed noxious weed
Common ragweed
Ambrosia artemisirfolia
Native herbaceous species
Common sunflower
Helianthus annuus
Native herbaceous species
Curlycup gumweed
Grindelra squarrosa
Native herbaceous species
Downy brome (cheatgrass)
Bromus tectorum
Listed noxious weed
Foxtail barley
Hordeumjubatum
Native grass
Green neediegrass
Nassella vindula
Native grass
Horseweed
Conyza canadensrs
Native herbaceous species
Indiangrass
Sorghastrum nutans
Native grass
Intermediate wheatgrass
Thrnopyrum rntermedium
Introduced grass
Kochia (Mexican fireweed)
Kochia scoparra
Introduced herbaceous species
Lemon scurfpea
Psoralydrum lanceolatum
Native herbaceous species
Little bluestem
Schizachyrium scoparium
Native grass
Night -flowering catchfly
Selene noctiflora
Native herbaceous species
Prairie sandreed
Calamovilfa longifolra
Native grass
Prickly poppy
Argemone polyanthemos
Native herbaceous species
Puncture vine
Tribulus terrestris
Listed noxious weed
Purple three -awn
Aristlda purpurea
Native grass
Redroot amaranth
Amaranthus retroflexus
Native herbaceous species
Redstem f laree
Erodlum crcutanum
Listed noxious weed
Rubber rabbltbrush
Ericamerra nauseosa
Native shrub
Russian thistle
Salsola tragus
Introduced herbaceous species
Sand bluestem
Andropogon hallir
Native grass
Sand dropseed
Sporobolus cryptandrus
Native grass
Sand lovegrass
Eragrostis trichodes
Native grass
Sand sagebrush
Artemisia frlifolia
Native shrub
Scotch thistle
Onopordum acanthium
Listed noxious weed
Sldeoats grama
Bouteloua curtrpendula
Native grass
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Biological Resources Report
Table 5:
Vegetation Observed in the Project Right of Way, December 15, 2016
Common Name
Scientific Name
Notes
Slender wheatgrass
Elymus trachycaulus
Native grass
Slimflower scurfpea
Psoralydrum tenuiflorum
Native herbaceous species
Smooth brome
Bromus !nermis
Introduced grass
Switchgrass
Panicum vrrgafum
Native grass
Tall tumblemustard
S!symbnum alfissrmum
Native herbaceous species
Western pricklypear
Opunfra macrorhiza
Native cactus
Western wheatgrass
Pascopyrum smithii
Native grass
Yellowspine thistle
Clrsium ochrocentrum
Native herbaceous species
Three main cover types were observed during the field reconnaissance: shortgrass prairie, sandsage
prairie, and cropland. Shortgrass and sandsage prairies would be the dominant native ecosystem types in
the Project ROW under natural conditions. Shortgrass prairie and sandsage prairie species were
observed to be associated with the dominant substrate types. Where surface soils were dominated by
foams or clays, shortgrass prairie species were most commonly detected. When the surface soils were
sandy, then species common in the sandsage prairie dominated. The reconnaissance also documented
that much of the landscape in the Project ROW had been previously disturbed by installation of other
pipelines or by construction and maintenance of overhead transmission lines.
Typical shortgrass prairie species observed during the field reconnaissance included buffalograss
(Buchloe dactyloides), blue grama (Bouteloua gracilis), western wheatgrass (Pascopyrum smithii), and
sideoats grama (Bouteloua curtipendula). Rabbitbrush (Ericameria nauseosa), a perennial shrub, was
also observed in areas with shortgrass prairie vegetation. Plants common in the sandsage prairie
included sand bluestem (Andropogon hallii), prairie sandreed (Calamovilfa longifolia), sand dropseed
(Sporobolus cryptandrus), sand lovegrass (Eragrostis trichoides), sand sagebrush (Artemisia filifolia), and
alkali sacaton (Sporobolus airoides). There were also isolated patches of mixed -grass prairie featuring
switchgrass (Panicum virgatum), Indiangrass (Sorghastrum nutans), and little bluestem (Schizachyrium
scoparium).
2.2.2.3 Avian Survey Results
Avian surveys did not reveal any raptor nests in or immediately adjacent to the Project ROW. No trees of
any mature size were located within the Project ROW, nor adjacent to the ROW. Electrical transmission
support structures and buildings in the Project area could support raptor nests, but none were observed
during the field survey.
Biologists documented mallard (Anas platyrhynchos), Canada goose (Branta canadensis), American crow
(Corvus brachyrhynchos), and mourning dove (Zenaida macroura) in the Project area. These species are
all protected under the MBTA (USFWS 2013). Avian species diversity and abundance was noted to be
low in the Project ROW during field survey, but the survey was completed in late fall conditions.
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Biological Resources Report
2.2.2.4 Listed Noxious Weed Survey Results
Table 6 lists the three species of state listed noxious weeds that were observed in the Project area during
the field surveys. No List A or B species were identified in the Project area and four List C noxious weeds
were identified. No large infestations of noxious weeds were identified.
Table 6:
Noxious Weed Species Observed during Field Surveys
Weed List (A,
B, or C)1
Common Name
Scientific Name
State Management Policy
List A Weeds
None observed.
—
—
List B Weeds
Scotch thistle
Onopordum acanthium
Follow Weld County Weed Management Plan for Treatment
and Control (Spray Tordon® prior to construction
disturbance If present Immediately prior to construction)
List C Weeds
Common Mullein
Verbascum thapsus
Control up to landowners' discretion
Feld bindweed
Convolvulus arvensis
Control up to landowners' dscretion
Downy brome
Bromus tectorum
Control up to landowners' discretion
Puncture vine
Tribulus ferresfris
Control up to landowners' dscretion
Redstem f laree
Erodium crcutarrum
Control up to landowners' discretion
List C: widespread and well -established noxious weed species for which control is recommended but not required by the state.
Source: CDA (2015)
2.2.2.5 Wetlands and Other WoUS Results
One wetland, identified as LFL-WT-A1 on Figure 4, Sheet Map 3, was mapped in the Project ROW, as
summarized in Table 7. The soil was observed to have horizons consistent with the hydric soil indicator
S5: Sandy Redox, and exhibited the primary indicator of wetland hydrology B11: Salt Crust. The wetland
was observed in a field actively used for wheat farming. Two herbaceous plants were identified in the
wetland sample plot. Common wheat (Triticum aestivum, UPL) had 30 percent cover, and common
ragweed (Ambrosia psilostachya, FACU) had 10 percent cover. Although the vegetation in the mapped
wetland polygon did not meet criteria for a dominance by hydrophytic vegetation, it was clearly located in
a wheat field. This qualifies as problematic vegetation (i.e., it meets the criteria of a managed plant
community).
The wetland was observed to be isolated in the landscape. No channels or other potentially jurisdictional
features were observed downgradient (southwest) of the wetland. The wetland does not intersect any
NHD flowlines, FEMA floodplains, or NWI-mapped wetlands. The nearest NHD-mapped stream is Speer
Canal, located approximately 0.4 mile from the wetland. Because of the lack of a nexus to other water
features, the wetland would not likely be considered jurisdictional by the USACE.
The preferred alignment's temporary and permanent easements would intersect the wetland by
approximately 0.078 acre. A photograph of this potential wetland is presented in Attachment 2. Wetland
delineation forms for this wetland are presented in Attachment 3
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Biological Resources Report
Table 7:
Mapped Wetlands Near or in Project area
Wetland Number
Figure 4 Sheet Map
Latitude
Longitude
USAGE Likely Jurisdictional Status'
LFL-WT-A1
3
40.112
-104742
Potentially isolated; Non -Jurisdictional
1
Note that only the USACE can render an approved Jurlsdlctional Determination. The likely jurisdictional status listed In Table 7 only
reflects Tetra Tech's professional assessment of jurisdiction. Without a USACE jurisdictional determination, impacts should be avoided to
these wetlands.
There was no evidence of ephemeral, intermittent, or perennial surface water resources featuring defined
beds, banks, and scoured channels within the entire course of the Project ROW.
3. Conclusions and Recommendations
This biological resources assessment evaluated three major categories of resources including special
status species, general wildlife and vegetation, state listed noxious weeds, and wetlands and other
WoUS. The special status species included assessment of federal and state listed species, raptors, and
migratory birds.
3.1 Federal and State Listed Species
No federal listed species were observed to have suitable habitat in the Project ROW. The only state
threatened or endangered species determined to have suitable habitat within the Project ROW was the
burrowing owl. Six state species of concern were identified to have suitable habitat in grasslands within
the Project ROW including the ferruginous hawk, mountain plover, swift fox, black tailed prairie dog,
northern pocket gopher, and the common garter snake. These state species of concern have no formal
protections against take under Colorado Revised Statute (CRS) 33-2-105. All migratory birds within the
Project ROW will be protected against take under the MBTA.
3.2 Wildlife and Vegetation Resources
No raptor nests or nests for other species of migratory birds were documented in the Project ROW.
During preparation for construction and during construction, PSCo should implement mitigation actions to
ensure that no migratory birds are harmed by the Project. These actions would include (1) following the
CPW recommended seasonal buffers for non -encroachment for active nests of specific raptors if they are
observed around the Project ROW, and (2) ensuring that construction has no direct adverse effects to
migratory birds if they are observed in the Project ROW during construction.
Burrowing owls have suitable habitat in the black -tailed prairie dog colonies intersected by the Project
ROW. Tetra Tech recommends that burrowing owl surveys be completed in the Project ROW according
to CPW protocol prior to construction. CPW protocol recommends the surveys take place during the
breeding season (March 15 through October 31). PSCo should be aware that if burrowing owls are
detected during construction, then an evaluation will need to be made as to where the birds are nesting
relative to the construction footprint. The CPW buffer for nesting burrowing owls is 150 feet from
construction during the breeding season.
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Biological Resources Report
Weld County has published seed mixes for the county and it is recommended that the "Sandy Site Mix"
be used to revegetate the Project ROW following construction (Weld County Public Works 2017). The
seed mix is provided here in Table 8.
Table 8:
General Seed Mixes for Weld County, Sandy Site Mix
Common Name
Scientific Name (Release)
Seed Rate
Green needlegrass
Nessella virrdula (Lodorn)
1.50 pounds pure Ilve seed /acre
Yellow Indiangrass
Sorghastrum nutans (Cheyenne, Holt, Scout)
0.50 pounds pure hie seed /acre
Little bluestem
Schizachynum scopanum (Blaze, Cimarron, Camper)
0.75 pounds pure hie seed /acre
Prairie sandreed
Calamovilfa longifolia (Goshen)
0.75 pounds pure hie seed /acre
Indian ricegrass
Achnatherum hymenordes (Nezpar, Rimrock)
3.00 pounds pure Ilve seed /acre
Sand bluestem
Andropogon halli (Champ, Chet)
1.00 pounds pure Ilve seed /acre
Sand dropseed
Sporobolus crypfandrus
0.50 pounds pure Ilve seed /acre
Sand lovegrass
Eragrostis fnchodes (Bend, Native, Ne27)
2.50 pounds pure hie seed /acre
Switchgrass
Panrcum virgatum (Blackwell, Nebraska 28)
1,50 pounds pure live seed acre
TOTAL
12.00 pounds pure Ilve seed/acre
3.3 Listed Noxious Weeds
One Colorado B List noxious weed and five Colorado C List noxious weeds were observed in the Project
ROW (Table 6). The state of Colorado does not require eradication of any of the species observed within
the Project area; however, weed management actions should follow the recommendations outlined in the
Weed Management and Revegetation Plan prepared for the Project (Tetra Tech 2017). Scotch thistle, in
particular, was observed in several small dense patches, and it is recommended that those patches be
controlled with the herbicide Tordon (Picloram) if they are present immediately prior to construction.
3.4 Wetlands and Other WoUS
One wetland was mapped in the Project ROW (Table 7). The current preferred route permanent and
temporary construction easement would intersect the wetland by approximately 0.078 acre. At that level
of impact, PSCo would not be required to prepare a preconstruction notification (PCN) for the USACE
because the impacts would fall below the Nationwide Permit (NWP) #12 threshold of 0.10 acre. If impacts
to this wetland are unavoidable, then PSCo should follow the general and regional conditions for NWP
#12, which are included as Attachment 4.
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4. Literature Cited
Ackerfield, Jennifer. 2015. Flora of Colorado. Botanical Research Institute of Texas (BRIT®).
http://shop.brit.org/products/coloradoflora.
CDA (Colorado Department of Agriculture). 2014. Colorado Noxious Weeds (Including Watch List),
effective December 30, 2014. Available online:
https://www.colorado.gov/pacific/sites/default/files/NoxiousW eedList12.10.14.pdf.
Chapman, S., Omernik, J., Freeouf, J., Huggins, D., McCauley, J., Freeman, C., Steinauer, G., Angelo,
R., and Schlepp, R. 2001. Ecoregions of Colorado (color poster with map, descriptive text,
summary tables, and photographs): Reston, Virginia, U.S. Geological Survey (map scale
1:1,950,000).
Cowardin, L.M., V. Carter, F.C. Golet, and E.T. LaRoe, 1979. Classification of Wetlands and Deepwater
Habitats of the United States. United States Government Printing Office. Washington, D.C.
GPO024-010-00524-6.
CNHP (Colorado Natural Historical Program) 2015a. Colorado Butterfly Plant Species Profile. Available
online: http://www.cnhp.colostate.edu/download/Projects/rareplants/pdfs/20240.pdf Accessed
July 2016.
. 2015b.Ute Ladies' -tresses orchid species profile. Available online:
http://www.cnhp.colostate.edu/download/Projects/rareplants/pdfs/20240.pdf Accessed 2/2/2017.
CPW (Colorado Parks and Wildlife) 2016a. Bald Eagle Shapefile. Accessed 06/08/2016. Available online:
https://www.arcgis.com/home/item.html?id=30cc9afded9c44d8835141 f98f0c485a
. 2016b. Threatened and Endangered Species List. Available online:
http://cpw.state.co.us/learn/Pages/SOC-Threatened EndangeredList.aspx Accessed 6/2/2016.
. 2016c. Species profiles. Available online: http://cpw.state.co.us/learn/Pages/SpeciesProfiles.aspx
Accessed 12/2/2016.
. 2008. Raptor Buffer Guidelines. Available online
https://cpw.state.co.us/Documents/WildlifeSpecies/LivingW ithW ildlife/RaptorBufferGuidelines200
8.pdf
Culver, D., and J.M. Lemly. 2013. Field Guide to Colorado's Wetland Plants — Identification, Ecology, and
Conservation. Colorado Natural Heritage Program and Colorado State University.
FEMA (Federal Emergency Management Agency). October 1, 2016. National Flood Hazard Layer.
Fitzgerald, J.P., C.A. Meaney, and D.M. Armstrong. 1994. Mammals of Colorado. University Press of
Colorado. Niwot, Colorado.
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Fry, J., Xian, G., Jin, S., Dewitz, J., Homer, C., Yang, L., Barnes, C., Herold, N., and Wickham, J., 2011.
Multi Resolution Land Characteristics Consortium National Land Cover Dataset Compilation,
PE&RS, Vol. 77(9):858-864.
Hammerson, G.A. 1999. Amphibians and Reptiles in Colorado, 2nd Edition. University Press of Colorado
(Niwot, Colorado) and Colorado Division of Wildlife.
Harold, M. N. and R.P. Guralnick. Undated. A field Guide to the Mollusks of Colorado. Colorado Division
of Wildlife (CDOW).
Johnson, Dan. 2007. Fish of Colorado — Field Guide. Adventure Publications, Inc. Cambridge, MN.
Lichvar, et al. 2016. The National Wetland Plant List: 2016 wetland ratings. Phytoneuron 2016-30: 1-17.
Published 28 April 2016. ISSN 2153 733X
Mersel, Matthew K., Lichvar, R.W. 2014. A Guide to Ordinary High Water Mark (OHWM) Delineation for
Non -Perennial Streams in the Western Mountains, Valleys, and Coast Region of the United
States. Wetlands Regulatory Assistance Program (WRAP). Cold Regions Research and
Engineering Laboratory.
NRCS (U.S. Department of Agriculture -Natural Resources Conservation Service). 2016a. Personal
communication by telephone with Mark Volt, District Conservationist for the NRCS Kremmling
Field Office, regarding wetland revegetation in the Project ROW. August 3, 2016.
. 2016b. Soil Survey Geographic (SSURGO) Database. Shapefile. Accessed 7/8/16. Available
online: http://sdmdataaccess.nrcs.usda.gov/.
Sibley, David Allen. 2014. Sibley Guide to Birds. Second Edition. Knopf Publishing Group.
Tetra Tech (Tetra Tech EC, Inc.) 2017. Weed Management and Revegetation Plan. Prepared for Xcel
Energy, Lancaster to Fort Lupton Natural Gas Pipeline Project. January 2017.
USACE (U.S. Army Corps of Engineers). 2010. Regional Supplement to the Corps of Engineers Wetland
Delineation Manual: Western Mountains, Valleys, and Coast Region (Version 2.0), ERDC/EL TR-
10-1. Vicksburg, MS: U.S. Army Engineer Research and Development Center.
. 1987. Corps of Engineers Wetland Delineation Manual. Environmental Laboratory. U.S. Army
Corps of Engineers Waterways Experiment Station. Technical Report Y-87-1. January.
USDA (U.S. Department of Agriculture -Farm Service Bureau). 2015. National Agricultural Imagery
Program. Aerial photography for Project location.
USFWS (U.S. Fish and Wildlife Service). 2016a. Critical Habitat Map Service. Accessed December 2,
2016. Available online: http://ecos.fws.gov/ecp/report/table/critical-habitat.html
. 2016b. National Wetlands Inventory. Shapefile. Accessed July 2016. Available online:
http://www.fws.gov/wetlands/Data/Data-Download.html.
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. 2015. Mountain -Prairie Region Endangered Species Resource Materials. Accessed July 2016.
http://www.fws.gov/mountain-prairie/es/plants.php.
. 2013. MBTA Protected Birds. Accessed 2/2/2017. Available online:
https://www.fws.gov/birds/policies-and-regulations/laws-legislations/migratory-bird-treaty-act.php
USGS (U.S. Geologic Survey). 2015a. National Hydrography Dataset. Shapefile. Accessed 7/11/2016.
Available online: ftp://nhdftp.usgs.gov/DataSets/Staged/SubRegions/.
. 2015b. The National Map. Raster. Accessed 7/11/2016. Available online:
ftp://nhdftp.usgs.gov/DataSets/Staged/SubRegions/.
Weld County Public Works. 2017. Recommended Grass Seed Mixes for Weld County. Available online:
https://www.co.weld.co.us/Departments/PublicWorks/WeedManagement/ControllingW eeds/Rese
eding.html. Accessed January 4, 2017.
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Figures
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Biological Resources Report
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LANCASTER TO FT. LUPTON PIPELINE PROJECT
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WATER AND WILDLIFE RESOURCES
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Developed, Medium Intensity
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FIGURE 3: DESKTOP ANALYSIS-
LANDCOVER
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"Aerial Imagery: NAIP 2015
Hydrology
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FIGURE 4: SURVEY RESULTS: INDEX MAP
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`Aerial Imagery: NAIP 2015
Field Survey Results
• Upland Sample Plot
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Wetland
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FIGURE 4: SURVEY RESULTS- SHEET MAP 2
LANCASTER TO FT. LUPTON PIPELINE PROJECT
Project Features
• Existing Metering Station
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Segment
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`Aerial Imagery: NAIP 2015
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FIGURE 4: SURVEY RESULTS- SHEET MAP 3
LANCASTER TO FT. LUPTON PIPELINE PROJECT
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`Aerial Imagery: NAIP 2015
Field Survey Results
• Upland Sample Plot
• Wetland Sample Plot
Wetland
Prairie Dog Colony
Bald Eagle Nest (Observed 12/15/2016)
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LANCASTER TO FT. LUPTON PIPELINE PROJECT
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• Existing Metering Station
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`Aerial Imagery: NAIP 2015
CO RD 16
-- CASIER.A'
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• Upland Sample Plot
• Wetland Sample Plot
Wetland
Prairie Dog Colony
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Non -Encroachment Buffer for Active Bald
Eagle Nests
Hydrology
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TETRA TECH
irie Dog
Colony 2
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FIGURE 4: SURVEY RESULTS- SHEET MAP 5
Lancaster to Fort Lupton Natural Gas Pipeline Project
Biological Resources Report
Attachment 1:
USFWS IPAC Output
Lancaster to Fort Lupton Natural Gas Pipeline Project
Biological Resources Report
This page intentionally left blank.
U.S. Fish & Wildlife Service
1PaC Trust Resources Report
Generated November 03. 2016 03:44 PM MDT, IPaC v3.0.9
This report is for informational purposes only and should not be used for planning or
analyzing project level impacts. For project reviews that require U.S. Fish & Wildlife
Service review or concurrence, please return to the IPaC website and request an official
species list from the Regulatory Documents page.
IPaC - Information for Planning and Conservation (https://ecos.fws.gov/ipad): A project planning tool to help
streamline the U.S. Fish & Wildlife Service environmental review process.
Table of Contents
IPaC Trust Resources Report 1
Project Description 1
Endangered Species 2
Migratory Birds 5
Refuges & Hatcheries 8
Wetlands 9
U.S. Fish & Wildlife Service
IPaC Trust Resources Report
LOCATION
Weld County, Colorado
IPAC LINK
https://ecos.fws.gov/ipac/project/
4ZJOP-DU7LN-G5TE3-NLGB6-HRFIX4
U.S. Fish & Wildlife Service Contact Information
Trust resources in this location are managed by:
Colorado Ecological Services Field Office
Denver Federal Center
P.o. Box 25486
Denver, CO 80225-0486
(303) 236-4773
}1411hNll1Jll1}.
I _ .d
IPaC Trust Resources Report
Endangered Species
Endangered Species
Proposed, candidate, threatened, and endangered species are managed by the
Endangered Species Program of the U.S. Fish & Wildlife Service.
This USFWS trust resource report is for informational purposes only and should
not be used for planning or analyzing project level impacts.
For project evaluations that require USFWS concurrence/review, please return to the
IPaC website and request an official species list from the Regulatory Documents
section.
Section 7 of the Endangered Species Act requires Federal agencies to "request of the
Secretary information whether any species which is listed or proposed to be listed may
be present in the area of such proposed action" for any project that is conducted,
permitted, funded, or licensed by any Federal agency.
A letter from the local office and a species list which fulfills this requirement can
only be obtained by requesting an official species list either from the Regulatory
Documents section in IPaC or from the local field office directly.
The list of species below are those that may occur or could potentially be affected by
activities in this location:
11?3'2016 3:44 P1.1
IPaC v3.0.9 Page 2
IPaC Trust Resources Report
Endangered Species
Birds
Least Tern Sterna antillarum
Endangered
THIS SPECIES ONLY NEEDS TO BE CONSIDERED IF THE FOLLOWING CONDITION APPLIES
Water -related activities/use in the N. Platte, S. Platte and Laramie River Basins may affect listed species in
Nebraska.
CRITICAL HABITAT
No critical habitat has been designated for this species.
http://eccs.fws.govitess public!profile/speciesProfile.action?spcode=B07N
Mexican Spotted Owl Strix occidentalis lucida Threatened
CRITICAL HABITAT
There is final critical habitat designated for this species.
http:/fecos.fws. govltess_pu bli clprofi le/speciesProfile.action?spcode=B074
Piping Plover Charadrius melodus
Threatened
THIS SPECIES ONLY NEEDS TO BE CONSIDERED IF THE FOLLOWING CONDITION APPLIES
Water -related activities/use in the N. Platte, S. Platte and Laramie River Basins may affect listed species in
Nebraska.
CRITICAL HABITAT
There is final critical habitat designated for this species.
http:/fecos.fws. govltess_pu bli clprofi le/speciesProfile.action?spcode=B079
Whooping Crane Grus americana
Endangered
THIS SPECIES ONLY NEEDS TO BE CONSIDERED IF THE FOLLOWING CONDITION APPLIES
Water -related activities/use in the N. Platte, S. Platte and Laramie River Basins may affect listed species in
Nebraska.
CRITICAL HABITAT
There is final critical habitat designated for this species.
http:/feccs.fws. govltesspu bli clprofi le/speciesProfile.action?spcode=B003
Fishes
Pallid Sturgeon Scaphirhynchus albus
Endangered
THIS SPECIES ONLY NEEDS TO BE CONSIDERED IF THE FOLLOWING CONDITION APPLIES
Water -related activities/use in the N. Platte, S. Platte and Laramie River Basins may affect listed species in
Nebraska.
CRITICAL HABITAT
No critical habitat has been designated for this species.
http:/fecos.fws. govltess_pu bli clprofi le/speciesProfile.action?spcode=E06X
11?3'201G 3:44 FF 1
IPaC .3.0.9 Page 3
IPaC Trust Resources Report
Endangered Species
Flowering Plants
Colorado Butterfly Plant Gaura neomexicana var. coloradensis Threatened
CRITICAL HABITAT
There is final critical habitat designated for this species.
http:/fecos.fws. govltess_pu bli clprofi le/speciesProfile.action?spcode=Q0W
Ute Ladies' -tresses Spiranthes diluvialis
CRITICAL HABITAT
No critical habitat has been designated for this species.
http://ecos.fws.govitess public!profilelspeciesProfile.action?spcode=Q2WA
Threatened
Western Prairie Fringed Orchid Platanthera praeclara Threatened
THIS SPECIES ONLY NEEDS TO BE CONSIDERED IF THE FOLLOWING CONDITION APPLIES
Water -related activities/use in the N. Platte, S. Platte and Laramie River Basins may affect listed species in
Nebraska.
CRITICAL HABITAT
No critical habitat has been designated for this species.
http://ecos.fws.govitess public!profilelspeciesProfile.action?spcode=Q2YD
Mammals
Preble's Meadow Jumping Mouse Zapus hudsonius preblei Threatened
CRITICAL HABITAT
There is final critical habitat designated for this species.
http://ecos.fws. gov./tess_pu bli clprofi le/speciesProfile.action?spcode=A0C2
Critical Habitats
There are no critical habitats in this location
11?3'201G 3:44 FF 1
IPaC .3.0.9 Page 4
IPaC Trust Resources Report
Migratory Birds
Migratory Birds
Birds are protected by the Migratory Bird Treaty Act and the Bald and Golden Eagle
Protection Act.
Any activity that results in the take of migratory birds or eagles is prohibited unless
authorized by the U.S. Fish & Wildlife Service.[1' There are no provisions for allowing
the take of migratory birds that are unintentionally killed or injured.
Any person or organization who plans or conducts activities that may result in the take
of migratory birds is responsible for complying with the appropriate regulations and
implementing appropriate conservation measures.
1.50 C.F.R. Sec. 10.12 and 16 U.S.C. Sec. 668(a)
Additional information can be found using the following links:
• Birds of Conservation Concern
http://www.fws.gov/birds/management/managed-species/
birds -of -conservation -concern. php
• Conservation measures for birds
http://www.fws.gov/birds/management/project-assessment-tools-and-guidance/
conservation-measures.php
• Year-round bird occurrence data
http://www.birdscanada.org/birdmon/default/datasummaries.jsp
The following species of migratory birds could potentially be affected by activities in this
location:
American Bittern Botaurus lentiginosus
Season: Breeding
http://ecos.fws.govitess_publiciprofileispeciesProfile.action?spcode=B0F3
Bald Eagle Haliaeetus leucocephalus
Season: Year-round
http:llecos.fws. gov.!tess_pu bli c.!profi lelspeciesProfile.action?spcode=B008
Black Rosy -finch Leucosticte atrata
Season: Year-round
http:llecos.fws. gov.!tess_pu bli c.!profi lelspeciesProfile.action?spcode=B0J4
Brewer's Sparrow Spizella breweri
Season: Breeding
http:llecos.fws. gov.!tess_pu bli c.!profi lelspeciesProfile.action?spcode=B0 HA
Bird of conservation concern
Bird of conservation concern
Bird of conservation concern
Bird of conservation concern
11/3/2016 3:44 FF 1
IPaC .3.0.9 Page 5
IPaC Trust Resources Report
Migratory Birds
Burrowing Owl Athene cunicularia
Season: Breeding
http:lleces.fws. govltesspu bliclprofi IelspeciesProfile.action?spcode=B0NC
Dickcissel Spiza americana
Season: Breeding
Ferruginous Hawk Buteo regalis
Season: Year-round
http:llecos.fws. govltess_pu bli clprofi IelspeciesProfile.action?spcode=B06X
Golden Eagle Aquila chrysaetos
Season: Year-round
http:llecos.fws. gov!tess_pu bli clprofi le/speciesProfile.action?spcode=B0DV
Lark Bunting Calamospiza melanocorys
Season: Breeding
Lewis's Woodpecker Melanerpes lewis
Season: Breeding
http://ecos.fvvs.govitess public!profile/speciesProfile.action?spcode=B0HQ
Loggerhead Shrike Lanius ludovicianus
Season: Breeding
http://ecos.fvvs.govitess public!profile/speciesProfile.action?spcode=B0FY
Long -billed Curlew Numenius americanus
Season: Breeding
http:llecos.fws. gov.ltess_pu bliclprofi IelspeciesProfile.action?spcode=B06S
Mountain Plover Charadrius montanus
Season: Breeding
http://eccs.fws.govItess publiclprofile/speciesProfile.action?spcode=B078
Peregrine Falcon Falco peregrinus
Season: Breeding
http://ecos.fws.govitess public.lprofile/speciesProfile.action?spcode=B0FU
Prairie Falcon Falco mexicanus
Season: Year-round
http:llecos.fws. gov.ltess_pu bli clprofi le/speciesProfile.action?spcode=B0ER
Red-headed Woodpecker Melanerpes erythrocephalus
Season: Breeding
Sage Thrasher Oreoscoptes montanus
Season: Breeding
http:llecos.fws. gov.!tess_pu bli c.!profi IelspeciesProfile.action?spcode=B0I D
Short -eared Owl Asio flammeus
Season: Wintering
http:llecos.fws. gov.!tess_pu bli c.!profi IelspeciesProfile.action?spcode=B0 HD
Bird of conservation concern
Bird of conservation concern
Bird of conservation concern
Bird of conservation concern
Bird of conservation concern
Bird of conservation concern
Bird of conservation concern
Bird of conservation concern
Bird of conservation concern
Bird of conservation concern
Bird of conservation concern
Bird of conservation concern
Bird of conservation concern
Bird of conservation concern
11?3'2016 3:44 FF 1
IPaC .3.0.9 Page 6
IPaC Trust Resources Report
Migratory Birds
Swainson's Hawk Buteo swainsoni
Season: Brooding
http:/feccs.fws. govltesspu bli clprofi IelspeciesProfile.action?spcode=B070
Virginia's Warbler Vermivora virginiae
Season: Breeding
http:/fecos.fws. govltesspu bli clprofi Ie/speciesProfile.action?spcode=BOI L
Western Grebe aechmophorus occidentalis
Season: Breeding
http:/fecos.fws. govltess_pu bli clprofi le/speciesProfile.action?spcode=BOER
Willow Flycatcher Empidonax traillii
Season: Breeding
http:/fecos.fws. govltess_pu bli clprofi le/speciesProfile.action?spcode=BO F6
Bird of conservation concern
Bird of conservation concern
Bird of conservation concern
Bird of conservation concern
11?3'201G 3:44 FF 1
IPaC .3.0.9 Page 7
IPaC Trust Resources Report
Refuges & Hatcheries
Wildlife refuges and fish hatcheries
There are no refuges or fish hatcheries in this location
11?3'2016 3:44 P1.1
IPaC v3.0.9 Page 8
IPaC Trust Resources Report
', etlands
Wetlands in the National Wetlands Inventory
Impacts to NWI wetlands and other aquatic habitats may be subject to regulation under
Section 404 of the Clean Water Act, or other State/Federal statutes.
For more information please contact the Regulatory Program of the local U.S. Army
Corps of Engineers District.
DATA LIMITATIONS
The Service's objective of mapping wetlands and deepwater habitats is to produce reconnaissance level information
on the location, type and size of these resources. The maps are prepared from the analysis of high altitude imagery.
Wetlands are identified based on vegetation, visible hydrology and geography. A margin of error is inherent in the use
of imagery; thus, detailed on -the -ground inspection of any particular site may result in revision of the wetland
boundaries or classification established through image analysis.
The accuracy of image interpretation depends on the quality of the imagery, the experience of the image analysts,
the amount and quality of the collateral data and the amount of ground truth verification work conducted. Metadata
should be consulted to determine the date of the source imagery used and any mapping problems.
Wetlands or other mapped features may have changed since the date of the imagery or field work. There may be
occasional differences in polygon boundaries or classifications between the information depicted on the map and the
actual conditions on site.
DATA EXCLUSIONS
Certain wetland habitats are excluded from the National mapping program because of the limitations of aerial
imagery as the primary data source used to detect wetlands. These habitats include seagrasses or submerged
aquatic vegetation that are found in the intertidal and subtidal zones of estuaries and nearshore coastal waters.
Some deepwater reef communities (coral or tuberficid worm reefs) have also been excluded from the inventory.
These habitats, because of their depth, go undetected by aerial imagery.
DATA PRECAUTIONS
Federal, state, and local regulatory agencies with jurisdiction over wetlands may define and describe wetlands in a
different manner than that used in this inventory. There is no attempt, in either the design or products of this
inventory, to define the limits of proprietary jurisdiction of any Federal, state, or local government or to establish the
geographical scope of the regulatory programs of government agencies. Persons intending to engage in activities
involving modifications within or adjacent to wetland areas should seek the advice of appropriate federal, state, or
local agencies concerning specified agency regulatory programs and proprietary jurisdictions that may affect such
activities.
This location overlaps all or part of the following wetlands:
Freshwater Emergent Wetland
PEMC
A full description for each wetland code can be found at the National Wetlands
Inventory website: http://107.20.228.18/decoders/wetlands.aspx
11?3'201G 3:44 FF 1
IPaC .3.0.9 Page 9
Lancaster to Fort Lupton Natural Gas Pipeline Project
Biological Resources Report
Attachment 2:
Photo Log
Lancaster to Fort Lupton Natural Gas Pipeline Project
Biological Resources Report
This page intentionally left blank.
Biological Resources Assessment Report
Lancaster to Fort Lupton Natural Gas Pipeline Project
Attachment 2: Photo Log
��A Oak+�wr
Photo 1: View to the north end of the Project. The United Power substation located east of the Anadarko Lancaster
Gathering Facility can be seen to the viewer's right. Several existing transmission lines run parallel to the
proposed pipeline preferred route, as can be seen in this photo.
Confidential Business Information. Do Not Distribute. 1
Biological Resources Assessment Report
Stapleton Natural Gas Reinforcement Project —Denver County, Colorado
Attachment 4: Photo Log
Photo 2: View to the North from the center of Wetland LFL-WT1-A1. This wetland is located between CR 18 and
Barley Avenue. The wetland is located in a wheat field, but it exhibited indicators of wetland hydrology and
hydric soils.
2 Confidential Business Information. Do Not Distribute.
Biological Resources Assessment Report
Lancaster to Fort Lupton Natural Gas Pipeline Project
Attachment 2: Photo Log
Photo 3: View to the southwest (downgradient) of Wetland LFL-WTI-AI . The feature was not observed to have a
connection to any other water resources.
Confidential Business Information. Do Not Distribute. 3
Biological Resources Assessment Report
Stapleton Natural Gas Reinforcement Project —Denver County, Colorado
Attachment 4: Photo Log
Photo 4: View to the north from the intersection of CR 18 and the preferred route. Vegetation in the Project ROW
was dominated by shortgrass prairie species.
4 Confidential Business Information. Do Not Distribute.
Biological Resources Assessment Report
Lancaster to Fort Lupton Natural Gas Pipeline Project
Attachment 2: Photo Log
Photo 5: View to the North of Prairie Dog Colony 4, located on the south side of CR 16. Burrowing owls, a state —
listed threatened species, are known to use prairie dog colonies as habitat. The prairie dog colony was
noted to be active.
Confidential Business Information. Do Not Distribute. 5
Biological Resources Assessment Report
Stapleton Natural Gas Reinforcement Project —Denver County, Colorado
Attachment 4: Photo Log
Photo 6: View looking down of musk thistle, a Colorado B -listed noxious weed. The species was documented in
several locations throughout the Project ROW, along with common mullein, field bindweed, downy brome,
puncture vine, and redstem filaree, all of which are state -listed noxious weeds.
6 Confidential Business Information. Do Not Distribute.
Biological Resources Assessment Report
Lancaster to Fort Lupton Natural Gas Pipeline Project
Attachment 2: Photo Log
Photo 7: View of Indian ricegrass located along the preferred route. Small, isolated sections of mixed -grass prairie,
including Indian ricegrass, were observed in the Project ROW.
Confidential Business Information. Do Not Distribute. 7
Biological Resources Assessment Report
Stapleton Natural Gas Reinforcement Project —Denver County, Colorado
Attachment 4: Photo Log
This page intentionally left blank.
8 Confidential Business Information. Do Not Distribute.
Lancaster to Fort Lupton Natural Gas Pipeline Project
Biological Resources Report
Attachment 3:
Wetland Delineation Forms
Lancaster to Fort Lupton Natural Gas Pipeline Project
Biological Resources Report
This page intentionally left blank.
WETLAND DETERMINATION DATA FORM —Great Plains Region
Project/Site: Lancaster to Fort Lupton Natural Gas Pipeline Project
City/County: Weld County, CO
Sampling Date: 1/24/2017
Applicant/Owner: Xcel Energy
State: Colorado
Sampling Point: LFL-WT1-A1
Investigator(s): C Ansari, J Heule
Section, Township, Range: S26,T2N R66W
Landform (hillslope, terrace, etc.): Swale
Local relief (concave, convex,
none): Flat
Slope (%): 2
Subregion (LRR): G Lat: 40.112034
Long: -104.741851
Datum: NAD 83
Soil Map Unit Name: Olney loamy sand, 1-3 percent slopes
NWI Classification: n/a
Are climatic/hydrologic conditions on the site typical for this time of year? Yes ❑ No ❑ (if no, explain in Remarks)
Are Vegetation ■, Soil ❑, or Hydrology ❑ significantly disturbed? I Are "normal circumstances" present? Yes No •
Are Vegetation ❑, Soil ❑, or Hydrology ❑ naturally problematic? (If necessary, explain any answers in Remarks.)
SUMMARY OF FINDINGS —Attach site map showing sampling point locations, transects, important features, etc.
Hydrophytic Vegetation Present? ❑ Yes ® No
Hydric Soil Present? ❑ Yes ❑ No
Wetland Hydrology Present? ❑ Yes ❑ No
Is the Sampled Area within a
Wetland?
❑ Yes ❑ No
Remarks: Wetland sample plot paired with upland sample plot LFL-UP1-A1. Plot is located in a wheat field.
VEGETATION —Use scientific names of plants.
Tree Stratum (Plot size: 30')
Absolute
% Cover
Dominant
Species?
Indicator
Status
Dominance Test worksheet:
1. none
Number of Dominant Species That Are OBL, FACW, or
FAC (excluding FAC—):
(A) 0
2.
Total Number of Dominant Species Across All Strata:
1 (B)
3
Percent of Dominant Species That Are OBL, FACW, or
FAC:
0 (A/B)
4.
Prevalence Index worksheet:
0
= Total Cover
Total % Cover of:
Multiply by:
Sapling/Shrub Stratum (Plot size: 15')
OBL species
x 1 =
1. none
FACW species
x 2 =
2.
FAC species
x 3 =
3.
FACU species 10
x 4 = 40
4.
UPL species 30
x 5 = 120
5.
Column Totals: 40 (A)
160 (B)
0
= Total Cover
Prevalence Index = B/A =
4
Herb Stratum (Plot size: 5')
Hydrophytic Vegetation Indicators:
1. Triticum aestevum
30
yes
UPL
❑
1. Rapid Test for Hydrophytic Vegetation
2. Ambrosia psilostachya
10
no
FACU
❑
2. Dominance Test is >50%
3.
❑
3. Prevalence Index is ≤3.0'
4
❑
4. Morphological Adaptations' (Provide supporting data in Remarks
or on a separate sheet)
5.
•
Problematic Hydrophytic Vegetation' (Explain)
6.
' Indicators of hydric soil and wetland hydrology must be present, unless
disturbed or problematic.
7.
8.
9.
40
= Total Cover
Woody Vine Stratum (Plot size: 30')
Hydrophytic Vegetation
Present?
❑ No
1. none
I
■ Yes
= Total Cover
% Bare Ground in Herb Stratum: 60%
Remarks: No indicators of hydrophytic vegetation, however the vegetation is problematic because it is a managed vegetation community.
U.S. Army Corps of Engineers
Great Plains —Version 2.0
WETLAND DETERMINATION DATA FORM —Great Plains Region
SOIL
Sampling Point: LFL-WTI-A1
Profile Description: (Describe to the depth needed to document the indicator or confirm the absence of indicators.)
Depth
Matrix
Redox Features
Texture
Remarks
Color
o
Color
,
2
(moist)
/o
%
Tvpe
Loc2
(moist)
0-5
10 YR 4/3
100
Sand
5-11
10 YR 4/2
98
Sand
5-11
10 YR 5/6
2
Sand
11-21
10 YR 4/4
100
Sand
Type: C=Concentration; D=Depletion; RM-Reduced Matrix; CS -Covered or Coated Sand Grains 2 Location: PL -Pore Lining; M -Matrix
Hydric Soil Indicators: (applicable to all LRRs, unless otherwise noted.)
Indicators for Problematic Hydric Soils':
❑
Histosol (A1)
❑
Sandy Gleyed Matrix (S4)
❑
1 cm Muck (A9) (LRR I, J)
❑
Histic Epipedon (A2)
❑
Sandy Redox (S5)
❑
Coast Prairie Redox A16) (LRR F, G, H)
❑
Black Histic (A3)
❑
Stripped Matrix (S6)
❑
Dark Surface (S7) (LRR G)
❑
Hydrogen Sulfide (A4)
❑
Loamy Mucky Mineral (F1)
❑
High Plains Depressions (F16)
(LRR H outside of MLRA 72 and 73)
❑
Stratified Layers (A5) (LRR F)
❑
Loamy Gleyed Matrix (F2)
❑
Reduced Vertic (F18)
❑
1 cm Muck (A9) (LRR F, G, H)
❑
Depleted Matrix (F3)
❑
Red Parent Material (TF2)
❑
Depleted Below Dark Surface (A11)
❑
Redox Dark Surface (F6)
❑
Very Shallow Dark Surface (TF12)
❑
Thick Dark Surface (Al2)
❑
Depleted Dark Surface (F7)
❑
Other (Explain in Remarks)
❑
Sandy Mucky Mineral (S1)
❑
Redox Depressions (F8)
s Indicators of hydrophytic vegetation and wetland
hydrology must be present, unless disturbed or
problematic.
❑
2.5 cm Mucky Peat or Peat (S2) (LRR G, H)
❑
High Plains Depressions (F16)
(MLRA 72 and 73 of LRR H)
❑
5 cm Mucky Peat or Peat (S3) (LRR F)
Restrictive Layer (if present):
Type:
Depth (inches):
Hydric Soil Present?
■ Yes ❑ No
Remarks: No restrictive layer.
HYDROLOGY
Wetland Hydrology Indicators:
Primary Indicators (minimum of one required; check all that apply)
Secondary Indicators (minimum of two required)
❑
Surface Water (A1)
❑
Salt Crust (B11)
❑
Surface Soil Cracks (B6)
❑
High Water Table (A2)
❑
Aquatic Invertebrates (B13)
❑
Sparsely Vegetated Concave Surface (B8)
❑
Saturation (A3)
❑
Hydrogen Sulfide Odor (C1)
❑
Drainage Patterns (B10)
❑
Water Marks (B1)
❑
Dry -Season Water Table (C2)
❑
Oxidized Rhizospheres on Living Roots (C3)
(where tilled)
❑
Sediment Deposits (B2)
❑
Oxidized Rhizospheres on Living
Roots (C3) (where not tilled)
❑
Crayfish Burrows (C8)
❑
Drift Deposits (B3)
❑
Presence of Reduced Iron (C4)
❑
Saturation Visible on Aerial Imagery (C9)
❑
Algal Mat or Crust (B4)
❑
Thin Muck Surface (C7)
❑
Geomorphic Position (D2)
❑
Iron Deposits (B5)
❑
Other (Explain in Remarks)
❑
FAC-Neutral Test (D5)
❑
Inundation Visible on Aerial Imagery (B7)
❑
Frost -Heave Hummocks (D7) (LRR F)
❑
Water -Stained Leaves (B9)
Field Observations:
Water Hydrology
Present?
Yes ■ No
Surface Water Present?
❑ Yes ❑ No
Depth (inches):
Water Table Present?
• Yes ■ No
Depth (inches):
Saturation Present?
(includes capillary fringe)
• Yes No
Depth (inches):
Describe Recorded Data (stream gauge, monitoring well, aerial photos, previous inspections), if available Salt crust visible on aerial imagery.
Remarks: One indicator of wetland hydrology.
U.S. Army Corps of Engineers
Great Plains —Version 2.0
WETLAND DETERMINATION DATA FORM —Great Plains Region
Project/Site: Lancaster to Fort Lupton Natural Gas Pipeline Project
City/County: Weld County, CO
Sampling Date: 1/24/2017
Applicant/Owner: Xcel Energy
State: Colorado
Sampling Point: LFL-UP1-A1
Investigator(s): C Ansari, J Heule
Section, Township, Range: S26,T2N R66W
Landform (hillslope, terrace, etc.): Hillslope
Local relief (concave, convex,
none): Convex
Slope (%):3
Subregion (LRR): G Lat: 40.112035
Long: -104.742096
Datum: NAD 83
Soil Map Unit Name: Olney loamy sand, 1-3 percent slopes
NWI Classification: n/a
Are climatic/hydrologic conditions on the site typical for this time of year? Yes ❑ No ❑ (if no, explain in Remarks)
Are Vegetation ■, Soil ❑, or Hydrology ❑ significantly disturbed? I Are "normal circumstances" present? Yes No •
Are Vegetation ❑, Soil ❑, or Hydrology ❑ naturally problematic? (If necessary, explain any answers in Remarks.)
SUMMARY OF FINDINGS —Attach site map showing sampling point locations, transects, important features, etc.
Hydrophytic Vegetation Present? ❑ Yes ® No
Hydric Soil Present? ❑ Yes ❑ No
Wetland Hydrology Present? ❑ Yes ❑ No
Is the Sampled Area within a
Wetland?
❑ Yes ❑ No
Remarks: Upland sample plot paired with wetland sample plot LFL-WT1-A1. Plot is located in a wheat field.
VEGETATION —Use scientific names of plants.
Tree Stratum (Plot size: 30')
Absolute
% Cover
Dominant
Species?
Indicator
Status
Dominance Test worksheet:
1. none
Number of Dominant Species That Are OBL, FACW, or
FAC (excluding FAC—):
(A) 0
2.
Total Number of Dominant Species Across All Strata:
1 (B)
3
Percent of Dominant Species That Are OBL, FACW, or
FAC:
0 (A/B)
4.
Prevalence Index worksheet:
0
= Total Cover
Total % Cover of:
Multiply by:
Sapling/Shrub Stratum (Plot size: 15')
OBL species
x 1 =
1. none
FACW species
x 2 =
2.
FAC species
x 3 =
3.
FACU species
x 4 =
4.
UPL species 100
x 5 = 500
5.
Column Totals: 100 (A)
500 (B)
0
= Total Cover
Prevalence Index = B/A =
5
Herb Stratum (Plot size: 5')
Hydrophytic Vegetation Indicators:
1. Triticum aestevum
100
yes
UPL
❑
1. Rapid Test for Hydrophytic Vegetation
2.
❑
2. Dominance Test is X50%
3.
❑
3. Prevalence Index is ≤3.0'
4
❑
4. Morphological Adaptations' (Provide supporting data in Remarks
or on a separate sheet)
5.
•
Problematic Hydrophytic Vegetation' (Explain)
6.
' Indicators of hydric soil and wetland hydrology must be present, unless
disturbed or problematic.
7.
8.
9.
40
= Total Cover
Woody Vine Stratum (Plot size: 30')
Hydrophytic Vegetation
Present?
❑ No
1. none
I
■ Yes
= Total Cover
% Bare Ground in Herb Stratum: 60%
Remarks: No indicators of hydrophytic vegetation. Vegetation considered problematic because of its location in a wheat field.
U.S. Army Corps of Engineers
Great Plains —Version 2.0
WETLAND DETERMINATION DATA FORM —Great Plains Region
SOIL
Sampling Point: LFL-UP1-A1
Profile Description: (Describe to the depth needed to document the indicator or confirm the absence of indicators.)
Depth
Matrix
Redox Features
Texture
Remarks
Color
o
Color
,
2
(moist)
/o
%
Tvpe
Loc2
(moist)
0-21
10 YR 3/4
100
Sand
Type: C=Concentration; D=Depletion; RM-Reduced Matrix; CS -Covered or Coated Sand Grains 2 Location: PL -Pore Lining; M -Matrix
Hydric Soil Indicators: (applicable to all LRRs, unless otherwise noted.)
Indicators for Problematic Hydric Soils':
❑
Histosol (A1)
❑
Sandy Gleyed Matrix (S4)
❑
1 cm Muck (A9) (LRR I, J)
❑
Histic Epipedon (A2)
❑
Sandy Redox (S5)
❑
Coast Prairie Redox A16) (LRR F, G, H)
❑
Black Histic (A3)
❑
Stripped Matrix (S6)
❑
Dark Surface (S7) (LRR G)
❑
Hydrogen Sulfide (A4)
❑
Loamy Mucky Mineral (F1)
❑
High Plains Depressions (F16)
(LRR H outside of MLRA 72 and 73)
❑
Stratified Layers (A5) (LRR F)
❑
Loamy Gleyed Matrix (F2)
❑
Reduced Vertic (F18)
❑
1 cm Muck (A9) (LRR F, G, H)
❑
Depleted Matrix (F3)
❑
Red Parent Material (TF2)
❑
Depleted Below Dark Surface (A11)
❑
Redox Dark Surface (F6)
❑
Very Shallow Dark Surface (TF12)
❑
Thick Dark Surface (Al2)
❑
Depleted Dark Surface (F7)
❑
Other (Explain in Remarks)
❑
Sandy Mucky Mineral (S1)
❑
Redox Depressions (F8)
s Indicators of hydrophytic vegetation and wetland
hydrology must be present, unless disturbed or
problematic.
❑
2.5 cm Mucky Peat or Peat (S2) (LRR G, H)
❑
High Plains Depressions (F16)
(MLRA 72 and 73 of LRR H)
❑
5 cm Mucky Peat or Peat (S3) (LRR F)
Restrictive Layer (if present):
Type:
Depth (inches):
Hydric Soil Present?
❑ Yes ■ No
Remarks: No restrictive layer. No indicators of hydric soils.
HYDROLOGY
Wetland Hydrology Indicators:
Primary Indicators (minimum of one required; check all that apply)
Secondary Indicators (minimum of two required)
❑
Surface Water (A1)
❑
Salt Crust (B11)
❑
Surface Soil Cracks (B6)
❑
High Water Table (A2)
❑
Aquatic Invertebrates (B13)
❑
Sparsely Vegetated Concave Surface (B8)
❑
Saturation (A3)
❑
Hydrogen Sulfide Odor (C1)
❑
Drainage Patterns (B10)
❑
Water Marks (B1)
❑
Dry -Season Water Table (C2)
❑
Oxidized Rhizospheres on Living Roots (C3)
(where tilled)
El
Sediment Deposits (B2)
❑
Oxidized Rhizospheres on Living
Roots (C3) (where not tilled)
El
Crayfish Burrows (C8)
❑
Drift Deposits (B3)
❑
Presence of Reduced Iron (C4)
❑
Saturation Visible on Aerial Imagery (C9)
❑
Algal Mat or Crust (B4)
❑
Thin Muck Surface (C7)
❑
Geomorphic Position (D2)
❑
Iron Deposits (B5)
❑
Other (Explain in Remarks)
❑
FAC-Neutral Test (D5)
❑
Inundation Visible on Aerial Imagery (B7)
❑
Frost -Heave Hummocks (D7) (LRR F)
❑
Water -Stained Leaves (B9)
Field Observations:
Water Hydrology
Present?
■ Yes No
Surface Water Present?
❑ Yes ❑ No
Depth (inches):
Water Table Present?
• Yes ■ No
Depth (inches):
Saturation Present?
(includes capillary fringe)
• Yes No
Depth (inches):
Describe Recorded Data (stream gauge, monitoring well, aerial photos, previous inspections), if available Salt crust visible on aerial imagery.
Remarks: No indicators of wetland hydrology.
U.S. Army Corps of Engineers
Great Plains —Version 2.0
Lancaster to Fort Lupton Natural Gas Pipeline Project
Biological Resources Report
Attachment 4:
USACE General and Regional Conditions
for Nationwide Permit #12
Lancaster to Fort Lupton Natural Gas Pipeline Project
Biological Resources Report
This page intentionally left blank.
4. Nationwide Permit No. 23 Approved Categorical Exclusions. PCN
is required for all projects utilizing Categorical Exclusions.
2012 Regional Conditions in
Colorado
U.S. Army Corps of Engineers
Albuquerque District
REGIONAL CONDITIONS TO NATIONWIDE PERMITS
IN THE STATE OF COLORADO
Regional Conditions Applicable to Specific Nationwide Permits within
the State of Colorado
1. Nationwide Permit No. 12 Utility Line Activities. Notification to the
District Engineer in accordance with General Condition (GC) No. 31, pre -
construction notification (PCN) is required for utility line activities that either
require open trenching in perennial waters or are for the purpose of water
transmission. The purpose for requiring a PCN for water transmission
projects is to determine whether the project will result in withdrawal of water
from a stream/river, and if so, whether the effects of the withdrawal are
minimal.
2. Nationwide Permit Nos. 12 and 14, Utility Line Activities and
Linear Transportation Projects. PCN is required for utility lines and
transportation activities crossing perennial waters and/or special aquatic
resources, including wetlands, in the Colorado River Basin (all tributaries to
the Colorado River within Colorado).
3. Nationwide Permit No. 13 Bank Stabilization. PCN is required for
bank stabilization activities either exceeding 250 linear feet or that are
necessary for erosion prevention in streams with an average width of less
than 20 feet (measured between the ordinary high water marks (OHWM)).
Bank stabilization activities in these small streams are limited to the
placement of no more than 1/4 cubic yard of fill material per linear foot below
the plane of the OHWM unless the Corps determines on a case -by -case
basis that the use of larger or greater quantities of material is appropriate.
5. Nationwide Permit No. 27 Aquatic Habitat Restoration,
Establishment, and Enhancement Activities. This permit is revoked for
activities that include a fishery enhancement component in perennial
streams. These types of projects must be authorized by the Regional Permit
No. 12 for Aquatic Habitat Improvement for Stream Channels in Colorado.
a. Channel realignment is not authorized by this permit unless
it is demonstrated that the realignment is consistent with the
natural morphological evolution of the stream.
b. Structures authorized by this permit must allow for the
upstream and downstream passage of aquatic organisms,
including fish native to the reach, unless waived in writing by
the District Engineer.
c. Structures authorized by this permit must not impede
waterborne navigation, including recreational watercrafts,
unless waived in writing by the District Engineer.
d. The use of concrete/grouting is not allowed in perennial
streams unless waived in writing by the District Engineer.
e. The construction of water parks (e.g. kayak courses) and
flood control projects are not authorized by this permit.
6. Nationwide Permits No's 29 and 39; Residential Developments
and Commercial and Institutional Developments. A copy of the Existing
FEMA/locally-approved floodplain map must be submitted with the PCN.
Regional Conditions Applicable to All Nationwide Permits within the
State of Colorado
7. Important Spawning Areas. GC No. 3 (Spawning Areas) is
amended by adding the following: Activities are not authorized by any
nationwide permit except after case -by -case review and consultation with the
Colorado Parks and Wildlife (CPW) if the activities would destroy important
spawning areas or would be conducted in these waters during trout and
Kokanee spawning seasons. Bio-engineering techniques, such as native
riparian shrub plantings, are required for all bank protection activities that
exceed 50 linear feet in important spawning areas. For activities located in
these important spawning areas, PCN in required and consultation with CPW
1
2012 Nationwide Permit Regional Conditions in Colorado
must be conducted in accordance with the timeframes established in GC 31.
Important spawning areas are identified in the list of Gold Medal Waters in
Colorado (Attachment 2).
8. Removal of Temporary Fills. GC No. 13 (Removal of Temporary
Fills) is amended by adding the following: When temporary fills are placed in
wetlands, a horizontal marker (i.e. fabric, certifies weed -free straw, etc.) must
be used to delineate the existing ground elevation of wetlands that will be
temporarily filled during construction.
9. Fens. All Nationwide Permits, with the exception of 3, 5, 6, 20, 27,
32, 37, and 38 are revoked for activities located in fens and wetlands
adjacent to fens. PCN is required for all other activities considered for
authorization by Nationwide Permits. The permittee may not begin the
activity until the Corps determines the adverse environmental effects are
minimal.
A fen is defined as a groundwater -fed wetland with saturated fibric
organic soil (greater than equal to 16") that is classified as a histosol
in the Natural Resources Conservation Service's (NRCS) Field
Indicators of Hydric Soils in the United States, Version 7.0, 2010. A
copy of the document can be obtained at ftp://ftp-
fc.sc.egov.usda.gov/NSSC/HydrIc Solls/FieldIndicators v7 pdf.
Note: A fen may be part of a larger aquatic system (fen complex) where
wetlands and other waters adjacent to the fen may provide a critical source
of hydrology necessary for sustaining the fen.
10. Springs. PCN is required for all Nationwide Permits if the
activities occur within 100 feet of the discharge point of a spring. The Corps
will determine if the proposed project will have more than a minimal effect to
the site specific spring and may require an Individual Permit or project
modification to reduce/eliminate the spring impacts. For the purposes of this
regional condition, springs do not include seeps or other discharges that do
not have a defined channel.
11. Suitable Fill. PCN is required for the use of broken concrete as
fill material within the State of Colorado. Permittees must demonstrate that
soft engineering methods utilizing native or non -manmade materials are not
practicable (with respect to cost, existing technology, and logistics), before
broken concrete is allowed as suitable fill. Use of broken concrete with
exposed rebar is prohibited. Note: GC No. 6 prohibits the use of unsuitable
material, which includes but is not limited to organic debris, building waste,
asphalt, car bodies, and junk materials.
ADDITIONAL INFORMATION
The following additional information relates to minimization of impacts to
jurisdictional waters of the United States and compliance with the General
Conditions:
1. Permittees are reminded that appropriate erosion and sediment
controls are required in accordance with GC No. 12 in order to properly
stabilize the site and prevent erosion and siltation into wetlands and other
waters downstream. Stream bed material or other small aggregate material
placed alone for bank stabilization will not meet GC No. 12.
2. Permittees are reminded that all compensatory mitigation is
required prior to or concurrent with project construction to ensure compliance
with the Final Compensatory Mitigation Rule. A complete copy of the Final
Compensatory Mitigation Rule may be obtained at the following website:
http://www.usace.army md/cecwipaqes/fInal cmr aspx.
3. Permittees are encouraged to clean heavy equipment prior to
and after construction if equipment was previously used in another stream,
river, lake, pond or wetland within 10 days of initiating work in order to
prevent the spread of New Zealand Mud Snails and other aquatic hitchhikers:
a. Remove all mud and debris from equipment (tracks, turrets,
buckets, drags, teeth, etc.) and keep the equipment dry for
10 days; or
b. Remove all mud and debris from equipment (tracks, turrets,
buckets, drags, teeth, etc.) and spray/soak equipment with
either a 1:1 solution of Formula 409 Household Cleaner and
water, or other approved chemical solutions. Treated
equipment must be kept moist for at least 10 minutes; or
c. Remove all mud and debris from equipment (tracks, turrets,
buckets, drags, teeth, etc.) and spray/soak equipment with
water greater than 120 degrees F for at least 10 minutes.
2
2012 Nationwide Permit Regional Conditions in Colorado
4. Designated Critical Resource Waters and Gold Medal Waters
in Colorado. Within the State of Colorado, the waters listed in Attachment
1 are designated as critical resource waters. In accordance with GC 22
(Designated Critical Resource Waters), the discharge of dredged or fill
material is not authorized by the following nationwide permits in these
waters, including wetlands adjacent to such waters: NWPs 7, 12, 14, 16, 17,
21, 29, 31, 35, 39, 40, 42, 43, 44, 49, 50, A and B. In addition, in accordance
with GC 31 (Pre -Construction Notification), notification to the District
Engineer is required for use of the following nationwide permits in these
waters, including adjacent wetlands: NWPs 3, 8, 10, 13, 15, 18, 19, 22, 23,
25, 27, 28, 30, 33, 34, 36, 37 and 38.
Within the State of Colorado, the waters listed in Attachment 2,
Gold Medal Waters, fall under the requirements set forth in Regional
Condition 7 (above).
3
2012 Nationwide Permit Regional Conditions in Colorado
ATTACHMENT 1:
DESIGNATED CRITICAL RESOURCE WATERS
The Colorado Water Quality Control Division designates Critical Resource
Waters within the State of Colorado. Please note that the following list is
subject to change. For the most current list, or for more information on
specific designations within these watersheds and their tributaries, please
refer to the Colorado Water Quality Control Commission's website:
http:Ilwww.colorado.govlcsISatelliteICDPH E-MainICBONI1251595703337.
Animas and Florida River Basins. All tributaries to the Animas River and
Florida River, including all wetlands, which are within the Weminuche
Wilderness Area.
Hermosa Creek, including all tributaries, from the source to immediately
below the confluence with Long Hollow, except for the East Fork of Hermosa
Creek.
All lakes and reservoirs tributary to the Animas River and Florida River which
are within the Weminuche Wilderness Area. This segment includes Lillie
Lake, Castilleja Lake, City Reservoir, Emerald Lake, Ruby Lake, Balsam
Lake, Garfield Lake, Vestal Lake, Eldorado Lake, Highland Mary Lakes,
Verde Lakes, Lost Lake, and Crater Lake.
Bear Creek Basin. The mainstem of Bear Creek and all tributaries, lakes,
and reservoirs, including wetlands, within the Mt. Evans Wilderness Area.
Big Thompson River Basin. The mainstem of the Big Thompson River,
including all tributaries, lakes, reservoirs, and wetlands, located within Rocky
Mountain National Park (RMNP).
Blue River Basin. North Fork of the Swan River, including all tributaries and
wetlands, from the source to the confluence with the Swan River.
All tributaries to the Blue River, including wetlands within the Eagle Nest and
Ptarmigan Peak Wilderness Areas.
All lakes and reservoirs within the Eagle Nest and Ptarmigan Peak
Wilderness Areas.
Boulder Creek Basin. All tributaries to Boulder Creek, including lakes,
reservoirs, and wetlands, located within the Indian Peaks Wilderness Area.
Cache la Poudre River Basin. All tributaries to the Cache La Poudre River,
including lakes, reservoirs, and wetlands, located within RMNP and Rawah,
Neota, Comanche Peak, and Cache La Poudre Wilderness Areas.
Clear Creek Basin. All tributaries to Clear Creek, including lakes,
reservoirs, and wetlands, located within Mt. Evans Wilderness Area.
San Luis Valley (Closed Basin). All tributaries in the Closed Basin,
including wetlands, lakes, and reservoirs, located within the La Garita
Wilderness Area.
The mainstem of Sand Creek, including all tributaries and wetlands, from the
source to the mouth.
The mainstem of Medano Creek, including all tributaries and wetlands, from
the source to the mouth.
Colorado River Basin. The mainstem of the Colorado River, including all
tributaries and wetlands, located within or flowing into RMNP.
All tributaries to the Colorado River and Frasier River within RMNP and
within the Never Summer, Indian Peaks, Byers, Vasquez, Eagles Nest, and
Flat Top Wilderness Areas.
Mainstem of Northwater Creek and Trapper Creek, including all tributaries
and wetlands, from their source to the confluence with the East Fork of
Parachute Creek. East Middle Fork of Parachute Creek, including all
tributaries and wetlands from the source to the confluence with Middle Fork
of Parachute Creek.
Battlement Creek, including all tributaries and wetlands, from its source to a
point immediately downstream boundary of BLM lands.
Mainstem of Rapid Creek, including all tributaries and wetlands, from the
source to a point immediately below the confluence with Cottonwood Creek
including Kruzen Springs.
Dolores River Basin. All tributaries to the Dolores River and West Dolores
River, including all wetlands, tributaries, which are within the Lizard Head
Wilderness area.
Mainstem of Rio Lado from the source to the confluence with the Dolores
River. Mainstem of Spring Creek from the source to the confluence with
4
2012 Nationwide Permit Regional Conditions in Colorado
Stoner Creek. Mainstem of Little Taylor Creek from the source to the
confluence with Taylor Creek.
All lakes, and reservoirs tributary to the Dolores River and West Dolores
River, which are within the Lizard Head Wilderness area. This segment
includes Navajo Lake.
Eagle River Basin. All tributaries to the Eagle River system, including lakes,
reservoirs, and wetlands, located within the Eagle Nest and Holy Cross
Wilderness Areas of the Gore Range.
Abrams Creek, including all tributaries and wetlands, from the source to the
eastern boundary of the BLM lands.
Fountain Creek Basin. Severy Creek, including all tributaries, from the
source to a point just upstream of where the Forest Service Road 330
crosses the stream.
Bear Creek, including all tributaries, from the source to a point upstream of
GPS coordinated N3847682, W10454917 (this location is at elevation 8,200
feet above sea level at a 250 degree angle and 3,000 feet from the trailhead
of the Mount Buckhorn Trail off High Drive).
Upper Gunnison River Basin. All tributaries to the Gunnison River,
including and wetlands, within the La Garita, Powderhorn, West Elk,
Collegiate Peaks, Maroon Bells, Fossil Ridge, or Uncompahgre Wilderness
Areas.
All tributaries and wetlands from North Beaver Creek to Meyers Gulch, from
the West Elk Wilderness boundary to their confluences with Blue Mesa
Reservoir, Morrow Point Reservoir, or the Gunnison River, excluding
Steuben Creek, North Willow Creek, and Soap Creek.
All lakes and reservoirs that are tributary to the Gunnison River and within
the La Garita, Powderhorn, West Elk, Collegiate Peaks, Maroon Bells,
Raggeds, Fossil Ridge, or Uncompahgre Wilderness Areas.
Lower Gunnison River Basin. All tributaries to the Smith Fork, including all
wetlands, which are within the West Elk Wilderness Area.
All lakes and reservoirs tributary to the Smith Fork, and are within the West
Elk Wilderness Area.
North Fork of the Gunnison River Basin. All tributaries to North Fork of
the Gunnison River, including all wetlands, within the West Elk or Raggeds
Wilderness Areas.
All lakes and reservoirs that are tributary to the North Fork of the Gunnison
River and within the West Elk or Raggeds Wilderness areas.
Laramie River Basin. All tributaries to the Laramie River system, including
lakes, reservoirs, and wetlands, located within the Rawah Wilderness Area.
Los Pinos River Basin. All tributaries to the Los Pinos River, including all
wetlands, which are within the Weminuche Wilderness Area.
All lakes and reservoirs tributary to the Los Pinos River which are within the
Weminuche Wilderness Area. This includes Granite Lake, Divide Lakes, Elk
Lake, Flint Lakes, Moon Lake, Rock Lake, Betty Lake, Lost Lake, Hidden
Lake, Vallecito Lake, Eldorado Lake, Trinity Lake, Leviathan Lake, Sunlight
Lake, Hazel Lake, Columbine Lake, and Emerald Lake.
Mancos River Basin. All tributaries of the Mancos River located within
Mesa Verde National Park.
North Fork of the Gunnison River Basin. All tributaries to North Fork of
the Gunnison River, including lakes, reservoirs, and wetlands, located within
the West Elk and Raggeds Wilderness Areas.
North Platte River Basin. All tributaries to the North Platte River and
Encampment Rivers, including lakes and reservoirs.
All wetlands located within the Mount Zirkle, Never Summer, and Platte
River Wilderness Areas.
Piedra River Basin. All tributaries to the Piedra River, including all
wetlands, which are within the Weminuche Wilderness Area.
All lakes and reservoirs tributary to the Piedra River which are within the
Weminuche Wilderness Area. This segment includes Window Lake,
Monument Lake, Hossick Lake, and Williams Lakes.
Rio Grande Basin. All tributaries to the Rio Grande, including lakes,
reservoirs, and wetlands, located within the Weminuche Wilderness Area.
Roaring Fork River. All tributaries of the Roaring Fork River system,
including lakes and reservoirs, located within the Maroon Bells/Snowmass,
5
2012 Nationwide Permit Regional Conditions in Colorado
Holy Cross, Raggeds, Collegiate Peaks, and Hunter/Fryingpan Wilderness
Areas.
San Juan River Basin. All tributaries to the San Juan River, Rio Blanco,
and Navajo River including all wetlands which are within the Weminuche
Wilderness area and South San Juan Wilderness Area.
All lakes and reservoirs which are tributary to the San Juan River, Rio
Blanco, and Navajo River and located within the Weminuche Wilderness
Area and South San Juan Wilderness Area.
This segment includes Archuleta Lake, Spruce Lakes, Turkey Creek Lake,
Fourmile Lake, Upper Fourmile Lake, Crater Lake, Quartz Lake, Fish Lake,
and Opal Lake.
San Miguel River Basin. All tributaries, including wetlands, to the San
Miguel River, and within the boundaries of the Lizard Head, or Mount
Sneffels Wilderness Areas.
All lakes and reservoirs tributary to the San Miguel River and within the
boundaries of the Lizard Head, or Mount Sneffels Wilderness Areas.
South Platter River Basin. All tributaries to the South Platte River,
including lakes, reservoirs, and wetlands, located within the Lost Creek and
Mt. Evans Wilderness Areas.
St. Vrain Creek Basin. All tributaries to St. Vrain Creek, including lakes,
reservoirs, and wetlands, located within the Indian Peaks Wilderness Areas
and RMNP.
Uncompahgre River Basin. All tributaries to the Uncompahgre River,
including all wetlands, which are within the Mt. Sneffels or Uncompahgre
Wilderness Areas.
All lakes and reservoirs tributary to the Uncompahgre River and within the
Mt. Sneffels or Uncompahgre Wilderness Areas.
White River Basin. All tributaries to the White River, including lakes,
reservoirs, and wetlands, located within the Flat Tops Wilderness Area,
including Trapper's Lake.
Yampa River Basin. All tributaries to the Yampa River, including lakes,
reservoirs, and wetlands, located within Zirkle, Flat Tops, and Sarvis
Creek Wilderness Areas.
6
2012 Nationwide Permit Regional Conditions in Colorado
ATTCHMENT 2
GOLD MEDAL WATERS
The following list of important spawning areas has been defined as Gold
Medal Waters by the State of Colorado. As a reminder, according to RC 7
above, PCN is required for all proposed nationwide permit activities in
these waters; consultation with CPW must be conducted in accordance
with the timeframes established in GC 31.
NOTE: This list of Gold Medal Waters is subject to change. For the most
current list, please refer to the Colorado Parks and Wildlife (CPW) Colorado
Fishing Brochure available on the CPW website (http://wildlife.state.co.us/)
or contact any CPW or Corps office in Colorado.
GOLD MEDAL LAKES:
North Delaney Butte Lake in Jackson County.
Spinney Mountain Reservoir in Park County.
Steamboat Lake in Routt County.
GOLD MEDAL STREAMS:
Animas River from Lightner Creek to Rivera Crossing Bridge.
Blue River from Dillon Reservoir Dam to Green Mountain Reservoir inlet;
and
From Green Mountain Reservoir dam to Colorado River confluence.
Colorado River from Fraser River to Troublesome Creek confluence.
Fryingpan River from Ruedi Reservoir dam to Roaring Fork River
confluence.
Gore Creek from Red Sandstone Creek to Eagle River confluence.
Gunnison River from 200 yards downstream of Crystal Reservoir dam to the
North Fork of the Gunnison River.
North Platte River from the south boundary of Routt National Forest to the
Wyoming border.
Rio Grande from State Highway 149 Bridge at South Fork downstream to
the Rio Grande canal diversion structure.
Roaring Fork River from the Fryingpan River downstream to the Colorado
River confluence.
South Platte River: The middle fork of the South Platte River from State
Highway 9 Bridge to the south fork confluence;
From the confluence of the middle and south forks to Spinney Mountain
Reservoir inlet;
From the Spinney Mountain Reservoir outlet downstream to Eleven Mile
Reservoir inlet;
From Cheesman Reservoir dam to the south boundary of the Wigwam Club
property; and
From the north boundary of the Wigwag Club property to Scraggy View
picnic ground.
7
DECISION DOCUMENT
NATIONWIDE PERMIT 12
This document discusses the factors considered by the Corps of Engineers (Corps) during
the issuance process for this Nationwide Permit (NWP). This document contains: (1) the
public interest review required by Corps regulations at 33 CFR 320.4(a)(1) and (2); (2) a
discussion of the environmental considerations necessary to comply with the National
Environmental Policy Act; and (3) the impact analysis specified in Subparts C through F of
the 404(b)(1) Guidelines (40 CFR Part 230). This evaluation of the NWP includes a
discussion of compliance with applicable laws, consideration of public comments, an
alternatives analysis, and a general assessment of individual and cumulative effects,
including the general potential effects on each of the public interest factors specified at 33
CFR 320.4(a).
1.0 Text of the Nationwide Permit
Utility Line Activities. Activities required for the construction, maintenance, repair, and
removal of utility lines and associated facilities in waters of the United States, provided the
activity does not result in the loss of greater than 1/2 -acre of waters of the United States for
each single and complete project.
Utility lines: This NWP authorizes discharges of dredged or fill material into waters of the
United States and structures or work in navigable waters for crossings of those waters
associated with the construction, maintenance, or repair of utility lines, including outfall and
intake structures. There must be no change in pre -construction contours of waters of the
United States. A "utility line" is defined as any pipe or pipeline for the transportation of any
gaseous, liquid, liquescent, or slurry substance, for any purpose, and any cable, line, or wire
for the transmission for any purpose of electrical energy, telephone, and telegraph messages,
and internet, radio, and television communication. The term "utility line" does not include
activities that drain a water of the United States, such as drainage tile or french drains, but it
does apply to pipes conveying drainage from another area.
Material resulting from trench excavation may be temporarily sidecast into waters of the
United States for no more than three months, provided the material is not placed in such a
manner that it is dispersed by currents or other forces. The district engineer may extend the
period of temporary side casting for no more than a total of 180 days, where appropriate. In
wetlands, the top 6 to 12 inches of the trench should normally be backfilled with topsoil
from the trench. The trench cannot be constructed or backfilled in such a manner as to drain
waters of the United States (e.g., backfilling with extensive gravel layers, creating a french
drain effect). Any exposed slopes and stream banks must be stabilized immediately upon
completion of the utility line crossing of each waterbody.
Utility line substations: This NWP authorizes the construction, maintenance, or expansion of
substation facilities associated with a power line or utility line in non -tidal waters of the
United States, provided the activity, in combination with all other activities included in one
1
single and complete project, does not result in the loss of greater than 1/2 -acre of waters of
the United States. This NWP does not authorize discharges into non -tidal wetlands adjacent
to tidal waters of the United States to construct, maintain, or expand substation facilities.
Foundations for overhead utility line towers, poles, and anchors: This NWP authorizes the
construction or maintenance of foundations for overhead utility line towers, poles, and
anchors in all waters of the United States, provided the foundations are the minimum size
necessary and separate footings for each tower leg (rather than a larger single pad) are used
where feasible.
Access roads: This NWP authorizes the construction of access roads for the construction and
maintenance of utility lines, including overhead power lines and utility line substations, in
non -tidal waters of the United States, provided the activity, in combination with all other
activities included in one single and complete project, does not cause the loss of greater than
1/2 -acre of non -tidal waters of the United States. This NWP does not authorize discharges
into non -tidal wetlands adjacent to tidal waters for access roads. Access roads must be the
minimum width necessary (see Note 2, below). Access roads must be constructed so that the
length of the road minimizes any adverse effects on waters of the United States and must be
as near as possible to pre -construction contours and elevations (e.g., at grade corduroy roads
or geotextile/gravel roads). Access roads constructed above pre -construction contours and
elevations in waters of the United States must be properly bridged or culverted to maintain
surface flows.
This NWP may authorize utility lines in or affecting navigable waters of the United States
even if there is no associated discharge of dredged or fill material (See 33 CFR part 322).
Overhead utility lines constructed over section 10 waters and utility lines that are routed in
or under section 10 waters without a discharge of dredged or fill material require a section
10 permit.
This NWP authorizes, to the extent that Department of the Army authorization is required,
temporary structures, fills, and work necessary for the remediation of inadvertent returns of
drilling fluids to waters of the United States through sub -soil fissures or fractures that might
occur during horizontal directional drilling activities conducted for the purpose of installing
or replacing utility lines. These remediation activities must be done as soon as practicable,
to restore the affected waterbody. District engineers may add special conditions to this NWP
to require a remediation plan for addressing inadvertent returns of drilling fluids to waters of
the United States during horizontal directional drilling activities conducted for the purpose
of installing or replacing utility lines.
This NWP also authorizes temporary structures, fills, and work, including the use of
temporary mats, necessary to conduct the utility line activity. Appropriate measures must be
taken to maintain normal downstream flows and minimize flooding to the maximum extent
practicable, when temporary structures, work, and discharges, including cofferdams, are
necessary for construction activities, access fills, or dewatering of construction sites.
Temporary fills must consist of materials, and be placed in a manner, that will not be eroded
by expected high flows. After construction, temporary fills must be removed in their entirety
2
and the affected areas returned to pre -construction elevations. The areas affected by
temporary fills must be revegetated, as appropriate.
Notification: The permittee must submit a pre -construction notification to the district
engineer prior to commencing the activity if any of the following criteria are met: (1) the
activity involves mechanized land clearing in a forested wetland for the utility line right-of-
way; (2) a section 10 permit is required; (3) the utility line in waters of the United States,
excluding overhead lines, exceeds 500 feet; (4) the utility line is placed within a
jurisdictional area (i.e., water of the United States), and it runs parallel to or along a stream
bed that is within that jurisdictional area; (5) discharges that result in the loss of greater than
1/10 -acre of waters of the United States; (6) permanent access roads are constructed above
grade in waters of the United States for a distance of more than 500 feet; or (7) permanent
access roads are constructed in waters of the United States with impervious materials. (See
general condition 32.) (Authorities: Sections 10 and 404)
Note 1: Where the utility line is constructed or installed in navigable waters of the United
States (i.e., section 10 waters) within the coastal United States, the Great Lakes, and United
States territories, a copy of the NWP verification will be sent by the Corps to the National
Oceanic and Atmospheric Administration (NOAA), National Ocean Service (NOS), for
charting the utility line to protect navigation.
Note 2: For utility line activities crossing a single waterbody more than one time at separate
and distant locations, or multiple waterbodies at separate and distant locations, each crossing
is considered a single and complete project for purposes of NWP authorization. Utility line
activities must comply with 33 CFR 330.6(d).
Note 3: Utility lines consisting of aerial electric power transmission lines crossing navigable
waters of the United States (which are defined at 33 CFR part 329) must comply with the
applicable minimum clearances specified in 33 CFR 322.5(i).
Note 4: Access roads used for both construction and maintenance may be authorized,
provided they meet the terms and conditions of this NWP. Access roads used solely for
construction of the utility line must be removed upon completion of the work, in accordance
with the requirements for temporary fills.
Note 5: Pipes or pipelines used to transport gaseous, liquid, liquescent, or slurry substances
over navigable waters of the United States are considered to be bridges, not utility lines, and
may require a permit from the U.S. Coast Guard pursuant to section 9 of the Rivers and
Harbors Act of 1899. However, any discharges of dredged or fill material into waters of the
United States associated with such pipelines will require a section 404 permit (see NWP 15).
Note 6: This NWP authorizes utility line maintenance and repair activities that do not
qualify for the Clean Water Act section 404(t) exemption for maintenance of currently
serviceable fills or fill structures.
3
Note 7: For overhead utility lines authorized by this NWP, a copy of the PCN and NWP
verification will be provided to the Department of Defense Siting Clearinghouse, which will
evaluate potential effects on military activities.
Note 8: For NWP 12 activities that require pre -construction notification, the PCN must
include any other NWP(s), regional general permit(s), or individual permit(s) used or
intended to be used to authorize any part of the proposed project or any related activity,
including other separate and distant crossings that require Department of the Army
authorization but do not require pre -construction notification (see paragraph (b) of general
condition 32). The district engineer will evaluate the PCN in accordance with Section D,
"District Engineer's Decision." The district engineer may require mitigation to ensure that
the authorized activity results in no more than minimal individual and cumulative adverse
environmental effects (see general condition 23).
1.1 Requirements
General conditions of the NWPs are in the Federal Register notice announcing the issuance
of this NWP. Pre -construction notification requirements, additional conditions, limitations,
and restrictions are in 33 CFR part 330.
1.2 Statutory Authorities
• Section 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. 403)
• Section 404 of the Clean Water Act (33 U.S.C. 1344)
1.3 Compliance with Related Laws (33 CFR 320.3)
1.3.1 General
NWPs are a type of general permit designed to authorize certain activities that have no more
than minimal individual and cumulative adverse environmental effects and generally comply
with the related laws cited in 33 CFR 320.3. Activities that result in more than minimal
individual and cumulative adverse environmental effects cannot be authorized by NWPs.
Individual review of each activity authorized by an NWP will not normally be performed,
except when pre -construction notification to the Corps is required or when an applicant
requests verification that an activity complies with an NWP. Potential adverse impacts and
compliance with the laws cited in 33 CFR 320.3 are controlled by the terms and conditions
of each NWP, regional and case -specific conditions, and the review process that is
undertaken prior to the issuance of NWPs.
The evaluation of this NWP, and related documentation, considers compliance with each of
the following laws, where applicable: Sections 401, 402, and 404 of the Clean Water Act;
Section 307(c) of the Coastal Zone Management Act of 1972, as amended; Section 302 of
4
the Marine Protection, Research and Sanctuaries Act of 1972, as amended; the National
Environmental Policy Act of 1969; the Fish and Wildlife Act of 1956; the Migratory Marine
Game -Fish Act; the Fish and Wildlife Coordination Act, the Federal Power Act of 1920, as
amended; the National Historic Preservation Act of 1966; the Interstate Land Sales Full
Disclosure Act; the Endangered Species Act; the Deepwater Port Act of 1974; the Marine
Mammal Protection Act of 1972; Section 7(a) of the Wild and Scenic Rivers Act; the Ocean
Thermal Energy Act of 1980; the National Fishing Enhancement Act of 1984; the
Magnuson -Stevens Fishery and Conservation and Management Act, the Bald and Golden
Eagle Protection Act; and the Migratory Bird Treaty Act. In addition, compliance of the
NWP with other Federal requirements, such as Executive Orders and Federal regulations
addressing issues such as floodplains, essential fish habitat, and critical resource waters is
considered.
L3.2 Terms and Conditions
Many NWPs have pre -construction notification requirements that trigger case -by -case
review of certain activities. Two NWP general conditions require case -by -case review of all
activities that may adversely affect Federally -listed endangered or threatened species or
historic properties (i.e., general conditions 18 and 20, respectively). General condition 16
restricts the use of NWPs for activities that are located in Federally -designated wild and
scenic rivers. None of the NWPs authorize the construction of artificial reefs. General
condition 28 prohibits the use of an NWP with other NWPs, except when the acreage loss of
waters of the United States does not exceed the highest specified acreage limit of the NWPs
used to authorize the single and complete project.
In some cases, activities authorized by an NWP may require other federal, state, or local
authorizations. Examples of such cases include, but are not limited to: activities that are in
marine sanctuaries or affect marine sanctuaries or marine mammals; the ownership,
construction, location, and operation of ocean thermal conversion facilities or deep water
ports beyond the territorial seas; activities that result in discharges of dredged or fill material
into waters of the United States and require Clean Water Act Section 401 water quality
certification; or activities in a state operating under a coastal zone management program
approved by the Secretary of Commerce under the Coastal Zone Management Act. In such
cases, a provision of the NWPs states that an NWP does not obviate the need to obtain other
authorizations required by law. [33 CFR 330.4(b)(2)]
Additional safeguards include provisions that allow the Chief of Engineers, division
engineers, and/or district engineers to: assert discretionary authority and require an
individual permit for a specific activity; modify NWPs for specific activities by adding
special conditions on a case -by -case basis; add conditions on a regional or nationwide basis
to certain NWPs; or take action to suspend or revoke an NWP or NWP authorization for
activities within a region or state. Regional conditions are imposed to protect important
regional concerns and resources. [33 CFR 330.4(e) and 330.5]
1.3.3 Review Process
5
The analyses in this document and the coordination that was undertaken prior to the issuance
of the NWP fulfill the requirements of the National Environmental Policy Act (NEPA), the
Fish and Wildlife Coordination Act, and other acts promulgated to protect the quality of the
environment.
All NWPs that authorize activities that may result in discharges into waters of the United
States require water quality certification. NWPs that authorize activities within, or affecting
land or water uses within a state that has a Federally -approved coastal zone management
program, must also be certified as consistent with the state's program. The procedures to
ensure that the NWPs comply with these laws are described in 33 CFR 330.4(c) and (d),
respectively.
L4 Public Comment and Response
For a summary of the public comments received in response to the June 1, 2016, Federal
Register notice, refer to the preamble in the Federal Register notice announcing the
reissuance of this NWP. The substantive comments received in response to the June 1,
2016, Federal Register notice were used to improve the NWP by changing NWP terms and
limits, pre -construction notification requirements, and/or NWP general conditions, as
necessary.
We proposed to clarify that this NWP authorizes discharges of dredged or fill material into
waters of the United States and structures or work in navigable waters of the United States
for crossings of those waters associated with the construction, maintenance, repair, and
removal of utility lines. In addition, we proposed to modify the definition of "utility line" to
make it clear that utility lines can also include optic cables and other lines that communicate
through the internet. We also proposed to add a paragraph to this NWP to authorize, to the
extent that DA authorization is required, discharges of dredged or fill material into waters
subject to section 404 of the Clean Water Act and structures and work in waters subject to
section 10 of the Rivers and Harbors Act of 1899, necessary to remediate inadvertent returns
of drilling fluids that can occur during horizontal directional drilling operations to install
utility lines under jurisdictional waters and wetlands. Other proposed changes to NWP 12
are discussed in more detail in the preamble to the June 1, 2016, proposal (see 81 FR 35198
— 35199).
Several commenters expressed their support for the proposed modifications to NWP 12.
Some of these commenters agreed with the clarification that, for utility lines authorized by
NWP 12, the Corps is only authorizing regulated activities to cross waters of the United
States, including navigable waters. Several commenters said that utility lines crossing
multiple waterbodies should require individual permits, instead of authorizing each separate
and distant crossing by NWP. In contrast, several commenters said they support the use of
NWP 12 to authorize separate and distant crossings of waters of the United States. One
commenter suggested clarifying that "crossing" only refers to regulated activities, and to not
activities such as horizontal directional drilling and aerial crossings of jurisdictional waters.
Several commenters said this NWP does not authorize activities that are similar in nature. A
6
couple of these commenters asserted that this NWP does not authorize activities that are
similar in nature because pipelines can carry a variety of types of fluids, some of which are
harmful and some of which are benign. Other commenters made the "not similar in nature"
objection, stating that pipelines that carry fluids such as oil are different than pipelines that
carry water or sewage, which are different than utility lines that carry electricity.
We are retaining the long-standing practice articulated in the NWP regulations at 33 CFR
330.2(i), in which each separate and distant crossings of waters of the United States is
authorized by NWP. The utility line activities authorized by NWP 12 are similar in nature
because they involve linear pipes, cables, or wires to transport physical substances or
electromagnetic energy from a point of origin to a terminal point. For the purposes of this
NWP, the term "crossing" refers to regulated activities. However, it should be noted that
installing utility lines under a navigable water of the United States subject to section 10 of
the Rivers and Harbors Act of 1899 via horizontal directional drilling, as well as aerial
crossings of those navigable waters, require authorization under section 10 of the Rivers and
Harbors Act of 1899. The substations, tower foundations, roads, and temporary fills that are
also authorized by NWP 12 (when those activities require Department of the Army (DA)
authorization) are integral to the fulfilling the purpose of utility lines, and thus fall within the
"categories of activities that are similar in nature" requirement for general permits stated in
section 404(e) of the Clean Water Act.
Many commenters objected to the reissuance of NWP 12, stating that it authorizes oil and
gas pipelines that should be subject to the individual permit process instead. Many
commenters said that these activities should be subject to a public review process. Many of
these commenters cited the risk of oil spills as a reason why oil pipelines should be
evaluated under the Corps' individual permit process. Many commenters based their
concerns on their views that the Corps is the only federal agency that regulates oil pipelines.
The Corps does not regulate oil and gas pipelines, or other types of pipelines, per se. For
utility lines, including oil and gas pipelines, our legal authority is limited to regulating
discharges of dredged or fill material into waters of the United States and structures or work
in navigable waters of the United States, under section 404 of the Clean Water Act and
section 10 of the Rivers and Harbors Act of 1899, respectively. We do not have the
authority to regulate the operation of oil and gas pipelines, and we do not have the authority
to address spills or leaks from oil and gas pipelines. General condition 14, proper
maintenance, requires that NWP activities, including NWP 12 activities, be properly
maintained to ensure public safety. The proper maintenance required by general condition
14 also ensures compliance with the other NWP general conditions, many of which are
designed to protect the environment, as well as any regional conditions imposed by the
division engineer and activity -specific conditions imposed by the district engineer. In
addition, we do not have the legal authority to regulate the construction, maintenance, or
repair of upland segments of pipelines or other types of utility lines. For example, for a
recent oil pipeline (e.g., the Flanagan South pipeline), the segments of the oil pipeline that
were subject to the Corps' jurisdiction (i.e., the crossings of waters of the United States,
including navigable waters of the United States, that were authorized by the 2012 NWP 12)
was only 2.3% of the total length of the pipeline; the remaining 97.7% of the oil pipeline
was constructed in upland areas outside of the Corps' jurisdiction. Interstate natural gas
7
pipelines are regulated by the Federal Energy Regulatory Commission. The Federal Energy
Regulatory Commission also regulates some electric transmission projects.
There are other federal laws that address the operation of pipelines and spills and leaks of
substances from pipelines. Those laws are administered by other federal agencies. Under
the Natural Gas Pipeline Safety Act of 1968, the Department of Transportation (DOT)
regulates pipeline transportation of natural gas and other gases. The DOT also regulates the
transportation and storage of liquefied natural gas. Under the Hazardous Liquid Pipeline
Safety Act, the DOT regulates pipeline transportation of hazardous liquids including crude
oil, petroleum products, anhydrous ammonia, and carbon dioxide. The DOT administers its
pipeline regulations through the Office of Pipeline Safety (OPS), which is in its Pipelines
and Hazardous Materials Safety Administration (PHMSA). Specific to oil pipelines, the
PHMSA is responsible for reviewing oil spill response plans for onshore oil pipelines.
Oil spills are also addressed through the Oil Pollution Act of 1990, which is administered by
the U.S. Environmental Protection Agency and the U.S. Coast Guard. Under the Oil
Pollution Act of 1990, EPA is responsible for addressing oil spills occurring in inland waters
and the U.S. Coast Guard is responsible for addressing oil spills in coastal waters and
deepwater ports. The U.S. EPA has issued regulations governing its oil spill prevention
program, and requires oil spill prevention, control, and countermeasures, and facility
response plans (see 40 CFR part 300 and 40 CFR part 112). Oil spill prevention, control, and
countermeasures are intended to ensure that oil facilities prevent discharges of oil into
navigable waters or adjoining shorelines. Their facility response plan regulations require
certain facilities to submit response plans to address worst case oil discharges or threats of a
discharge. The U.S. Coast Guard has the authority to ensure the effective cleanup of oil
spills in coastal waters and require actions that prevent further discharges of oil from the
source of the oil spill. Activities regulated under section 404 of the Clean Water Act and/or
section 10 of the Rivers and Harbors Act that are determined by the U.S. EPA or U.S. Coast
Guard to be necessary to respond to discharges or releases of oil or hazardous substances
may be authorized by NWP 20.
Many commenters based their objections to the reissuance of NWP 12 on the inability for
public involvement to occur during the Corps' NWP verification process for specific
pipelines. Many commenters said the Corps' authorization process should be modified to
prevent the segmentation of pipelines and that the Corps should fully evaluate the
environmental impacts of individual fossil fuel pipelines, including the burning of those
fossil fuels. Many commenters cited climate change as a reason why oil and gas pipelines
should be evaluated under the individual permit process instead of the Corps using NWP to
authorize crossings of waters of the United States.
The purpose of the NWPs, as well as regional general permits, is to provide a streamlined
authorization process for activities that result in no more than minimal individual and
cumulative adverse environmental effects. When section 404(e) of the Clean Water Act
became law in 1977, lawmakers endorsed the general permit concept that was developed by
the Corps in its 1975 and 1977 regulations (see 40 FR 31335 and 42 FR 37140, 37145
respectively). For the issuance or reissuance of NWPs and other general permits, the public
involvement process occurs during the development of the general permit. If public notices
8
were required to authorize specific activities after the NWP or other general permit was
issued, it would not provide the streamlined process intended by Congress. Individual
pipelines may be able to operate independently to transport substances from a point of origin
to a terminal point, even though they may be part of a larger network of pipelines. The
Corps may authorize these independent pipelines, if all crossings of waters of the United
States involving regulated activities qualify for NWP authorization.
The Corps does not have the legal authority to regulate the burning of fossil fuels that are
transported by pipelines where the Corps authorized crossings of waters of the United States
by NWP 12, other general permits, or individual permits. Therefore, in its environmental
documentation the Corps is not required to fully evaluate the burning of fossil fuels, except
to respond to specific comments submitted in response to a proposed rule (in the case of
these NWPs) or comments submitted in response to a public notice for an individual permit
application.
Activities authorized by NWP 12 are currently playing, and will continue to play, and
important role in helping the nation achieve goals regarding the increased reliance on clean
energy projects to meet the energy needs of its populace, to help reduce emissions of
greenhouse gases that contribute to climate change. Clean energy projects include the
construction, operation, and maintenance of more efficient and cleaner fossil -fuel energy
generation facilities, nuclear power plants, and renewable energy generation projects that
use solar and wind energy. Natural gas and electricity transmission and distribution systems
will also need to be constructed or upgraded to bring clean energy to consumers.
The utility line activities authorized by NWP 12 will continue to be needed by society,
including the goods and services transported by those utility lines. In areas of increasing
temperatures, there will be increased demand for air conditioning and the energy needed to
run air conditioners. Some areas of the country will receive less precipitation, and their
water needs may need to be fulfilled through the construction and operation of utility lines
that carry water to those areas that need additional water.
One commenter said that for any oil pipeline that affects aboriginal, historic treaty or
reservation lands of an Indian tribe, the terms of NWP 12 should require consultation with
all affected tribes and that any permit decision protect the full range of tribal rights under
federal law. Two commenters stated that all NWP 12 activities should require pre -
construction notification to ensure that consultation occurs with tribes on any utility line that
may affect protected tribal resources, tribal rights, or Indian lands. One of these commenters
said that general condition 17 in effect delegates the Corps' tribal trust responsibility to
project proponents, and that the vast majority of impacts to waters of the United States can
occur without notification to the Corps.
Activities authorized by NWP 12 must comply with general condition 17, tribal rights, and
general condition 20, historic properties. We have modified general condition 17 to more
effectively address the Corps' responsibilities regarding tribal rights (including treaty
rights), protected tribal resources, and tribal lands. For the 2017 NWPs, district engineers
have been consulting with tribes to identify regional conditions that will facilitate
compliance with general conditions 17 and 20. As a result of this consultation, district
9
engineers can establish coordination procedures to identify utility line activities that require
government -to -government consultation to protect tribal trust resources and tribal treaty
rights. These consultations will be done in accordance with the Corps' tribal policy
principles. Further information on the Corps' tribal policy principles is available at:
http:r':www.usacc.army.mil/Missions/Ci\ il-Works:Tribal-Nations: . In fulfilling its trust
responsibilities to tribes, the Corps follows the Department of Defense American Indian and
Alaska Native Policy. The Corps' tribal trust responsibilities apply to the activities
regulated by the Corps, and do not extend to associated activities that the Corps does not
have the authority to regulate, such as activities in upland areas outside of the Corps' legal
control and responsibility.
The consultation between Corps districts and tribes that has been conducted for these NWPs
can result in additional procedures or regional conditions to protect tribal trust resources.
District engineers will work to establish procedures with interested tribes to coordinate on
specific NWP 12 activities to assist the Corps in executing its tribal trust responsibilities, or
add mitigation requirements that the district engineer determines are necessary to ensure that
the verified NWP activity results in no more than minimal individual and cumulative
adverse environmental effects. Division engineers will, as necessary, impose regional
conditions on this NWP, including requiring more activities to require pre -construction
notification, to ensure that these activities do not cause more than minimal adverse effects
on tribal rights, protected tribal resources, or tribal lands. When a Corps district receives a
pre -construction notification that triggers a need to consult with one or more tribes, that
consultation will be completed before the district engineer makes his or her decision on
whether to issue the NWP verification. Regional conditions and coordination procedures
can help ensure compliance with general condition 17. The Corps does not, and cannot,
delegate its tribal trust responsibilities to permit applicants.
One commenter said that NWP 12 should prohibit construction in waters of the United
States until all other federal and state permits are issued for pipelines. One commenter
suggested adding language that allows temporary impacts for repair of a utility line parallel
a bank, which is not a "crossing." Several commenters stated that this NWP should not
authorize activities in regions in Appalachia because it is not possible to mitigate impacts in
those mountainous areas. Two commenters said this NWP should require the use of best
management practices to control release of sediments during construction.
Paragraph 2 of Section E, "Further Information," states that the NWPs do not remove the
need to obtain other required federal, state, or local authorizations as required by law. The
NWPs have a 45 -day review period (with some exceptions), so district engineers cannot
wait for all other federal, state, or local authorizations to be issued. Otherwise, the proposed
NWP activity would be authorized after the 45 -day period passed with no response from the
Corps. The default NWP authorization would not have any activity -specific conditions,
such as mitigation requirements, to ensure that the adverse environmental effects are no
more than minimal. This NWP authorizes temporary fills to construct a utility line.
Concerns about the use of this NWP in Appalachia are more appropriately addressed by the
appropriate division engineer, who has the authority to modify, suspend, or revoke the NWP
in a specific region. General condition 12 requires the use of soil and erosion controls to
ensure that sediments associated with an NWP activity are not released downstream.
10
Several commenters suggested changing the acreage limit from 1/2 -acre to 1 acre. Some
commenters said the 1/2 -acre limit is too high, and some commenters stated that the 1/2 -acre
limit is appropriate. A number of commenters recommended imposing an acreage limit that
would place a cap on losses of waters of the United States for the entire utility line. A few
commenters recommended reducing the 1/2 -acre limit to 1/4 -acre. One commenter said the
1/2 -acre limit should apply to the entire utility line, not to each separate and distant crossing.
One commenter recommended establishing an acreage limit based on a county or state.
Another commenter suggested applying the acreage limit to a waterbody. One commenter
stated that this NWP should not authorize waivers of the 1/2 -acre limit. Two commenters
said that stream impacts should be limited to 300 linear feet, especially in headwater
streams.
We are retaining the 1/2 -acre limit for this NWP because we believe it is an appropriate
limit for authorizing most utility line activities that have no more than minimal individual
and cumulative adverse environmental effects. Division engineers can modify this NWP on
a regional level to reduce the acreage limit if necessary to ensure that no more than minimal
adverse environmental effects occur in that region. We do not agree that the acreage limit
should apply to the entire utility line because the separate and distant crossings of waters of
the United States are usually at separate waterbodies scattered along the length of the utility
line, and are often in different watersheds especially for utility lines that run through
multiple counties, states, or Corps districts. For utility lines that cross the same waterbody
(e.g., a river or stream) at separate and distant locations, the distance between those
crossings will usually dissipate the direct and indirect adverse environmental effects so that
the cumulative adverse environmental effects are no more than minimal. If the district
engineer determines after reviewing the PCN that the cumulative adverse environmental
effects are more than minimal, after considering a mitigation proposal provided by the
project proponent, he or she will exercise discretionary authority and require an individual
permit.
The 1/2 -acre limit cannot be waived. We do not believe it is necessary to impose a 300
linear foot limit for the loss of stream bed because most utility line crossings are constructed
perpendicular, or nearly perpendicular, to the stream. In addition, most utility line crossings
consist of temporary impacts. This NWP requires PCNs for proposed utility lines
constructed parallel to, or along, a stream bed, and the district engineer will evaluate the
adverse environmental effects and determine whether NWP authorization is appropriate.
Several commenters said this NWP does not authorize oil pipelines. One commenter said
that the requirement that utility lines result in "no change in pre -construction contours" will
not prevent changes in habitats or physical features in some streams, and utility lines may
become exposed over time. One commenter objected to the requirement that there must be
no change in pre -construction contours, because it is a new requirement and would require
the permittee to complete a pre- and post- construction survey. One commenter said this
NWP should not authorize mechanized landclearing in forested wetlands or scrub -shrub
wetlands. Two commenters supported the addition of "internet" to the list of examples of
utility lines. One commenter recommended removal of the reference to "telegraph lines"
from the list of types of utility lines covered by this NWP.
11
This NWP authorizes crossings of waters of the United States that are part of utility lines
used to transport any "gaseous, liquid, liquescent, or slurry substance" which includes oil.
We acknowledge that the construction and maintenance of utility lines in jurisdictional
waters and wetlands will result in some changes to the structure of waters and wetlands and
to the ecological functions and services provided by those waters and wetlands. There is
often conversion of wetland types within utility line rights -of -way and those conversions
often need to be permanently maintained while the utility line is operational. Periodic
maintenance may be necessary to respond to erosion exposing utility lines that were buried
when they were constructed. The requirement to ensure that there are no changes in pre -
construction contours of waters of the United States does not mandate pre- and post -
construction surveys. Compliance with this requirement can usually be accomplished by
examining the nearby landscape to determine if there has been a change in pre -construction
contours. The NWP requires PCNs for mechanized landclearing in the utility line right-of-
way so that district engineers can evaluate those proposed activities and determine whether
they qualify for NWP authorization and whether compensatory mitigation is necessary to
ensure no more than minimal adverse environmental effects in accordance with general
condition 23, mitigation. We have retained the internet as a form of communication that
may be transmitted by utility lines. We do not see the need to remove "telegraph messages"
from the type of communications that may be conveyed by utility lines because there may be
some use of telegraph messages by historic societies or other entities. Some of the existing
utility lines that previously conveyed telegraph messages may now carry other forms of
communication.
One commenter recommended modifying NWP 12 to authorize activities associated with
wireless communication facilities, because these facilities could be considered substations.
Two commenters said that NWP 12 should not authorize the construction or expansion of
utility line substations because these facilities should not be located in waters of the United
States. Several commenters said that utility line substations and access roads should not be
limited to non -tidal waters of the United States to allow them to be constructed in all waters
of the United States.
The substations authorized by this NWP must be associated with utility lines. With wireless
telecommunication facilities, there are no utility lines connecting the various facilities
because they transmit their information via electromagnetic waves traveling through the
atmosphere. The construction of wireless communication facilities that involves discharges
of dredged or fill material into waters of the United States may be authorized by NWP 39 or
other NWPs. For some utility lines, it may not be practicable or feasible to locate a
substation outside of waters of the United States. As long as the construction or expansion
of the proposed utility line substation results in no more than minimal adverse
environmental effects, it can be authorized by this NWP. We believe that it is necessary to
limit the construction of utility line substations and access roads to non -tidal wetlands
(except for non -tidal wetlands adjacent to tidal waters) to ensure that NWP 12 only
authorizes activities that result in no more than minimal adverse environmental effects.
Conducting those activities in tidal waters and wetlands, and in non -tidal wetlands adjacent
to tidal waters is more likely to result in more than minimal adverse environmental effects.
One commenter expressed opposition to moving the provisions authorizing access roads to
12
NWPs 14 and 33. One commenter said that this NWP should not authorize access roads,
because those roads can cause fragmentation of the landscape.
We did not propose to move the provisions authorizing the construction of utility line access
roads to NWPs 14 and 33. We have retained the access road provision in this NWP. The
Corps only regulates those portions of access roads that require DA authorization because
they involve regulated activities in jurisdictional waters and wetlands. The Corps does not
regulate access roads constructed in upland areas that, in many areas of the country, are
more likely to result in substantial habitat fragmentation. In those areas of the country
where much of the landscape is comprised of wetlands, utility line access roads are more
likely to exceed the 1/2 -acre limit and thus require individual permits. District engineers
will review PCNs with proposed access roads and determine whether the proposed activities
will have more than minimal adverse environmental effects on wetland functions, including
habitat connectivity.
In the June 1, 2016, proposed rule, we proposed to add a paragraph to NWP 12 to authorize,
to the extent that DA authorization is required, discharges of dredged or fill material into
waters of the United States, and structures and work in navigable waters, necessary to
remediate inadvertent returns of drilling fluids that can occur during horizontal directional
drilling operations to install utility lines below jurisdictional waters and wetlands. An
inadvertent return occurs when drilling fluids are released through fractures in the bedrock
and flow to the surface, and possibly into a river, stream, wetland, or other type of
waterbody. For NWP 12 activities where there is the possibility of such inadvertent returns,
district engineers may add conditions to the NWP 12 verification requiring activity -specific
remediation plans to address these situations, should they occur during the installation or
maintenance of the utility line.
The fluids used for directional drilling operations consist of a water-bentonite slurry and is
not a material that can be considered "fill material" under 33 CFR 323.2(e). This water-
bentonite mixture is not a toxic or hazardous substance, but it can adversely affect aquatic
organisms if released into bodies of water. Because these drilling fluids are not fill material,
inadvertent returns of these drilling fluids are not regulated under section 404 of the Clean
Water Act. However, activities necessary to contain and clean up these drilling fluids may
require DA authorization (e.g., temporary fills in waters of the United States, or fills to
repair a fracture in a stream bed).
Several commenters expressed support for adding the paragraph on remediation of
inadvertent returns of drilling fluids from directional drilling activities. A few commenters
said that the term "frac-out" should not be used when referring to inadvertent returns of
drilling fluids during horizontal directional drilling operations. A commenter recommended
replacing the term "sub -soil" with "subsurface." One commenter objected to the proposed
addition, stating that these inadvertent returns of drilling fluids occur too frequently. One
commenter asked for a definition of "inadvertent return" and said the NWP should explain
that inadvertent returns of drilling fluids during horizontal directional drilling activities may
require a Clean Water Act section 402 permit. One commenter requested clarification that
activities which remediate inadvertent returns of drilling fluids minimize environmental
impacts. One commenter agreed that inadvertent returns of drilling fluids that occur during
13
horizontal directional drilling activities are not discharges of dredged or fill material into
waters of the United States. One commenter said that for horizontal directional drilling
activities, the NWP should require entry and exit 50 feet from the stream bank, and
sufficient depths prevent inadvertent returns of drilling fluids. One commenter said that the
NWP should require upland containment of drilling fluids. One commenter requested that
this paragraph distinguish between horizontal directional drilling for the purposes of utility
line installation or replacement, and directional drilling for oil and gas extraction.
Horizontal directional drilling for utility line installation and replacement is an important
technique for avoiding and minimizing adverse effects to jurisdictional waters and wetlands
during the construction of utility lines. We believe that modifying NWP 12 to authorize
remediation activities that involve discharges of dredged or fill material into waters of the
United States and/or structures or work in navigable waters of the United States and are
necessary to address these inadvertent returns to protect the aquatic environment is a prudent
course of action. We have removed the term "frac-out" from the text of this NWP, and
replaced the term "mud" with "fluid." We have also replaced the term "sub -soil" with
"subsurface" because horizontal directional drilling activities usually occur well below the
soil. District engineers may add conditions to NWP verifications to require activity -specific
remediation plans to address potential inadvertent returns that might occur during the
construction of the utility line.
If the horizontal directional drilling activities require DA authorization, the district engineer
may add conditions to the NWP authorization to specify entry and exit points for the drilling
equipment. If the drilling fluids return to the surface and are not considered to be discharges
of dredged or fill material regulated under section 404 of the Clean Water Act, then the
Corps cannot require those drilling fluids to be contained in an upland area. The text of this
paragraph of NWP 12 specifically refers to horizontal directional drilling for utility line
installation or replacement, but we have revised the text of this paragraph to specify that
these activities are being "conducted for the purpose of installing or replacing utility lines."
Several commenters said that for utility lines involving horizontal directional drilling, the
PCN should require drilling plans and site -specific spill detection and remediation measures.
One commenter stated that mitigation should be required for the remediation of inadvertent
returns of drilling fluids. Two commenters recommended adding a requirement that
remediation of inadvertent returns of drilling fluids must be based on contingency plans
submitted in advance of conducting horizontal directional drilling. One commenter said that
PCNs should be required for these remediation activities and agency coordination should be
conducted. Another commenter said that water quality certification agencies should be
involved in the review and approval of these remediation plans.
If the horizontal directional drilling involves activities that require authorization under
section 404 of the Clean Water Act and/or section 10 of the Rivers and Harbors Act, the
PCN should describe those activities and their environmental effects. The PCN should also
describe mitigation measures that will be used to ensure compliance with the terms and
conditions of the NWP. We believe that remediating the inadvertent returns of drilling
fluids and restoring, to the maximum extent practicable, the affected jurisdictional waters
and wetlands is sufficient mitigation. District engineers can add conditions to the NWP
14
authorization to require contingency plans for utility line activities that require DA
authorization. We do not agree that it is necessary to require PCNs for inadvertent returns of
drilling fluids or to conduct agency coordination. Through this provision of NWP 12, we
are trying to encourage timely remediation of these inadvertent returns of drilling fluids to
protect the aquatic environment. States can determine whether water quality certification is
required for activities conducted to remediate inadvertent returns of drilling fluids. States
can require water quality certification for any discharge into jurisdictional waters and
wetlands, not just discharges of dredged or fill material.
Several commenters said they support the addition of temporary mats to minimize impacts
of utility line activities. Two commenters requested clarification that not all uses of
temporary mats in jurisdictional waters and wetlands results in a regulated activity. One
commenter recommended adding language to this paragraph to include other measures that
distribute the weight of construction equipment to minimize soil disturbance. Another
commenter stated that this paragraph should require best management practices, such as low
pressure equipment, wide tires, and varying travel paths, to minimize the adverse
environmental effects of NWP 12 activities. One commenter suggested inserting the word
"promptly" between the words "be removed" to require the prompt removal of all temporary
fills.
District engineers will determine on a case -by -case basis whether the use of timber mats in
jurisdictional waters and wetlands requires DA authorization. We believe that the proposed
language in this paragraph allows for a variety of temporary structures, fills, and work
necessary to construct, maintain, or repair a utility line, substation, foundation for overhead
utility lines, or access road. We do not believe it is necessary to provide, for NWP 12
activities, a comprehensive list of techniques to minimize soil disturbance and minimize the
impacts of construction equipment. We also do not agree with the proposed addition of
"promptly" because it may be more protective of the environment to keep temporary fills in
place until post -construction restoration activities or permanent fills have had time to
stabilize.
One commenter stated that the PCN thresholds for NWP 12 should not be changed. One
commenter said that PCNs should be required for all NWP 12 activities. Several
commenters suggested increasing the 1/10 -acre PCN threshold (item 5 in the "Notification"
paragraph) to 1/2 -acre. One commenter asked the Corps to remove the PCN requirement for
the maintenance of aerial crossings of section 10 waters that do not include installation of
new structures. One commenter opposed replacing the current PCN thresholds with a single
1/10 -acre PCN threshold. One commenter requested clarification of the PCN threshold for
proposed NWP 12 activities that run parallel to a stream bed (item 4 in the "Notification"
paragraph). One commenter said that PCNs should be required for utility line crossings of
streams inhabited by species listed under the Endangered Species Act.
We have not made any changes to the PCN thresholds for this NWP. We do not agree that
PCNs should be required for all activities authorized by this NWP because the current PCN
thresholds have been effective in identifying proposed NWP 12 activities that should be
reviewed by district engineers on a case -by -case basis to ensure that they result in only
minimal individual and cumulative adverse environmental effects. In addition, paragraph
15
(b)(4) of general condition 32 requires that NWP 12 PCNs (and PCNs for other NWPs) also
include information on other crossings of waters of the United States for the linear project
that will use NWP 12 authorizations but do not require PCNs. This requirement is also
explained in Note 8 of NWP 12.
All NWP 12 activities that require authorization under section 10 of the Rivers and Harbors
Act of 1899 require PCNs to ensure that these utility lines will have no more than minimal
adverse effects on navigation. This includes the maintenance of aerial crossings of
navigable waters. We agree that the current PCN thresholds should be maintained instead of
simplifying the PCN thresholds to a single PCN threshold for the loss of greater than 1/10 -
acre of waters of the United States. Item 4 of the "Notification" paragraph requires pre -
construction notification for utility lines placed in jurisdictional waters and wetlands if the
proposed utility line runs parallel to, or along, a stream bed. These activities require PCNs
to allow district engineers to evaluate potential impacts to the stream. General condition 18,
endangered species, requires PCNs for all NWP activities to be conducted by non-federal
permittees that might affect listed species or critical habitat (see paragraph (c) of general
condition 18).
Several commenters expressed agreement with adding the proposed Note 2, and some of
those commenters requested clarification of the use of the term "independent utility" in the
proposed note. Several commenters objected to the proposed Note 2, stating that only the
crossings of waters of the United States that do not qualify for NWP authorization should be
evaluated through the individual permit process, allowing the remaining crossings to be
authorized by NWP 12. Several commenters said that the second sentence of Note 2 should
be removed. Several commenters requested clarification that the phrase "independent
utility" in 33 CFR 330.6(d) does not affect the current practice for linear projects found in
33 CFR 330.2(i) and in the NWP definition of "single and complete linear project" in which
separate and distant crossings of waters of the United States can qualify for separate NWP
authorization. Several commenters asked for thresholds for determining when utility line
crossings are "separate and distant."
Note 2 is based on the NWP regulations that were published in the Federal Register on
November 22, 1991 (56 FR 59110), and represent long-standing practices in the NWP
program. Those regulations include the definition of "single and complete project" at 33
CFR 330.2(i) and the provision on combining NWPs with individual permits at 33 CFR
330.6(d). We have removed the phrase "with independent utility" from the second sentence
of Note 2. We believe that the second sentence, with this modification, needs to be retained
to remind users of NWP 12 of the requirements in the regulations at 33 CFR 330.6(d). This
will help ensure that the project proponent submits the appropriate request for authorization,
specifically an individual permit application or NWP PCN.
If one or more crossings of waters of the United States for a proposed utility line do not
qualify for authorization by NWP, then the utility line would require an individual permit
because of 33 CFR 330.6(d). An exception would be if a regional general permit is
available to authorize the crossing or crossings that do not qualify for NWP authorization.
In these circumstances, the project proponent also has the option of relocating or redesigning
the crossings of waters of the United States that does not qualify for NWP authorization so
16
that all of the utility line crossings could qualify for NWP authorization.
There is no conflict between 33 CFR 330.6(d) and 33 CFR 330.2(i). In addition, these
regulations do not conflict with the NWP definition of "single and complete linear project"
in Section F of these NWPs. It should be noted that both 33 CFR 330.2(i) and the NWP
definition of "single and complete linear project" do not discuss the concept of "independent
utility." We cannot establish national thresholds for determining when crossings of waters
of the United States are "separate and distant" because a variety of factors should be
considered by district engineers when making those decisions, such as topography, geology,
hydrology, soils, and the characteristics of wetlands, streams, and other aquatic resources.
Corps districts may establish local guidelines for identifying "separate and distant"
crossings.
One commenter said that Note 2 uses the phrase "utility lines with independent utility" and
observes that the definition of "independent utility" in the "Definitions" section of the
NWPs states that independent utility is a test for "a single and complete non-linear project."
This commenter said that this inconsistent wording causes confusion. One commenter
stated that the difference between "stand-alone" activities and "segments" is unclear. One
commenter recommended removing the second sentence of Note 2. One commenter
requested a definition of "stand-alone linear project"
As stated above, we have removed the phrase "with independent utility" from the second
sentence of Note 2. District engineers will apply the concept of independent utility in 33
CFR 330.6(d) to determine when NWP authorizations can be combined with individual
permit authorizations, or whether an individual permit is required for the regulated activities.
Therefore, there is no need to further explain the concept of "stand-alone" activities or
"stand-alone linear project." Note 2 covers linear projects, not single and complete non-
linear projects, so Note 2 should not be applied to non-linear projects. There are separate
definitions of "single and complete linear project" and "single and complete non-linear
project" in the Definitions section of these NWPs because these are different concepts for
the NWP program.
Several commenters opposed Note 2, stating that it would allow utility line proponents to
break up large utility lines into separate projects and prevent them from being evaluated
under the individual permit process. One commenter requested clarification whether the
permittee can identify to the district engineer the origin and terminal point for each utility
line that has independent utility (i.e., each stand-alone utility line).
The purpose of Note 2 is to prevent the situations the commenters opposing the proposed
note are concerned about, to ensure that utility lines with one or more crossings that do not
qualify for NWP authorization are evaluated under the individual permit process. To assist
district engineers in applying 33 CFR 330.6(d), in an individual permit application or a
PCN, the project proponent can identify the point of origin and terminal point of the utility
line that could function independently of a larger overall utility line project.
The objective of Note 2 is to improve consistency in implementation of the NWP program,
especially the application of 33 CFR 330.6(d). Project proponents usually design their
17
utility lines to reduce their impacts to waters of the United States to qualify for NWP
authorization. That avoidance and minimization is a benefit of the NWP program. In
addition, most of the crossings of waters of the United States for utility lines result in
temporary impacts to those jurisdictional waters and wetlands. The use of the term
"separate and distant" in Note 2 is the same as its use in 33 CFR 330.2(i) and the definition
of "single and complete linear project" in the "Definitions" section of the NWPs (Section F).
A few commenters asserted that proposed Note 2 does not comply with NEPA or the
National Historic Preservation Act (NHPA) because the Corps should view an entire oil
pipeline as a single and complete project. These commenters objected to the Corps' practice
of authorizing each separate and distant crossing by NWP.
The Advisory Council on Historic Preservation's regulations for implementing NHPA
section 106 define the term "undertaking" as: "a project, activity, or program funded in
whole or in part under the direct or indirect jurisdiction of a Federal agency, including those
carried out by or on behalf of a Federal agency; those carried out with Federal financial
assistance; and those requiring a Federal permit, license or approval." (See 36 CFR
800.16(y).) It should be noted that the Advisory Council's definition of "undertaking" refers
not only to projects, but also to activities. Their definition of "undertaking" recognizes that
federal agencies may not regulate or permit entire projects, and that a federal agency might
only have the authority to authorize an activity or a number of activities that is a component
or are components of a larger overall project.
For oil pipelines and other utility lines, the activities that are subject to the Corps' regulatory
authorities and require DA authorization are crossings of jurisdictional waters and wetlands,
as well as utility line substations, foundations for overhead utility lines, and access roads,
that involve discharges of dredged or fill material into waters of the United States or
structures or work in navigable waters of the United States. Segments of an oil pipeline or
other utility line in upland areas outside of the Corps' jurisdiction, or attendant features
constructed in upland areas, do not require DA authorization and therefore are not, for the
purposes of the Corps' compliance with section 106 of the NHPA, "undertakings." The
Corps does not have direct or indirect jurisdiction over pipeline segments in upland areas.
The Corps does not regulate oil pipelines, or other utility lines per se; we only regulate those
components of oil pipelines or other utility lines, that involve activities regulated under our
authorities (i.e., section 404 of the Clean Water Act and section 10 of the Rivers and
Harbors Act of 1899).
The activities regulated by the Corps, as well as the Corps' analysis of direct and indirect
effects caused by those regulated activities, are the same regardless of whether the Corps
processes an individual permit application or uses NWPs or other general permits to
authorize the regulated activities. Likewise, for the consideration of cumulative effects, the
incremental contribution of regulated activities to cumulative effects is the same regardless
of the type of DA authorization. That incremental contribution consists of the direct and
indirect effects of the activities that require DA authorization.
One commenter supported the addition of Note 3. One commenter requested that this Note
clarify that the term "navigable waters of the United States" refers to the waters defined at
18
33 CFR part 329. We have added a reference to 33 CFR part 329 to Note 3.
One commenter agreed with the proposed addition of Note 6. Several commenters said the
word "that" should be added before the phrase "do not qualify." One commenter stated that
the phrase "or another applicable 404(f) exemption" should be added to Note 6 because a
project proponent may use other Clean Water Act section 404(11) exemptions, such as the
exemptions for ditch maintenance and the construction of temporary sedimentation basins.
One commenter requested confirmation that the Clean Water Act section 404(f) exemptions
that are applicable to currently serviceable structures used for transportation have not been
changed. Another commenter requested examples of activities that do not qualify for the
Clean Water Act section 404(f) exemptions, such as mechanized landclearing outside
previously authorized right-of-ways.
We have added the word "that" after "activities" to correct the error in the proposed Note 6.
Note 6 does not preclude project proponents from utilizing other Clean Water Act section
404(t) exemptions that are applicable to activities that may be related to utility lines. Note 6
refers to the maintenance exemption because NWP 12 explicitly refers to maintenance
activities, which may require Clean Water Act section 404 authorization if the maintenance
activity does not qualify for the section 404(t) maintenance exemption. Note 6 does not
affect the application of the maintenance exemption to fill structures used for transportation.
It is beyond the scope of Note 6 to discuss activities related to utility lines that do not qualify
for any of the Clean Water Act section 404(t) exemptions.
One commenter pointed out that Note 8 was not discussed in the preamble of the June 1,
2016, proposed rule. One commenter asked the Corps to explain why it proposed to add
Note 8. Another commenter requested clarification of whether Note 8 would affect utility
lines that have stormwater outfalls.
The lack of discussion of Note 8 in the preamble to the proposed rule was an error. As
stated on page 35197 of the proposed rule, we solicited comments on all of the NWPs,
general conditions, definitions, and all NWP application procedures presented in the
proposed rule. The purpose of Note 8 is to remind users of the NWPs that if a utility line
includes crossings of waters of the United States that are authorized by NWP but do not
require PCNs, and one or more crossings of waters of the United States requires pre -
construction notification, then the PCN must include those non-PCN crossings, in
accordance with the requirements of paragraph (b)(4) of general condition 32 . The
requirements in Note 8 may apply to outfalls for utility lines and outfalls for stormwater
management facilities, depending on the case -specific characteristics of the utility line,
outfall, and stormwater management facility.
Several commenters said that Corps districts should be prohibited from suspending or
revoking NWP 12 and using RGPs for utility lines that cross state or district boundaries.
One commenter recommended that NWP 12 include prescriptive national standard best
management practices (BMPs) and provide notifications to stakeholders when pipelines,
cables, and utility lines are proposed to be constructed in marine transportation routes.
These notifications would also be provided to the U.S. Coast Guard and the National Marine
Fisheries Service. A few commenters said that the mitigation process for NWP 12 is not in
19
compliance with the National Environmental Policy Act (NEPA) because the public is not
provided with an opportunity to comment on requests for NWP verifications. A few
commenters also stated that reliance on a district engineer's compensatory mitigation
requirement for an NWP 12 verification is inadequate to support a finding of no significant
impact under an environmental assessment prepared to satisfy NEPA requirements.
For utility lines that cross Corps district boundaries, each Corps district may process the
NWP 12 PCNs for crossings located in its district, or the Corps districts may designate a
lead district to provide a single response to the NWP 12 PCNs. If a Corps district has had
NWP 12 suspended or revoked by the division engineer to use a regional general permit or
state programmatic general permit instead of NWP 12, it can use that regional or
programmatic general permit to authorize utility line activities. We believe that it would be
more appropriate to have district engineers determine which BMPs should be applied to the
construction, maintenance, or repair of utility lines in their geographic areas of
responsibility, as those BMPs may vary by region and utility sector. If the U.S. Coast Guard
has a role in regulating utility lines in marine transportation routes, the U.S. Coast Guard can
take its own actions under its authorities to ensure compliance with its requirements. We
will continue to provide NWP verifications to the National Ocean Service for the charting of
utility lines in navigable waters of the United States.
The decision document for this NWP includes an environmental assessment with a mitigated
finding of no significant impact. Mitigation measures are discussed throughout the
combined decision document, which includes the environmental assessment, public interest
review, and 404(b)(1) Guidelines analysis. Other mitigation measures may be required by
district engineers through conditions added to activity -specific NWP verifications. The
mitigation measures discussed in the national decision documents include the NWP general
conditions, which help ensure that NWP activities result in no more than minimal adverse
environmental effects.
The draft decision document for NWP 12 was made available for public review and
comment concurrent with the proposed rule that was published in the Federal Register on
June 1, 2016. The decision document describes, in general terms, mitigation that helps
ensure that NWP 12 activities result in no more than minimal adverse environmental effects.
Mitigation requirements, including compensatory mitigation requirements, will be
determined by district engineers for activity -specific NWP verifications. Compliance with
NEPA is accomplished when the NWP is issued by Corps Headquarters, with its decision
document. Individual NWP 12 verifications do not require NEPA documentation, nor do
they require an opportunity for public comment. The public comment process occurs during
the rulemaking procedures to issue or reissue an NWP. A public notice and comment
process for NWP verifications would not be consistent with the Congressional intent of
section 404(e) of the Clean Water Act, which envisions a streamlined authorization process
for activities that result in no more than minimal individual and cumulative adverse
environmental effects.
One commenter said that utility lines constructed parallel to the stream gradient should have
the minimum number of crossings, and those crossings should intersect the stream as close
to 90 degrees to the stream centerline as possible. That commenter also stated that trench
20
plugs should be no more than 200 feet apart, and plugs must be used on either side of the
stream crossing. One commenter recommended adding a permit condition to prevent utility
lines from creating new drainage paths away from a waterbody.
Paragraph (a) of general condition 23, mitigation, requires permittees to avoid and minimize
adverse effects to waters of the United States to the maximum extent practicable on the
project site. For the purposes of NWP 12, this means that the project proponent should
design the utility line to minimize the number of crossings of waters of the United States.
The use of trench plugs will be determined on a case -by -case basis by district engineers
when processing NWP 12 PCNs or voluntary requests for NWP verification. District
engineers may also impose activity -specific conditions on NWP 12 authorizations to
minimize draining of waters of the United States.
One commenter said that compensatory mitigation should be required for the permanent
conversion of forested wetlands to scrub -shrub wetlands for utility line rights -of -way. Two
commenters stated that this NWP should not authorize sidecasting of excavated material into
waters of the United States because the sidecast material will be dispersed by currents or
rainfall. One commenter requested clarification of a statement made in the preamble to the
proposed rule that some excavation activities do not require Clean Water Act section 404
authorization. Two commenters said that if Corps districts consider separate and distant
crossings of waters of the United States to qualify for separate NWP authorization, how are
cumulative impacts considered in accordance with Section D, District Engineer's Decision?
District engineers have the discretion to require compensatory mitigation for the permanent
conversion of forested wetlands to scrub -shrub wetlands, if that permanent conversion is
conducted as a result of activities that require DA authorization (see paragraph (i) of general
condition 23, mitigation). General condition 12, soil erosion and sediment controls, requires
permittees to stabilize exposed soils and fills at the earliest practicable date, to minimize
dispersion by currents, rainfall, or other erosive forces. Excavation activities require Clean
Water Act section 404 authorization if they result in regulated discharges of dredged or fill
material into waters of the United States (see the definitions at 33 CFR 323.2).
Paragraph 1 of Section D, District Engineer's Decision, requires district engineers to
consider the cumulative effects of all crossings of waters of the United States for a single
and complete linear project that is authorized by NWP, including those crossings that
require DA authorization but do not otherwise require pre -construction notification. A
complete PCN requires the project proponent to identify, in addition to the NWP 12
activities that require PCNs, the NWP 12 activities that do not require PCNs (see paragraph
(b)(4) of general condition 32 and Note 8). The information regarding the cumulative
effects of all of the utility line activities authorized by NWP 12 will be considered by the
district engineer in his or her decision -making process for an NWP 12 verification.
A number of commenters asserted that the issuance of NWP 12 requires an environmental
impact statement. A few commenters stated that the cumulative effects analysis for NWP 12
in the draft decision document was insufficient. A few commenters said that the cumulative
effects analysis for NWP 12 in the draft decision document was properly done. One
21
commenter indicated that the Corps improperly deferred the requirement to do a NEPA
cumulative effects analysis to the district engineer's NWP verification decision. One
commenter opined that the Corps defers its NEPA review for later stages in the permitting
process and that NWP 12 provides no guarantee that the Corps district will conduct a NEPA
analysis for the NWP verification. One commenter said that Corps districts should prepare
supplemental environmental impact statements for NWP 12 verifications. One commenter
stated that the decision document should discuss NWP 12 activities and their effects on
climate change. Many commenters remarked that the Corps should not issue permits for
pipelines because the burning of fossil fuels contributes greenhouse gases that cause climate
change.
For the issuance or reissuance of an NWP, including NWP 12, the Corps complies with
NEPA when Corps Headquarters issues or reissues the NWP with its decision document.
The decision document issued by Corps Headquarters includes an environmental assessment
and a finding of no significant impact, which concludes the NEPA process. The finding of
no significant impact is reached because of the terms and conditions of the NWP and the
mitigation measures (e.g., general conditions and other mitigation measures) for NWP 12
activities that are discussed throughout the decision document. Therefore, an environmental
impact statement is not required for the issuance or reissuance of NWP 12. When a district
engineer issues an NWP 12 verification, he or she is confirming that the proposed NWP 12
activity complies with the terms and conditions of the NWP, including any regional and
activity -specific conditions, and will result in no more than minimal individual and
cumulative adverse environmental effects. If the district engineer requires activity -specific
mitigation measures, he or she will require those mitigation measures through conditions
added to the NWP authorization.
To issue an NWP verification the district engineer does not need to prepare a NEPA
document because the requirements for NEPA were fulfilled when Corps Headquarters
issued the national decision document for the NWP. Since NEPA compliance is achieved
by Corps Headquarters through the preparation of a combined decision document that
includes an environmental assessment and finding of no significant impact, Corps districts
do not need to prepare supplemental environmental impact statements for NWP
verifications. If a proposed NWP activity will result in more than minimal individual and
cumulative adverse environmental effects after considering the mitigation proposal
submitted by the prospective permittee, the district engineer will assert discretionary
authority and require an individual permit if the adverse environmental effects will be more
than minimal. During the individual permit process, the district engineer will prepare the
appropriate NEPA documentation.
The NEPA cumulative effects analysis in the NWP 12 decision document was prepared in
accordance with the Council of Environmental Quality's definition of "cumulative impact"
at 40 CFR 1508.7, and utilizes concepts presented in CEQ's 1997 and 2005 guidance on
conducting cumulative impact analyses. The NEPA cumulative effects analysis examines
cumulative effects on various resources of concern, including wetlands, rivers and streams,
coastal areas, and endangered and threatened species. Our NEPA cumulative effects
analysis examines past, present, and reasonably foreseeable future actions that affect those
22
resources of concern, including federal, non-federal, and private actions. Because the
decision document is national in scope it is a general cumulative effects analysis.
We also conducted a cumulative effects analysis in accordance with the 404(b)(1)
Guidelines because this NWP authorizes discharges of dredged or fill material into waters of
the United States. The Corps does not defer the NEPA cumulative effects analysis to the
NWP verification stage of the authorization process. Corps Headquarters conducts the
required NEPA analyses when it issues or reissues the NWP. The final national decision
document includes a discussion of NWP 12 activities and climate change. Activities
authorized by NWP will result in small incremental contributions to greenhouse gas
emissions during construction periods, if the equipment used to construct the crossings of
waters of the United States, utility line substations, footings for overhead utility lines, or
access roads in waters of the United States consumes fossil fuels. The Corps does not have
the authority to regulate the burning of fossil fuels that may be transported by utility lines.
The Corps does not have the legal authority to regulate emissions of greenhouse gases
during the operation and maintenance of the utility line activities, if those operations and
maintenance activities do not involve activities that require DA authorization.
A number of commenters said the draft decision document for NWP 12 is inadequate,
especially in its evaluation of the risks and impacts of oil spills, gas pipeline leaks, and
inadvertent returns of drilling fluids from horizontal directional drilling activities. One
commenter stated that with respect to the discussion of Subpart G (Evaluation and Testing)
in the draft decision document, that voluntary compliance is rarely as effective as monitored
compliance. Another commenter objected to the statement that "this NWP will encourage
applicants to design their projects within the scope of the NWP" because the commenter
believes that the NWP encourages massive cross-country pipeline projects. One commenter
said the decision document must address impacts to forested wetlands caused by NWP 12
activities.
The decision document for NWP 12 treats oil spills and gas pipeline leaks as reasonably
foreseeable future actions in the NEPA cumulative impact analysis section. The decision
document also discusses the potential for inadvertent returns of drilling fluids to occur
during horizontal directional drilling activities used to install or replace utility lines. As
discussed above, the Corps does not regulate the operation of oil or gas pipelines, or leaks
that might occur. In addition, the Corps does not regulate inadvertent returns of drilling
fluids that might occur as a result of subsurface fractures during horizontal directional
drilling activities. Oil spills and gas leaks are addressed by other federal agencies under
other federal laws.
As discussed in the proposed rule, it is our position that inadvertent returns of drilling fluids
from horizontal directional drilling are not discharges regulated under section 404 of the
Clean Water Act, under the current definitions of "discharge of dredged material" and
"discharge of fill material" at 33 CFR 323.2. We have added provisions to NWP 12 to
authorize discharges of dredged or fill material into waters of the United States and/or
structure or work in navigable waters of the United States to remediate inadvertent returns of
23
drilling fluids if they occur, to minimize the adverse environmental effects of those
inadvertent returns of drilling fluids.
For those NWP 12 activities that do not require PCNs, voluntary compliance is an
appropriate means of compliance. District engineers will take appropriate action if they
discover cases of non-compliance with the terms and conditions of NWP 12. For utility
lines, this NWP only authorizes crossings of waters of the United States that involve
activities regulated under the Corps' authorities. It does not authorize segments of utility
lines constructed in uplands because those segments do not require DA authorization. It
does not authorize the entire utility line unless the entire utility line is constructed in
jurisdictional waters and wetlands and involves activities that require DA authorization. For
the crossings of waters of the United States authorized by NWP 12, the terms and conditions
of this NWP encourage the project proponent to minimize adverse effects to jurisdictional
waters and wetlands to qualify for NWP authorization, instead of having to apply for an
individual permit.
For utility lines that cross state and/or Corps district boundaries, district engineers will
consider the cumulative impacts of those NWP 12 activities when determining whether to
issue NWP 12 verifications. The national decision document for NWP 12 discusses, in
general terms, the impacts that NWP 12 activities have on wetlands of all types, including
forested wetlands. For some utility lines, forested wetlands may be permanently converted
to scrub -shrub or emergent wetlands to construct a right-of-way.
A few commenters said this NWP should not authorize utility lines in drinking water source
areas. One commenter stated that this NWP should not authorize pipelines under rivers or
near the ocean because those pipelines could leak and threaten water supplies. Many
commenters said that the Corps should consider the environmental effects of the entire
pipeline, including potential impacts to water supplies, to not just the specific activities
authorized by NWP 12 or other DA permits.
General condition 7, water supply intakes, prohibits NWP activities in proximity of public
water supply intakes except under specific circumstances. General condition 14, proper
maintenance, requires NWP activities to be maintained to ensure public safety. For NWP 12
activities, this includes maintaining the utility line so that it does not leak. The Corps does
not regulate the operation and maintenance of pipelines, if those activities do not include
activities that require DA authorization. As discussed above, there are other federal
agencies that have legal responsibility for addressing the operation of pipelines and
responding to leaks or spills that may occur. Concerns regarding pipeline leaks or spills
should be brought to the attention of those federal agencies.
One commenter expressed concern regarding the effects of dispersants on public health and
the environment. One commenter said that in the draft decision document the projected
amount of compensatory mitigation required for NWP 12 activities is far less than the
projected authorized impacts, and that difference results in inadequate mitigation. One
commenter said that the draft NWP 12 decision document fails to acknowledge that water
quality standards will be violated in some cases.
24
The Corps does not have the legal authority to regulate the use of dispersants. Other federal
or state agencies may have that responsibility. Many of the activities authorized by NWP 12
result in temporary impacts to jurisdictional waters and wetlands, and often district
engineers do not require compensatory mitigation to offset those temporary impacts because
those waters and wetlands continue to provide ecological functions and services. The
estimated impacts in the draft decision document include both permanent and temporary
impacts to jurisdictional waters and wetlands. For discharges into waters of the United
States, general condition 25 requires certification that an NWP activity complies with
applicable water quality standards unless a waiver of the Clean Water Act section 401 water
quality certification requirement occurs. The district engineer has discretion to take action
to ensure compliance with the water quality certification issued by the state, tribe, or U.S.
EPA. The section 401 certifying authority also has the authority to enforce the terms and
conditions of its water quality certification.
2.0 Alternatives
This evaluation includes an analysis of alternatives based on the requirements of NEPA,
which requires a more expansive review than the Clean Water Act Section 404(b)(1)
Guidelines. The alternatives discussed below are based on an analysis of the potential
environmental impacts and impacts to the Corps, Federal, Tribal, and state resource
agencies, general public, and prospective permittees. Since the consideration of off -site
alternatives under the 404(b)(1) Guidelines does not apply to specific projects authorized by
general permits, the alternatives analysis discussed below consists of a general NEPA
alternatives analysis for the NWP.
2.1 No Action Alternative (No Nationwide Permit)
The no action alternative would not achieve one of the goals of the Corps Nationwide Permit
Program, which is to reduce the regulatory burden on applicants for activities that result in
no more than minimal individual and cumulative adverse environmental effects. The no
action alternative would also reduce the Corps ability to pursue the current level of review
for other activities that have greater adverse environmental effects, including activities that
require individual permits as a result of the Corps exercising its discretionary authority
under the NWP program. The no action alternative would also reduce the Corps ability to
conduct compliance actions.
If this NWP is not available, substantial additional resources would be required for the
Corps to evaluate these minor activities through the individual permit process, and for the
public and Federal, Tribal, and state resource agencies to review and comment on the large
number of public notices for these activities. In a considerable majority of cases, when the
Corps publishes public notices for proposed activities that result in only minimal individual
and cumulative adverse environmental effects, the Corps typically does not receive
responses to these public notices from either the public or Federal, Tribal, and state resource
25
agencies. Another important benefit of the NWP program that would not be achieved
through the no action alternative is the incentive for project proponents to design their
projects so that those activities meet the terms and conditions of an NWP. The Corps
believes the NWPs have significantly reduced adverse effects to the aquatic environment
because most applicants modify their projects to comply with the NWPs and avoid the
delays and costs typically associated with the individual permit process.
In the absence of this NWP, Department of the Army (DA) authorization in the form of
another general permit (i.e., regional or programmatic general permits, where available) or
individual permits would be required. Corps district offices may develop regional general
permits if an NWP is not available, but this is an impractical and inefficient method for
activities with no more than minimal individual and cumulative adverse environmental
effects that are conducted across the Nation. Not all districts would develop these regional
general permits for a variety of reasons. The regulated public, especially those companies
that conduct activities in more than one Corps district, would be adversely affected by the
widespread use of regional general permits because of the greater potential for lack of
consistency and predictability in the authorization of similar activities with no more than
minimal individual and cumulative adverse environmental effects. These companies would
incur greater costs in their efforts to comply with different regional general permit
requirements between Corps districts. Nevertheless, in some states Corps districts have
issued programmatic general permits to take the place of this and other NWPs. However,
this approach only works in states with regulatory programs comparable to the Corps
Regulatory Program.
2.2 National Modification Alternatives
Since the Corps Nationwide Permit program began in 1977, the Corps has continuously
strived to develop NWPs that only authorize activities that result in no more than minimal
individual and cumulative adverse environmental effects. Every five years the Corps
reevaluates the NWPs during the reissuance process, and may modify an NWP to address
concerns for the aquatic environment. Utilizing collected data and institutional knowledge
concerning activities authorized by the Corps regulatory program, the Corps reevaluates the
potential impacts of activities authorized by NWPs. The Corps also uses substantive public
comments on proposed NWPs to assess the expected impacts. This NWP was developed to
authorize the construction, maintenance, repair, and removal of utility lines and associated
facilities, provided those activities and facilities have no more than minimal individual and
cumulative adverse environmental effects. The Corps has considered suggested changes to
the terms and conditions of this NWP, as well as modifying or adding NWP general
conditions, as discussed in the preamble of the Federal Register notice announcing the
reissuance of this NWP.
In the June 1, 2016, Federal Register notice, the Corps requested comments on the proposed
reissuance of this NWP. As discussed above, The Corps proposed to modify this NWP to
clarify that the NWP authorizes regulated activities for utility line crossings of waters of the
United States, and that the Corps does not regulate entire utility lines. The Corps also
26
proposed to modify the definition of "utility line" to make it clear that it includes optic
cables. In addition, the Corps proposed to add a paragraph authorizing regulated activities
necessary to remediate inadvertent returns of drilling muds that can occur during directional
drilling operations to install utility lines below jurisdictional waters and wetlands. The Corps
also proposed to add three new notes to this NWP to clarify the use of this NWP.
2.3 Regional Modification Alternatives
An important aspect for the NWPs is the emphasis on regional conditions to address
differences in aquatic resource functions, services, and values across the nation. All Corps
divisions and districts are expected to add regional conditions to the NWPs to enhance
protection of the aquatic environment and address local concerns. Division engineers can
also revoke an NWP if the use of that NWP results in more than minimal individual and
cumulative adverse environmental effects, especially in high value or rare wetlands and
other waters. When an NWP is issued or reissued by the Corps, division engineers issue
supplemental decision documents that evaluate potential impacts of the NWP at a regional
level, and include regional cumulative effects assessments.
Corps divisions and districts also monitor and analyze the cumulative adverse effects of the
NWPs, and if warranted, further restrict or prohibit the use of the NWPs to ensure that the
NWPs do not authorize activities that result in more than minimal individual and cumulative
adverse environmental effects. To the extent practicable, division and district engineers will
use regulatory automated information systems and institutional knowledge about the typical
adverse effects of activities authorized by NWPs, as well as substantive public comments, to
assess the individual and cumulative adverse environmental effects resulting from regulated
activities.
2.4 Case -specific On -site Alternatives
Although the terms and conditions for this NWP have been established at the national level
to authorize most activities that have no more than minimal individual and cumulative
adverse environmental effects, division and district engineers have the authority to impose
case -specific special conditions on an NWP authorization to ensure that the authorized
activities will result in only minimal individual and cumulative adverse environmental
effects.
General condition 23 requires the permittee to minimize and avoid impacts to waters of the
United States to the maximum extent practicable on the project site. Off -site alternatives
cannot be considered for activities authorized by NWPs. During the evaluation of a pre -
construction notification, the district engineer may determine that additional avoidance and
minimization is practicable. The district engineer may also condition the NWP
authorization to require compensatory mitigation to offset losses of waters of the United
States and ensure that the net adverse effects on the aquatic environment are no more than
minimal. As another example, the NWP authorization can be conditioned to prohibit the
27
permittee from conducting the activity during specific times of the year to protect spawning
fish and shellfish. If the proposed activity will result in more than minimal adverse
environmental effects, then the district engineer will exercise discretionary authority and
require an individual permit. Discretionary authority can be asserted where there are
concerns for the aquatic environment, including high value aquatic habitats. The individual
permit review process requires a project -specific alternatives analysis, including the
consideration of off -site alternatives, and a public interest review.
3.0 Affected Environment
This environmental assessment is national in scope because the NWP may be used across
the country, unless the NWP is revoked or suspended by a division or district engineer under
the procedures in 33 CFR 330.5(c) and (d), respectively. The affected environment consists
of terrestrial and aquatic ecosystems in the United States, as they have been directly and
indirectly affected by past and present federal, non-federal, and private activities. The past
and present activities include activities authorized by the various NWPs issued from 1977 to
2012, activities authorized by other types of Department of the Army (DA) permits, as well
as other federal, tribal, state, and private activities that are not regulated by the Corps.
Aquatic ecosystems are also influenced by past and present activities in uplands, because
those land use/land cover changes in uplands and other activities in uplands have indirect
effects on aquatic ecosystems (e.g., MEA 2005b, Reid 1993). Due to the large geographic
scale of the affected environment (i.e., the entire United States), as well as the many past
and present human activities that have shaped the affected environment, it is only practical
to describe the affected environment in general terms. In addition, it is not possible to
describe the environmental conditions for specific sites where the NWPs may be used to
authorize eligible activities.
The total land area in the United States is approximately 2,264,000,000 acres, and the total
land area in the contiguous United States is approximately 1,894,000,000 acres (Nickerson
et al. 2011). Land uses in 48 states of the contiguous United States as of 2007 is provided in
Table 3.1 (Nickerson et al. 2011). Of the land area in the entire United States, approximately
60 percent (1,350,000,000 acres) is privately owned (Nickerson et al. 2011). In the
contiguous United States, approximately 67 percent of the land is privately owned, 31
percent is held by the United States government, and two percent is owned by state or local
governments (Dale et al. 2000). Developed non-federal lands comprise 4.4 percent of the
total land area of the contiguous United States (Dale et al. 2000).
28
Table 3.1. Major land uses in the United States (Nickerson et al. 2011).
Land Use
Acres
Percent of
Total
Agriculture
1,161,000,000
51.3
Forest land
544,000,000
24.0
Transportation use
27,000,000
1.2
Recreation and wildlife areas
252,000,000
11.1
National defense areas
23,000,000
1.0
Urban land
61,000,000
2.7
Miscellaneous use
197,000,000
8.7
Total land area
2,264,000,000
100.0
3.1 Quantity of Aquatic Ecosystems in the United States
There are approximately 283.1 million acres of wetlands in the United States; 107.7 million
acres are in the conterminous United States and the remaining 175.4 million acres are in
Alaska (Mitsch and Hernandez 2013). Wetlands occupy less than 9 percent of the global
land area (Zedler and Kercher 2005). According to Dahl (2011), wetlands and deepwater
habitats cover approximately 8 percent of the land area in the conterminous United States.
Rivers and streams comprise approximately 0.52 percent of the total land area of the
continental United States (Butman and Raymond 2011). Therefore, the wetlands, streams,
rivers, and other aquatic habitats that are potentially waters of the United States and subject
to regulation by the Corps under Section 404 of the Clean Water Act and Section 10 of the
Rivers and Harbors Act of 1899 comprise a minor proportion of the land area of the United
States. The remaining land area of the United States (more than 92 percent, depending on
the proportion of wetlands, streams, rivers, and other aquatic habitats that are subject to
regulation under those two statutes) is outside the Corps regulatory authority.
Dahl (1990) estimated that approximately 53 percent of the wetlands in the conterminous
United States were lost in the 200 -year period from the 1780s to 1980s, while Alaska lost
less than one percent of its wetlands and Hawaii lost approximately 12 percent of its original
wetland acreage. In the 1780s, there were approximately 221 million acres of wetlands in
the conterminous United States (Dahl 1990). California lost the largest percentage of its
wetlands (91 percent), whereas Florida lost the largest acreage (9.3 million acres) (Dahl
1990). During that 200 -year period, 22 states lost more than 50 percent of their wetland
acreage, and 10 states have lost more than 70 percent of their original wetland acreage (Dahl
1990).
Frayer et al. (1983) evaluated wetland status and trends in the United States during the
period of the mid -1950s to the mid -1970s. During that 20 -year period, approximately 7.9
million acres of wetlands (4.2 percent) were lost in the conterminous United States. Much of
the loss of estuarine emergent wetlands was due to changes to estuarine subtidal deepwater
habitat, and some loss of estuarine emergent wetlands was due to urban development. For
palustrine vegetated wetlands, nearly all of the losses of those wetlands were due to
29
agricultural activities (e.g., conversion to agricultural production).
The U.S. Fish and Wildlife Service also examined the status and trends of wetlands in the
United States during the period of the mid -1970s to the 1980s, and found that there was a
net loss of more than 2.6 million acres of wetlands (2.5 percent) during that time period
(Dahl and Johnson 1991). Freshwater wetlands comprised 98 percent of those wetland losses
(Dahl and Johnson 1991). During that time period, losses of estuarine wetlands were
estimated to be 71,000 acres, with most of that loss due to changes of emergent estuarine
wetlands to open waters caused by shifting sediments (Dahl and Johnson 1991).
Conversions of wetlands to agricultural use were responsible for 54 percent of the wetland
losses, and conversion to other land uses resulted in the loss of 41 percent of wetlands (Dahl
and Johnson 1991). Urban development was responsible for five percent of the wetland loss
(Dahl and Johnson 1991). The annual rate of wetland loss has decreased substantially since
the 1970s (Dahl 2011), when wetland regulation became more prevalent (Brinson and
Malvarez 2002).
Between 2004 and 2009, there was no statistically significant difference in wetland acreage
in the conterminous United States (Dahl 2011). According to the 2011 wetland status and
trends report, during the period of 2004 to 2009 urban development accounted for 11 percent
of wetland losses (61,630 acres), rural development resulted in 12 percent of wetland losses
(66,940 acres), silviculture accounted for 56 percent of wetland losses (307,340 acres), and
wetland conversion to deepwater habitats caused 21 percent of the loss in wetland area
(115,960 acres) (Dahl 2011). Some of the losses occurred to wetlands that are not subject to
Clean Water Act jurisdiction and some losses are due to activities not regulated under
Section 404 of the Clean Water Act, such as unregulated drainage activities, exempt forestry
activities, or water withdrawals. From 2004 to 2009, approximately 100,020 acres of
wetlands were gained as a result of wetland restoration and conservation programs on
agricultural land (Dahl 2011). Another source of wetland gain is conversion of other uplands
to wetlands, resulting in a gain of 389,600 acres during the period of 2004 to 2009 (Dahl
2011). Inventories of wetlands, streams, and other aquatic resources are incomplete because
the techniques used for those studies cannot identify some of those resources (e.g., Dahl
(2011) for wetlands; Meyer and Wallace (2001) for streams).
Losses of vegetated estuarine wetlands due to the direct effects of human activities have
decreased significantly due to the requirements of Section 404 of the Clean Water Act and
other laws and regulations (Dahl 2011). During the period of 2004 to 2009, less than one
percent of estuarine emergent wetlands were lost as a direct result of human activities, while
other factors such as sea level rise, land subsidence, storm events, erosion, and other ocean
processes caused substantial losses of estuarine wetlands (Dahl 2011). The indirect effects of
other human activities, such as oil and gas development, water extraction, development of
the upper portions of watersheds, and levees, have also resulted in coastal wetland losses
(Dahl 2011). Eutrophication of coastal waters can also cause losses of emergent estuarine
wetlands, through changes in growth patterns of marsh plants and decreases in the stability
of the wetland substrate, which changes those marshes to mud flats (Deegan et al. 2012).
The Emergency Wetlands Resources Act of 1986 (Public Law 99-645) requires the USFWS
30
to submit wetland status and trends reports to Congress (Dahl 2011). The latest status and
trends report, which covers the period of 2004 to 2009, is summarized in Table 3.2. The
USFWS status and trends report only provides information on acreage of the various aquatic
habitat categories and does not assess the quality or condition of those aquatic habitats (Dahl
2011).
Table 3.2. Estimated aquatic resource acreages in the conterminous
United States in 2009 (Dahl 2011).
Aquatic Habitat Category
Estimated Area
in 2009 (acres)
Marine intertidal
227,800
Estuarine intertidal non -vegetated
1,017,700
Estuarine intertidal vegetated
4,539,700
All intertidal waters and wetlands
5,785,200
Freshwater ponds
6,709,300
Freshwater vegetated
97,565,300
• Freshwater emergent wetlands
27,430,500
• Freshwater shrub wetlands
18,511,500
• Freshwater forested wetlands
51,623,300
All freshwater wetlands
104,274,600
Lacustrine deepwater habitats
16,859,600
Riverine deepwater habitats
7,510,500
Estuarine subtidal habitats
18,776,500
All wetlands and deepwater habitats
153,206,400
The acreage of lacustrine deepwater habitats does not include the open waters of Great
Lakes (Dahl 2011).
The Federal Geographic Data Committee has established the Cowardin system developed by
the U.S. Fish and Wildlife Service (USFWS) (Cowardin et al. 1979) as the national standard
for wetland mapping, monitoring, and data reporting (Dahl 2011) (see Federal Geographic
Data Committee (2013)). The Cowardin system is a hierarchical system which describes
various wetland and deepwater habitats, using structural characteristics such as vegetation,
substrate, and water regime as defining characteristics. Wetlands are defined by plant
communities, soils, or inundation or flooding frequency. Deepwater habitats are
permanently flooded areas located below the wetland boundary. In rivers and lakes,
deepwater habitats are usually more than two meters deep. The Cowardin et al. (1979)
definition of "wetland" differs from the definition used by the Corps and U.S. EPA for the
purposes of implementing Section 404 of the Clean Water Act. The Corps-U.S. EPA
regulations defines wetlands as "those areas that are inundated or saturated by surface or
ground water at a frequency and duration sufficient to support, and that under normal
circumstances do support, a prevalence of vegetation typically adapted for life in saturated
31
soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas." [33
CFR 328.3(c)(4); 40 CFR 230.3(o)(3)(iv)] The Cowardin et al. (1979) requires only one
factor (i.e., wetland vegetation, soils, hydrology) to be present for an area to be a wetland,
while the Corps-U.S. EPA wetland definition requires all three factors to be present under
normal circumstances (Tiner 1997b, Mitsch and Gosselink 2015). The NWI produced by
applying the Cowardin et al. (1979) definition is the only national scale wetland inventory
available. There is no national inventory of wetland acreage based on the Corps-U.S. EPA
wetland definition at 33 CFR 328.3(c)(4).
There are five major systems in the Cowardin classification scheme: marine, estuarine,
riverine, lacustrine, and palustrine (Cowardin et al. 1979). The marine system consists of
open ocean on the continental shelf and its high energy coastlines. The estuarine system
consists of tidal deepwater habitats and adjacent tidal wetlands that are usually partially
enclosed by land, but may have open connections to open ocean waters. The riverine system
generally consists of all wetland and deepwater habitats located within a river channel. The
lacustrine system generally consists of wetland and deepwater habitats located within a
topographic depression or dammed river channel, with a total area greater than 20 acres.
The palustrine system generally includes all non -tidal wetlands and wetlands located in tidal
areas with salinities less than 0.5 parts per thousand; it also includes ponds less than 20 acres
in size. Approximately 95 percent of wetlands in the conterminous United States are
freshwater wetlands, and the remaining 5 percent are estuarine or marine wetlands (Dahl
2011).
According to Hall et al. (1994), there are more than 204 million acres of wetlands and
deepwater habitats in the State of Alaska, including approximately 174.7 million acres of
wetlands. Wetlands and deepwater habitats comprise approximately 50.7 percent of the
surface area in Alaska (Hall et al. 1994).
The National Resources Inventory (NRI) is a statistical survey conducted by the Natural
Resources Conservation Service (NRCS) (USDA 2015) of natural resources on non-federal
land in the United States. The NRCS defines non-federal land as privately owned lands,
tribal and trust lands, and lands under the control of local and state governments. Acreages
of palustrine and estuarine wetlands and the land uses those wetlands are subjected to are
summarized in Table 3.3. The 2012 NRI estimates that there are 111,220,800 acres of
palustrine and estuarine wetlands on non -Federal land and water areas in the United States
(USDA 2015). The 2012 NRI estimates that there are 49,518,700 acres of open waters on
non -Federal land in the United States, including lacustrine, riverine, and marine habitats, as
well as estuarine deepwater habitats.
32
Table 3.3. The 2012 National Resources Inventory acreages for
palustrine and estuarine wetlands on non-federal land, by land cover/use
category (USDA 2015).
National Resources Inventory Land Cover/Use Category
Area of Palustrine and
Estuarine Wetlands
(acres)
cropland, pastureland, and Conservation Reserve Program
land
17,800,000
forest land
65,800,000
rangeland
8,000,000
other rural land
14,700,000
developed land
1,400,000
water area
3,600,000
Total
111,300,000
The land cover/use categories used by the 2012 NRI are defined below (USDA 2015).
Croplands are areas used to produce crops grown for harvest. Pastureland is land managed
for livestock grazing, through the production of introduced forage plants. Conservation
Reserve Program land is under a Conservation Reserve Program contract. Forest land is
comprised of at least 10 percent single stem woody plant species that will be at least 13 feet
tall at maturity. Rangeland is land on which plant cover consists mostly of native grasses,
herbaceous plants, or shrubs suitable for grazing or browsing, and introduced forage plant
species. Other rural land consists of farmsteads and other farm structures, field windbreaks,
marshland, and barren land. Developed land is comprised of large urban and built-up areas
(i.e., urban and built-up areas 10 acres or more in size), small built-up areas (i.e., developed
lands 0.25 to 10 acres in size), and rural transportation land (e.g., roads, railroads, and
associated rights -of -way outside urban and built-up areas). Water areas are comprised of
waterbodies and streams that are permanent open waters.
The wetlands data from the Fish and Wildlife Service's Status and Trends study and the
Natural Resources Conservation Service's National Resources Inventory should not be
compared, because they use different methods and analyses to produce their results (Dahl
2011).
Leopold, Wolman, and Miller (1964) estimated that there are approximately 3,250,000 miles
of river and stream channels in the United States. This estimate is based on an analysis of
1:24,000 scale topographic maps. Their estimate does not include many small streams.
Many small streams, especially headwater streams, are not mapped on 1:24,000 scale U.S.
Geological Survey (USGS) topographic maps (Leopold 1994) or included in other
inventories (Meyer and Wallace 2001), including the National Hydrography Dataset
(Elmore et al. 2013). Many small streams and rivers are not identified through maps
produced by aerial photography or satellite imagery because of inadequate image resolution
or trees or other vegetation obscuring the visibility of those streams from above (Benstead
33
and Leigh 2012). In a study of stream mapping in the southeastern United States, only 20
percent of the stream network was mapped on 1:24,000 scale topographic maps, and nearly
none of the observed intermittent or ephemeral streams were indicated on those maps
(Hansen 2001). Another study in Massachusetts showed that those types of topographic
maps exclude over 27 percent of stream miles in a watershed (Brooks and Colburn 2011).
For a 1:24,000 scale topographic map, the smallest tributary found by using 10 -foot contour
interval has a drainage area of 0.7 square mile and length of 1,500 feet, and smaller stream
channels are common throughout the United States (Leopold 1994). Benstead and Leigh
(2012) found that the density of stream channels (length of stream channels per unit area)
identified by digital elevation models was three times greater than the drainage density
calculated by using USGS maps. Elmore et al. (2013) made similar findings in watersheds
in the mid -Atlantic, where they determined that the stream density was 2.5 times greater
than the stream density calculated with the National Hydrography Dataset. Due to the
difficulty in mapping small streams, there are no accurate estimates of the total number of
river or stream miles in the conterminous United States that might be considered as "waters
of the United States."
The quantity of the Nation's aquatic resources presented by studies that estimate the length
or number of stream channels (see above) or the acreage of wetlands (USFWS status and
trends studies, National Wetland Inventory (NWI), and Natural Resources Inventory (NRI)
are underestimates, because those inventories do not include many small wetlands and
streams. The USFWS status and trends study does not include Alaska, Hawaii, or the
territories. The underestimate of national wetland acreage by the USFWS status and trends
study and the NWI is primarily the result of the minimum size of wetlands detected through
remote sensing techniques and the difficulty of identifying certain wetland types through
those remote sensing techniques. The remote sensing approaches used by the USFWS for
its NWI maps and its status and trends reports result in errors of omission that exclude
wetlands that are difficult to identify through photointerpretation (Tiner 1997a). These errors
of omission are due to wetland type and the size of target mapping units (Tiner 1997a).
Therefore, it is important to understand the limitations of the source data when describing
the environmental baseline for wetlands using maps and studies produced by remote
sensing, especially in terms of wetland quantity.
Factors affecting the accuracy of wetland maps made by remote sensing include: the degree
of difficulty in identifying a wetland, map scale, the quality and scale of the source
information (e.g., aerial or satellite photos), the environmental conditions when the source
information was obtained, the time of year source information was obtained, the mapping
equipment, and the skills of the people producing the maps (Tiner 1999). The map scale
usually affects the target mapping unit, which is the minimum wetland size that can be
consistently mapped (Tiner 1997b). In general, wetland types that are difficult to identify
through field investigations are likely to be underrepresented in maps made by remote
sensing (Tiner 1999). Wetlands difficult to identify through remote sensing include forested
wetlands, small wetlands, narrow wetlands, mowed wetlands, farmed wetlands, wetlands
with hydrology at the drier end of the wetland hydrology continuum, and significantly
drained wetlands (Tiner 1999). In the most recent wetland status and trends report published
by the U.S. Fish and Wildlife Service, the target minimum wetland mapping unit was 1 acre,
34
although some easily identified wetlands as small as 0.1 acre were identified in that effort
(Dahl 2011). The National Wetland Inventory identifies wetlands regardless of their
jurisdictional status under the Clean Water Act (Tiner 1997b).
Activities authorized by NWPs will adversely affect a smaller proportion of the Nation's
wetland base than indicated by the wetlands acreage estimates provided in the most recent
status and trends report, or the NWI maps for a particular region.
Not all wetlands, streams, and other types of aquatic resources are subject to federal
jurisdiction under the Clean Water Act (Mitsch and Gosselink 2015). Two U.S. Supreme
Court decisions have identified limits to Clean Water Act jurisdiction. In 2001, in Solid
Waste Agency of Northern Cook County v. Army Corps of Engineers (531 U.S. 159) the U.S.
Supreme Court held that the use of isolated, non -navigable, intrastate waters by migratory
birds is not, by itself a sufficient basis for exercising federal regulatory authority under the
Clean Water Act (see 80 FR 37056). In the Supreme Court's 2006 decision in Rapanos v.
United States, (547 U.S. 715), one justice stated that waters and wetlands regulated under
the Clean Water Act must have a "significant nexus" to downstream traditional navigable
waters. Four justices (the plurality) concluded that Clean Water Act jurisdiction applies only
to relatively permanent waters connected to traditional navigable waters and to wetlands that
have a continuous surface connection to those relatively permanent waters. The remaining
justices in Rapanos stated that Clean Water Act jurisdiction applies to waters and wetlands
that meet either the significant nexus test or the Plurality's test.
There are 94,133 miles of shoreline in the United States (NOAA 1975). Of that shoreline,
88,633 miles are tidal shoreline and 5,500 miles are shoreline along the Great Lakes and
rivers that connect those lakes to the Atlantic Ocean. More recently, Gittman et al. (2015)
estimated that there are 99,524 miles of tidal shoreline in the conterminous United States.
3.2 Quality of Aquatic Ecosystems in the United States
The USFWS status and trends study does not assess the condition or quality of wetlands and
deepwater habitats (Dahl 2011). Information on water quality in waters and wetlands, as
well as the causes of water quality impairment, is collected by the U.S. EPA under sections
305(b) and 303(d) of the Clean Water Act. Table 3.4 provides U.S. EPA's most recent
national summary of water quality in the Nation's waters and wetlands.
35
Table 3.4. National summary of water quality data (U.S. EPA 2015).
Category of
water
Total
waters
Total waters
assessed
Percent of
waters
assessed
Good
waters
Threatened
waters
Impaired
waters
Rivers and
streams
3,533,205
miles
1,046,621
miles
29.6
476,765
miles
7,657
miles
562,198
miles
Lakes,
reservoirs and
ponds
41,666,049
acres
17,904,395
acres
43.0
5,658,789
acres
145,572
acres
12,100,034
acres
Bays and
estuaries
87,791
square miles
33,402 square
miles
38.0
7,291
square
miles
0 square
miles
26,111
square miles
Coastal
shoreline
58,618 miles
8,162
miles
13.9
900 miles
0 miles
7,262
miles
Ocean and
near coastal
waters
54,120
square miles
1,674 square
miles
3.1
616 square
miles
0 square
miles
1,058 square
miles
Wetlands
107,700,000
acres
1,112,438
acres
1.0
573,947
acres
0 acres
538,492
acres
Great Lakes
shoreline
5,202 miles
4,431 miles
85.2
78 miles
0 miles
4,353
miles
Great Lakes
open waters
60,546
square miles
53,332
square miles
88.1
62 square
miles
0 square
miles
53,270
square miles
Waters and wetlands classified by states as "good" meets all their designated uses. Waters
classified as "threatened" currently support all of their designated uses, but if pollution
control measures are not taken one or more of those uses may become impaired in the
future. A water or wetland is classified by the state as "impaired" if any one of its
designated uses is not met. The definitions of good, threatened, and impaired are applied by
states to describe the quality of their waters (the above definitions were found in the
metadata in U.S. EPA (2015)). Designated uses include the "protection and propagation of
fish, shellfish and wildlife," "recreation in and on the water," the use of waters for "public
water supplies, propagation of fish, shellfish, wildlife, recreation in and on the water," and
"agricultural, industrial and other purposes including navigation." (40 CFR 130.3). These
designated uses are assessed by states in a variety of ways, by examining various physical,
chemical and biological characteristics, so it is not possible to use the categories of "good,"
"threatened," and "impaired" to infer the level of ecological functions and services these
waters perform.
According to the latest U.S. EPA national summary (U.S. EPA 2015), 54 percent of assessed
rivers and streams, 68 percent of assessed lakes, reservoirs, and ponds, 78 percent of
assessed bays and estuaries, 89 percent of assessed coastal shoreline, 63 percent of assessed
ocean and near coastal waters, and 48 percent of assessed wetlands are impaired.
For rivers and streams, 34 causes of impairment were identified, and the top 10 causes were
pathogens, sediment, nutrients, mercury, organic enrichment/oxygen depletion,
polychlorinated biphenyls, metals (other than mercury), temperature, habitat alterations, and
36
flow alteration(s). The primary sources of impairment for the assessed rivers and streams
were agriculture, unknown sources, atmospheric deposition, urban -related
runoff/stormwater, hydromodification, municipal discharges/sewage, natural/wildlife,
unspecified point source, habitat alterations not directly related to hydromodification, and
resource extraction.
Thirty-one causes of impairment were identified for bays and estuaries. The top 10 causes of
impairment for these waters is: mercury, polychlorinated biphenyls, pathogens, organic
enrichment/oxygen depletion, dioxins, other causes, fish consumption advisories, metals
(other than mercury), noxious aquatic plants, and pesticides. For bays and estuaries, the top
10 sources of impairment were atmospheric deposition, unknown sources, municipal
discharges/sewage, other sources, industrial, natural/wildlife, urban -related
runoff/stormwater, spills/dumping, unspecified non -point sources, and agriculture.
Coastal shorelines were impaired by 15 identified causes, the top 10 of which were:
mercury, pathogens, organic enrichment/oxygen depletion, turbidity, pH/acidity/caustic
conditions, nutrients, temperature, oil and grease, algal growth, and causes
unknown/impaired biota. The top 10 sources of impairment of coastal shorelines are
"unknown," atmospheric deposition, municipal discharges/sewage, urban -related runoff/
stormwater, hydromodification, unspecified non -point sources, agriculture, recreational
boating and marinas, industrial, and spills/dumping.
For wetlands, 26 causes of impairment were identified, and the top 10 causes were organic
enrichment/oxygen depletion, mercury, pathogens, metals (excluding mercury), toxic
inorganics, temperature, sediment, algal growth, flow alterations, and turbidity. The primary
sources for wetland impairment were "unknown," agriculture, atmospheric deposition,
industrial, municipal discharges/sewage, recreational boating and marinas, resource
extraction, natural/wildlife, hydromodification, and unspecified point sources.
Water quality standards are established by states, with review and approval by the U.S. EPA
(see Section 303(c) of the Clean Water Act and the implementing regulations at 40 CFR part
131). Under Section 401 of the Clean Water Act States review proposed discharges to
determine compliance with applicable water quality standards.
Most causes and sources of impairment are not due to activities regulated under Section 404
of the Clean Water Act or Section 10 of the Rivers and Harbors Act of 1899. Inputs of
sediments into aquatic ecosystems can result from erosion occurring within a watershed
(Beechie et al. 2013, Gosselink and Lee 1989). As water moves through a watershed it
carries sediments and pollutants to streams (e.g., Allan 2004, Dudgeon et al. 2005, Paul and
Meyer 2001) and wetlands (e.g., Zedler and Kercher 2005, Wright et al. 2006). Non -point
sources of pollution (i.e., pollutants carried in runoff from farms, roads, and urban areas) are
largely uncontrolled (Brown and Froemke 2012) because the Clean Water Act only requires
permits for point sources discharges of pollutants (i.e., discharges of dredged or fill material
regulated under section 404 and point source discharges of other pollutants regulated under
section 402).
37
The indirect effects of changes in upland land use (which are highly likely not to be subject
to federal control and responsibility, at least in terms of the Corps Regulatory Program),
including the construction and expansion of upland developments, have substantial adverse
effects on the quality (i.e. the ability to perform hydrologic, biogeochemical, and habitat
functions) of jurisdictional waters and wetlands because those upland activities alter
watershed -scale processes. Those watershed -scale processes include water movement and
storage, erosion and sediment transport, and the transport of nutrients and other pollutants.
Habitat alterations as a cause or source of impairment may be the result of activities
regulated under section 404 and section 10 because they involve discharges of dredged or
fill material into jurisdictional waters or structures or work in navigable waters, but habitat
alterations may also occur as a result of activities not regulated under those two statutes,
such as the removal of vegetation from upland riparian areas. Hydrologic modifications may
or may not be regulated under section 404 or section 10, depending on whether those
hydrologic modifications are the result of discharges of dredged or fill material into waters
of the United States regulated under Section 404 of the Clean Water Act or structures or
work in navigable waters of the United States regulated under Section 10 of the Rivers and
Harbors Act of 1899. When states, tribes, or the U.S. EPA establish total daily maximum
loads (TMDLs) for pollutants and other impairments for specific waters, there may be
variations in how these TMDLs are defined (see 40 CFR part 130).
As discussed below, many anthropogenic activities and natural processes affect the ability of
jurisdictional waters and wetlands to perform ecological functions. Stream and river
functions are affected by activities occurring in their watersheds, including the indirect
effects of land uses changes (Beechie et al. 2013, Allan 2004, Paul and Meyer 2001). Booth
at al. (2004) found riparian land use in residential areas also strongly affects stream
condition because many landowners clear vegetation up to the edge of the stream bank. The
removal of vegetation from upland riparian areas and other activities in those non -
jurisdictional areas do not require DA authorization. Wetland functions are also affected by
indirect effects of land use activities in the land area that drains to the wetland (Zedler and
Kercher 2005, Wright et al. 2006). Human activities within a watershed or catchment that
have direct or indirect adverse effects on rivers, streams, wetlands, and other aquatic
ecosystems are not limited to discharges of dredged or fill material into waters of the United
States or structures or work in a navigable waters. Human activities in uplands have
substantial indirect effects on the structure and function of aquatic ecosystems, including
streams and wetlands, and their ability to sustain populations of listed species. It is
extremely difficult to distinguish between degradation of water quality caused by upland
activities and degradation of water quality caused by the filling or alteration of wetlands
(Gosselink and Lee 1989).
Most causes and sources of impairment are not due to activities regulated under Section 404
of the Clean Water Act or Section 10 of the Rivers and Harbors Act of 1899. Habitat
alterations as a cause or source of impairment may be the result of activities regulated under
section 404 and section 10 because they involve discharges of dredged or fill material or
structures or work in navigable waters, but habitat alterations may also occur as a result of
activities not regulated under those two statutes, such as the removal of vegetation from
38
upland riparian areas. Hydrologic modifications may or may not be regulated under section
404 or section 10.
The U.S. Environmental Protection Agency (U.S. EPA) has undertaken the National
Wetland Condition Assessment (NWCA), which is a statistical survey of wetland condition
in the United States (U.S. EPA 2016). The NWCA assesses the ambient conditions of
wetlands at the national and regional scales. The national scale encompasses the
conterminous United States. The regional scale consists of four aggregated ecoregions:
Coastal Plains, Eastern Mountains and Upper Midwest, Interior Plains, and West. In May
2016, U.S. EPA issued a final report on the results of its 2011 NWCA (U.S. EPA 2016).
The 2011 NWCA determined that, across the conterminous United States, 48 percent of
wetland area (39.8 million acres) is in good condition, 20 percent of the wetland area (12.4
million acres) is in fair condition, and 32 percent (19.9 million acres) is in poor condition
(U.S. EPA 2016). The 2011 NWCA also examined indicators of stress for the wetlands that
were evaluated. The most prevalent physical stressors were vegetation removal, surface
hardening via conversion to pavement or soil compaction, and ditching (U.S. EPA 2016). In
terms of chemical stressors, most wetlands were subject to low exposure to heavy metals
and soil phosphorous, but substantial percentages of wetland area in the West and Eastern
Mountains and Upper Midwest ecoregions were found to have moderate stressor levels for
heavy metals (U.S. EPA 2016). For soil phosphorous concentrations, stressor levels were
high for 13 percent of the wetland area in the Eastern Mountains and Upper Midwest
ecoregion (U.S. EPA 2016). Across the conterminous United States, for biological stressors
indicated by non-native plants, 61 percent of the wetland area exhibited low stressor levels
(U.S. EPA 2016). When examined on an ecoregion basis, the Eastern Mountains and Upper
Midwest and Coastal Plains ecoregions had high percentages of wetland area with low non-
native plant stressor levels, but the West and Interior Plains ecoregions had small
percentages of areas with low non-native plant stressor levels (U.S. EPA 2016).
3.3 Aquatic resource functions and services
Functions are the physical, chemical, and biological processes that occur in ecosystems (33
CFR 332.2). Wetland functions occur through interactions of their physical, chemical, and
biological features (Smith et al. 1995). Wetland functions depend on a number of factors,
such as the movement of water through the wetland, landscape position, surrounding land
uses, vegetation density within the wetland, geology, soils, water source, and wetland size
(NRC 1995). In its evaluation of wetland compensatory mitigation in the Clean Water Act
Section 404 permit program, the National Research Council (2001) recognized five general
categories of wetland functions:
• Hydrologic functions
• Water quality improvement
• Vegetation support
• Habitat support for animals
• Soil functions
39
Hydrologic functions include short- and long-term water storage and the maintenance of
wetland hydrology (NRC 1995). Water quality improvement functions encompass the
transformation or cycling of nutrients, the retention, transformation, or removal of
pollutants, and the retention of sediments (NRC 1995). Vegetation support functions include
the maintenance of plant communities, which support various species of animals as well as
economically important plants. Wetland soils support diverse communities of bacteria and
fungi which are critical for biogeochemical processes, including nutrient cycling and
pollutant removal and transformation (NRC 2001). Wetland soils also provide rooting media
for plants, as well as nutrients and water for those plants. These various functions generally
interact with each other, to influence overall wetland functioning, or ecological integrity
(Smith et al. 1995; Fennessy et al. 2007). As discussed earlier in this report, the Corps
regulations at 33 CFR 320.4(b) list wetland functions that are important for the public
interest review during evaluations of applications for DA permits, and for the issuance of
general permits.
Not all wetlands perform the same functions, nor do they provide functions to the same
degree (Smith et al. 1995). Therefore, it is necessary to account for individual and regional
variation when evaluating wetlands and the functions and services they provide. The types
and levels of functions performed by a wetland are dependent on its hydrologic regime, the
plant species inhabiting the wetland, soil type, and the surrounding landscape, including the
degree of human disturbance of the landscape (Smith et al. 1995).
Streams also provide a variety of functions, which differ from wetland functions. Streams
also provide hydrologic functions, nutrient cycling functions, food web support, and
corridors for movement of aquatic organisms (Allan and Castillo 2007). When considering
stream functions, the stream channel should not be examined in isolation. The riparian
corridor next to the stream channel is an integral part of the stream ecosystem and has
critical roles in stream functions (NRC 2002). Riparian areas provide many of the same
general functions as wetlands (NRC 1995, 2002). Fischenich (2006) conducted a review of
stream and riparian corridor functions, and through a committee, identified five broad
categories of stream functions:
• Stream system dynamics
• Hydrologic balance
• Sediment processes and character
• Biological support
• Chemical processes and landscape pathways
Stream system dynamics refers to the processes that affect the development and
maintenance of the stream channel and riparian area over time, as well as energy
management by the stream and riparian area. Hydrologic balance includes surface water
storage processes, the exchange of surface and subsurface water, and the movement of water
through the stream corridor. Sediment processes and character functions relate to processes
for establishing and maintaining stream substrate and structure. Biological support
functions include the biological communities inhabiting streams and their riparian areas.
Chemical processes and pathway functions influence water and soil quality, as well as the
chemical processes and nutrient cycles that occur in streams and their riparian areas. Rivers
40
and streams function perform functions to different degrees, depending on watershed
condition, the severity of direct and indirect impacts to streams caused by human activities,
and their interactions with other environmental components, such as their riparian areas
(Allan 2004, Gergel et al. 2002).
Ecosystem services are the benefits that humans derive from ecosystem functions (33 CFR
332.2). The Millennium Ecosystem Assessment (2005b) describes four categories of
ecosystem services: provisioning services, regulating services, cultural services, and
supporting services. For wetlands and open waters, provisioning services include the
production of food (e.g., fish, fruits, game), fresh water storage, food and fiber production,
production of chemicals that can be used for medicine and other purposes, and supporting
genetic diversity for resistance to disease. Regulating services relating to open waters and
wetlands consist of climate regulation, control of hydrologic flows, water quality through
the removal, retention, and recovery of nutrients and pollutants, erosion control, mitigating
natural hazards such as floods, and providing habitat for pollinators. Cultural services that
come from wetlands and open waters include spiritual and religious values, recreational
opportunities, aesthetics, and education. Wetlands and open waters contribute supporting
services such as soil formation, sediment retention, and nutrient cycling.
Examples of services provided by wetland functions include flood damage reduction,
maintenance of populations of economically important fish and wildlife species,
maintenance of water quality (NRC 1995, MEA 2005b) and the production of populations of
wetland plant species that are economically important commodities, such as timber, fiber,
and fuel (MEA 2005b). Wetlands can also provide important climate regulation and storm
protection services (MEA 2005b).
Stream functions also result in ecosystem services that benefit society. Streams and their
riparian areas store water, which can reduce downstream flooding and subsequent flood
damage (NRC 2002, MEA 2005b). These ecosystems also maintain populations of
economically important fish, wildlife, and plant species, including valuable fisheries (MEA
2005b, NRC 2002). The nutrient cycling and pollutant removal functions help maintain or
improve water quality for surface waters (NRC 2002, MEA 2005b). Streams and riparian
areas also provide important recreational opportunities. Rivers and streams also provide
water for agricultural, industrial, and residential use (MEA 2005b).
Freshwater ecosystems provide services such as water for drinking, household uses,
manufacturing, thermoelectric power generation, irrigation, and aquaculture; production of
finfish, waterfowl, and shellfish; and non -extractive services, such as flood control,
transportation, recreation (e.g., swimming and boating), pollution dilution, hydroelectric
generation, wildlife habitat, soil fertilization, and enhancement of property values (Postel
and Carpenter 1997).
Marine ecosystems provide a number of ecosystem services, including fish production;
materials cycling (e.g., nitrogen, carbon, oxygen, phosphorous, and sulfur); transformation,
detoxification, and sequestration of pollutants and wastes produced by humans; support of
ocean -based recreation, tourism, and retirement industries; and coastal land development
41
and valuation, including aesthetics related to living near the ocean (Peterson and Lubchenco
1997).
Activities authorized by this NWP will provide a wide variety of goods and services that are
valued by society. For example, utility lines are important components of urban and rural
infrastructure. They convey a variety of substances or products to people, such as water,
fuel, and electricity. Utility lines are also essential for communication, including telephone
lines, internet connections, and cable television. Utility lines are also important for the
removal of wastes from residences, as well as commercial and institutional facilities.
4.0 Environmental Consequences
4.1 General Evaluation Criteria
This document contains a general assessment of the foreseeable effects of the individual
activities authorized by this NWP and the anticipated cumulative effects of those activities.
In the assessment of these individual and cumulative effects, the terms and limits of the
NWP, pre -construction notification requirements, and the standard NWP general conditions
are considered. The supplemental documentation provided by division engineers will
address how regional conditions affect the individual and cumulative effects of the NWP.
The following evaluation comprises the NEPA analysis, the public interest review specified
in 33 CFR 320.4(a)(1) and (2), and the impact analysis specified in Subparts C through F of
the 404(b)(1) Guidelines (40 CFR Part 230).
The issuance of an NWP is based on a general assessment of the effects on public interest
and environmental factors that are likely to occur as a result of using this NWP to authorize
activities in waters of the United States. As such, this assessment must be speculative or
predictive in general terms. Since NWPs authorize activities across the nation, projects
eligible for NWP authorization may be constructed in a wide variety of environmental
settings. Therefore, it is difficult to predict all of the indirect impacts that may be associated
with each activity authorized by an NWP. For example, the NWP that authorizes 25 cubic
yard discharges of dredged or fill material into waters of the United States may be used to
fulfill a variety of project purposes, and the indirect effects will vary depending on the
specific activity and the environmental characteristics of the site in which the activity takes
place. Indication that a factor is not relevant to a particular NWP does not necessarily mean
that the NWP would never have an effect on that factor, but that it is a factor not readily
identified with the authorized activity. Factors may be relevant, but the adverse effects on
the aquatic environment are negligible, such as the impacts of a boat ramp on water level
fluctuations or flood hazards. Only the reasonably foreseeable direct, indirect, and
cumulative effects are included in the environmental assessment for this NWP. Division
and district engineers will impose, as necessary, additional conditions on the NWP
authorization or exercise discretionary authority to address locally important factors or to
ensure that the authorized activity results in no more than minimal individual and
42
cumulative adverse environmental effects. In any case, adverse effects will be controlled by
the terms, conditions, and additional provisions of the NWP. For example, Section 7
Endangered Species Act consultation will be required for all activities that may affect
endangered or threatened species or critical habitat (see 33 CFR 330.4(f) and NWP general
condition 18).
4.2 Impact Analysis
This NWP authorizes the construction, maintenance, repair, or removal of utility lines and
associated facilities in waters of the United States. The acreage limit for this NWP is 1/2
acre.
Pre -construction notification is required if: (1) the activity involves mechanized land
clearing in a forested wetland for the utility line right-of-way; (2) a section 10 permit is
required; (3) the utility line in waters of the United States, excluding overhead lines, exceeds
500 feet; (4) the utility line is placed within a jurisdictional area (i.e., water of the United
States), and it runs parallel to or along a stream bed that is within that jurisdictional area; (5)
discharges that result in the loss of greater than 1/10 -acre of waters of the United States; (6)
permanent access roads are constructed above grade in waters of the United States for a
distance of more than 500 feet; or (7) permanent access roads are constructed in waters of
the United States with impervious materials. The pre -construction notification requirement
allows district engineers to review proposed activities on a case -by -case basis to ensure that
the individual and cumulative adverse environmental effects of those activities are no more
than minimal. If the district engineer determines that the adverse environmental effects of a
particular project are more than minimal after considering mitigation, then discretionary
authority will be asserted and the applicant will be notified that another form of DA
authorization, such as a regional general permit or individual permit, is required (see 33
CFR 330.4(e) and 330.5).
When making minimal effects determinations the district engineer will consider the direct
and indirect effects caused by the NWP activity. The district engineer will also consider site
specific factors, such as the environmental setting in the vicinity of the NWP activity, the
type(s) of resource(s) that will be affected by the NWP activity, the functions provided by
the aquatic resources that will be affected by the NWP activity, the degree or magnitude to
which the aquatic resources perform those functions, the extent that aquatic resource
functions will be lost as a result of the NWP activity (e.g., partial or complete loss), the
duration of the adverse effects (temporary or permanent), the importance of the aquatic
resource functions to the region (e.g., watershed or ecoregion), and mitigation required by
the district engineer. These criteria are listed in the NWPs in Section D, "District Engineer's
Decision." If an appropriate functional or condition assessment method is available and
practicable to use, that assessment method may be used by the district engineer to assist in
the minimal adverse effects determination. The district engineer may add case -specific
special conditions to the NWP authorization to address site -specific environmental concerns.
Additional conditions can be placed on proposed activities on a regional or case -by -case
43
basis to ensure that the activities have no more than minimal individual and cumulative
adverse environmental effects. Regional conditioning of this NWP will be used to account
for differences in aquatic resource functions, services, and values across the country, ensure
that the NWP authorizes only those activities with no more than minimal individual and
cumulative adverse environmental effects, and allow each Corps district to prioritize its
workload based on where its efforts will best serve to protect the aquatic environment and
other appropriate resources. Regional conditions can prohibit the use of an NWP in certain
waters (e.g., high value waters or specific types of wetlands or waters), lower pre -
construction notification thresholds, or require pre -construction notification for some or all
NWP activities in certain watersheds or types of waters. Specific NWPs can also be
revoked on a geographic or watershed basis where the individual and cumulative adverse
environmental effects resulting from the use of those NWPs are more than minimal.
In high value waters, division and district engineers can: 1) prohibit the use of the NWP in
those waters and require an individual permit or regional general permit; 2) decrease the
acreage limit for the NWP; 3) lower the pre -construction notification threshold of the NWP
to require pre -construction notification for NWP activities with smaller impacts in those
waters; 4) require pre -construction notification for some or all NWP activities in those
waters; 5) add regional conditions to the NWP to ensure that the individual and cumulative
adverse environmental effects are no more than minimal; or 6) for those NWP activities that
require pre -construction notification, add special conditions to NWP authorizations, such as
compensatory mitigation requirements, to ensure that the adverse environmental effects are
no more than minimal. NWPs can authorize activities in high value waters as long as the
individual and cumulative adverse environmental effects are no more than minimal.
The construction and use of fills for temporary access for construction may be authorized by
NWP 33 or regional general permits issued by division or district engineers. The related
activity must meet the terms and conditions of the specified permit(s). If the discharge is
dependent on portions of a larger project that require an individual permit, this NWP will
not apply. [See 33 CFR 330.6(c) and (d)]
4.3 Cumulative Effects
4.3.1 General Analysis
The Council on Environmental Quality's (CEQ's) NEPA regulations define cumulative
effects as: "the impact on the environment which results from the incremental impact of the
action when added to other past, present, and reasonably foreseeable future actions
regardless of what agency (Federal or non -Federal) or person undertakes such other actions.
Cumulative impacts can result from individually minor but collectively significant actions
taking place over a period of time." [40 CFR 1508.7.] Therefore, the NEPA cumulative
effects analysis for an NWP is not limited to activities authorized by the NWP, other NWPs,
or other DA permits (individual permits and regional general permits). The NEPA
cumulative effects analysis must also include other Federal and non -Federal activities that
affect the Nation's wetlands, streams, and other aquatic resources, as well as other resources
44
(e.g., terrestrial ecosystems, air) that may be directly or indirectly affected by the proposed
action and other actions. According to guidance issued by CEQ (1997), a NEPA cumulative
effects analysis should focus on specific categories of resources (i.e., resources of concern)
identified during the review process as having significant cumulative effects concerns.
These cumulative effects analyses also require identification of the disturbances and
stressors that cause degradation of those resources, including those caused by actions
unrelated to the proposed action. A NEPA cumulative effects analysis does not need to
analyze issues that have little relevance to the proposed action or the decision the agency
will have to make (CEQ 1997).
The geographic scope of this cumulative effects analysis is the United States and its
territories, where the NWP may be used to authorize specific activities that require DA
authorization. The temporal scope of the cumulative effects analysis includes past federal,
non-federal, and private actions that continue to affect the Nation's wetlands, streams, and
other aquatic resources (including activities authorized by previously issued NWPs, regional
general permits, and DA individual permits) as well as present and reasonably foreseeable
future federal, non-federal, and private actions that are affecting, or will affect, wetlands,
streams, and other aquatic resources. The present effects of past federal, non-federal, and
private actions on wetlands, streams, and other aquatic resources are included in the affected
environment, which is described in section 3.0. The affected environment described in
section 3.0 also includes present effects of past actions, including activities authorized by
NWPs issued from 1977 to 2012 and constructed by permittees, which are captured in
national information on the quantity and quality of wetlands, streams, and other aquatic
resources.
In addition to the activities authorized by this NWP, there are many categories of activities
that contribute to cumulative effects on wetlands, streams, and other aquatic resources in the
United States, and alter the quantity of those resources, the functions they perform, and the
ecosystem services they provide. Activities authorized by past versions of NWP 12, as well
as other NWPs, individual permits, letters of permission, and regional general permits have
resulted in direct and indirect impacts to wetlands, streams, and other aquatic resources.
Those activities may have legacy effects that have added to the cumulative effects and
affected the quantity of those resources and the functions they provide. Discharges of
dredged or fill material that do not require DA permits because they are exempt from section
404 permit requirements can also adversely affect the quantity of the Nation's wetlands,
streams, and other aquatic resources and the functions and services they provide. Discharges
of dredged or fill material that convert wetlands, streams, and other aquatic resources to
upland areas result in permanent losses of aquatic resource functions and services.
Temporary fills and fills that do not convert waters or wetlands to dry land may cause short-
term or partial losses of aquatic resource functions and services. During construction of
utility lines, where horizontal directional drilling is used to install or replace the utility line,
there is a possibility of inadvertent returns of drilling fluids that could adversely affect
wetlands, streams, and other aquatic resources. Those inadvertent returns of drilling fluids
are not considered discharges of dredged or fill material that require Clean Water Act
section 404 authorization. Activities necessary to remediate these inadvertent returns of
drilling fluids may involve activities that require Department of the Army authorization, and
45
those activities may be authorized by NWP 12.
Humans have long had substantial impacts on ecosystems and the ecological functions and
services they provide (Ellis et al. 2010). Around the beginning of the 19th century, the
degree of impacts of human activities on the Earth's ecosystems began to exceed the degree
of impacts to ecosystems caused by natural disturbances and variability (Steffen et al. 2007).
All of the Earth's ecosystems have been affected either directly or indirectly by human
activities (Vitousek et al. 1997). Over 75 percent of the ice -free land on Earth has been
altered by human occupation and use (Ellis and Ramankutty 2008). Approximately 33
percent of the Earth's ice -free land consists of lands heavily used by people: urban areas,
villages, lands used to produce crops, and occupied rangelands (Ellis and Ramankutty 2008).
For marine ecosystems, Halpern et al. (2008) determined that there are no marine waters that
are unaffected by human activities, and that 41 percent of the area of ocean waters are
affected by multiple anthropogenic stressors (e.g., land use activities that generate pollution
that go to coastal waters, marine habitat destruction or modification, and the extraction of
resources). The marine waters most highly impacted by human activities are continental
shelf and slope areas, which are affected by both land -based and ocean -based activities
(Halpern et al. 2008). Human population density is a good indicator of the relative effect
that people have had on local ecosystems, with lower population densities causing smaller
impacts to ecosystems and higher population densities having larger impacts on ecosystems
(Ellis and Ramankutty 2008). Human activities such as urbanization, agriculture, and
forestry alter ecosystem structure and function by changing their interactions with other
ecosystems, their biogeochemical cycles, and their species composition (Vitousek et al.
1997). Changes in land use reduce the ability of ecosystems to produce ecosystem services,
such as food production, reducing infectious diseases, and regulating climate and air quality
(Foley et al. 2005).
Recent changes in climate have had substantial impacts on natural ecosystems and human
communities (IPCC 2014). Climate change, both natural and anthropogenic, is a major
driving force for changes in ecosystem structure, function, and dynamics (Millar and
Brubaker 2006). However, there are other significant drivers of change to aquatic and
terrestrial ecosystems. In addition to climate change, aquatic and terrestrial ecosystems are
also adversely affected by land use and land cover changes, natural resource extraction
(including water withdrawals), pollution, species introductions, and removals of species
(Staudt et al. 2013, Bodkin 2012, MEA 2005d) and changes in nutrient cycling (Julius et al.
2013).
Cumulative effects to wetlands, streams, and other aquatic resources in the United States are
not limited to the effects caused by activities regulated and authorized by the Corps under
Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act of 1899.
Other federal, non-federal, and private activities also contribute to the cumulative effects to
wetlands, streams, and other aquatic resources, by changing the quantity of those resources
and the functions they provide. Wetlands, streams, and other aquatic resources and the
functions and services they provide are directly and indirectly affected by changes in land
use and land cover, alien species introductions, overexploitation of species, pollution,
eutrophication due to excess nutrients, resource extraction including water withdrawals,
46
climate change, and various natural disturbances (MEA 2005b). Freshwater ecosystems such
as lakes, rivers, and streams are altered by changes to water flow, climate change, land use
changes, additions of chemicals, resource extraction, and aquatic invasive species (Carpenter
et al. 2011). Cumulative effects to wetlands, streams, and other aquatic resources are the
result of landscape -level processes (Gosselink and Lee 1989). As discussed in more detail
below, cumulative effects to aquatic resources are caused by a variety of activities
(including activities that occur entirely in uplands) that take place within a landscape unit,
such as the watershed for a river or stream (e.g., Allan 2004, Paul and Meyer 2001, Leopold
1968) or the contributing drainage area for a wetland (e.g., Wright et al. 2006, Brinson and
Malvarez 2002, Zedler and Kercher 2005).
Cumulative effects also include environmental effects caused by reasonably foreseeable
future actions that may take place after the permitted activity is completed. Such effects may
include direct and indirect environmental effects caused by the operation and maintenance
of the facility constructed on the discharge of dredged or fill material into waters of the
United States or the structures or work in navigable waters of the United States. For NWP
12, this includes activities associated with the operation and maintenance of the utility lines,
substations, and access roads constructed or expanded as a result of activities authorized by
this NWP. Utility line activities and associated will also contribute to other cumulative
effects to aquatic and terrestrial environments and to the atmosphere, during their
construction, maintenance, and operation. During the operation of utility lines, substances
carried by those utility lines may leak into surrounding areas. For oil pipelines, operators are
required to comply with the Pipeline and Hazardous Materials Safety Administration's
safety requirements, and have plans for addressing the risk of oil spills. Oil spills are also
addressed through the Oil Pollution Act of 1990, which is administered by the U.S.
Environmental Protection Agency and the U.S. Coast Guard. The U.S. EPA is responsible
for oil spills in inland waters and the U.S. Coast Guard is responsible for oil spills in coastal
waters and deepwater ports. For natural gas pipelines, there may be gas leaks during the
operation of those pipelines. Sewer lines may develop breaks or leaks that discharge sewage
into nearby waters and wetlands. Pipelines carrying other types of substances must comply
with other applicable federal and state laws and regulations during their operations. For
example, the Federal Energy Regulatory Commission regulates the interstate transmission of
electricity, natural gas, and oil, and issues licenses for interstate natural gas pipelines. For
utility lines that carry oil or natural gas, reasonably foreseeable future actions also include
the burning of the fossil fuels, which produce carbon dioxide that contribute to greenhouse
gas emissions. The Corps does not have the authority to control the burning of fossil fuels
or the adverse environmental effects that are caused by burning those fossil fuels to produce
energy.
The construction of utility lines and their rights -of -way will fragment terrestrial and aquatic
ecosystems. Utility line substations may leak transformer fluids, or the liquids or gases
carried by the utility lines those substations support. A variety of pollutants might be
released into the environment during the operation and maintenance of these facilities.
Those pollutants may be discharged through either point sources or non -point sources and
reach jurisdictional waters and wetlands. Point -source discharges would likely require
National Pollutant Discharge Elimination System Permits under Section 402 of the Clean
47
Water Act, which is administered by U.S. EPA or by states with approved programs.
Pollutants may also be discharged through spills and other accidents. Operations and
maintenance activities may also other direct and indirect effects on wetlands, streams, and
other aquatic resources. The Corps does not have the authority to regulate operations and
maintenance activities that: (1) do not involved discharges of dredged or fill material into
waters of the United States; (2) involve activities exempt from Clean Water Act Section 404
permit requirements under section 404(f); and (3) do not involve structures or work
requiring DA authorization under Sections 9 or 10 of the Rivers and Harbors Act of 1899.
Operations and maintenance activities regulated by the Corps are considered during the
permit evaluation process.
In a specific watershed, division or district engineers may determine that the cumulative
adverse environmental effects of activities authorized by this NWP are more than minimal.
Division and district engineers will conduct more detailed assessments for geographic areas
that are determined to be potentially subject to more than minimal cumulative adverse
environmental effects. Division and district engineers have the authority to require
individual permits in watersheds or other geographic areas where the cumulative adverse
environmental effects are determined to be more than minimal, or add conditions to the
NWP either on a case -by -case or regional basis to require mitigation measures to ensure that
the cumulative adverse environmental effects of these activities are no more than minimal.
When a division or district engineer determines, using local or regional information, that a
watershed or other geographic area is subject to more than minimal cumulative adverse
environmental effects due to the use of this NWP, he or she will use the revocation and
modification procedure at 33 CFR 330.5. In reaching the final decision, the division or
district engineer will compile information on the cumulative adverse effects and supplement
this document.
The Corps expects that the convenience and time savings associated with the use of this
NWP will encourage applicants to design their projects within the scope of the NWP rather
than request individual permits for projects which could result in greater adverse impacts to
the aquatic environment. The minimization encouraged by the issuance of this NWP, as well
as compensatory mitigation that may be required for specific activities authorized by this
NWP, will help reduce cumulative effects to the Nation's wetlands, streams, and other
aquatic resources.
Cumulative effects to specific categories of resources (i.e., resources of concern in
accordance with CEQ's (1997) guidance) are discussed in more detail below. As discussed
above, in addition to activities regulated under section 404 of the Clean Water Act and/or
section 10 of the Rivers and Harbors Act of 1899, there are many categories of activities that
contribute to cumulative effects to the human environment. The activities authorized by this
NWP during the 5 -year period it will be in effect will result in no more than minimal
incremental contributions to cumulative effects to these resource categories.
4.3.2 Cumulative Effects to Aquatic Ecosystems
The ecological condition of rivers and streams is dependent on the state of their watersheds
48
(NRC 1992), because they are affected by activities that occur in those watersheds,
including agriculture, urban development, deforestation, mining, water removal, flow
alteration, and invasive species (Palmer et al. 2010). Land use changes affect rivers and
streams through increased sedimentation, larger inputs of nutrients (e.g., nitrogen,
phosphorous) and pollutants (e.g., heavy metals, synthetic chemicals, toxic organics), altered
stream hydrology, the alteration or removal of riparian vegetation, and the reduction or
elimination of inputs of large woody debris (Allan 2004). Agriculture is the primary cause of
stream impairment, followed by urbanization (Foley et al. 2005, Paul and Meyer 2001).
Agricultural land use adversely affects stream water quality, habitat, and biological
communities (Allan 2004). Urbanization causes changes to stream hydrology (e.g., higher
flood peaks, lower base flows), sediment supply and transport, water chemistry, and aquatic
organisms (Paul and Meyer 2001). Leopold (1968) found that land use changes affect the
hydrology of an area by altering stream flow patterns, total runoff, water quality, and stream
structure. Changes in peak flow patterns and runoff affect stream channel stability. Stream
water quality is adversely affected by increased inputs of sediments, nutrients, and
pollutants, many of which come from non -point sources (Paul and Meyer 2001, Allan and
Castillo 2007).
The construction and operation of water -powered mills in the 17th to 19th centuries
substantially altered the structure and function of streams in the eastern United States
(Walter and Merritts 2008) and those effects have persisted to the present time. In urbanized
and agricultural watersheds, the number of small streams has been substantially reduced, in
part by activities that occurred between the 19th and mid -20th centuries (Meyer and Wallace
2001). Activities that affect the quantity and quality of small streams include residential,
commercial, and industrial development, mining, agricultural activities, forestry activities,
and road construction (Meyer and Wallace 2001), even if those activities are located entirely
in uplands.
Activities that affect wetland quantity and quality include: land use changes that alter local
hydrology (including water withdrawal), clearing and draining wetlands, constructing levees
that sever hydrologic connections between rivers and floodplain wetlands, constructing other
obstructions to water flow (e.g., dams, locks), constructing water diversions, inputs of
nutrients and contaminants, and fire suppression (Brinson and Malvarez 2002). Wetland loss
and degradation is caused by hydrologic modifications of watersheds, drainage activities,
logging, agricultural runoff, urban development, conversion to agriculture, aquifer depletion,
river management, (e.g., channelization, navigation improvements, dams, weirs), oil and gas
development activities, levee construction, peat mining, and wetland management activities
(Mitsch and Hernandez 2013). Upland development adversely affects wetlands and reduces
wetland functionality because those activities change surface water flows and alter wetland
hydrology, contribute stormwater and associated sediments, nutrients, and pollutants, cause
increases in invasive plant species abundance, and decrease the diversity of native plants and
animals (Wright et al. 2006). Many of the remaining wetlands in the United States are
degraded (Zedler and Kercher 2005). Wetland degradation and losses are caused by changes
in water movement and volume within a watershed or contributing drainage area, altered
sediment transport, drainage, inputs of nutrients from non -point sources, water diversions,
fill activities, excavation activities, invasion by non-native species, land subsidence, and
49
pollutants (Zedler and Kercher 2005). According to Mitsch and Gosselink (2015),
categories of activities that alter wetlands include: wetland conversion through drainage,
dredging, and filling; hydrologic modifications that change wetland hydrology and
hydrodynamics; highway construction and its effects on wetland hydrology; peat mining;
waterfowl and wildlife management; agriculture and aquaculture activities; water quality
enhancement activities; and flood control and stormwater protection.
There is also little national -level information on the ecological condition of the Nation's
wetlands, streams, and other aquatic resources, or the amounts of functions they provide,
although reviews have acknowledged that most of these resources are degraded (Zedler and
Kercher 2005, Allan 2004) or impaired (U.S. EPA 2015) because of various activities,
disturbances, and other stressors. These data deficiencies make it more difficult to
characterize the affected environment to assess cumulative effects, and the relative
contribution of the activities authorized by this NWP to those cumulative effects.
As discussed in section 3.0 of this document there is a wide variety of causes and sources of
impairment of the Nation's rivers, streams, wetlands, lakes, estuarine waters, and marine
waters (U.S. EPA 2015), which also contribute to cumulative effects to these aquatic
resources. Many of those causes of impairment are point and non -point sources of pollutants
that are not regulated under Section 404 of the Clean Water Act or Section 10 of the Rivers
and Harbors Act of 1899. Two common causes of impairment for rivers and streams, habitat
alterations and flow alterations, may be due in part to activities regulated by the Corps under
Section 404 of the Clean Water Act and/or Section 10 of the Rivers and Harbors Act of
1899. Habitat and flow alterations may also be the caused by activities that do not involve
discharges of dredged or fill material or structures or work in navigable waters. For
wetlands, impairment due to habitat alterations, flow alterations, and hydrology
modifications may involve activities regulated under section 404, but these causes of
impairment may also be due to unregulated activities, such as changes in upland land use
that affects the movement of water through a watershed or contributing drainage area or the
removal of vegetation.
Many of the activities discussed in this cumulative effects section that affect wetlands,
streams, and other aquatic resources are not subject to regulation under Section 404 of the
Clean Water Act or Section 10 of the Rivers and Harbors Act of 1899.
Estimates of the original acreage of wetlands in the United States vary widely because of the
use of different definitions and how those estimates were made (Harris and Gosselink 1990).
Dahl (1990) estimates that approximately 53 percent of the wetlands in the conterminous
United States were lost in the 200 -year period covering the 1780s to 1980s. Much of the
wetland loss occurred in the mid -19th century as a result of indirect effects of beaver
trapping and the removal of river snags, which substantially reduced the amount of land
across the country that was inundated because of beaver dams and river obstructions (Harris
and Gosselink 1990). The annual rate of wetland loss has decreased substantially since the
1970s (Dahl 2011), when wetland regulation became more prevalent (Brinson and Malvarez
2002). Between 2004 and 2009, there was no statistically significant difference in wetland
acreage in the conterminous United States (Dahl 2011). According to the 2011 wetland
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status and trends report, during the period of 2004 to 2009 urban development accounted for
11 percent of wetland losses (61,630 acres), rural development resulted in 12 percent of
wetland losses (66,940 acres), silviculture accounted for 56 percent of wetland losses
(307,340 acres), and wetland conversion to deepwater habitats caused 21 percent of the loss
in wetland area (115,960 acres) (Dahl 2011). Some of the losses occurred to wetlands that
are not subject to Clean Water Act jurisdiction and some losses are due to activities not
regulated under Section 404 of the Clean Water Act, such as unregulated drainage activities,
exempt forestry activities, or water withdrawals. From 2004 to 2009, approximately 100,020
acres of wetlands were gained as a result of wetland restoration and conservation programs
on agricultural land (Dahl 2011). Another source of wetland gain is conversion of other
uplands to wetlands (389,600 acres during 2004 to 2009) (Dahl 2011). Inventories of
wetlands, streams, and other aquatic resources are incomplete, especially at national or
regional scales, because the techniques used for those inventories cannot identify all of those
resources, especially small wetlands and streams (e.g., Dahl (2011) for wetlands; Meyer and
Wallace (2001) for streams).
As discussed in section 3.0, national scale inventories of wetlands, streams, and other types
of aquatic resources underestimate the quantity of those resources, and only general
information is available on their ability to perform ecological functions and services.
Therefore, it is not appropriate to make decisions concerning the significance of cumulative
effects by calculating the relative proportion of the aquatic resources baseline impacted by a
particular action, or a series of actions subject to a particular federal program. In addition,
such an approach does not take into account the many categories of other activities that have
direct and indirect effects on aquatic resources that are regulated under other federal, states,
or local programs or are not regulated by any entity. Under the Council on Environmental
Quality's NEPA definition at 40 CFR 1508.7, a cumulative effects analysis should instead
examine the relative contribution that a proposed action will have on cumulative effects to
one or more categories of natural resources (i.e., "the incremental impact of the action" and
whether that incremental impact is significant or not significant).
For aquatic ecosystems, climate change affects water quality, biogeochemical cycling, and
water storage (Julius et al. 2013). Climate change will also affect the abundance and
distribution of wetlands across the United States, as well as the functions they provide
(Mitsch and Gosselink 2015). Climate change results in increases in stream temperatures,
more waterbodies with anoxic conditions, degradation of water quality, and increases in
flood and drought frequencies (Julius et al. 2013). The increasing carbon dioxide
concentration in the atmosphere also changes the pH of the oceans, resulting in ocean
acidification (RS and NAS 2014), which adversely affects corals and some other marine
organisms.
Compensatory mitigation required by district engineers for specific activities authorized by
this NWP will help reduce the contribution of those activities to the cumulative effects on
the Nation's wetlands, streams, and other aquatic resources, by providing ecological
functions to partially or fully replace some or all of the aquatic resource functions lost as a
result of those activities. Compensatory mitigation requirements for the NWPs are described
in general condition 23 and compensatory mitigation projects must also comply with the
51
applicable provisions of 33 CFR part 332. District engineers will establish compensatory
mitigation requirements on a case -by -case basis, after evaluating pre -construction
notifications. Compensatory mitigation requirements for individual NWP activities will be
specified through permit conditions added to NWP authorizations. When compensatory
mitigation is required, the permittee is required to submit a mitigation plan prepared in
accordance with the requirements of 33 CFR 332.4(c). Credits from approved mitigation
banks or in -lieu fee programs may also be used to satisfy compensatory mitigation
requirements for NWP authorizations. Monitoring is required to demonstrate whether the
permittee-responsible mitigation project, mitigation bank, or in -lieu fee project is meeting its
objectives and providing the intended aquatic resource structure and functions. If the
compensatory mitigation project is not meeting its objectives, adaptive management will be
required. Adaptive management may involve taking actions, such as site modifications,
remediation, or design changes, to ensure the compensatory mitigation project meets its
objectives (see 33 CFR 332.7(c)).
The estimated contribution of activities authorized by this NWP to the cumulative effects to
wetlands, streams, and other aquatic resources in the United States during the five year
period that the NWP would be in effect, in terms of the estimated number of time this NWP
would be used until it expires and the projected impacts and compensatory mitigation, is
provided in section 7.2.2. It is not practical or feasible to provide quantitative data on the
multitude of other contributors to cumulative effects to these resources, including the
federal, non-federal, and private activities that are not regulated by the Corps that will also
occur during the five year period this NWP is in effect. National -level data on these many
categories of activities that are not regulated by the Corps but contribute to cumulative
effects are either not collected for the nation or they are not accessible. The activities
authorized by this NWP will result in a minor incremental contribution to the cumulative
effects to wetlands, streams, and other aquatic resources in the United States because, as
discussed in this section, they are one category of many categories of activities that affect
those aquatic resources. The causes of cumulative effects discussed in this section include
past, present, and reasonably foreseeable future federal, non-federal, and private activities.
For the national -scale cumulative effects analysis presented in this section, it is not possible
to quantify the relative contributions of all of the various activities that affect the quantity of
wetlands, streams, and other aquatic resources and the functions and services they provide,
because such data are not available at the national scale.
As discussed above, there are many categories of activities not regulated by the Corps under
section 404 of the Clean Water Act and/or section 10 of the Rivers and Harbors Act of 1899
that contribute to cumulative effects to wetland, streams, and other aquatic resources.
During the 5 -year period this NWP is in effect, the activities it authorizes will result in only
a no more than minimal incremental contribution to cumulative effects to wetlands, streams,
and other aquatic ecosystems.
4.3.3 Cumulative Effects to Coastal Areas
In the United States, approximately 39 percent of its population lives in counties that are
next to coastal waters, the territorial seas, or the Great Lakes (NOAA 2013). Those counties
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comprise less than 10 percent of the land area of the United States (NOAA 2013). Coastal
waters are also affected by a wide variety of activities. The major drivers of changes to
coastal areas are: development activities that alter coastal forests, wetlands, and coral reef
habitats for aquaculture and the construction of urban areas, industrial facilities, and resort
and port developments (MEA 2005d). Dredging, reclamation, shore protection and other
structures (e.g., causeways and bridges), and some types of fishing activities also cause
substantial changes to coastal areas (MEA 2005d). Nitrogen pollution to coastal zones
change coral reef communities (MEA 2005d). Adverse effects to coastal waters are caused
by habitat modifications, point source pollution, non -point source pollution, changes to
hydrology and hydrodynamics, exploitation of coastal resources, introduction of non-native
species, global climate change, shoreline erosion, and pathogens and toxins (NRC 1994).
Substantial alterations of coastal hydrology and hydrodynamics are caused by land use
changes in watersheds draining to coastal waters, the channelization or damming of streams
and rivers, water consumption, and water diversions (NRC 1994). Approximately 52 percent
of the population of the United States lives in coastal watersheds (NOAA 2013).
Eutrophication of coastal waters is caused by nutrients contributed by waste treatment
systems, non -point sources, and the atmosphere, and may cause hypoxia or anoxia in coastal
waters (NRC 1994). Changes in water movement through watersheds may also alter
sediment delivery to coastal areas, which affects the sustainability of wetlands and intertidal
habitats and the functions they provide (NRC 1994). Most inland waters in the United States
drain to coastal areas, and therefore activities that occur in inland watersheds affect coastal
waters (NRC 1994). Inland land uses, such as agriculture, urban development, and forestry,
adversely affect coastal waters by diverting fresh water from estuaries and by acting as
sources of nutrients and pollutants to coastal waters (MEA 2005d).
Coastal wetlands have been substantially altered by urban development and changes to the
watersheds that drain to those wetlands (Mitsch and Hernandez 2013). Coastal habitat
modifications are the result of dredging or filling coastal waters, inputs of sediment via non -
point sources, changes in water quality, or alteration of coastal hydrodynamics (NRC 1994).
Coastal development activities, including those that occur in uplands, affect marine and
estuarine habitats (MEA 2005b). The introduction of non-native species may change the
functions and structure of coastal wetlands and other habitats (MEA 2005b). Fishing
activities may also modify coastal habitats by changing habitat structure and the biological
communities that inhabit those areas (NRC 1994).
As discussed above, there are many categories of activities not regulated by the Corps under
section 404 of the Clean Water Act and/or section 10 of the Rivers and Harbors Act of 1899
that contribute to cumulative effects to coastal areas. During the 5 -year period this NWP is
in effect, the activities it authorizes will result in only a no more than minimal incremental
contribution to cumulative effects to coastal areas.
4.3.4 Cumulative Effects to Endangered and Threatened Species
The status of species as threatened or endangered is also due to cumulative effects (NRC
1986, Odum 1982), and activities authorized by Department of the Army permits are a
53
minor contributor to the cumulative effects to endangered and threatened species. Land use
and land cover changes are the main cause of the loss of biodiversity (Vitousek et al. 1997).
The decline of a species that leads to its status as endangered or threatened is usually caused
by multiple factors rather than a single factor (Wilcove et al. 1998, Venter et al. 2006, Czech
and Krausman 1997, Richter et al. 1997). It is difficult to determine the relative contribution
of each cause of species decline or endangerment (Czech and Krausman 1997). For
example, for fish species, the number of factors affecting their status ranged from 1 to 15,
with an average of 4.5 threats. Over 40 percent of fish species were endangered or
threatened as a result of 5 or more factors, and less than 7 percent of fish species were
identified as imperiled because of a single factor. During the past few hundred years, human
activities have increased species extinction rates by around 1,000 times the Earth's
background extinction rates (MEA 2005c).
The main causes of the decline of species to endangered or threatened status are habitat loss
and degradation, introduction of species, overexploitation, disease, and climate change
(MEA 2005d). Habitat degradation also includes changes in habitat quality caused by habitat
fragmentation and pollution. Habitat fragmentation can occur in rivers, and is characterized
by disruption of a river's natural flow regime by dams, inter -basin water transfers, or water
withdrawals and affects 90 percent of the world's river water volume (MEA 2005d).
Invasive alien species are a major cause of species endangerment in freshwater habitats
(MEA 2005d). Losses of biological diversity are directly caused by habitat modifications,
including land use changes, alteration of river and stream flows, water withdrawals from
rivers, losses of coral reefs, and alteration of the sea bed caused by trawling (MEA 2005c).
Other direct causes of losses of biodiversity include pollution, invasive species, species
overexploitation, climate change, and disease (MEA 2005c). There are often multiple
factors interacting with each other to reduce biodiversity, instead of single factors working
alone (MEA 2005c).
Wilcove et al. (1998) evaluated five categories of threats to species in the United States, and
conducted further analyses on the types of habitat destruction that caused species to be listed
as endangered or threatened under the Endangered Species Act. The five categories of
threats were habitat destruction, alien species, overharvest, pollution, and disease. Wilcove
et al. (1998) focused on species under the jurisdiction of the U.S. Fish and Wildlife Service.
More than half of the endangered and threatened species under the jurisdiction of the NMFS
were listed after this study was published. Wilcove et al. (1998) found information on the
threats to 1,880 species, out of a total of 2,490 species that were categorized as imperiled at
that time. Habitat destruction and degradation was the most comment threat, a factor for 85
percent of the imperiled species analyzed. The second most common threat was competition
with non-native species, or predation by those species. For aquatic animal species, pollution
was the second most common cause of endangerment, after habitat loss (Wilcove et al.
1998).
To more closely examine the causes of habitat loss, Wilcove et al. (1998) analyzed U.S. Fish
and Wildlife endangered species listing documents and identified 14 categories of habitat
loss or degradation: agriculture; livestock grazing; mining and oil and gas extraction;
logging; infrastructure development; road construction and maintenance; military activities;
54
outdoor recreation; use of off -road vehicles; water development projects (e.g., water
diversions, flood control facilities; drainage projects; aquaculture; navigation); dams,
impoundments, and other water barriers; pollutants (e.g., sediment and mining pollutants);
residential and commercial developments; and disruption of fire ecology. Many species
were subject to more than one cause of endangerment (Wilcove et al. 1998). Agriculture was
the leading cause of habitat destruction, affecting 38 percent of endangered species,
followed by residential and commercial development (35 percent), water development (30
percent), and infrastructure development (17 percent). Habitat destruction caused by water
development affected 91 percent of listed fish species and 99 percent of listed mussel
species.
Richter et al. (1997) studied the factors that endanger freshwater animals. The most
significant threats to those species are habitat destruction, habitat fragmentation, pollution,
and exotic species. Richter et al. (1997) also looked at the stressors that are impeding the
recovery of aquatic species at risk of extinction and found that changes in stream bed
substrate composition (e.g., siltation), hydrologic alteration, interactions with other species,
nutrient inputs, and habitat destruction were the most common factors. The major sources of
stressors to aquatic species are agricultural land use, urban land use, energy generation
industries (especially hydroelectric power), and exotic species (Richter et al. 1997).
Agricultural activity was identified as having significant adverse effects on aquatic species
through non -point source pollution (sediment and nutrients), interactions with exotic
species, and water impoundments (Richter et al. 1997). Water impoundments cause changes
in hydrology, as well as habitat destruction and fragmentation. Urban land use resulted in
much less non -point source pollution than agricultural activities (Richter et al. 1997).
Note that in these studies on species threats and endangerment, the categories of human
activities are discussed in general terms, and may include activities in uplands as well as
activities in jurisdictional and non -jurisdictional waters and wetlands. Climate change will
also alter species distributions, and extinction may occur for those species that cannot adjust
to the changes in climate (Starzmoski 2013).
As discussed above, there are many categories of activities not regulated by the Corps under
section 404 of the Clean Water Act and/or section 10 of the Rivers and Harbors Act of 1899
that contribute to cumulative effects to endangered and threatened species and their
designated critical habitats. During the 5 -year period this NWP is in effect, the activities it
authorizes will result in only a no more than minimal incremental contribution to cumulative
effects to endangered and threatened species and their habitats.
4A Climate Change
Climate change represents one of the greatest challenges our country faces with profound
and wide-ranging implications for the health and welfare of Americans, economic growth,
the environment, and international security. Evidence of the warming of climate system is
unequivocal and the emission of greenhouse gases from human activities is the primary
driver of these changes (IPCC 2014). Already, the United States is experiencing the impacts
55
of climate change and these impacts will continue to intensify as warming intensifies. It will
have far-reaching impacts on natural ecosystems and human communities. These effects
include sea level rise, ocean warming, increases in precipitation in some areas and decreases
in precipitation in other areas, decreases in sea ice, more extreme weather and climate events
including more floods and droughts, increasing land surface temperatures, increasing ocean
temperatures, and changes in plant and animal communities (IPCC 2014). Climate change
also affects human health in some geographic area by increasing exposure to ground -level
ozone and/or particulate matter air pollution (Luber et al. 2014). Climate change also
increases the frequency of extreme heat events that threaten public health and increases risk
of exposure to vector -borne diseases (Luber et al. 2014). Climate impacts affect the health,
economic well-being, and welfare of Americans across the country, and especially children,
the elderly, and others who are particularly vulnerable to specific impacts. Climate change
can affect ecosystems and species through a number of mechanisms, such as direct effects
on species, populations, and ecosystems; compounding the effects of other stressors; and the
direct and indirect effects of climate change mitigation or adaptation actions (Staudt et al.
2013). Other stressors include land use and land cover changes, natural resource extraction
(including water withdrawals), pollution, species introductions, and removals of species
(Staudt et al. 2013, Bodkin 2012, MEA 2005d) and changes in nutrient cycling (Julius et al.
2013).
5.0 Public Interest Review
5.1 Public Interest Review Factors (33 CFR 320.4(a)(1))
For each of the 20 public interest review factors, the extent of the Corps consideration of
expected impacts resulting from the use of this NWP is discussed, as well as the reasonably
foreseeable cumulative adverse effects that are expected to occur. The Corps decision -
making process involves consideration of the benefits and detriments that may result from
the activities authorized by this NWP.
(a) Conservation: The activities authorized by this NWP may modify the natural resource
characteristics of the project area. Compensatory mitigation, if required for activities
authorized by this NWP, will result in the restoration, enhancement, establishment, or
preservation of aquatic habitats that will offset losses to conservation values. The adverse
effects of activities authorized by this NWP on conservation will be minor.
(b) Economics: Utility line activities will have positive impacts on the local economy.
During construction, these activities will generate jobs and revenue for local contractors as
well as revenue to building supply companies that sell construction materials. Utility lines
provide energy, potable water, telecommunications, and other services to residences and
schools, as well as factories, offices, stores, and other places of business, to allow those
facilities to operate.
56
(c) Aesthetics: Utility line activities will alter the visual character of some waters of the
United States. The extent and perception of these changes will vary, depending on the size
and configuration of the activity, the nature of the surrounding area, and the public uses of
the area. Utility line activities authorized by this NWP can also modify other aesthetic
characteristics, such as air quality and the amount of noise. The increased human use of the
project area and surrounding land will also alter local aesthetic values.
(d) General environmental concerns: Activities authorized by this NWP will affect general
environmental concerns, such as water, air, noise, and land pollution. The authorized
activities will also affect the physical, chemical, and biological characteristics of the
environment. The adverse effects of the activities authorized by this NWP on general
environmental concerns will be minor. Adverse effects to the chemical composition of the
aquatic environment will be controlled by general condition 6, which states that the material
used for construction must be free from toxic pollutants in toxic amounts. General condition
23 requires mitigation to minimize adverse effects to the aquatic environment through
avoidance and minimization at the project site. Compensatory mitigation may be required
by district engineers to ensure that the net adverse environmental effects are no more than
minimal. Specific environmental concerns are addressed in other sections of this document.
(e) Wetlands: The construction, maintenance, repair, or removal of utility lines and
associated facilities may result in the loss or alteration of wetlands. For the construction or
maintenance of utility lines impacts to wetlands will be temporary, unless the site contains
forested wetlands. The construction of utility line rights -of -way through forested wetlands
will often result in the conversion of forested wetlands to scrub -shrub or emergent wetlands.
Those conversions are usually permanent to maintain the utility line in good, operational
order. The conversion of wetlands to other types of wetlands may result in the loss of
certain wetland functions, or the reduction in the level of wetland functions being performed
by the converted wetland. District engineers have the authority to require mitigation to
offset losses of wetland functions caused by regulated activities (see paragraph (i) of general
condition 23, mitigation). The construction of utility line substations will result in the
permanent loss of wetlands. Wetlands may also be converted to other uses and habitat
types. Forested wetlands will not be allowed to grow back in the utility line right-of-way so
that the utility line will not be damaged and can be easily maintained. Only shrubs and
herbaceous plants will be allowed to grow in the right-of-way. Some wetlands may be
temporarily impacted by the activity when used as temporary staging areas. These wetlands
will be restored, unless the district engineer authorizes another use for the area, but the plant
community may be different, especially if the site was originally forested.
Wetlands provide habitat, including foraging, nesting, spawning, rearing, and resting sites
for aquatic and terrestrial species. The loss or alteration of wetlands may alter natural
drainage patterns. Wetlands reduce erosion by stabilizing the substrate. Wetlands also act
as storage areas for stormwater and flood waters. Wetlands may act as groundwater
discharge or recharge areas. The loss of wetland vegetation will adversely affect water
quality because these plants trap sediments, pollutants, and nutrients and transform chemical
compounds. Wetland vegetation also provides habitat for microorganisms that remove
nutrients and pollutants from water. Wetlands, through the accumulation of organic matter,
57
act as sinks for some nutrients and other chemical compounds, reducing the amounts of
these substances in the water.
General condition 23 requires avoidance and minimization of impacts to waters of the
United States, including wetlands, at the project site. Compensatory mitigation may be
required to offset losses of waters of the United States so that the net adverse environmental
effects are no more than minimal. General condition 22 prohibits the use of this NWP to
discharge dredged or fill material in designated critical resource waters and adjacent
wetlands, which may include high value wetlands. Division engineers can regionally
condition this NWP to restrict or prohibit its use in high value wetlands. District engineers
will also exercise discretionary authority to require an individual permit if high value
wetlands will be affected by the activity and the activity will result in more than minimal
adverse environmental effects. District engineers may also add case -specific special
conditions to the NWP authorization to reduce impacts to wetlands or require compensatory
mitigation to offset losses of wetlands.
(t) Historic properties: General condition 20 states that 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 have been satisfied.
(g) Fish and wildlife values: This NWP authorizes certain utility line activities in all waters
of the United States. Discharges of dredged or fill material into waters of the United States
for the construction of utility line substations is limited to non -tidal waters, excluding non -
tidal waters adjacent to tidal waters. Waters of the United States provide habitat to many
species of fish and wildlife. Activities authorized by this NWP may alter the habitat
characteristics of streams, wetlands, and other waters of the United States, decreasing the
quantity and quality of fish and wildlife habitat. The construction of utility line right-of-
ways may fragment existing habitat and increase the amount of edge habitat in the area,
causing changes in local species composition. Wetland, riparian, and estuarine vegetation
provides food and habitat for many species, including foraging areas, resting areas, corridors
for wildlife movement, and nesting and breeding grounds. Open waters provide habitat for
fish and other aquatic organisms. Fish and other motile animals will avoid the project site
during construction and maintenance. Woody riparian vegetation shades streams, which
reduces water temperature fluctuations and provides habitat for fish and other aquatic
animals. Riparian and estuarine vegetation provides organic matter that is consumed by fish
and aquatic invertebrates. Woody riparian vegetation creates habitat diversity in streams
when trees and large shrubs fall into the channel, forming snags that provide habitat and
shade for fish. The morphology of a stream channel may be altered by activities authorized
by this NWP, which can affect fish populations. However, pre -construction notification is
required for certain activities authorized by this NWP, which provides district engineers
with opportunities to review those activities, assess potential impacts on fish and wildlife
values, and ensure that the authorized activity results in no more than minimal adverse
environmental effects. Compensatory mitigation may be required by district engineers to
restore, enhance, establish, and/or preserve wetlands to offset losses of waters of the United
States. Stream rehabilitation, enhancement, and preservation activities may be required as
58
compensatory mitigation for impacts to streams. The establishment and maintenance of
riparian areas next to open and flowing waters may also be required as compensatory
mitigation. These methods of compensatory mitigation will provide fish and wildlife habitat
values.
General condition 2 will reduce adverse effects to fish and other aquatic species by
prohibiting activities that substantially disrupt the necessary life cycle movements of
indigenous aquatic species, unless the primary purpose of the activity is to impound water.
Compliance with general conditions 3 and 5 will ensure that the authorized activity has only
minimal adverse effects on spawning areas and shellfish beds, respectively. The authorized
activity cannot have more than minimal adverse effects on breeding areas for migratory
birds, due to the requirements of general condition 4.
For an NWP activity, compliance with the Bald and Golden Eagle Protection Act (16 U.S.C.
668(a) -(d)), the Migratory Bird Treaty Act (16 U.S.C. 703; 16 U.S.C. 712), and the Marine
Mammal Protection Act (16 U.S.C. 1361 et seq.) is the responsibility of the project
proponent. General condition 19 states that the permittee is responsible for contacting
appropriate local office of the U.S. Fish and Wildlife Service to determine applicable
measures to reduce impacts to migratory birds or eagles, including whether "incidental take"
permits are necessary and available under the Migratory Bird Treaty Act or Bald and Golden
Eagle Protection Act for a particular activity.
Consultation pursuant to the essential fish habitat provisions of the Magnuson -Stevens
Fishery Conservation and Management Act will occur as necessary for proposed NWP
activities that may adversely affect essential fish habitat. Consultation may occur on a case -
by -case or programmatic basis. Division and district engineers can impose regional and
special conditions to ensure that activities authorized by this NWP will result in only
minimal adverse effects on essential fish habitat.
(h) Flood hazards: The activities authorized by this NWP may affect the flood -holding
capacity of the 100 -year floodplain, including surface water flow velocities. Changes in the
flood -holding capacity of the 100 -year floodplain may impact human health, safety, and
welfare. Compliance with general condition 9 will reduce flood hazards. This general
condition requires the permittee to maintain, to the maximum extent practicable, the pre -
construction course, condition, capacity, and location of open waters, except under certain
circumstances. General condition 10 requires the activity to comply with applicable FEMA-
approved state or local floodplain management requirements. Much of the land area within
100 -year floodplains is upland, and outside of the Corps scope of review.
(i) Floodplain values: Activities authorized by this NWP may adversely affect the flood -
holding capacity of the floodplain, as well as other floodplain values. The fish and wildlife
habitat values of floodplains will be adversely affected by activities authorized by this NWP,
by modifying or eliminating areas used for nesting, foraging, resting, and reproduction. The
water quality functions of floodplains may also be adversely affected by these activities.
Modification of the floodplain may also adversely affect other hydrological processes, such
as groundwater recharge.
59
Compensatory mitigation may be required for activities authorized by this NWP, which will
offset losses of waters of the United States and provide water quality functions and wildlife
habitat. General condition 23 requires avoidance and minimization of impacts to waters of
the United States to the maximum extent practicable at the project site, which will reduce
losses of floodplain values. The requirements of general condition 23 will minimize adverse
effects to floodplain values, such as flood storage capacity, wildlife habitat, fish spawning
areas, and nutrient cycling for aquatic ecosystems. Compliance with general condition 10
will ensure that authorized activities in 100 -year floodplains will not cause more than no
more than minimal adverse effects on flood storage and conveyance.
(j) Land use: Activities authorized by this NWP will often change the land use from natural
to developed. The installation of utility lines may induce more development in the vicinity
of the project. Since the primary responsibility for land use decisions is held by state, local,
and Tribal governments, the Corps scope of review is limited to significant issues of
overriding national importance, such as navigation and water quality (see 33 CFR
320.4(j)(2)).
(k) Navigation: Activities authorized by this NWP must comply with general condition 1,
which states that no activity may cause more than minimal adverse effects on navigation.
This NWP requires pre -construction notification for all activities in section 10 waters, which
will allow the district engineer to review the pre -construction notification and determine if
the proposed activity will adversely affect navigation.
(1) Shore erosion and accretion: The activities authorized by this NWP will have minor
direct effects on shore erosion and accretion processes, since the NWP does not authorize
the construction of utility line substations in tidal waters. The construction of utility lines
and foundations for overhead utility line towers, poles, and anchors, will have only minimal
adverse effects on shore erosion and accretion. However, NWP 13, regional general
permits, or individual permits may be used to authorize bank stabilization projects
associated with utility line activities, which may affect shore erosion and accretion.
(m) Recreation: Activities authorized by this NWP may change the recreational uses of the
area. Certain recreational activities, such as bird watching, hunting, and fishing may no
longer be available in the area. Some utility line activities may eliminate certain recreational
uses of the area.
(n) Water supply and conservation: Activities authorized by this NWP may adversely affect
both surface water and groundwater supplies. Activities authorized by this NWP can also
affect the quality of water supplies by adding pollutants to surface waters and groundwater,
but many causes of water pollution, such as discharges regulated under Section 402 of the
Clean Water Act, are outside the Corps scope of review. Some water pollution concerns can
be addressed through the water quality management measures that may be required for
activities authorized by this NWP. The quantity and quality of local water supplies may be
enhanced through the construction of water treatment facilities. Division and district
engineers can prohibit the use of this NWP in watersheds for public water supplies, if it is in
60
the public interest to do so. General condition 7 prohibits discharges in the vicinity of public
water supply intakes. Compensatory mitigation may be required for activities authorized by
this NWP, which may help improve the quality of surface waters.
(o) Water quality: Utility line activities in wetlands and open waters may have adverse
effects on water quality. These activities can result in increases in sediments and pollutants
in the water. The loss of wetland and riparian vegetation will adversely affect water quality
because these plants trap sediments, pollutants, and nutrients and transform chemical
compounds. Wetland and riparian vegetation also provides habitat for microorganisms that
remove nutrients and pollutants from water. Wetlands, through the accumulation of organic
matter, act as sinks for some nutrients and other chemical compounds, reducing the amounts
of these substances in the water column. Wetlands and riparian areas also decrease the
velocity of flood waters, removing suspended sediments from the water column and
reducing turbidity. Riparian vegetation also serves an important role in the water quality of
streams by shading the water from the intense heat of the sun. Compensatory mitigation
may be required for activities authorized by this NWP, to ensure that the activity does not
have more than minimal adverse environmental effects, including water quality. Wetlands
and riparian areas restored, established, enhanced, or preserved as compensatory mitigation
may provide local water quality benefits.
During the construction, maintenance, and repair of utility lines and related activities, small
amounts of oil and grease from construction equipment may be discharged into the
waterway. Because most of the construction will occur during a relatively short period of
time, the frequency and concentration of these discharges are not expected to have more
than minimal adverse effects on overall water quality.
This NWP may require Section 401 water quality certification, since it authorizes discharges
of dredged or fill material into waters of the United States. Most water quality concerns are
addressed by the State or Tribal Section 401 agency. In accordance with general condition
23, the permittee may be required to implement water quality management measures to
minimize the degradation of water quality. Water quality management measures may
involve the installation of stormwater management facilities to trap pollutants and the
establishment and maintenance of riparian areas next to waters of the United States.
Riparian areas help protect downstream water quality and enhance aquatic habitat.
(p) Energy needs: The utility line activities authorized by this NWP may induce higher rates
of energy consumption in the area by making electricity, natural gas, and petroleum products
more readily available to consumers. Additional power plants or oil refineries may be
needed to meet increases in energy demand, but these issues are beyond the Corps scope of
review. This NWP may be used to authorize the expansion of existing infrastructure to
provide energy to new developments.
(q) Safety: The utility line activities authorized by this NWP will be subject to Federal, state,
and local safety laws and regulations. Therefore, this NWP will not adversely affect the
safety of the project area. Operators of oil pipelines are required to comply with the Pipeline
and Hazardous Materials Safety Administration's safety requirements, and have plans for
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addressing the risk of oil spills. Pipelines carrying other types of substances must comply
with other applicable federal and state laws and regulations during their operations. For
example, the Federal Energy Regulatory Commission regulates the interstate transmission of
electricity, natural gas, and oil, and issues licenses for interstate natural gas pipelines.
(r) Food and fiber production: Activities authorized by this NWP may adversely affect food
and fiber production, especially when utility line activities are constructed on agricultural
land. Utility line activities usually require easements, which may take some agricultural
land out of production. These activities may reduce the amount of available farmland in the
nation, unless that land is replaced by converting other land, such as forest, to agricultural
land. The loss of farmland is more appropriately addressed through the land use planning
and zoning authority held by state and local governments. Food production may be
increased by activities authorized by this NWP. For example, this NWP can authorize the
construction or expansion of utility lines that provide energy, water, and other services to
commercial food production facilities, such as bakeries, canneries, and meat processing
plants.
(s) Mineral needs: Activities authorized by this NWP may increase demand for aggregates
and stone, which may be used to construct utility lines, substations, and foundations for
overhead utility line towers. Utility lines authorized by this NWP may increase the demand
for other building materials, such as steel, aluminum, and copper, which are made from
mineral ores.
(t) Considerations of property ownership: The NWP complies with 33 CFR 320.4(g), which
states that an inherent aspect of property ownership is a right to reasonable private use. The
NWP provides expedited DA authorization for utility line activities, provided those
activities comply with the terms and conditions of the NWP and result in no more than
minimal adverse environmental effects.
5.2 Additional Public Interest Review Factors (33 CFR 320.4(a)(2))
5.2.1 Relative extent of the public and private need for the proposed structure or work
This NWP authorizes the construction, maintenance, repair, and removal of utility lines and
associated facilities, provided those activities have no more than minimal individual and
cumulative adverse environmental effects. These activities satisfy public and private needs
for the conveyance of a variety of substances, as well as communications and information
transfer. The need for this NWP is based upon the number of these activities that occur
annually with only minimal individual and cumulative environmental adverse effects.
5.2.2 Where there are unresolved conflicts as to resource use, the practicability of using
reasonable alternative locations and methods to accomplish the objective of the
proposed structure or work
Most situations in which there are unresolved conflicts concerning resource use arise when
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environmentally sensitive areas are involved (e.g., special aquatic sites, including wetlands)
or where there are competing uses of a resource. The nature and scope of the activity, when
planned and constructed in accordance with the terms and conditions of this NWP, reduce
the likelihood of such conflict. In the event that there is a conflict, the NWP contains
provisions that are capable of resolving the matter (see section 1.2 of this document).
General condition 23 requires permittees to avoid and minimize adverse effects to waters of
the United States to the maximum extent practicable on the project site. Consideration of
off -site alternative locations is not required for activities that are authorized by general
permits. General permits authorize activities that have only minimal individual and
cumulative adverse effects on the environment and the overall public interest. The district
engineer will exercise discretionary authority and require an individual permit if the
proposed activity will result in more than minimal adverse environmental effects on the
project site. The consideration of off -site alternatives can be required during the individual
permit process.
5.2.3 The extent and permanence of the beneficial and/or detrimental effects which the
proposed structure or work is likely to have on the public and private uses to which
the area is suited
The nature and scope of the activities authorized by the NWP will most likely restrict the
extent of the beneficial and detrimental effects to the area immediately surrounding the
utility line activity. Activities authorized by this NWP will result in no more than minimal
individual and cumulative adverse environmental effects.
The terms, conditions, and provisions of the NWP were developed to ensure that individual
and cumulative adverse environmental effects are no more than minimal. Specifically,
NWPs do not obviate the need for the permittee to obtain other Federal, state, or local
authorizations required by law. The NWPs do not grant any property rights or exclusive
privileges (see 33 CFR 330.4(b) for further information). Additional conditions, limitations,
restrictions, and provisions for discretionary authority, as well as the ability to add activity -
specific or regional conditions to this NWP, will provide further safeguards to the aquatic
environment and the overall public interest. There are also provisions to allow suspension,
modification, or revocation of the NWP.
6.0 Endangered Species Act
The Corps' current regulations and procedures for the NWPs result in compliance with
Section 7 of the Endangered Species Act (ESA) and ensure that activities authorized by this
NWP will not jeopardize the continued existence or any listed threatened and endangered
species or result in the destruction or adverse modification of critical habitat. Current local
procedures in Corps districts are effective in ensuring compliance with ESA. Those local
procedures include regional programmatic consultations and the development of Standard
Local Operating Procedures for Endangered Species (SLOPES). The issuance or reissuance
of an NWP, as governed by NWP general condition 18 (which applies to every NWP and
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which relates to endangered and threatened species and critical habitat) and 33 CFR
330.4(f), results in "no effect" to listed species or critical habitat, because no activity that
"may affect" listed species or critical habitat is authorized by NWP unless ESA Section 7
consultation with the U.S. Fish and Wildlife Service (USFWS) and/or National Marine
Fisheries Service (NMFS) has been completed. Activities that do not comply with general
condition 18 or other applicable general or regional conditions are not authorized by any
NWP, and thus fall outside of the NWP Program. Unauthorized activities are subject to the
prohibitions of Section 9 of the ESA.
Each activity authorized by an NWP is subject to general condition 18, which states that
"[n]o activity is authorized under any NWP which is likely to directly or indirectly
jeopardize the continued existence of a threatened or endangered species or a species
proposed for such designation, as identified under the Federal Endangered Species Act
(ESA), or which will directly or indirectly destroy or adversely modify the critical habitat of
such species." In addition, general condition 18 explicitly states that the NWP does not
authorize "take" of threatened or endangered species, which will ensure that permittees do
not mistake the NWP authorization as a Federal authorization to take threatened or
endangered species. General condition 18 also requires a non-federal permittee to 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. This general condition also states that, in such cases, non-
federal permittees shall not begin work on the activity until notified by the district engineer
that the requirements of the ESA have been satisfied and that the activity is authorized.
Under the current Corps regulations (33 CFR 325.2(b)(5)), the district engineer must review
all permit applications for potential impacts on threatened and endangered species or critical
habitat. For the NWP program, this review occurs when the district engineer evaluates the
pre -construction notification or request for verification. Nationwide permit general
condition 18 requires a non-federal applicant to submit a pre -construction notification to the
Corps 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. Based on the
evaluation of all available information, the district engineer will initiate consultation with
the USFWS or NMFS, as appropriate, if he or she determines that the proposed activity may
affect any threatened and endangered species or critical habitat. Consultation may occur
during the NWP authorization process or the district engineer may exercise discretionary
authority to require an individual permit for the proposed activity and initiate section 7
consultation during the individual permit process. If ESA Section 7 consultation is
conducted during the NWP authorization process without the district engineer exercising
discretionary authority, then the applicant will be notified that he or she cannot proceed with
the proposed NWP activity until section 7 consultation is completed.
If the district engineer determines that the proposed NWP activity will have no effect on any
threatened or endangered species or critical habitat, then the district engineer will notify the
applicant that he or she may proceed under the NWP authorization as long as the activity
complies with all other applicable terms and conditions of the NWP, including applicable
regional conditions. When the Corps makes a "no effect" determination, that determination
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is documented in the record for the NWP verification.
In cases where the Corps makes a "may affect" determination, formal or informal Section 7
consultation is conducted before the activity is authorized by NWP. A non-federal permit
applicant cannot begin work until notified by the Corps that the proposed NWP activity will
have "no effect" on listed species or critical habitat, or until ESA Section 7 consultation has
been completed (see also 33 CFR 330.4(f)). Federal permittees are responsible for
complying with ESA section 7(a)(2) and should follow their own procedures for complying
with those requirements (see 33 CFR 330.4(f)(1)). Therefore, permittees cannot rely on
complying with the terms of an NWP without considering ESA -listed species and critical
habitat, and they must comply with the NWP conditions to ensure that they do not violate
the ESA. General condition 18 also states that district engineers may add activity -specific
conditions to the NWPs to address ESA issues as a result of formal or informal consultation
with the USFWS or NMFS.
Each year, the Corps conducts thousands of ESA section 7 consultations with the FWS and
NMFS for activities authorized by NWPs. These section 7 consultations are tracked in
ORM2. During the period of March 19, 2012, to September 30, 2016, Corps districts
conducted 1,402 formal consultations and 9,302 informal consultations for NWP activities
under ESA section 7. During that time period, the Corps also used regional programmatic
consultations for 9,829 NWP verifications to comply with ESA section 7. Therefore, each
year NWP activities are covered by an average of more than 4,500 formal, informal, and
programmatic ESA section 7 consultations with the FWS and/or NMFS. In a study on ESA
section 7 consultations tracked by the USFWS, Malcom and Li (2015) found that during the
period of 2008 to 2015, the Corps conducted the most formal and informal section 7
consultations, far exceeding the numbers of section 7 consultations conducted by other
federal agencies.
Section 7 consultations are often conducted on a case -by -case basis for activities proposed to
be authorized by NWP that may affect listed species or critical habitat, in accordance with
the USFWS's and NMFS's interagency regulations at 50 CFR part 402. Instead of activity -
specific section 7 consultations, compliance with ESA may also be achieved through formal
or informal regional programmatic consultations. Compliance with ESA Section 7 may also
be facilitated through the adoption of NWP regional conditions. In some Corps districts
SLOPES have been developed through consultation with the appropriate regional offices of
the USFWS and NMFS to make the process of complying with section 7 more efficient.
Corps districts have, in most cases, established informal or formal procedures with local
offices of the USFWS and NMFS, through which the agencies share information regarding
threatened and endangered species and their critical habitat. This information helps district
engineers determine if a proposed NWP activity may affect listed species or their critical
habitat and, when a "may effect" determination is made, initiate ESA section 7 consultation.
Corps districts may utilize maps or databases that identify locations of populations of
threatened and endangered species and their critical habitat. Where necessary, regional
conditions are added to one or more NWPs to require pre -construction notification for NWP
activities that occur in known locations of threatened and endangered species or critical
65
habitat. For activities that require agency coordination during the pre -construction
notification process, the USFWS and NMFS will review the proposed activities for potential
impacts to threatened and endangered species and their critical habitat. Any information
provided by local maps and databases and any comments received during the pre -
construction notification review process will be used by the district engineer to make a "no
effect" or "may affect" determination for the pre -construction notification.
Based on the safeguards discussed in this section, especially general condition 18 and the
NWP regulations at 33 CFR 330.4(t), the Corps has determined that the activities authorized
by this NWP will not jeopardize the continued existence of any listed threatened or
endangered species or result in the destruction or adverse modification of designated critical
habitat. Although the Corps continues to believe that these procedures ensure compliance
with the ESA, the Corps has taken some steps to provide further assurance. Corps district
offices meet with local representatives of the USFWS and NMFS to establish or modify
existing procedures such as regional conditions, where necessary, to ensure that the Corps
has the latest information regarding the existence and location of any threatened or
endangered species or their critical habitat. Corps districts can also establish, through local
procedures or other means, additional safeguards that ensure compliance with the ESA.
Through ESA Section 7 formal or informal consultations, or through other coordination with
the USFWS and NMFS, the Corps establishes procedures to ensure that the NWP is not
likely to jeopardize any threatened and endangered species or result in the destruction or
adverse modification of designated critical habitat. Such procedures may result in the
development of regional conditions added to the NWP by the division engineer, or in
conditions to be added to a specific NWP authorization by the district engineer.
If informal section 7 consultation is conducted, and the USFWS and/or NMFS issues a
written concurrence that the proposed activity may affect, but is not likely to adversely
affect, listed species or designated critical habitat, the district engineer will add conditions
(e.g., minimization measures) to the NWP authorization that are necessary to avoid the
likelihood of adverse effects to listed species or designated critical habitat. If the USFWS
and/or NMFS does not issue a written concurrence that the proposed NWP activity "may
affect, but is not likely to adversely affect" listed species or critical habitat, the Corps will
initiate formal section 7 consultation if it changes its determination to "may affect, likely to
adversely affect."
If formal section 7 consultation is conducted and a biological opinion is issued, the district
engineer will add a condition to the NWP authorization to incorporate the appropriate
elements of the incidental take statement of the biological opinion into the NWP
authorization, if the biological opinion concludes that the activity is not likely to jeopardize
the continued existence of listed species or adversely modify or destroy critical habitat. If
the biological opinion concludes that the proposed activity is likely to jeopardize the
continued existence of listed species or adversely modify or destroy critical habitat, the
proposed activity cannot be authorized by NWP and the district engineer will instruct the
applicant to apply for an individual permit. The incidental take statement includes
reasonable and prudent measures such as mitigation, monitoring, and reporting requirements
that minimize incidental take. The appropriate elements of the incidental take statement are
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dependent on those activities in the biological opinion over which the Corps has control and
responsibility (i.e., the discharges of dredged or fill material into waters of the United States
and/or structures or work in navigable waters and their direct and indirect effects on listed
species or critical habitat). The appropriate elements of the incidental take statement are
those reasonable and prudent measures that the Corps has the authority to enforce under its
permitting authorities. Incorporation of the appropriate elements of the incidental take
statement into the NWP authorization by a binding, enforceable permit condition provides
an exemption from the take prohibitions in ESA Section 9 (see Section 7(o)(2) of the ESA).
The Corps can modify this NWP at any time that it is deemed necessary to protect listed
species or their critical habitat, either through: 1) national general conditions or national -
level modifications, suspensions, or revocations of the NWPs; 2) regional conditions or
regional modifications, suspensions, or revocations of NWPs; or 3) activity -specific permit
conditions (modifications) or activity -specific suspensions or revocations of NWP
authorizations. Therefore, although the Corps has issued the NWPs, the Corps can address
any ESA issue, if one should arise. The NWP regulations also allow the Corps to suspend
the use of some or all of the NWPs immediately, if necessary, while considering the need for
permit conditions, modifications, or revocations. These procedures are provided at 33 CFR
330.5.
7.0 Clean Water Act Section 404(b)(1) Guidelines Analysis
The 404(b)(1) Guidelines compliance criteria for general permits are provided at 40 CFR
230.7. This 404(b)(1) Guidelines compliance analysis includes analyses of the direct,
secondary, and cumulative effects on the aquatic environment caused by discharges of
dredged or fill material authorized by this NWP.
7.1 Evaluation Process (40 CFR 230.7(b))
7.1.1 Alternatives (40 CFR 230.10(a))
General condition 23 requires permittees to avoid and minimize discharges of dredged or fill
material into waters of the United States to the maximum extent practicable on the project
site. The consideration of off -site alternatives is not directly applicable to general permits
(see 40 CFR 230.7(b)(1)).
7.1.2 Prohibitions (40 CFR 230.10(b))
This NWP authorizes discharges of dredged or fill material into waters of the United States,
which require water quality certification. Water quality certification requirements will be
met in accordance with the procedures at 33 CFR 330.4(c).
No toxic discharges will be authorized by this NWP. General condition 6 states that the
material must be free from toxic pollutants in toxic amounts.
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This NWP does not authorize activities that jeopardize the continued existence of any listed
threatened or endangered species or result in the destruction or adverse modification of
critical habitat. Reviews of pre -construction notifications, regional conditions, and local
operating procedures for endangered species will ensure compliance with the Endangered
Species Act. Refer to general condition 18 and to 33 CFR 330.4(f) for information and
procedures.
This NWP will not authorize the violation of any requirement to protect any marine
sanctuary. Refer to section 7.2.3(j)(1) of this document for further information.
7A.3 Findings of Significant Degradation (40 CFR 230.10(c))
Potential impact analysis (Subparts C through F): The potential impact analysis specified in
Subparts C through F is discussed in section 7.2.3 of this document. Mitigation required by
the district engineer will ensure that the adverse effects on the aquatic environment are no
more than minimal.
Evaluation and testing (Subpart G): Because the terms and conditions of the NWP specify
the types of discharges that are authorized, as well as those that are prohibited, individual
evaluation and testing for the presence of contaminants will normally not be required. If a
situation warrants, provisions of the NWP allow division or district engineers to further
specify authorized or prohibited discharges and/or require testing. General condition 6
requires that materials used for construction be free from toxic pollutants in toxic amounts.
Based upon Subparts B and G, after consideration of Subparts C through F, the discharges
authorized by this NWP will not cause or contribute to significant degradation of waters of
the United States.
7A.4 Factual determinations (40 CFR 230.11)
The factual determinations required in 40 CFR 230.11 are discussed in section 7.2.3 of this
document.
7.1.5 Appropriate and practicable steps to minimize potential adverse impacts (40 CFR
230.10(d))
As demonstrated by the information in this document, as well as the terms, conditions, and
provisions of this NWP, actions to minimize adverse effects (Subpart H) have been
thoroughly considered and incorporated into the NWP. General condition 23 requires
permittees to avoid and minimize discharges of dredged or fill material into waters of the
United States to the maximum extent practicable on the project site. Compensatory
mitigation may be required by the district engineer to ensure that the net adverse effects on
the aquatic environment are no more than minimal.
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7.2 Evaluation Process (40 CFR 230.7(b))
7.2.1 Description of permitted activities (40 CFR 230.7(b)(2))
As indicated by the text of this NWP in section 1.0 of this document, and the discussion of
potential impacts in section 4.0, the activities authorized by this NWP are sufficiently
similar in nature and environmental impact to warrant authorization under a single general
permit. Specifically, the purpose of the NWP is to authorize discharges of dredged or fill
material into waters of the United States for the construction, maintenance, repair, or
removal of utility lines and associated facilities. The nature and scope of the impacts are
controlled by the terms and conditions of the NWP.
The activities authorized by this NWP are sufficiently similar in nature and environmental
impact to warrant authorization by a general permit. The terms of the NWP authorize a
specific category of activity (i.e., discharges of dredged or fill material for the construction,
maintenance, repair, or removal of utility lines and associated facilities) in a specific
category of waters (i.e., waters of the United States). The terms of the NWP do not authorize
the construction of utility line substations in tidal waters or in non -tidal wetlands adjacent to
tidal waters. The restrictions imposed by the terms and conditions of this NWP will result in
the authorization of activities that have similar impacts on the aquatic environment, namely
the replacement of aquatic habitats, such as certain categories of non -tidal wetlands, with
utility line facilities. Most of the impacts relating to the construction, maintenance, repair, or
removal of utility lines will be temporary.
If a situation arises in which the activity requires further review, or is more appropriately
reviewed under the individual permit process, provisions of the NWPs allow division and/or
district engineers to take such action.
7.2.2 Cumulative effects (40 CFR 230.7(b)(3))
The 404(b)(1) Guidelines at 40 CFR 230.11(a) define cumulative effects as "...the changes
in an aquatic ecosystem that are attributable to the collective effect of a number of individual
discharges of dredged or fill material." For the issuance of general permits, such as this
NWP, the 404(b)(1) Guidelines require the permitting authority to "set forth in writing an
evaluation of the potential individual and cumulative impacts of the categories of activities
to be regulated under the general permit." [40 CFR 230.7(b)] More specifically, the
404(b)(1) Guidelines cumulative effects assessment for the issuance or reissuance of a
general permit is to include an evaluation of "the number of individual discharge activities
likely to be regulated under a general permit until its expiration, including repetitions of
individual discharge activities at a single location." [40 CFR 230.7(b)(3)] If a situation
arises in which cumulative effects are likely to be more than minimal and the proposed
activity requires further review, or is more appropriately reviewed under the individual
permit process, provisions of the NWPs allow division and/or district engineers to take such
action.
Based on reported use of this NWP during the period of March 19, 2012, to March 12, 2015,
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the Corps estimates that this NWP will be used approximately 11,500 times per year on a
national basis, resulting in impacts to approximately 1,700 acres of waters of the United
States, including jurisdictional wetlands. The reported use includes pre -construction
notifications submitted to Corps districts, as required by the terms and conditions of the
NWP as well as regional conditions imposed by division engineers. The reported use also
includes voluntary notifications to submitted to Corps districts where the applicants request
written verification in cases when pre -construction notification is not required. The reported
use does not include activities that do not require pre -construction notification and were not
voluntarily reported to Corps districts. The Corps estimates that 2,500 NWP 12 activities
will occur each year that do not require pre -construction notification, and that these
activities will impact 50 acres of jurisdictional waters each year.
Based on reported use of this NWP during that time period, the Corps estimates that 9
percent of the NWP 12 verifications will require compensatory mitigation to offset the
authorized impacts to waters of the United States and ensure that the authorized activities
result in only minimal adverse effects on the aquatic environment. The verified activities
that do not require compensatory mitigation will have been determined by Corps district
engineers to result in no more than minimal individual and cumulative adverse effects on the
aquatic environment without compensatory mitigation. During 2017-2022, the Corps
expects little change to the percentage of NWP 12 verifications requiring compensatory
mitigation, because there have been no substantial changes in the mitigation general
condition or the NWP regulations for determining when compensatory mitigation is to be
required for NWP activities. The Corps estimates that approximately 300 acres of
compensatory mitigation will be required each year to offset authorized impacts. The
demand for these types of activities could increase or decrease over the five-year duration of
this NWP.
Based on these annual estimates, the Corps estimates that approximately 69,700 activities
could be authorized over a five-year period until this NWP expires, resulting in impacts to
approximately 8,900 acres of waters of the United States, including jurisdictional wetlands.
Approximately 1,500 acres of compensatory mitigation would be required to offset those
impacts. Compensatory mitigation is the restoration (re-establishment or rehabilitation),
establishment, enhancement, and/or in certain circumstances preservation of aquatic
resources for the purposes of offsetting unavoidable adverse impacts which remain after all
appropriate and practicable avoidance and minimization has been achieved. [33 CFR 332.2]
Wetland restoration, enhancement, and establishment projects can provide wetland
functions, as long as the wetland compensatory mitigation project is placed in an appropriate
landscape position, has appropriate hydrology for the desired wetland type, and the
watershed condition will support the desired wetland type (NRC 2001). Site selection is
critical to find a site with appropriate hydrologic conditions and soils to support a
replacement wetland that will provide the desired wetland functions and services (Mitsch
and Gosselink 2015). The ecological performance of wetland restoration, enhancement, and
establishment is dependent on practitioner's understanding of wetland functions, allowing
sufficient time for wetland functions to develop, and allowing natural processes of
ecosystem development (self -design or self -organization) to take place, instead of over -
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designing and over -engineering the replacement wetland (Mitsch and Gosselink (2015).
Most studies of the ecological performance of compensatory mitigation projects have
focused solely on the ecological attributes of the compensatory mitigation projects, and few
studies have also evaluated the aquatic resources impacted by permitted activities
(Kettlewell et al. 2008), so it is difficult to assess whether compensatory mitigation has fully
or partially offset the lost functions provided by the aquatic resources that are impacted by
permitted activities. In its review, the NRC (2001) concluded that some wetland types can
be restored or established (e.g., non -tidal emergent wetlands, some forested and scrub -shrub
wetlands, sea grasses, and coastal marshes), while other wetland types (e.g., vernal pools,
bogs, and fens) are difficult to restore and should be avoided where possible. Restored
riverine and tidal wetlands achieved wetland structure and function more rapidly than
depressional wetlands (Moreno-Mateos et al. 2012). Because of its greater potential to
provide wetland functions, restoration is the preferred compensatory mitigation mechanism
(33 CFR 332.3(a)(2)). Bogs, fens, and springs are considered to be difficult -to -replace
resources and compensatory mitigation should be provided through in -kind rehabilitation,
enhancement, or preservation of these wetlands types (33 CFR 332.3(e)(3)).
In its review of outcomes of wetland compensatory mitigation activities, the NRC (2001)
stated that wetland functions can be replaced by wetland restoration and establishment
activities. They discussed five categories of wetland functions: hydrology, water quality,
maintenance of plant communities, maintenance of animal communities, and soil functions.
Wetland functions develop at different rates in wetland restoration and establishment
projects (NRC 2001). It is difficult to restore or establish natural wetland hydrology, and
water quality functions are likely to be different than the functions provided at wetland
impact sites (NRC 2001). Reestablishing or establishing the desired plant community may
be difficult because of invasive species colonizing the mitigation project site (NRC 2001).
The committee also found that establishing and maintaining animal communities depends on
the surrounding landscape. Soil functions can take a substantial amount of time to develop,
because they are dependent on soil organic matter and other soil properties (NRC 2001). The
NRC (2001) concluded that the ecological performance in replacing wetland functions
depends on the particular function of interest, the restoration or establishment techniques
used, and the extent of degradation of the compensatory mitigation project site and its
watershed.
The ecological performance of wetland restoration and enhancement activities is affected by
the amount of changes to hydrology and inputs of pollutants, nutrients, and sediments within
the watershed or contributing drainage area (Wright et al. 2006). Wetland restoration is
becoming more effective at replacing or improving wetland functions, especially in cases
where monitoring and adaptive management are used to correct deficiencies in these efforts
(Zedler and Kercher 2005). Wetland functions take time to develop after the restoration or
enhancement activity takes place (Mitsch and Gosselink 2015, Gebo and Brooks 2012), and
different functions develop at different rates (Moreno-Mateos 2012). Irreversible changes to
landscapes, especially those that affect hydrology within contributing drainage areas or
watersheds, cause wetland degradation and impede the ecological performance of wetland
restoration efforts (Zedler and Kercher 2005). Gebo and Brooks (2012) evaluated wetland
compensatory mitigation projects in Pennsylvania and compared them to reference standards
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(i.e., the highest functioning wetlands in the study area) and natural reference wetlands that
showed the range of variation due to human disturbances. They concluded that most of the
wetland mitigation sites were functioning at levels within with the range of functionality of
the reference wetlands in the region, and therefore were functioning at levels similar to some
naturally occurring wetlands. The ecological performance of mitigation wetlands is affected
by on the landscape context (e.g., urbanization) of the replacement wetland and varies with
wetland type (e.g., riverine or depressional) (Gebo and Brooks 2012). Moreno-Mateos and
others (2012) conducted a meta -analysis of wetland restoration studies and concluded that
while wetland structure and function can be restored to a large degree, the ecological
performance of wetland restoration projects is dependent on wetland size and local
environmental setting. They found that wetland restoration projects that are larger in size
and in less disturbed landscape settings achieve structure and function more quickly.
Streams are difficult -to -replace resources and compensatory mitigation should be provided
through stream rehabilitation, enhancement, and preservation since those techniques are
most likely to be ecologically successful (see 33 CFR 332.3(e)(3)). Stream rehabilitation is
usually the most effective compensatory mitigation mechanism since restoring a stream to a
historic state is not possible because of changes in land use and other activities in a
watershed (Roni et al. 2008). Stream rehabilitation and enhancement projects, including the
restoration and preservation of riparian areas, provide riverine functions (e.g., Allan and
Castillo (2007) for rivers and streams, NRC (2002) for riparian areas). Improvements in
ecological performance of stream restoration projects is dependent on the restoration method
and how outcomes are assessed (Palmer et al. 2014). Non-structural and structural
techniques can be used to rehabilitate and enhance streams, and restore riparian areas (NRC
1992). Non-structural practices include removing disturbances to allow recovery of stream
and riparian area structure and function, reducing or eliminating activities that have altered
stream flows to restore natural flows, preserving or restoring floodplains, and restoring and
protecting riparian areas, including fencing those areas to exclude livestock and people
(NRC 1992). Structural rehabilitation and enhancement techniques include dam removal, as
well as channel, bank, and/or riparian area modifications to improve river and stream habitat
(NRC 1992).
The restoration and enhancement of river and stream functions and services can be improved
through a variety of techniques and in many cases combinations of these techniques are used
(Roni et al. 2013). Examples of stream restoration and enhancement techniques include:
dam removal and modification, culvert replacement or modification, fish passage structures
when connectivity cannot be restored or improved by dam removal or culvert replacement,
levee removal or setbacks, reconnecting floodplains and other riparian habitats, road
removal, road modifications, reducing sediment and pollution inputs to streams, replacing
impervious surfaces with pervious surfaces, restoring adequate in -stream or base flows,
restoring riparian areas, fencing streams and their riparian areas to exclude livestock,
improving in -stream habitat, recreating meanders, and replacing hard bank stabilization
structures with bioengineering bank stabilization measures (Roni et al. 2013). Road
improvements, riparian rehabilitation, reconnecting floodplains to their rivers, and installing
in -stream habitat structures have had varying degrees of ecological performance in stream
rehabilitation activities (Roni et al. 2008). The ecological performance of these stream
72
rehabilitation activities is strongly dependent on addressing impaired water quality and
insufficient water quantity, since those factors usually limit the biological response to stream
rehabilitation efforts (Roni et al. 2008). Ecologically successful stream rehabilitation and
enhancement activities depend on addressing the factors that most strongly affect stream
functions, especially water quality, water flow, and riparian quality, and not focusing solely
on rehabilitating or enhancing the physical habitat of streams (Palmer et al. 2010). The
ability to restore the ecological functions of streams is dependent on the condition of the
watershed draining to the stream being restored because human land uses and other activities
in the watershed affect how that stream functions (Palmer et al. 2014). Stream restoration
projects should focus on restoring ecological processes, through activities such as dam
removal, watershed best management practices, improving the riparian zone, and
reforestation, instead of focusing on the manipulation the structure of the stream channel
(Palmer et al. 2014).
For compensatory mitigation projects, restoration is the preferred mechanism (see 33 CFR
332.3(a)(2). In an analysis of 89 ecosystem restoration projects, Rey Banayas et al. (2009)
concluded that restoration activities can increase biodiversity and the level of ecosystem
services provided. However, such increases do not approach the amounts of biodiversity and
ecosystem services performed by undisturbed reference sites. The ability to restore
ecosystems to provide levels of functions and services similar to historic conditions or
reference standard conditions is influenced by human impacts to watersheds and other types
of landscapes (e.g., urbanization, agriculture) and to the processes that sustain those
ecosystems (Zedler et al. 2012, Hobbs et al. 2014). Those changes need to be taken into
account when establishing goals and objectives for restoration projects (Zedler et al. 2012),
including compensatory mitigation projects. The ability to reverse ecosystem degradation to
restore ecological functions and services is dependent on the degree of degradation of that
ecosystem and the surrounding landscape, and whether that degradation is reversible (Hobbs
et al. 2014).
As discussed in section 3.0, the status of waters and wetlands in the United States as
reported under the provisions of Sections 303(d) and 305(b) of the Clean Water Act exhibits
considerable variation, ranging from good to threatened to impaired. One of the criteria that
district engineers consider when they evaluate proposed NWP activities is the "degree or
magnitude to which the aquatic resources perform these functions" (see paragraph 1 of
Section D, "District Engineer's Decision." The quality of the affected waters is considered
by district engineers when making decisions on whether to require compensatory mitigation
for proposed NWP activities to ensure no more than minimal adverse environmental effects
(see 33 CFR 330.1(e)(3)), and amount of compensatory mitigation required (see 33 CFR
332.3(t)). The quality of the affected waters also factors into the determination of whether
the required compensatory mitigation offsets the losses of aquatic functions caused by the
NWP activity.
The compensatory mitigation required by district engineers in accordance with general
condition 23 and activity -specific conditions will provide aquatic resource functions and
services to offset some or all of the losses of aquatic resource functions caused by the
activities authorized by this NWP, and reduce the contribution of those activities to the
73
cumulative effects on the Nation's wetlands, streams, and other aquatic resources. The
required compensatory mitigation must be conducted in accordance with the applicable
provisions of 33 CFR part 332, which requires development and implementation of
approved mitigation plans, as well as monitoring to assess ecological success in accordance
with ecological performance standards established for the compensatory mitigation project.
The district engineer will evaluate monitoring reports to determine if the compensatory
mitigation project has fulfilled its objectives and is ecological successful. [33 CFR 332.6] If
the monitoring efforts indicate that the compensatory mitigation project is failing to meet its
objectives, the district engineer may require additional measures, such as adaptive
management or alternative compensatory mitigation, to address the compensatory mitigation
project's deficiencies. [33 CFR 332.7(c)]
According to Dahl (2011), during the period of 2004 to 2009 approximately 489,620 acres
of former upland were converted to wetlands as a result of wetland reestablishment and
establishment activities. Efforts to reestablish or establish wetlands have increased wetland
acreage in the United States.
The individual and cumulative adverse effects on the aquatic environment resulting from the
activities authorized by this NWP will be no more than minimal. The Corps expects that the
convenience and time savings associated with the use of this NWP will encourage applicants
to design their projects within the scope of the NWP, including its limits, rather than request
individual permits for projects that could result in greater adverse impacts to the aquatic
environment. Division and district engineers will restrict or prohibit this NWP on a regional
or case -specific basis if they determine that these activities will result in more than minimal
individual and cumulative adverse effects on the aquatic environment.
7.2.3 Section 404(b)(1) Guidelines Impact Analysis, Subparts C through F
(a) Substrate: Discharges of dredged or fill material into waters of the United States will
alter the substrate of those waters, usually replacing the aquatic area with dry land, and
changing the physical, chemical, and biological characteristics of the substrate. The original
substrate will be removed or covered by other material, such as concrete, asphalt, soil,
gravel, etc. Temporary fills may be placed upon the substrate, but must be removed upon
completion of the activity (see general condition 13). Higher rates of erosion may result
during construction, but general condition 12 requires the use of appropriate measures to
control soil erosion and sediment.
(b) Suspended particulates/turbidity: Depending on the method of construction, soil erosion
and sediment control measures, equipment, composition of the bottom substrate, and wind
and current conditions during construction, fill material placed in open waters will
temporarily increase water turbidity. Pre -construction notification is required for certain
activities authorized by this NWP, which allows the district engineer to review those
activities and ensure that the individual and cumulative adverse effects on the aquatic
environment are no more than minimal. Particulates will be resuspended in the water
column during removal of temporary fills. The turbidity plume will normally be limited to
the immediate vicinity of the disturbance and should dissipate shortly after each phase of the
74
construction activity. General condition 12 requires the permittee to stabilize exposed soils
and other fills, which will reduce turbidity. In many localities, sediment and erosion control
plans are required to minimize the entry of soil into the aquatic environment. NWP
activities cannot create turbidity plumes that smother important spawning areas downstream
(see general condition 3).
(c) Water: Utility line activities can affect some characteristics of water, such as water
clarity, chemical content, dissolved gas concentrations, pH, and temperature. The
construction of utility lines, and utility line substations can change the chemical and physical
characteristics of the waterbody by introducing suspended or dissolved chemical compounds
or sediments into the water. Changes in water quality can affect the species and quantities
of organisms inhabiting the aquatic area. Water quality certification is required for most
activities authorized by this NWP, which will ensure that the activity does not violate
applicable water quality standards. Permittees may be required to implement water quality
management measures to ensure that the authorized activity does not result in more than
minimal degradation of water quality. Stormwater management facilities may be required to
prevent or reduce the input of harmful chemical compounds into the waterbody. The district
engineer may require the establishment and maintenance of riparian areas next to open
waters, such as streams. Riparian areas help improve or maintain water quality, by
removing nutrients, moderating water temperature changes, and trapping sediments.
(d) Current patterns and water circulation: Activities authorized by this NWP may adversely
affect the movement of water in the aquatic environment. Certain utility line activities
authorized by this NWP require pre -construction notification to the district engineer, to
ensure that adverse effects to current patterns and water circulation are no more than
minimal. General condition 9 requires the authorized activity to be designed to withstand
expected high flows and to maintain the course, condition, capacity, and location of open
waters to the maximum extent practicable. General condition 10 requires activities to
comply with applicable FEMA-approved state or local floodplain management
requirements, which will reduce adverse effects to surface water flows.
(e) Normal water level fluctuations: The activities authorized by this NWP will have
negligible adverse effects on normal patterns of water level fluctuations due to tides and
flooding. Most utility lines will have little effect on normal water level fluctuations because
they occupy a small proportion of the land surface or are installed under the surface of the
substrate. General condition 9 requires the permittee to maintain the pre -construction
course, condition, capacity, and location of open waters, to the maximum extent practicable.
To ensure that the NWP does not authorize activities that adversely affect normal flooding
patterns, general condition 10 requires NWP activities to comply with applicable FEMA-
approved state or local floodplain management requirements.
(f) Salinity gradients: The activities authorized by this NWP are unlikely to adversely affect
salinity gradients, unless the utility line activity is associated with an outfall structure that
will release freshwater into marine or estuarine waters, thereby reducing the salinity of those
waters in the vicinity of the outfall structure. These adverse effects will be minimal.
75
(g) Threatened and endangered species: T The NWPs do not authorize activities that will
jeopardize the continued existence of species listed as endangered or threatened under the
Endangered Species Act of 1973, as amended. In addition, the NWPs do not authorize
activities that will destroy or adversely modify critical habitat of those species. See 33 CFR
330.4(f) and paragraph (a) of general condition 18. For NWP activities, compliance with the
Endangered Species Act is discussed in more detail in section 6.0 of this document.
(h) Fish, crustaceans, molluscs, and other aquatic organisms in the food web. Certain
activities authorized by this NWP require pre -construction notification to the district
engineer, which will allow review of those projects to ensure that adverse effects to fish and
other aquatic organisms in the food web are no more than minimal. Fish and other motile
animals will avoid the project site during construction. Sessile or slow -moving animals in
the path of discharges, equipment, and building materials will be destroyed. Some aquatic
animals may be smothered by the placement of fill material. Motile animals will return to
those areas that are temporarily impacted by the activity and restored or allowed to revert
back to preconstruction conditions. Aquatic animals will not return to sites of permanent
fills. Benthic and sessile animals are expected to recolonize sites temporarily impacted by
the activity, after those areas are restored. Activities that alter the riparian zone, especially
floodplains, may adversely affect populations of fish and other aquatic animals, by altering
stream flow, flooding patterns, and surface and groundwater hydrology.
Division and district engineers can place conditions on this NWP to prohibit discharges
during important stages of the life cycles of certain aquatic organisms. Such time of year
restrictions can prevent adverse effects to these aquatic organisms during reproduction and
development periods. General conditions 3 and 5 address protection of spawning areas and
shellfish beds, respectively. General condition 3 states that activities in spawning areas
during spawning seasons must be avoided to the maximum extent practicable. In addition,
general condition 3 also prohibits activities that result in the physical destruction of
important spawning areas. General condition 5 prohibits activities in areas of concentrated
shellfish populations. General condition 9 requires the maintenance of pre -construction
course, condition, capacity, and location of open waters to the maximum extent practicable,
which will help minimize adverse impacts to fish, shellfish, and other aquatic organisms in
the food web.
(i) Other wildlife: Activities authorized by this NWP will result in adverse effects to other
wildlife associated with aquatic ecosystems, such as resident and transient mammals, birds,
reptiles, and amphibians, through the destruction of aquatic habitat, including breeding and
nesting areas, escape cover, travel corridors, and preferred food sources. This NWP does not
authorize activities that jeopardize the continued existence of Federally -listed endangered
and threatened species or result in the destruction or adverse modification of critical habitat.
Compensatory mitigation, including the establishment and maintenance of riparian areas
next to open waters, may be required for activities authorized by this NWP, which will help
offset losses of aquatic habitat for wildlife. General condition 4 states that activities in
breeding areas for migratory birds must be avoided to the maximum extent practicable.
(j) Special aquatic sites: The potential impacts to specific special aquatic sites are discussed
76
below:
(1) Sanctuaries and refuges: The activities authorized by this NWP will have no
more than minimal adverse effects on waters of the United States within sanctuaries or
refuges designated by Federal or state laws or local ordinances. General condition 22
prohibits the use of this NWP to discharge dredged or fill material in NOAA-managed
marine sanctuaries and marine monuments and National Estuarine Research Reserves.
District engineers will exercise discretionary authority and require individual permits for
specific projects in waters of the United States in sanctuaries and refuges if those activities
will result in more than minimal adverse effects on the aquatic environment.
(2) Wetlands: The activities authorized by this NWP will have only minimal adverse
effects on wetlands. District engineers will review pre -construction notifications for certain
activities authorized by this NWP to ensure that the adverse effects on the aquatic
environment are no more than minimal. For some NWP 12 activities, there will be losses of
wetlands in cases where the authorized activity involves permanent fills in jurisdictional
wetlands to convert those areas to dry land. There may also be permanent conversions of
wetlands from forested to scrub -shrub or emergent wetlands in the utility line right-of-way.
Division engineers can regionally condition this NWP to restrict or prohibit its use in certain
high value wetlands. See paragraph (e) of section 5.1 for a more detailed discussion of
impacts to wetlands.
(3) Mud flats: The activities authorized by this NWP will have minor adverse effects
on mud flats. Small portions of mud flats may be destroyed by the installation of utility
lines, but these adverse effects will be no more than minimal. Pre -construction notification
is required for certain activities authorized by this NWP and the pre -construction
notification must include a delineation of special aquatic sites, including mud flats.
(4) Vegetated shallows: The activities authorized by this NWP will have only
minimal adverse effects on vegetated shallows in tidal waters, since only utility lines and
foundations for overhead utility line towers, poles, and anchors can be constructed in tidal
waters that may be inhabited by submerged aquatic vegetation. District engineers will
receive pre -construction notifications for all utility line activities in section 10 waters to
determine if those activities will result in only minimal adverse effects on the aquatic
environment. Division engineers can regionally condition this NWP to restrict or prohibit
its use in non -tidal vegetated shallows. For those NWP activities that require pre -
construction notification, the district engineer will review the proposed activity and may
exercise discretionary authority to require the project proponent to obtain an individual
permit if the activity will result in more than minimal adverse effects on the aquatic
environment.
(5) Coral reefs: The activities authorized by this NWP may affect coral reefs. The
activities authorized by this NWP will have no more than minimal adverse effects on coral
reefs. Pre -construction notification is required for all section 10 activities authorized by this
NWP, so that the district engineer can review each proposed activity and ensure that it
results in minimal adverse environmental effects. If the proposed activity will result in more
77
than minimal adverse effects on the aquatic environment, the district engineer will exercise
discretionary authority to require the project proponent to obtain an individual permit.
(6) Riffle and pool complexes: The activities authorized by this NWP will have no
more than minimal adverse effects on riffle and pool complexes. Division engineers can
regionally condition this NWP to restrict or prohibit its use in riffle and pool complexes.
Pre -construction notification is required for certain utility line activities authorized by this
NWP, which will allow district engineers to review those proposed activities, and if he or
she determines the adverse environmental effects are more than minimal, exercise
discretionary authority to require the project proponent to obtain an individual permit.
(k) Municipal and private water supplies: See paragraph (n) of section 5.1 for a discussion of
potential impacts to water supplies.
(1) Recreational and commercial fisheries, including essential fish habitat: The activities
authorized by this NWP may adversely affect waters of the United States that act as habitat
for populations of economically important fish and shellfish species. Division and district
engineers can condition this NWP to prohibit discharges during important life cycle stages,
such as spawning or development periods, of economically valuable fish and shellfish. All
utility lines requiring section 10 authorization require submission of pre -construction
notifications to the district engineer, which will allow review of each activity in navigable
waters to ensure that adverse effects to economically important fish and shellfish are no
more than minimal. Compliance with general conditions 3 and 5 will ensure that the
authorized activity does not adversely affect important spawning areas or concentrated
shellfish populations. As discussed in paragraph (g) of section 5.1, there are procedures to
help ensure that individual and cumulative impacts to essential fish habitat are no more than
minimal. For example, division and district engineers can impose regional and special
conditions to ensure that activities authorized by this NWP will result in only minimal
adverse effects on essential fish habitat.
(m) Water -related recreation: See paragraph (m) of section 5.1 above.
(n) Aesthetics: See paragraph (c) of section 5.1 above.
(o) Parks, national and historical monuments, national seashores, wilderness areas, research
sites, and similar areas: General condition 22 prohibits the use of this NWP to authorize
discharges of dredged or fill material in designated critical resource waters and adjacent
wetlands, which may be located in parks, national and historical monuments, national
seashores, wilderness areas, and research sites. This NWP can be used to authorize
activities in parks, national and historical monuments, national seashores, wilderness areas,
and research sites if the manager or caretaker wants to conduct activities in waters of the
United States and those activities result in no more than minimal adverse effects on the
aquatic environment. Division engineers can regionally condition the NWP to prohibit its
use in designated areas, such as national wildlife refuges or wilderness areas.
78
8.0 Determinations
8.1 Finding of No Significant Impact
Based on the information in this document, the Corps has determined that the issuance of
this NWP will not have a significant impact on the quality of the human environment.
Therefore, the preparation of an Environmental Impact Statement is not required.
8.2 Public Interest Determination
In accordance with the requirements of 33 CFR 320.4, the Corps has determined, based on
the information in this document, that the issuance of this NWP is not contrary to the public
interest.
8.3 Section 404(b)(1) Guidelines Compliance
This NWP has been evaluated for compliance with the 404(b)(1) Guidelines, including
Subparts C through G. Based on the information in this document, the Corps has
determined that the discharges authorized by this NWP comply with the 404(b)(1)
Guidelines, with the inclusion of appropriate and practicable conditions, including
mitigation, necessary to minimize adverse effects on affected aquatic ecosystems. The
activities authorized by this NWP will result in no more than minimal individual and
cumulative adverse effects on the aquatic environment.
8.4 Section 176(c) of the Clean Air Act General Conformity Rule Review
This NWP has been analyzed for conformity applicability pursuant to regulations
implementing Section 176(c) of the Clean Air Act. It has been determined that the activities
authorized by this permit will not exceed de minimis levels of direct emissions of a criteria
pollutant or its precursors and are exempted by 40 CFR 93.153. Any later indirect emissions
are generally not within the Corps continuing program responsibility and generally cannot
79
be practicably controlled by the Corps. For these reasons, a conformity determination is not
required for this NWP,
FOR THE COMMANDER
Dated: 21 Dec 2016
Donald E. Jackson
Major General, U.S. Army
Deputy Commanding General
for Civil and Emergency Operations
80
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