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  Public Notice for LOP NM-2
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SPA-2016-00034-ABQ - Letter of Permission NM-2

Posted: 5/12/2016

Expiration date:


PROPOSED LETTER OF PERMISSION PROCEDURE UNDER SECTIONS 404 and 401

OF THE CLEAN WATER ACT (33 USC 1344) and SECTION 10 OF THE RIVERS AND HARBORS ACT OF 1899 (33 USC 403)

for EXCAVATION ACTIVITIES

Interested parties are hereby notified that, in accordance with Title 33 Code of Federal Regulations (CFR) Part 325.2(e), published in the Federal Register on November 13, 1986, the Albuquerque District of the U.S. Army Corps of Engineers (Corps) intends to issue a Letter of Permission (LOP) procedure for authorizing the work described herein, within the state of New Mexico. The purpose of this procedure is to expedite Section 404 and Section 10 authorization for the activities described below when they would not pose substantial adverse individual or cumulative impacts on the aquatic environment.  Each LOP issued under this LOP procedure will include the general conditions identified herein by reference and, as appropriate, may include case-specific special conditions  intended to protect the environment, including natural and cultural resources.  Work that does not comply with the terms and conditions of the LOP may require authorization by standard individual permit.  However, compliance with this proposed LOP procedure, including the general conditions, does not guarantee authorization of the work by LOP.  Work or structures that would have unacceptable impacts on the public interest are not authorized.  Activities requiring Department of the Army authorization that are not specifically covered by this LOP are prohibited unless authorized by a separate permit.

LOCATION OF WORK: This LOP procedure shall apply to work in all waters of the U.S., including navigable waters of the U.S., located within the State of New Mexico.

PROPOSED CATEGORIES OF ACTIVITIES: Work authorized by LOP under this procedure is limited to discharges of dredged or fill material associated with excavation activities in waters of the U.S., including navigable waters of the U.S. 

The Categories of Activities that may be authorized by LOP under this procedure are as follows:

Category A: Returning Engineered Projects to Original Design: Excavation activities associated with returning engineered projects or facilities to the original designed or as-built physical characteristics (e.g., depth, width, length, location, configuration, or design flood capacity, etc.).  Note that stormwater management facilities that are determined to be waste treatment systems under 33 CFR 328.3(a)(8) are not waters of the U.S., and maintenance of these waste treatment systems generally does not require a Section 404 permit.

Category B: Removing or Reducing Flood Hazards in Disturbed Watersheds: Removal of sediment and debris that would lower the risk of flood impacts in watersheds damaged by wildfire and other significant disturbances such as flooding. Activities authorized by LOP under this procedure and category include, restoring flow conveyance/channel geometry to pre-flood event dimensions by removing accumulated sediment and debris, associated sloping and minor stabilization of vertical banks to prevent collapse, and temporary access roads associated with the removal activity. Activities are limited to an area of no more than 5 acres of waters of the U.S. and navigable waters of the U.S., unless this limit is waived in writing by the District Engineer. 

Category C: Providing for Protection of Existing Infrastructure: Removal of debris, trash, flood-deposited unrooted woody and herbaceous vegetation, fallen trees, dead trees which are in danger of falling in or across a waterbody, and branches and associated debris which reduces waterbody capacity and would result in accelerated erosion and/or damage to an existing structure. Removal of silt, sand or sediment that obstructs flow in the immediate vicinity of a structure to the approximate dimensions that existed when the structure was built.

Category D: Other Sediment and Debris Removal: Removal of sediment and debris in ephemeral and intermittent streams, that is not associated with an engineered project or facility, or within a disturbed watershed, that is necessary for alleviating flood hazards or other adverse impacts on the aquatic or human environment. 

Category E: Sand, Gravel and Aggregate Mining:  Excavation activities associated with existing sand, gravel, and aggregate mining; or new sand, gravel, and aggregate mining in ephemeral streams that is registered with the State of New Mexico Mining and Minerals Division (MMD) Mine Registration Program and the U.S. Department of Labor, Mine Safety Health Administration (MSHA); and is compliance with all applicable federal, state and local laws and regulations. 

           For the purposes of this LOP procedure, sand, gravel and aggregate mining is defined as operating sand and gravel pits, including dredging for or otherwise extracting sand, gravel, and aggregate; and washing, screening or otherwise preparing sand and gravel.Impacts to waters of the U.S., including wetlands, shall be avoided or minimized through the use of practicable alternatives.  Compensatory mitigation for unavoidable adverse impacts to waters of the U.S. shall be required.   

ACTIVITIES NOT AUTHORIZED: The following activities shall not be authorized by LOP under this procedure:

  • Work that would have substantial adverse individual or cumulative impacts on the aquatic environment or result in a substantial reduction in the reach or impair the flow or circulation of waters of the U.S.,Projects that would sever existing stream connection to a floodplain,

  • Activities that would convert an unmanaged water body into an engineered flood management system,

  • Activities that channelize or re-align a stream channel with an unaltered planform (i.e. are not channelized),

  • Using excavated material to build levees,

  • New sand, gravel and aggregate mining activities in waters of the U.S. and navigable waters of the U.S. other than ephemeral streams, and

  • Channel bed widening that destabilizes stream banks.

WAIVERS REQUIRED: This procedure may not be used to authorize the following activities unless the District Engineer issues a case-specific waiver based upon a written determination that the work would be minor; would not have significant adverse individual or cumulative impacts to waters of the U.S., navigable waters of the U.S., or environmental values; and should encounter no appreciable opposition.  

  • Disposal of material excavated under authority of an LOP into waters of the U.S. and navigable waters of the U.S.Any reduction or increase in pre-construction bankfull width or depth of perennial streams or negatively alter the flood control capacity of perennial streams.

  • Removal of vegetation from within a stream channel except that shallow rooted upland-type vegetation, snags, and woody fire debris may be removed from within the stream channel to mitigate hazards.

  • Category B activities that would result in more than 5 acres of impact in waters of the U.S. and navigable waters of the U.S.

For information regarding application procedures, general conditions, water quality certifications, and other authorizations, see the entire LOP procedure, which is provided as an attachment to this public notice.