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(b) For NWPs 3, 8, 10, 13, 15, 18, 19, 22, 23, 25, 27, 28, 30, 33, 34, 36, 37, and 38, notification is
<br />required in accordance with general condition 31, for any activity proposed in the designated critical
<br />resource waters including wetlands adjacent to those waters. The district engineer may authorize activities
<br />under these N WPs only after it is determined that the impacts to the critical resource waters will be no
<br />more than minimal.
<br />23. Mitigation. The district engineer will consider the following factors when determining appropriate and
<br />practicable mitigation necessary to ensure that adverse effects on the aquatic environment are minimal:
<br />(a) The activity must be designed and constructed to avoid and minimize adverse effects, both
<br />temporary and permanent, to waters of the United States to the maximum extent practicable at the project
<br />site (i.e., on site).
<br />(b) Mitigation in all its forms (avoiding, minimizing, rectifying, reducing, or compensating for
<br />resource losses) will be required to the extent necessary to ensure that the adverse effects to the aquatic
<br />environment are minimal.
<br />(c) Compensatory mitigation at a minimum one -for -one ratio will be required for all wetland losses
<br />that exceed 1/10-acre and require pre -construction notification, unless the district engineer determines in
<br />writing that either some other form of mitigation would be more environmentally appropriate or the
<br />adverse effects of the proposed activity are minimal, and provides a project -specific waiver of this
<br />requirement. For wetland losses of 1/10-acre or less that require pre -construction notification, the district
<br />engineer may determine on a case -by -case basis that compensatory mitigation is required to ensure that
<br />the activity results in minimal adverse effects on the aquatic environment. Compensatory mitigation
<br />projects provided to offset losses of aquatic resources must comply with the applicable provisions of 33
<br />CFR part 332. (1) The prospective permittee is responsible for proposing an appropriate compensatory
<br />mitigation option if compensatory mitigation is necessary to ensure that the activity results in minimal
<br />adverse effects on the aquatic environment. (2) Since the likelihood of success is greater and the impacts
<br />to potentially valuable uplands are reduced, wetland restoration should be the first compensatory
<br />mitigation option considered. (3) if permittee-responsible mitigation is the proposed option, the
<br />prospective permittee is responsible for submitting a mitigation plan. A conceptual or detailed mitigation
<br />plan may be used by the district engineer to make the decision on the NWP verification request, but a
<br />final mitigation plan that addresses the applicable requirements of 33 CFR 332.4(c)(2) — (14) must be
<br />approved by the district engineer before the permittee begins work in waters of the United States, unless
<br />the district engineer determines that prior approval of the final mitigation plan is not practicable or not
<br />necessary to ensure timely completion of the required compensatory mitigation (see 33 CFR 332.3(k)(3)).
<br />(4) If mitigation bank or in -lieu fee program credits are the proposed option, the mitigation plan only
<br />needs to address the baseline conditions at the impact site and the member of credits to be provided.
<br />(5) Compensatory mitigation requirements (e.g., resource type and amount to be provided as
<br />compensatory mitigation, site protection, ecological performance standards, monitoring requirements)
<br />may be addressed through conditions added to the NWP authorization, instead of components of a
<br />compensatory mitigation plan.
<br />(d) For losses of streams or other open waters that require pre -construction notification, the district
<br />engineer may require compensatory mitigation, such as stream rehabilitation, enhancement, or
<br />preservation, to ensure that the activity results in minimal adverse effects on the aquatic environment.
<br />(e) Compensatory mitigation will not be used to increase the acreage losses allowed by the acreage
<br />limits of the NWPs. For example, if an NWP has an acreage limit of 1/2-acre, it cannot be used to
<br />authorize any project resulting in the loss of greater than 1/2-acre of waters of the United States, even if
<br />compensatory mitigation is provided that replaces or restores some of the lost waters. However,
<br />compensatory mitigation can and should be used, as necessary, to ensure that a project already meeting
<br />the established acreage limits also satisfies the minimal impact requirement associated with the NWPs.
<br />(f) Compensatory mitigation, plans for projects in or near streams or other open waters will normally
<br />include a requirement for the restoration or establishment, maintenance, and legal protection (e.g.,
<br />conservation easements) of riparian areas next to open waters. In some cases, riparian areas may be the
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