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FINAL LETTER OF PERMISSION PROCEDURE UNDER SECTIONS 404 and 401OF THE CLEAN WATER ACT (33 USC 1344) and SECTION 10 OF THE RIVERS AND HARBORS ACT OF 1899 (33 USC 403) for EXCAVATION ACTIVITIES

Posted: 9/12/2016

Expiration date:


Action No.:

SPA-2016-00034-ABQ

Action Title:

Letter of Permission NM-2

Applicable Area:

State of New Mexico

Effective Date:

September 12, 2016

 

 

 

 

 

FINAL 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) has issued 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 designated navigable waters, 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 designated navigable waters.   

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 designated navigable waters, 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. Mine must be 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 designated navigable waters 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., designated navigable waters, 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 designated navigable waters.
  • 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 designated navigable waters. 
APPLICATION PROCEDURES: An application for authorization of work under this LOP procedure must include: a written description of the entire project as described below; proposed work schedule; photos of the proposed project area; and name, address, telephone number, and electronic mail address, if available, of the applicant.  The information may be submitted on an Application for Department of the Army Permit form (ENG Form 4345) or in any other form convenient to the applicant.  The description of the project must include at least the following information, as applicable:   

1. A vicinity map showing the location of all excavation activities within the entire project, including all disposal sites; 

2. Plan, profile, and typical cross-section views of the proposed work; 

3. A description of the dimensions (length, width and depth) of the activity area; type, amount, and composition of the material to be removed, or used as temporary fill; type of equipment to be used; and location of all permanent and temporary fills and excavations that would be located in designated navigable waters and waters of the U.S., including adjacent wetlands.  This information can be submitted in spreadsheet format and must identify the total permanent and temporary impacts of the project. A description (e.g., location information, site type, etc) of each disposal site shall also be included; 

4. If potential wetlands are in or adjacent to the proposed project area, a wetland delineation utilizing the appropriate Corps Wetland Delineation Regional Supplemental Guidance shall be performed and submitted with the application; 

5. A statement disclosing whether or not any cultural resources protected under the National Historic Preservation Act might be affected by, or found in the vicinity of, the proposed project;  

6. A statement disclosing whether or not any species listed as threatened or endangered under the Endangered Species Act might be affected by, or found in the vicinity of, the proposed project.  Direct coordination with the U.S. Fish and Wildlife Service (USFWS) concerning the potential impact of the entire project on threatened and endangered species is strongly encouraged; 

7. An explanation describing how impacts to waters of the U.S. are being avoided and minimized on the project site.  Also provide a description of how impacts to waters of the U.S. will be compensated for (see http://www.spa.usace.army.mil/Missions/RegulatoryProgramandPermits/Mitigation.aspx for information on compensatory mitigation), or an explanation of why compensatory mitigation should not be required for those impacts; 

8. In cases where the applicant is seeking a waiver from the District Engineer in accordance with the terms of this procedure, the application shall include a written request for a waiver(s) and documentation that the proposed work would be minor; would not have significant individual or cumulative impacts to waters of the U.S., designated navigable waters, or environmental values; and should encounter no appreciable opposition; and 

9. Additional application materials may be required depending on which Category of Activities the applicant is seeking authorization under.  See General Conditions for more information about specific application material requirements.

These application procedures may also be used for work proposed in designated navigable waters under Section 10 of the Rivers and Harbors Act of 1899.

GENERAL CONDITIONS: In addition to limitations discussed in the Proposed Categories of Activities, projects authorized by LOP under this procedure are subject to the general conditions. Please see the entire Public Notice/Letter of Permission for details (attached):