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19. Designated Critical Resource Waters. Critical resource waters include,
<br />NOAH- designated marine sanctuaries, National Estuarine Research Reserves, state
<br />natural heritage sites, and outstanding national resource waters or other waters officially
<br />designated by a state as having particular environmental or ecological significance and
<br />identified by the district engineer after notice and opportunity for public comment. The
<br />district engineer may also designate additional critical resource waters after notice and
<br />opportunity for comment.
<br />(a) Discharges of dredged or fill material into waters of the United States are not
<br />authorized by NWPs 7, 12, 14, 16, 17, 2l, 29, 31, 35, 39, 40, 42, 43, 44, 49, and 50 for
<br />any activity within, or directly affecting, critical resource waters, including wetlands
<br />adjacent to such waters.
<br />(b) For NWPs 3, 8, 10, 13, 15, 18, 19, 22, 23, 25, 27, 28, 30, 33, 34, 36, 37, and
<br />38, notification is required in accordance with general condition 27, for any activity
<br />proposed in the designated critical resource waters including wetlands adjacent to those
<br />waters. The district engineer may authorize activities under these NWPs only after it is
<br />determined that the impacts to the critical resource waters will be no more than minimal.
<br />20. Mitigation. The district engineer will consider the following factors when
<br />determining appropriate and practicable mitigation necessary to ensure that adverse
<br />effects on the aquatic environment are minimal:
<br />(a) The activity must be designed and constructed to avoid and minimize adverse
<br />effects, both temporary and permanent, to waters of the United States to the maximum
<br />extent practicable at the project site (i.e., on site).
<br />(b) Mitigation in all its forms (avoiding, minimizing, rectifying, reducing, or
<br />compensating) will be required to the extent necessary to ensure that the adverse effects
<br />to the aquatic environment are minimal.
<br />(c) Compensatory mitigation at a minimum one - for -one ratio will be required for
<br />all wetland losses that exceed 1 /10 acre and require pre- construction notification, unless
<br />the district engineer determines in writing that some other form of mitigation would be
<br />more environmentally appropriate and provides a project - specific waiver of this
<br />requirement. For wetland losses of 1 /10 acre or less that require pre - construction
<br />notification, the district engineer may determine on a case -by -case basis that
<br />compensatory mitigation is required to ensure that the activity results in minimal adverse
<br />effects on the aquatic environment. Since the likelihood of success is greater and the
<br />impacts to potentially valuable uplands are reduced, wetland restoration should be the
<br />first compensatory mitigation option considered.
<br />(d) For losses of streams or other open waters that require pre - construction
<br />notification, the district engineer may require compensatory mitigation, such as stream
<br />restoration, to ensure that the activity results in minimal adverse effects on the aquatic
<br />environment.
<br />(e) Compensatory mitigation will not be used to increase the acreage losses
<br />allowed by the acreage limits of the NWPs. For example, if an NWP has an acreage limit
<br />of 1/2 acre, it cannot be used to authorize any project resulting in the loss of greater than
<br />1/2 acre of waters of the United States, even if compensatory mitigation is provided that
<br />replaces or restores some of the lost waters. However, compensatory mitigation can and
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