2012 Nationwide Permit Reissuance

1. Antal Szijj Senior Project Manager Los Angeles District July 21, 2011 2012 Nationwide Permit Reissuance

2. Corps Nationwide Permit Program • Type of General Permit issued at the national level every 5 years • Current (2007) NWPs set to expire March 18, 2012 • 50 specific categories of activities that are similar in nature and typically result in minimal impacts • Examples include minor road xings, utility lines, minor bank stabilization, small development projects, etc • Provides streamlined review process • May be conditioned to require additional minimization measures and/or mitigation to ensure minimal impacts

3. 2012 NWP Proposed Rule • Federal Register notice published February 16, 2011 for 60-day comment period • Public Notices circulated by each Corps district concurrently announcing proposed rule and soliciting comments on proposed regional conditions • Coordination with federally recognized tribes also initiated • 401 and CZMA Certification by states requested

4. Changes to NWP Activities • NWP A (new): Land-Based Renewable Energy Generation Facilities • Covers new construction, as well as modification or expansion of existing facilities (e.g. solar, wind, geothermal) • 0.5-acre threshold, including attendant facilities (roads, etc) • 300-linear-foot threshold (can be waived in intermittent and ephemeral drainages) • Non-tidal waters only • NWP B (new): Water-Based Renewable Energy Generation Facilities • New construction and expansion/modification of existing facilities (e.g. hydrokinetic, off-shore wind) • 0.5-acre & 300-linear-foot thresholds • May be used in tidal waters

5. Changes to NWP Activities • NWP 13 (Bank Stabilization) • Modified to exclude projects with >1 c.y. per foot below OWHM unless bioengineering techniques applied (currently allowed with waiver by Corps) • Added language to include temp structures and fills associated with construction • NWP 20 (Response Operations for Oil and Hazardous Substances) • Broader range of activities covered • NWP 21 (Surface Coal Mining) • 3 options under consideration

6. Changes to NWP Activities • NWP 27 (Aquatic Habitat Restoration) • Added removal of small dams • NWP 31 (Maintenance of Flood Control Facilities) • Added vegetation removal from levees • NWP 37 (Emergency Watershed Protection) • Notification requirement may be waived in circumstances with unacceptable hazard to life, significant property loss, or economic hardship • NWP 43 (Stormwater Mgmt Facilities) • Added “low impact development stormwater features” to list of activities

7. Changes to NWP Activities • NWP 44 (Mining Activities) • Added restriction limiting to 300 linear feet of streambed (can be waived on ephemeral/intermittent drainages) • NWP 47 (Pipeline Safety Inspection/Maintenance) • Proposed for deletion • Developed in anticipation of a USDOT inspection program that never materialized • NWP 48 (Existing Commercial Shellfish Aquaculture Activities) • Modified to include expansion of existing operations • No Aquatic Nuisance Species (defined)

8. Changes to General Conditions • General Condition 2 (Aquatic Life Movements) • Includes new language requiring the use of bottomless arch culverts where practicable • General Condition 14 (Discovery of Previously Unknown Remains or Artifacts) • Identical to general condition language of all Standard Individual Permits (SIP) • Permittees must notify Corps if remains/artifacts discovered during construction and cease work that may impact such resources until required coordination completed

9. Changes to General Conditions • General Condition 19 (Endangered Species) • Added language clarifying both direct and indirect effects are considered in determining whether an action will result in jeopardy/adverse modification • General Condition 22 (Mitigation) • Added language clarifying that permittee-responsible mitigation may be more appropriate impacts to marine/estuarine resources • Special conditions must clearly indicate responsible party for implementation, performance and long-term management of any permittee-responsible mitigation

10. Changes to General Conditions • General Condition 30 (Notification) • Impacting >1,000 linear feet of streambed requires the Corps to solicit comments from other Fed/State agencies for NWP 21, 29, 39, 40, 42, 43, 44, 50, A & B • 10 calendar days to indicate if they will comment, 15 additional days to provide comments • Agency coordination previously only if impacts >0.5 acre • More specific considerations required for determining whether to waive linear foot limitations on applicable NWPs • Direct/indirect effects, functions performed and extent/permanence of loss, watershed considerations, mitigation proposed, etc.

11. LA District Proposed Regional Conditions • Added to ensure implementation of the NWP program within Los Angeles District will have minimal adverse effects on the aquatic environment, both individually and cumulatively • Several new regional conditions proposed, some existing conditions would be modified • Includes 7 statewide regional conditions shared with Sacramento and San Francisco Districts (marked with *)

12. Proposed Regional Conditions • Regional Condition 1* (road crossings) • Requires road crossings employ a design that ensures passage/spawning of any federally listed fish species is not hindered • Amends existing RC which currently applies only to steelhead trout • Regional Condition 2 (desert SACs) • Prohibits use of 25 NWPs in CA desert regions and all of AZ for activities that would cause a loss of special aquatic sites • “Sanctuaries and refuges” ok • CA deserts defined by USGS HUC accounting units • Applies only discharges that result in a “loss” as defined in NWP program (i.e. permanent loss of function)

13. Proposed Regional Conditions • Regional Condition 3* (Additional information requirements for all Pre-Construction Notifications) • Written statement regarding avoidance and minimization measures • In LA District, must comply with our map and drawing standards (described on our website and in previously issued special PN) • Color photos of pre-project site conditions including all waters proposed to be impacted

14. Proposed Regional Conditions • Regional Condition 4 (Submission of a PCN required for…) • All perennial waterbodies and special aquatic sites in CA desert regions (same as defined in RC 2) and State of AZ • All areas designated as Essential Fish Habitat (EFH)—must also include EFH assessment. • All watersheds within the Santa Monica Mountains • All areas in the Santa Clara River Watershed • Regional Condition 5 (Vernal pools) • No NWP may be used to authorize discharges of fill into jurisdictional vernal pools • Proposed change to allow NWPs for restoration, enhancement, scientific study (must submit PCN)

15. Proposed Regional Conditions • Regional Condition 6 (Murrieta and Temecula Creek watersheds) • Restricts use of NWPs 29, 39, 42 and 43 to authorize new permanent fills in perennial and intermittent watercourses • No more than 0.1 acre loss in ephemeral watercourses • No change from existing regional condition • Regional Condition 7 (restrictions in SLO and Santa Barbara counties) • SIP required for new bank stabilization projects in SLO, Santa Rosa, Gaviota, Mission and Carpinteria Creeks • 404 Letter of Permission may be used in SLO

16. Proposed Regional Conditions • Regional Condition 8 (Orange County SAMPs) • Revokes the use of 24 NWPs in San Diego Creek Watershed and San Juan Creek/Western San Mateo Creek Watersheds • Projects would be authorized under Regional General Permits and/or 404 Letters of Permission developed for the SAMPs

17. Proposed Regional Conditions • Regional Condition 9* (linear foot waivers) • Applies to NWPs 13, 29, 39, 40 and 42 (may add 43, A and B) • Requires applicants to provide detailed information justifying any request to waive linear foot requirements on above NWPs in intermittent/ephemeral waters • Narrative description of stream (habitat, condition, hydrologic characteristics), analysis of proposed impacts, avoidance/mitigation measures

18. Proposed Regional Conditions • Regional Condition 10* (timing of mitigation) • Requires compensatory mitigation be implemented before or concurrent with construction unless Corps determines to be impracticable • Bank/In-lieu fee payment before construction • Regional Condition 11* (inspection by Corps staff) • Requires permittees to allow Corps staff to inspect sites • Language identical to general conditions of all SIPs • Typically done with prior arrangement--does not authorize staff to trespass • Regional Condition 12* (archaeo/historic remains) • Same as new GC—will likely be dropped

19. Proposed Regional Conditions • Regional Condition 13 (303(d) listed waters) • Requires PCN for use of NWP 29, 39, 42 and 44 in any impaired waterbody (State 303(d) listed water) • Goal is to ensure impairments are not exacerbated by mining and development projects • Regional Condition 14* (non-Corps lead federal agency requirements) • Clarifies that where another agency acts as lead federal agency under NEPA, they shall provide documentation demonstrating compliance with ESA, EFH, and NHPA

20. Next Steps • 3 CA Districts continuing efforts to have more NWPs pre-certified by the State Water Resources Control Board under 401 • August 2011 draft final rule to OMB for vetting • December 2011 final rule published in Federal Register • Districts finalize Regional Conditions and prepare supplemental decision documents for each NWP and RC • States have 90 days to issue or deny certification under 401/CZMA

21. Next Steps • March 2011 new NWPs go into effect • PN will be issued announcing Final NWPs and Regional Conditions • Grandfathering of authorizations under 2007 NWP Program • Must be under construction or under contract to construct by March 18, 2012 • Authorized work must be completed by March 18, 2013 (upland work may continue past this date)

22. Questions?