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The district engineer may designate, after notice and opportunity for public comment, additional
<br />waters officially designated by a state as having particular environmental or ecological
<br />significance, such as outstanding national resource waters or state natural heritage sites. The
<br />district engineer may also designate additional critical resource waters after notice and
<br />opportunity for public comment.
<br />(a) Discharges of dredged or till material into waters of the United States arc not
<br />authorized by N W is 7, 12, 14, 16, 17, 21, 29, 31, 35, 39, 40, 42, 43, 44, 49, 50, 51, and 52 for
<br />any activity within, or directly affecting, critical resource waters, including wetlands adjacent to
<br />such waters.
<br />(b) For NWPs 3, 8, 10, 13, 15, 18, 19, 22, 23, 25, 27, 28, 30, 33, 34, 36, 37, and 38,
<br />notification is required in accordance with general condition 31, for any activity proposed in the
<br />designated critical resource waters including wetlands adjacent to those waters. The district
<br />engineer may authorize activities tinder these NWPs only after it is determined that the impacts
<br />to the critical resource waters will be no more than minimal.
<br />23. Mitigation. The district engineer will consider the following factors whet}
<br />determining appropriate and practicable mitigation necessary to ensure that adverse effects on
<br />the aquatic environment are minimal:
<br />(a) 7'he activity must be designed and constructed to avoid and minimize adverse effects,
<br />both temporary and permanent, to waters of the United States to the maximum extent practicable
<br />at the prgicct site (i.e., on site).
<br />(b) Mitigation in all its forms (avoiding, minimizing, rcetifying, reducing, or
<br />compensating for resource losses) will be required to the extent necessary to ensure that the
<br />adverse cfl'ccts to the aquatic environment arc minimal.
<br />(c) Compensatory mitigation at a minimum one - for -one ratio will be required liir all
<br />wetland losses that exceed 1 /10 -acre and require prc- construction notification, unless the disvict
<br />engineer determines in writing that either some other form of mitigation would be more
<br />environmentally appropriate or the adverse effects of the proposed activity are minimal, and
<br />provides a project- specific waiver of this requirement. For wetland losses of 1 /I 0 -acre or less
<br />that require pre-construction notification, the district engineer may determine on a case -by -case
<br />basis that compensatory mitigation is required to ensure that the activity results in minimal
<br />adverse effects on the aquatic environment. Compensatory mitigation projects provided to offset
<br />losses ofaquatic resources must comply with the applicable provisions of 33 CFR part 332.
<br />(I) The prospective permittee is responsible for proposing an appropriate compensatory
<br />mitigation option ifcompensatory mitigation is necessary to ensure that the activity results in
<br />minimal adverse effects on the aquatic environment.
<br />(2) Since the likelihood of success is greater and the impacts to potentially valuable
<br />uplands are reduced, wetland restoration should be the first compensatory mitigation option
<br />considered.
<br />(3) If permittee- responsible mitigation is the proposed option, the prospective permittee is
<br />responsible for submitting a mitigation plan. A conceptual or detailed mitigation plan may be
<br />used by the district engineer to make the decision on the NWP verification request, but a Iinal
<br />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 pennittee begins work in waters of the United States,
<br />unless the district engineer determines that prior approval of the final mitigation plan is not
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