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from the State Historic Preservation Officer or Tribal Historic Preservation Officer, as appropriate, and
<br />the National Register of Historic Places (see 33 CFR 330.4(g)). When reviewing pre -construction
<br />notifications, district engineers will comply with the current procedures for addressing the requirements
<br />of Section 106 of the National Historic Preservation Act. The district engineer shall make a reasonable
<br />and good faith effort to carry out appropriate identification efforts, which may include background
<br />research, consultation, oral history interviews, sample field investigation, and field survey. Based on the
<br />information submitted and these efforts, the district engineer shall determine whether the proposed
<br />activity has the potential to cause an effect on the historic properties. Where the non -Federal applicant has
<br />identified historic properties on which the activity may have the potential to cause effects and so notified
<br />the Corps, the non -Federal applicant shall not begin the activity until notified by the district engineer
<br />either that the activity has no potential to cause effects or that consultation under Section 106 of the
<br />NHPA has been completed.
<br />(d) The district engineer will notify the prospective permittee within 45 days of receipt of a complete
<br />pre -construction notification whether NHPA Section 106 consultation is required. Section 106
<br />consultation is not required when the Corps determines that the activity does not have the potential to
<br />cause effects on historic properties (see 36 CFR §800.3(a)). if NHPA section 106 consultation is required
<br />and will occur, the district engineer will notify the non -Federal applicant that he or she cannot begin work
<br />until Section 106 consultation is completed. If the non -Federal applicant has not heard back from the
<br />Corps Within 45 days, the applicant must still wait for notification from the Corps.
<br />(e) Prospective permittees should be aware that section 110k of the NHPA (16 U.S.C. 470h-2(k))
<br />prevents the Corps from granting a permit or other assistance to an applicant who, with intent to avoid the
<br />requirements of Section 106 of the NHPA, has intentionally significantly adversely affected a historic
<br />property to which the permit would relate, or having legal power to prevent it, allowed such significant
<br />adverse effect to occur, unless the Corps, after consultation with the Advisory Council on Historic
<br />Preservation (ACHP), determines that circumstances justify granting such assistance despite the adverse
<br />effect created or permitted by the applicant. If circumstances justify granting the assistance, the Corps is
<br />required to notify the ACHP and provide documentation specifying the circumstances, the degree of
<br />damage to the integrity of any historic properties affected, and proposed mitigation. This documentation
<br />must include any views obtained from the applicant, SHPO/THPO, appropriate Indian tribes if the
<br />undertaking occurs on or affects historic properties on tribal lands or affects properties of interest to those
<br />tribes, and other parties known to have a legitimate interest in the impacts to the permitted activity on
<br />historic properties.
<br />21. Discovery of Previously Unknown Remains and Artifacts. If you discover any previously unknown
<br />historic, cultural or archeological remains and artifacts while accomplishing the activity authorized by this
<br />permit, you must immediately notify the district engineer of what you have found, and to the maximum
<br />extent practicable, avoid construction activities that may affect the remains and artifacts until the required
<br />coordination has been completed. The district engineer will initiate the Federal, Tribal and state
<br />coordination required to determine if the items or remains warrant a recovery effort or if the site is
<br />eligible for listing in the National Register of Historic Places.
<br />22. Designated Critical Resource Waters. Critical resource waters include, NOAA managed marine
<br />sanctuaries and marine monuments, and National Estuarine Research Reserves. The district engineer may
<br />designate, after notice and opportunity for public comment, additional waters officially designated by a
<br />state as having particular environmental or ecological significance, such as outstanding national resource
<br />waters or state natural heritage sites. The district engineer may also designate additional critical resource
<br />waters after notice and opportunity for public comment.
<br />(a) Discharges of dredged or fill material into waters of the United States are not authorized by NWPs
<br />7, 12, 14, 16, 17, 21, 29, 31, 35, 39, 40, 42, 43, 44, 49, 50, 51, and 52 for any activity within, or directly
<br />affecting, critical resource waters, including wetlands adjacent to such waters.
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