10184 Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Notices 

DEPARTMENT OF DEFENSE 

Department of the Army, Corps of 

Engineers 

RIN 0710–AA71 

Reissuance of Nationwide Permits 

AGENCY: Army Corps of Engineers, DoD. 

ACTION: Final notice. 

SUMMARY: The U.S. Army Corps of 

Engineers (Corps) is reissuing 48 of the 

49 existing nationwide permits (NWPs), 

general conditions, and definitions, 

with some modifications. The Corps is 

also issuing two new NWPs, three new 

general conditions, and three new 

definitions. The effective date for the 

new and reissued NWPs will be March 

19, 2012. These NWPs will expire on 

March 18, 2017. The NWPs will protect 

the aquatic environment and the public 

interest while effectively authorizing 

activities that have minimal individual 

and cumulative adverse effects on the 

aquatic environment. 

DATES: The NWPs and general 

conditions will become effective on 

March 19, 2012. 

ADDRESSES: U.S. Army Corps of 

Engineers, Attn: CECW–CO–R, 441 G 

Street NW., Washington, DC 20314– 

1000. 

FOR FURTHER INFORMATION CONTACT: Mr. 

David Olson at 202–761–4922 or by 

email at david.b.olson@usace.army.mil 

or access the U.S. Army Corps of 

Engineers Regulatory Home Page at 

http://www.usace.army.mil/CECW/ 

Pages/cecwo_reg.aspx. 

SUPPLEMENTARY INFORMATION: 

Executive Summary 

The U.S. Army Corps of Engineers 

(Corps) issues nationwide permits 

(NWPs) to authorize certain activities 

that require Department of the Army 

permits under Section 404 of the Clean 

Water Act and/or Section 10 of the 

Rivers and Harbors Act of 1899. The 

purpose of this regulatory action is to 

reissue 48 existing NWPs and issue two 

new NWPs. In addition, three new 

general conditions and three new 

definitions will be issued. The NWPs 

may be issued for a period of no more 

than five years. Therefore, the Corps 

must reissue the NWPs every five years 

to continue to authorize these activities. 

These 50 NWPs will go into effect on 

March 19, 2012. 

The NWPs authorize activities that 

have minimal individual and 

cumulative adverse effects on the 

aquatic environment. The NWPs 

authorize a variety of activities, such as 

aids to navigation, utility lines, bank 

stabilization activities, road crossings, 

stream and wetland restoration 

activities, residential developments, 

mining activities, commercial shellfish 

aquaculture activities, and agricultural 

activities. Some NWP activities may 

proceed without notifying the Corps, as 

long as those activities satisfy the terms 

and conditions of the NWPs. Other 

NWP activities cannot proceed until the 

project proponent has submitted a preconstruction notification to the Corps, 

and for most NWPs the Corps has 45 

days to notify the project proponent 

whether the activity is authorized by 

NWP. 

Background 

In the February 16, 2011, issue of the 

Federal Register (76 FR 9174), the U.S. 

Army Corps of Engineers (Corps) 

published its proposal to reissue 48 

existing nationwide permits (NWPs), 

issue two new NWPs, and not reissue 

one NWP. The Corps also proposed to 

reissue its general conditions and add 

two new general conditions. 

After evaluating the comments 

received in response to the February 16, 

2011, proposal, we have made a number 

of changes to the NWPs, general 

conditions, and definitions to further 

clarify the permits, general conditions, 

and definitions, facilitate their 

administration, and strengthen 

environmental protection. Examples of 

improved environmental protection 

include: imposing limits on surface coal 

mining activities authorized by NWP 21; 

modifying NWP 27 to authorize 

additional aquatic resource restoration 

and enhancement activities such as the 

rehabilitation and enhancement of tidal 

streams, wetlands, and open waters; and 

providing flexibility in designing 

crossings of streams and other 

waterbodies so that movements of 

aquatic species can be maintained after 

taking into account the characteristics of 

the stream or waterbody and the 

surrounding landscape (see general 

condition 2, aquatic life movements). 

These changes are discussed in the 

preamble. 

The Corps is reissuing 48 existing 

NWPs, issuing two new NWPs, 

reissuing 28 existing general conditions, 

and issuing three new general 

conditions. The Corps is also reissuing 

all of the NWP definitions, and adding 

three new definitions. The Corps is also 

splitting one existing definition into two 

definitions as they relate to single and 

complete projects. The effective date for 

these NWPs, general conditions, and 

definitions is March 19, 2012. These 

NWPs, general conditions, and 

definitions expire on March 18, 2017. 

Grandfather Provision for Expiring 

NWPs 

In accordance with 33 CFR part 

330.6(b), activities authorized by the 

current NWPs issued on March 12, 

2007, that have commenced or are 

under contract to commence by March 

18, 2012, will have until March 18, 

2013, to complete the activity under the 

terms and conditions of the current 

NWPs. Nationwide permit 21 activities 

that were authorized by the 2007 NWP 

21 may be reauthorized without 

applying the new limits imposed on 

NWP 21, provided the permittee 

submits a written request for 

reauthorization to the district engineer 

by February 1, 2013, and the district 

engineer determines that the on-going 

surface coal mining activity will result 

in minimal adverse effects on the 

aquatic environment and notifies the 

permittee in writing that the activity is 

authorized under the 2012 NWP 21. 

Clean Water Act Section 401 Water 

Quality Certifications (WQC) and 

Coastal Zone Management Act (CZMA) 

Consistency Determinations 

The NWPs issued today will become 

effective on March 19, 2012. This 

Federal Register notice begins the 60- 

day Clean Water Act Section 401 water 

quality certification (WQC) and the 90- 

day Coastal Zone Management Act 

(CZMA) consistency determination 

processes. 

After the 60-day period, the latest 

version of any written position taken by 

a state, Indian tribe, or EPA on its WQC 

for any of the NWPs will be accepted as 

the state’s, Indian tribe’s, or EPA’s final 

position on those NWPs. If the state, 

Indian tribe, or EPA takes no action by 

April 23, 2012, WQC will be considered 

waived for those NWPs. 

After the 90-day period, the latest 

version of any written position taken by 

a state on its CZMA consistency 

determination for any of the NWPs will 

be accepted as the state’s final position 

on those NWPs. If the state takes no 

action by May 21, 2012, CZMA 

concurrence will be presumed for those 

NWPs. 

While the states, Indian Tribes, and 

EPA complete their WQC processes and 

the states complete their CZMA 

consistency determination processes, 

the use of an NWP to authorize a 

discharge into waters of the United 

States is contingent upon obtaining 

individual water quality certification or 

a case-specific WQC waiver. Likewise, 

the use of an NWP to authorize an 

activity within a state’s coastal zone, or 

outside a state’s coastal zone that will 

affect land or water uses or natural 


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resources of that state’s coastal zone, is 

contingent upon obtaining an individual 

CZMA consistency determination, or a 

case-specific presumption of CZMA 

concurrence. We are taking this 

approach to reduce the hardships on the 

regulated public that would be caused 

by a substantial gap in NWP coverage if 

we were to wait until the WQC 60-day 

period and the CZMA 90-day period 

ended before these NWPs would 

become effective. 

Discussion of Public Comments 

I. Overview 

In response to the February 16, 2011, 

Federal Register notice, we received 

more than 26,600 comment letters, of 

which approximately 26,300 were form 

letters pertaining to NWP 21. The nonform letters we received contained a few 

thousand comments on various 

components of the NWPs and NWP 

Program implementation. We reviewed 

and fully considered all comments 

received in response to the proposed 

rule. 

General Comments 

Many commenters expressed support 

for the proposed permits. Some 

commenters stated that the changes are 

a step forward in improving consistency 

in the NWP program. Many commenters 

endorsed the fundamentals of the NWP 

program, stating that the permits could 

have a beneficial impact to conducting 

infrastructure and mining projects 

important to the country. Some stated 

that permitting delays and an increase 

in individual permits would result 

without the NWP program, creating a 

backlog for the Corps and resource 

agencies, while placing a burden on 

regulated industries. Another 

commenter urged the Corps to increase 

flexibility to allow for project 

modifications when needed due to 

unanticipated challenges encountered 

during construction. Some commenters 

stated that further streamlining is 

needed for increased efficiency and 

reducing administrative burden while 

maintaining a high level of 

environmental protection. One 

commenter said the Corps should 

maximize rather than limit use of the 

NWP program in light of the current 

economic situation, Federal budget cuts, 

and presidential efforts to streamline 

regulations. Another commenter was 

pleased to see the Corps hold the line 

against further restrictions on the NWP 

program. Many commenters emphasized 

that a timely, efficient, and consistent 

permitting system is critical to the 

nation’s economy. 

The NWP Program provides flexibility 

to readily authorize project 

modifications if the NWP activity 

cannot be constructed in accordance 

with the approved plans, as long as any 

modifications would still meet the terms 

and conditions of applicable NWP(s) 

and qualify for NWP authorization. In 

cases where the district engineer has 

issued an NWP verification letter, the 

permittee should contact the district as 

soon as he or she finds that the activity 

cannot be constructed in accordance 

with the approved plans. The district 

engineer will then determine if 

authorization by NWP is still 

appropriate. If it is not, then the 

permittee will be instructed on the most 

appropriate mechanism for permitting 

the modified activity. 

We believe the final permits issued 

today maintain a proper balance 

between efficiently authorizing 

activities with minimal individual and 

cumulative adverse environmental 

effects and protecting the aquatic 

environment. The NWPs provide a 

streamlined authorization process that 

is consistent with the principles of 

Executive Order 13563, Improving 

Regulation and Regulatory Review. 

In contrast, many other commenters 

expressed general opposition to the 

proposal, and said that the proposed 

rule weakens protection for waters and 

should be withdrawn. Some 

commenters said that the proposal 

threatens to undermine the important 

and statutorily mandated function of the 

NWPs and the Clean Water Act, and is 

contrary to Congressional intent. One 

commenter expressed opposition to the 

issuance of the NWPs, stating that they 

will result in an increase in the number 

of activities that can be permitted and 

a reduction in the opportunity for 

public review and comment. Many of 

these commenters objected to the goals 

of ‘‘streamlining’’ or ‘‘improving 

regulatory efficiency,’’ and they said 

that the focus of the NWPs should be on 

compliance with the Clean Water Act. 

Another commenter was concerned that 

the proposed NWPs do not support the 

‘‘no overall net loss’’ goal for wetlands, 

and that the Corps analysis predicts that 

the NWPs will result in a decrease of 

waters of the United States, including 

wetlands. 

As discussed below, those NWPs that 

authorize discharges of dredged or fill 

material into waters of the United States 

comply with the Clean Water Act and 

the environmental criteria provided in 

its implementing regulations, the 

404(b)(1) Guidelines at 40 CFR part 230. 

The NWPs authorize minor activities 

that result in minimal adverse effects on 

the aquatic environment that would 

likely generate little, if any, public 

comment if they were evaluated through 

the standard permit process with a full 

public notice. Through the adoption of 

Section 404(e) of the Clean Water Act in 

1977, Congress approved the use of 

general permits as an important tool to 

keep the Corps Regulatory Program 

manageable from a resources and 

manpower perspective, while protecting 

the aquatic environment. The Corps first 

adopted the concept of general permits 

in its final rule published on July 25, 

1975 (see 40 FR 31321). The NWP 

program also continues to support the 

national goal of ‘‘no overall net loss’’ for 

wetlands, and wetlands compensatory 

mitigation will be required when 

appropriate and practicable to offset 

losses of wetland area and functions. 

The ‘‘no overall net loss’’ goal applies 

only to wetlands, and for other waters 

of the United States the goal is to avoid 

and minimize losses of those waters and 

to provide compensatory mitigation to 

offset those losses if it is appropriate 

and practicable to do so. Stream 

mitigation is becoming more 

commonplace as the science and 

practical applications become further 

developed. 

Some commenters stated that the 

NWPs should require consideration of 

less damaging alternatives or 

demonstrate that NWP activities result 

in minimal adverse environmental 

effects. One commenter said that there 

is not sufficient emphasis on avoidance 

of impacts to waters of the United 

States. Another commenter objected to 

using NWPs to expand existing projects, 

stating that it discourages avoidance and 

minimization. 

Those NWPs that authorize discharges 

of dredged or fill material into waters of 

the United States comply with the 

provisions of the 404(b)(1) Guidelines 

that address the issuance of general 

permits (see 40 CFR 230.7). A decision 

document is prepared for each NWP to 

provide information to show that the 

NWP will authorize only those activities 

that result in minimal adverse effects on 

the aquatic environment and other 

public interest review factors. 

Supplemental decision documents are 

prepared at a regional level to support 

the decision on whether to add regional 

conditions to an NWP or suspend or 

revoke the use of that NWP in a specific 

waterbody, category of waters, or 

geographic area to ensure that only 

activities that result in minimal adverse 

effects on the aquatic environment and 

other public interest review factors are 

authorized by the NWP. In response to 

a pre-construction notification or a 

request to verify that an activity is 

authorized by NWP, a district engineer 


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may add activity-specific conditions to 

the NWP authorization or suspend or 

revoke the NWP authorization if he or 

she determines that the proposed 

activity would result in more than 

minimal adverse effects. 

Paragraph (a) of general condition 23, 

mitigation, requires permittees to avoid 

and minimize adverse effects to waters 

of the United States to the maximum 

extent practicable on the project site. 

The use of NWPs to authorize the 

expansion of existing projects does not 

discourage avoidance and minimization 

because this general condition applies 

equally to all NWP authorizations, 

including those that authorize 

expansion of existing projects. The 

consideration of practicable alternatives 

in accordance with 40 CFR 230.10(a) 

does not apply directly to discharges of 

dredged or fill material into waters of 

the United States authorized by general 

permits (see 40 CFR 230.7(b)(1)). 

Compliance With Section 404(e) of the 

Clean Water Act 

Several commenters said that the 

proposed NWPs are contrary to the 

Clean Water Act and violate Section 

404(e) of that Act. Many commenters 

asserted that the NWPs result in more 

than minimal adverse effects on the 

aquatic environment, individually and 

cumulatively. These commenters stated 

that the NWPs do not protect vitally 

important functions of wetlands and 

streams, and that the proposal does not 

satisfy the Corps legal obligation to limit 

general permits to activities that cause 

minimal adverse impacts, individually 

and cumulatively. They also said the 

Corps lacks the data to show that the 

effects of the authorized activities are in 

fact minimal. Some commenters 

expressed concern regarding the 

potential overuse of these permits 

without the inclusion of acreage, linear 

feet, watershed or regional limitations. 

Another commenter said that the NWPs 

fail to describe similarly covered 

activities in precise terms. 

The Corps disagrees with these 

comments. The NWPs comply with the 

Clean Water Act and the environmental 

criteria provided in its implementing 

regulations, the 404(b)(1) Guidelines at 

40 CFR part 230. Section 404(e) of the 

Clean Water Act states that the Chief of 

Engineers may issue, after publishing a 

notice and providing an opportunity a 

public hearing, general permits on a 

nationwide basis for any category of 

activities involving discharges of 

dredged or fill material into waters of 

the United States, if it is determined 

that the activities in each category are 

similar in nature and result in minimal 

individual and cumulative adverse 

environmental effects. The issuance of 

the NWPs is consistent with these 

requirements and therefore complies 

with the intent of the Clean Water Act. 

As discussed above, national decision 

documents and supplemental decision 

documents are prepared to demonstrate 

that an NWP will authorize only those 

activities that have minimal individual 

and cumulative adverse effects on the 

aquatic environment and other public 

interest review factors. The decision 

documents use available data and other 

information to support their 

conclusions. 

Where appropriate and necessary, 

certain NWPs have acreage, linear foot, 

or cubic yard limits, or combinations of 

those limits, to ensure that authorized 

activities result in minimal individual 

and cumulative adverse effects on the 

aquatic environment. Specifically, 

NWPs have acreage limitations, NWPs 

have linear foot limitations, and NWPs 

have cubic yard limitations. Many other 

NWPs have qualitative limitations in the 

form of specific activities or situations 

that are not authorized, or for which a 

PCN is required to allow the Corps to 

ensure on a case-by-case basis that the 

adverse effects on the aquatic 

environment of the project are truly 

minimal. A few NWPs have no explicit 

limits, but this is limited to those that 

authorize activities that provide benefits 

to the aquatic environment (e.g., NWP 

27, which authorizes aquatic habitat 

restoration, establishment, and 

enhancement activities, and NWP 41, 

which authorizes activities for 

reshaping drainage ditches to improve 

water quality), or those for which the 

nature of the authorized activity 

inherently ensures that effects will be 

minimal (e.g., NWP 10, which 

authorizes non-commercial, single boat, 

mooring buoys). Division engineers may 

impose regional conditions on the 

NWPs to add acreage, linear foot, or 

cubic yard limits, or reduce those limits 

when the NWPs have specified limits in 

their terms and conditions, to ensure 

those NWPs authorize only those 

activities that result in minimal adverse 

effects on the aquatic environment. 

The NWPs comply with the 

requirement in Section 404(e) of the 

Clean Water Act to authorize categories 

of activities that are similar in nature. 

Each NWP authorizes a specific category 

of activities, which may be broadly 

defined for some NWPs to keep the 

NWP program manageable. The Act 

does not require that activities 

authorized by an NWP be identical, only 

that they be similar in nature. The 

permits meet this requirement and are 

consistent with the Corps’ longstanding 

practice regarding the appropriate level 

of detail with which to specify what 

constitutes activities that are similar in 

nature. 

Compliance With the Section 404(b)(1) 

Guidelines 

Several commenters said that the 

NWPs do not comply with the 404(b)(1) 

Guidelines. One commenter said that 

the Corps has no factual basis to 

conclude that significant degradation of 

waters of the United States has not 

occurred, which is required to be in 

compliance with the Guidelines. This 

commenter recommended withdrawing 

the NWPs or replacing them with state 

program general permits. One 

commenter stated that the NWPs do not 

comply with the 404(b)(1) Guidelines 

because they authorize discharges into 

special aquatic sites. 

When we issue the NWPs, we fully 

comply with the requirements of the 

404(b)(1) Guidelines at 40 CFR 230.7, 

which govern the issuance of general 

permits under Section 404 of the Clean 

Water Act. For each NWP that 

authorizes discharges of dredged or fill 

material into waters of the United 

States, the decision document contains 

a 404(b)(1) Guidelines analysis. Section 

230.7(b) of the 404(b)(1) Guidelines 

requires a ‘‘written evaluation of the 

potential individual and cumulative 

impacts of the categories of activities to 

be regulated under the general permit.’’ 

Since the required evaluation must be 

completed before the NWP is issued, the 

analysis is predictive in nature. The 

estimates of potential individual and 

cumulative impacts, as well as the 

projected compensatory mitigation that 

will be required, are based on the best 

available data from the Corps district 

offices, including the past use of NWPs. 

In our decision documents, we also 

used readily available national data on 

the status of wetlands and other aquatic 

habitats in the United States, and the 

foreseeable impacts of the NWPs on 

those waters. 

The process for issuing state 

programmatic general permits is similar 

to the process for issuing NWPs, 

including the use of information to 

support decisions. The 404(b)(1) 

Guidelines analysis for state 

programmatic general permits is also 

predictive. Given those similarities, 

compliance with the 404(b)(1) 

Guidelines is not different for state 

programmatic general permits versus 

NWPs. 

Despite the fact that many NWPs 

authorize discharges of dredged or fill 

material into special aquatic sites, they 

are still in compliance with the 

404(b)(1) Guidelines. Section 230.7 of 

the 404(b)(1) Guidelines does not 


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prohibit the use of NWPs to authorize 

discharges of dredged or fill material 

into special aquatic sites. Many NWPs 

contain additional provisions to protect 

special aquatic sites. For example, 

several NWPs specifically require preconstruction notification for proposed 

discharges of dredged or fill material 

into special aquatic sites (e.g., NWP 13 

for bank stabilization activities, NWP 14 

for linear transportation projects, NWP 

18 for minor discharges). As another 

example, NWP 19 for minor dredging 

activities, does not authorize dredging 

in coral reefs or dredging activities that 

cause siltation that degrades coral reefs. 

General condition 22, designated critical 

resource waters, applies the 

prohibitions in paragraph (a) and the 

notification requirement in paragraph 

(b) to wetlands (a special aquatic site) 

adjacent to critical resource waters. 

Compliance With the National 

Environmental Policy Act 

Three commenters stated that the 

NWPs do not satisfy the requirements of 

the National Environmental Policy Act 

(NEPA), as they do not adequately 

consider indirect and cumulative effects 

on global warming. One commenter said 

that degradation in air quality from 

burning coal from mining projects must 

be addressed in an environmental 

impact statement, and that the Corps 

has to address the implications of 

climate change on aquatic ecosystems. 

Another commenter stated that the 

scientific consensus on the impacts of 

climate change has to be considered in 

the renewal of the NWPs. One 

commenter said the NWPs should take 

into account ongoing federal efforts to 

address the effects of climate change 

through federal programs. These federal 

programs address mitigation of climate 

change (e.g., through reduction of 

greenhouse gas emissions) and 

adaptation to climate change (e.g., by 

adjustments made to reduce 

vulnerability resulting from changing 

climate). 

Although the Council on 

Environmental Quality has made 

available draft guidance on the 

consideration of the effects of climate 

change and greenhouse gas emissions, 

and sought public comment on that 

draft guidance, they have not issued any 

final guidance specifically on how to 

consider, in NEPA documents, the 

indirect and cumulative effects Federal 

agency actions have on climate change. 

In the Council on Environmental 

Quality’s October 2011 Progress Report 

of the Interagency Climate Change 

Adaptation Task Force entitled ‘‘Federal 

Actions for a Climate Resilient Nation’’ 

adaptation is defined as ‘‘adjustment in 

natural or human systems to a new or 

changing environment that exploits 

beneficial opportunities or moderates 

negative effects.’’ 

A major cause of climate change is 

emissions of greenhouse gases. 

Activities authorized by NWPs have 

little direct, indirect, or cumulative 

effects on climate change and the 

emission of greenhouse gases. There 

may be brief emissions of greenhouse 

gases during the construction of 

activities authorized by NWP, 

specifically discharges of dredged or fill 

material into waters of the United States 

or structures or work in navigable 

waters of the United States. Any 

greenhouse gas emissions that occur 

other than as a result of the discharge of 

dredged or fill materials are outside of 

the Corps NEPA scope of analysis 

because the Corps does not have the 

legal authority to control those 

emissions. The degradation of air 

quality caused by burning coal is not the 

result of a discharge of dredged or fill 

material and therefore is outside the 

Corps legal authority. The issuance of a 

Corps permit is designed to ensure that 

any discharges of dredged or fill 

material into waters of the United States 

associated with such mining comply 

with the Clean Water Act. A Corps 

permit does not authorize coal mining 

per se, and therefore the effects of coal 

mining that do not result from a 

discharge of dredge or fill material to 

waters of the United States generally are 

beyond the Corps NEPA scope of 

analysis. 

The effects of climate change on 

aquatic ecosystems are a much broader 

issue than the effects on the aquatic 

environment caused by activities 

authorized by NWPs. The effects of 

climate change on hydrology and 

extreme events are difficult to project. 

The effects will vary by location and the 

sensitivity of resources to changes in 

hydrology and extreme events. The 

timeframe used to project hydrologic 

changes will also affect the evaluation. 

For activities with minimal adverse 

effects on the aquatic environment that 

are eligible for authorization by the 

NWPs, the Corps believes that any 

necessary adaptation to climate change 

is appropriately addressed through land 

use planning and zoning, which is the 

primary responsibility of state, tribal, 

and local governments. Activities 

authorized by NWPs may be part of 

state, tribal, or local adaptation efforts to 

mitigate the effects of climate change. 

On October 1, 2011, the Corps issued 

updated guidance on sea level change 

considerations for Civil Works Program 

(Engineer Circular 1165–2–211). The 

current Engineer Circular applies to 

Corps Civil Works activities, but not to 

the Regulatory Program. As stated on 

page 25 of its ‘‘Climate Change 

Adaptation Plan and Report 2011’’ 

(available at: http:// 

www.corpsclimate.us/ 

adaptationpolicy.cfm), the Corps 

expects to make larger changes in the 

next update of the Engineer Circular, 

‘‘and the regulatory program will be 

added following appropriate 

consultation.’’ 

Compliance With the Endangered 

Species Act 

One commenter acknowledged the 

Corps 2007 efforts to pursue 

programmatic consultation for the NWP 

program with the U.S. Fish and Wildlife 

Service and the National Marine 

Fisheries Service to ensure compliance 

with the Endangered Species Act (ESA), 

stating that failure to complete 

consultation violates the ESA, as well as 

Section 404(e) of the Clean Water Act. 

Two commenters stated that the Corps 

has a requirement to complete these 

consultations prior to the issuance of 

the NWPs. 

We have reinitiated programmatic 

Section 7 Endangered Species Act 

consultation for the NWPs. If this 

consultation is not completed prior to 

the effective date of these NWPs, district 

engineers will consult, as necessary on 

a case-by-case basis with the U.S. Fish 

and Wildlife Service and National 

Marine Fisheries Service in accordance 

with general condition 18, endangered 

species. Division engineers may also 

impose regional conditions on any of 

the NWPs to facilitate compliance with 

the requirements of the Endangered 

Species Act. 

Compliance With Section 304(d) of the 

National Marine Sanctuaries Act 

One commenter stated that the 

proposed NWPs must comply with 

Section 304(d) of the National Marine 

Sanctuaries Act (NMSA). Section 

304(d)(1))(A) of the NMSA states that 

‘‘Federal agency actions internal or 

external to a national marine sanctuary, 

including private activities authorized 

by licenses, leases, or permits, that are 

likely to destroy, cause the loss of, or 

injure any sanctuary resource are 

subject to consultation with the 

Secretary.’’ The regulations for 

implementing section 304(d) are found 

at 15 CFR 922.187, and those 

regulations state that the Federal agency 

consultation should be conducted with 

the Director of the marine sanctuary. 

The consultation may be conducted 

with Endangered Species Act section 7 

consultation. 


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District engineers that have NOAAdesignated marine sanctuaries within 

their geographic area of responsibility 

should consult with the Director of the 

marine sanctuary to determine which 

NWP activities require activity-specific 

consultation under Section 304(d) of the 

NMSA. Regional conditions should be 

adopted where necessary to ensure 

compliance with the requirements of 

section 304(d). 

New Nationwide Permits 

We received several suggestions for 

the establishment of new NWPs for 

various activities. Two commenters 

suggested developing an NWP to 

authorize activities associated with 

linear gas facility infrastructure based 

on the Federal Energy Regulatory 

Commission’s (FERC) blanket 

certification program that would allow 

the industry to undertake routine 

activities without the need to obtain a 

case-specific authorization from FERC 

for each project. One commenter 

recommended issuing an NWP to 

authorize activities associated with 

controlling nuisance and exotic plant 

species and another NWP to authorize 

activities for innovative mitigation 

proposals. One commenter said that an 

NWP should be developed to authorize 

the beneficial reuse of dredged material, 

for up to 10,000 cubic yards of material. 

Another commenter recommended 

adding an NWP to authorize discharges 

of dredged or fill material to raise dam 

elevations to increase pool elevations of 

public water supply reservoirs to 

increase potable water supplies and 

wetlands. 

We believe that existing NWPs such 

as NWPs 12, 3, and 39 are sufficient to 

provide general permit authorization for 

gas utility lines and associated 

infrastructure. Discharges of dredged or 

fill material into waters of the United 

States or work in navigable waters of the 

United States associated with the 

removal of nuisance or exotic plant 

species may be authorized by NWP 27, 

aquatic habitat restoration, 

establishment, and enhancement 

activities. Innovative mitigation 

proposals may also be authorized by 

NWP 27, as long as those activities 

result in net increases in aquatic 

resource functions and services and 

satisfy the other terms and conditions of 

that NWP. We believe that the beneficial 

reuse of dredged material, especially at 

such large quantities, is more 

appropriately evaluated through the 

individual permit process, to more 

thoroughly consider effects on existing 

aquatic resource functions already being 

provided in the waters where the reused 

dredged material might be placed. 

Waivers of Certain NWP Limits 

We proposed to modify the language 

concerning the use of waivers in NWPs 

13, 29, 36, 39, 40, 42, and 43 by 

clarifying that a waiver may be granted 

only after the district engineer makes a 

written determination concluding that 

the discharge will result in minimal 

adverse effects and sets forth the basis 

for that determination. We also 

proposed to apply the modified waiver 

language to NWPs 21, 44, and 50, as 

well as to the two proposed new NWPs. 

Some commenters supported the 

proposed modifications. 

Many commenters said the proposed 

changes would allow district engineers 

too much discretion, and there should 

be no waivers of NWP limits. One 

commenter stated there was not a need 

for waivers because many of the NWPs 

already require pre-construction 

notification and the changes make the 

NWPs more difficult to obtain. The 

commenter said the waivers create an 

additional paperwork burden and 

provide no environmental benefits. 

Many commenters objected to the 

proposed waivers, stating that they 

imply that ephemeral and intermittent 

streams are considered lower in their 

function and value to the aquatic 

environment and are provided less 

protection than perennial streams. 

These commenters discussed the 

importance of ephemeral and 

intermittent streams to overall 

watershed integrity and to water quality 

and stated there is no scientific 

evidence to support the position that the 

use of waivers will result in only 

minimal impacts. One commenter said 

that before a waiver is issued, there 

should be analysis of cumulative effects 

to the watershed. Several commenters 

stated that the use of waivers in states 

with arid and semi-arid ecosystems does 

not properly take into account the 

importance of headwater streams in 

these ecosystems and could result in 

more than minimal individual and 

cumulative effects. 

The basic requirement for general 

permits, including NWPs, is that they 

may only authorize activities that result 

in minimal individual and cumulative 

adverse effects on the aquatic 

environment. Section 404(e) of the 

Clean Water Act and the regulations 

relevant to the issuance of the NWPs 

(e.g., 33 CFR part 330 and 40 CFR 230.7) 

do not mandate a single approach to 

satisfying that basic requirement. The 

terms and conditions of the NWPs, 

including acreage, linear foot, and cubic 

yard limits and allowing the use of 

certain NWPs in specific types of 

waters, are intended to limit NWPs 

activities so that they do not result in 

more than minimal adverse effects on 

the aquatic environment. Division 

engineers have the authority to impose 

regional conditions on NWPs to restrict 

or prohibit their use in certain waters or 

other geographic areas. Another 

important tool is pre-construction 

notification, which provides for district 

engineers to review proposed NWP 

activities to ensure that they will result 

in minimal adverse effects. In response 

to a pre-construction notification, a 

district engineer may add activityspecific conditions to the NWP 

authorization to further minimize 

adverse effects to the aquatic 

environment. For those NWPs that 

allow district engineers review preconstruction notifications and issue 

written waivers of certain limits, such as 

the 300 linear foot limit for the loss of 

intermittent and ephemeral stream bed, 

the NWP activity must still satisfy the 

statutory and regulatory requirements 

for general permits. The waiver process 

does not make the NWP process more 

difficult. Instead, it provides an 

important tool for districts to efficiently 

authorize activities with minimal 

adverse effects on the aquatic 

environment after making a written 

determination that the activity satisfies 

the NWP requirements. 

We recognize the importance of 

intermittent and ephemeral streams and 

the waiver process for certain NWPs 

requires district engineers to make 

activity-specific evaluations of the 

intermittent or ephemeral streams 

proposed to be filled or excavated before 

deciding whether to waive the 300 

linear foot limit. To issue a waiver, the 

district engineer must make, and 

document, a minimal adverse effects 

determination, which as discussed 

above, is consistent with the statutory 

and regulatory requirements for general 

permits. As part of the analysis, the 

district engineer must consider the 

individual and cumulative adverse 

effects on the aquatic environment on a 

watershed basis, or for another 

appropriate geographic area, such as an 

ecoregion. For those activities in arid 

and semi-arid regions, district engineers 

will use local criteria as well as their 

knowledge of arid and semi-arid 

ecosystems to make decisions on preconstruction notifications for proposed 

activities that might be eligible for 

waivers. The basis for any waiver, 

including appropriate consideration of 

individual and cumulative effects, will 

be documented in the district engineer’s 

written determination. 

Several commenters noted concern 

with the 45-day pre-construction 

notification review period to provide a 


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decision whether to grant or deny the 

waiver. One commenter noted the 

applicant can proceed without 

authorization if the Corps fails to 

respond to a waiver request within the 

45 day time limit. Several commenters 

expressed concern with the additional 

time and the expense that could be 

incurred by the applicant who must 

wait for the waiver decision and written 

determination. 

We believe that the 45-day preconstruction notification review period 

is sufficient for district engineers to 

make their written determinations on 

whether to issue waivers of the 

applicable limits for certain NWPs. The 

text of the NWPs that allow waivers of 

certain limits clearly states that the 

waivers must be made by the district 

engineer in writing. In addition, 

paragraph (a)(2) of general condition 31, 

pre-construction notification, says that 

if a proposed activity requires a written 

waiver to exceed specified limits of an 

NWP, the permittee may not begin that 

activity until the district engineer issues 

the waiver. The 45-day pre-construction 

notification review period still applies 

to pre-construction notifications that 

involve requests to waive specific limits 

of an NWP, but the project proponent 

may not proceed with the NWP activity 

if a written waiver is needed and the 

district engineer did not provide a 

written waiver by the time the 45-day 

review period ends. The Corps will 

make every effort to act on waiver 

requests within the 45-day review 

period. If a prospective permittee is 

concerned that a written waiver will not 

be issued within the 45-day preconstruction notification review period, 

then he or she has the option of 

modifying the proposed activity so that 

it does not exceed any specified limit of 

the applicable NWP and does not 

require a written waiver. 

Many commenters said that specific 

criteria should be applied to the waiver 

process to ensure proposed activities 

result in minimal individual or 

cumulative adverse effects on the 

aquatic environment. One commenter 

stated that the waivers provide little 

incentive to minimize impacts. Another 

commenter said that water quality 

certification cannot be issued for NWPs 

that have limits that can be waived by 

district engineers because the state 

cannot certify that those activities meet 

state water quality standards. One 

commenter said that when waivers are 

issued by district engineers, the district 

engineer must include a fact-specific 

basis to support his or her finding. 

The criteria that are to be applied to 

requested waivers of specified limits for 

certain NWPs are the same general 

criteria that are to be used to make any 

minimal adverse effects determination 

for the NWPs. Criteria that are to be 

used to make minimal adverse effects 

determinations are provided in 

paragraph (1) of Section D, District 

Engineer’s Decision. The waivers still 

provide incentives to minimize impacts 

because the NWP authorization 

threshold (i.e., activities must result in 

minimal individual and cumulative 

adverse effects on the aquatic 

environment) is lower than the 

authorization threshold for individual 

permits (e.g., the proposed activity is 

not contrary to the public interest and, 

if it involves discharges of dredged or 

fill material into waters of the United 

States, it complies with the 404(b)(1) 

Guidelines). In other words, a waiver 

cannot be granted if the activity does 

not meet the minimal effects threshold, 

and applicant cannot proceed without 

the Corps’ written determination. 

Applicants who submit waiver requests 

run the risk that the waiver will be 

denied, and valuable time will be lost in 

obtaining Department of the Army 

authorization. Thus, it is in the 

applicant’s interest to modify the 

proposed activity if possible to avoid 

exceeding a threshold that requires a 

waiver, and especially to avoid 

submitting waiver requests for projects 

that will in fact have more than minimal 

adverse effects. States can issue water 

quality certifications for NWPs based on 

the specified acreage, linear foot, or 

cubic yard limits, and require 

individual water quality certifications 

for losses of waters of the United States 

that exceed the specified limits and 

must be waived in writing by district 

engineers. The written waiver 

determinations prepared by the district 

engineer have to be activity-specific, 

and explain the factual basis of the 

waiver. 

Several commenters said that the 

additional information required for a 

request for a waiver and the requirement 

to use of a functional assessment 

method that is available and practicable 

would impose a significant 

documentation obligation on Corps 

staff. 

The NWPs do not impose additional 

information requirements for requests 

for waivers of specific limits of NWPs. 

In addition, there is no requirement to 

use functional assessments to make 

decisions on waiver requests. The 

sentence in paragraph (1) of Section D, 

District Engineer’s Decision, on the use 

of functional assessments to make 

minimal effects determinations, states 

that those methods ‘‘may’’ be used if 

they are available and practicable to use. 

However, the Corps does agree that 

there must be a factual basis for the 

waiver (which may entail the use of a 

functional assessment methodology, 

among other possible approaches) and 

documenting this does impose an 

additional obligation on the Corps. 

Applicants should provide the district 

engineer as much factual information as 

possible to support the waiver request 

and facilitate the district engineer’s 

determination. 

Several commenters supported the 

proposed changes requiring agency 

coordination and a written decision. 

Several commenters said that all 

appropriate state and Federal resource 

agencies should be provided an 

opportunity to comment on requests for 

waivers. One commenter stated there is 

no need for additional agency 

coordination unless specific resource 

issues are identified, such as 

compliance with the Endangered 

Species Act or the National Historic 

Preservation Act. 

We have modified the proposed 

provision requiring agency coordination 

for pre-construction notifications 

involving losses of greater than 1,000 

linear feet of intermittent and ephemeral 

stream bed, to require agency 

coordination for all pre-construction 

notifications requesting a waiver of the 

300 linear foot limit for filling or 

excavating intermittent or ephemeral 

streams (see paragraph (d)(2) of general 

condition 31, pre-construction 

notification). Under this agency 

coordination process, district engineers 

will solicit comments from the agencies 

to assist in making the written minimal 

adverse effects determination necessary 

for a waiver of the 300 linear foot limit 

to take effect. Compliance with the 

Endangered Species Act and the 

National Historic Preservation Act is 

addressed by general conditions 18 and 

20, respectively. 

One commenter said that the loss of 

stream bed should be defined and the 

300 linear foot limit should be reduced 

to 150 linear feet of loss of stream bed 

for those NWPs. Another commenter 

suggested reducing the linear foot limit 

for loss of stream bed to 50 linear feet. 

One commenter stated that the 300 

linear foot limit should not apply to 

ephemeral streams. One commenter said 

that waivers should be allowed for 

losses of perennial streams if the 

adverse effects are determined to be 

minimal and the perennial stream is 

limited in its aquatic function. 

The loss of stream bed is defined in 

‘‘loss of waters of the United States’’ as 

the linear feet of stream bed that is filled 

or excavated. We believe the 300 linear 

foot limit is appropriate to ensure that 

losses of stream beds result in minimal 


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adverse effects on the aquatic 

environment. Division engineers may 

add regional conditions to an NWP to 

reduce the linear foot limit to an amount 

less than 300 linear feet. The 300 linear 

foot limit should not be waived for 

losses of perennial streams because they 

function differently than intermittent 

and ephemeral streams, and we believe 

it will generally not be the case that 

losses of more than 300 linear feet of a 

perennial stream would constitute a 

minimal adverse effect. We believe it 

would not be a good use of Corps or 

applicant resources to allow waiver 

requests for perennial streams on the 

remote chance that the adverse effects of 

such an activity would be found to be 

minimal. The functions provided by 

perennial streams, intermittent streams, 

and ephemeral streams differ, in terms 

of ecological processes and duration. 

Perennial streams provide aquatic 

habitat functions year-round, while 

intermittent streams provide aquatic 

habitat during the months when water 

is flowing in the stream channel, and 

when hyporheic flow occurs during 

drier months. Ephemeral streams 

provide aquatic habitat functions only 

for brief periods, because they have 

flowing water only during, and briefly 

after, precipitation events. Other 

important stream functions, such as 

sediment transport, nutrient cycling, 

and energy transport also depend on the 

presence of flowing water and, for some 

of those functions, the presence of 

aquatic organisms inhabiting those 

waters. The other stream functions are 

present year-round for perennial 

streams, and for much of the year for 

intermittent streams. In ephemeral 

streams, sediment transport, nutrient 

cycling, and energy transport functions 

occur during brief periods or are absent. 

The functional differences exhibited by 

perennial, intermittent, and ephemeral 

streams provide a scientific basis for not 

allowing a waiver for perennial streams. 

District engineers will make written 

case-specific determinations on whether 

to waive the 300-linear foot limit for 

losses of intermittent and ephemeral 

stream bed, based in part on the 

considerations listed in paragraph (1) of 

Section D, ‘‘District Engineer’s 

Decision.’’ 

Clean Water Act Jurisdiction 

Many commenters cited the U.S. 

Supreme Court decisions issued in 2001 

and 2006, for Solid Waste Agency of 

Northern Cook County v. U.S. Army 

Corps of Engineers and Rapanos v. 

United States (Rapanos), as well as other 

court decisions, and said that the 

proposed NWPs exceed the Corps 

jurisdictional authority under Section 

404 of the Clean Water Act and reflect 

the Corps and EPA’s flawed broad 

interpretation of what constitutes a 

water of the United States, specifically 

for ephemeral streams. Most 

commenters said the proposed NWPs 

would result in an expansion of Clean 

Water Act authority and jurisdiction 

that would have a negative impact on 

the nation’s economy by creating 

excessive burdens on developers, 

farmers, and Corps staff. Another 

commenter said the Corps should not 

assert jurisdiction over isolated mining 

pits. 

The NWPs do not assert jurisdiction 

over waters and wetlands. Rather, the 

NWPs are a form of Department of the 

Army authorization to comply with the 

permit requirements of Section 404 of 

the Clean Water Act and/or Section 10 

of the Rivers and Harbors Act of 1899. 

Nationwide permits issued under the 

authority of Section 404 of the Clean 

Water Act authorize discharges of 

dredged or fill material into waters of 

the United States. Nationwide permits 

issued under the authority of Section 10 

of the Rivers and Harbors Act of 1899 

authorize structures or work in 

navigable waters of the United States. 

Determining the geographic jurisdiction 

under the Clean Water Act (i.e., 

identifying waters and wetlands that are 

waters of the United States) is a separate 

process than the NWP authorization 

process. Likewise, identifying navigable 

waters of the United States for the 

purposes of geographic jurisdiction 

under Section 10 of the Rivers and 

Harbors Act of 1899 is a different 

process than the NWP authorization 

process. These NWPs do not expand 

either geographic jurisdiction or 

activities-based jurisdiction under the 

Clean Water Act. Activity-based 

jurisdiction under the Clean Water Act 

is determined by applying the 

appropriate regulations from 33 CFR 

part 323. These NWPs continue to 

provide a streamlined process for 

obtaining authorization for activities 

that require Department of the Army 

permits under either Section 404 of the 

Clean Water Act and/or Section 10 of 

the Rivers and Harbors Act of 1899. 

Determining whether isolated mining 

pits are subject to Clean Water Act 

jurisdiction is a case-specific inquiry to 

be made by applying the appropriate 

regulations and guidance. A project 

proponent or landowner may contact 

the Corps district office that has the 

responsibility for that region of the 

country and request a jurisdictional 

determination for an isolated mining pit 

or any other area that might be 

considered a water or wetland. The 

Corps district will respond to that 

request and inform the project 

proponent or landowner of the status of 

that water with respect to Clean Water 

Act jurisdiction. 

Comments on Administrative 

Requirements 

Executive Order 13211 

One commenter stated that these 

proposed regulations will cause coal 

mines to cease operations and believe 

the proposal is subject to Executive 

Order 13211, Actions Concerning 

Regulations That Significantly Affect 

Energy Supply, Distribution, or Use. 

Although we have made substantial 

changes to NWP 21, some surface coal 

mining activities will still be authorized 

by this NWP. The changes to NWP 21 

will not cause coal mines to cease 

operations, because there are other 

forms of Department of the Army 

authorization available if the coal 

mining activity involves discharges of 

dredged or fill material into waters of 

the United States. Project proponents 

may apply for individual permits to 

obtain Department of the Army 

authorization for such activities. Any 

activity that could have previously been 

authorized under earlier versions of 

NWP 21 would still be eligible for 

authorization under an individual 

permit. Thus, while there may be 

additional paperwork burden for mine 

operators, the Corps does not believe 

that the changes in these permits will 

have a significant impact on the supply, 

distribution, or use of energy (e.g., coal). 

Executive Order 13563 

Several commenters stated that the 

proposed NWPs are not consistent with 

EO 13563 for ‘‘Improving Regulation 

and Regulatory Review’’ because the 

modifications to the NWPs would 

impose numerous onerous conditions 

and limitations on applicants. 

The NWPs continue to provide a 

streamlined process for authorizing 

activities that require Department of the 

Army permits under Section 404 of the 

Clean Water Act and/or Section 10 of 

the Rivers and Harbors Act of 1899. The 

average processing times for standard 

permit applications in Fiscal Year 2010 

was 221 days, while the average 

processing time for NWP preconstruction notifications and voluntary 

requests for NWP verifications was 32 

days. The terms and conditions of the 

NWPs are necessary to ensure that the 

NWPs comply with applicable statutes 

and regulations, including the 

requirement that only activities with 

minimal adverse effects, both 


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individually and cumulatively, be 

authorized by NWPs. 

Water Quality Certification Issues 

One commenter said that the Corps 

should provide an opportunity for state 

and Tribal water quality certification 

agencies to participate early in the NWP 

reissuance process, to reduce potential 

conflicts during the water quality 

certification process. Another 

commenter asked for clarification 

regarding enforcement of the NWPs, in 

cases where a provisional NWP 

verification is issued, but the permittee 

proceeds with work without receiving 

the individual water quality 

certification. This commenter asked 

whether the Corps or the state would 

initiate an enforcement action. One 

commenter objected to use of 

provisional NWP verifications in cases 

where water quality certification has not 

yet been issued for a particular NWP 

activity. 

The current NWP reissuance process 

provides sufficient opportunity to 

reduce potential conflicts during the 

water quality certification process. 

States and Tribes begin their water 

quality certification processes when the 

proposal to reissue the existing NWPs 

and issue new NWPs is published in the 

Federal Register for public comment. 

Water quality certification agencies are 

encouraged to submit comments on the 

NWP proposal. But it is important to 

remember that each state and Tribe is 

likely to have different water quality 

standards, and the national terms and 

conditions for the NWPs cannot address 

those regional variations. 

After the comments received in 

response to the proposal are reviewed, 

the final NWPs are developed. Once the 

final NWPs are published in the Federal 

Register, States and Tribes have another 

opportunity to decide whether to issue 

or deny water quality certification for 

the NWPs. States and Tribes will have 

90 days to make their water quality 

certification decisions. 

If water quality certification was 

denied for an NWP, then the permittee 

must obtain an individual water quality 

certification or a waiver, even if the 

Corps issued a provisional NWP 

verification. The provisional NWP 

verification merely informs the 

prospective permittee that the Corps has 

determined that the proposed activity 

qualifies for NWP authorization, as long 

as the permittee receives an individual 

water quality certification or waiver. 

The prospective permittee should 

provide a copy of the individual water 

quality certification to the Corps 

district. The Corps has full authority to 

pursue an enforcement action for not 

obtaining an individual water quality 

certification or waiver, which is a 

violation of the terms of the permit. 

Case-specific decisions on appropriate 

enforcement actions are at the Corps 

discretion. The provision for NWP 

verification is an important tool to be 

responsive to users of the NWPs, and to 

inform them of their need to work with 

the water quality certification agency to 

comply with the requirements of 

Section 401 of the Clean Water Act. The 

provisional verification serves to inform 

the applicant that all other requirements 

for NWP verification have been satisfied 

and allows the applicant to focus on 

obtaining the required state 

certifications. 

Discussion of Comments 

Nationwide Permits 

NWP 1. Aids to Navigation. There 

were no changes proposed for this NWP, 

and no comments were received. This 

NWP is reissued without change. 

NWP 2. Structures in Artificial 

Canals. There were no changes 

proposed for this NWP. One commenter 

recommended not reissuing this NWP 

because a state will deny water quality 

certification. 

The potential for a state to deny water 

quality certification for an NWP is not 

a sufficient basis for not reissuing an 

NWP. The water quality certification 

process is independent of the decision 

on whether to issue or reissue an NWP. 

This NWP is reissued without change. 

NWP 3. Maintenance. We proposed to 

modify this NWP to clarify that stream 

channel excavation immediately 

adjacent to the structure or fill being 

maintained is authorized under 

paragraph (a) and does not require a 

PCN. We also proposed to replace the 

word ‘‘and’’ with ‘‘and/or’’ in paragraph 

(b) to indicate that the activity does not 

need to include the placement of new or 

additional riprap to qualify for this 

NWP. 

Several commenters supported the 

change to paragraph (a) to allow 

excavation in a stream channel 

immediately adjacent to a structure or 

fill as part of the maintenance activity, 

without requiring pre-construction 

notification. Some commenters 

specifically supported the ability to do 

minor excavation within stream 

channels to install a larger culvert or 

bridge that would improve fish passage 

without a pre-construction notification. 

Two commenters asked which types of 

stream channel modifications could be 

authorized under paragraph (a). Another 

commenter said that the proposed 

modification does not adequately clarify 

that a pre-construction notification is 

not required for stream channel 

modification as discussed in the 

proposed rule. This commenter 

recommended that paragraph (a) state 

that stream channel modification 

immediately adjacent to the structure or 

fill being maintained is authorized 

without pre-construction notification. 

One commenter suggested that 

paragraph (a) include the removal of 

material from within existing structures. 

One commenter indicated that the scope 

of activities considered as stream 

channel modifications should be 

clarified, because certain stream 

channel modifications such as sediment 

or debris removal and reestablishment 

of the original bridge-stream alignment 

are needed to maintain a safe crossing 

with sufficient hydraulic capacity. 

Another commenter indicated that 

while stream channel modification is 

restricted to the minimum necessary, 

there should be a 300 linear foot impact 

limit. One commenter did not support 

the proposed modification, stating that 

pre-construction notification should be 

required for stream channel excavation 

near a structure because excavation has 

the potential to uncover unknown 

archeological resources. 

We have changed the text of 

paragraphs (a) and (b) to clarify which 

stream modifications fall under 

paragraph (a) and which fall under 

paragraph (b). The removal of material 

from waters within, or immediately 

adjacent to, the structure or fill are 

authorized under paragraph (a) and do 

not require pre-construction 

notification. The removal of material 

from waters that are not immediately 

adjacent to the structure or fill, but 

within the limits in paragraph (b), may 

be authorized under paragraph (b). This 

NWP authorizes only activities that 

repair or return an activity to previously 

existing conditions. We do not believe 

it is necessary to place additional limits 

on this NWP because the current limits 

are sufficient to ensure minimal effects. 

Paragraph (a) only authorizes minor 

stream channel modifications necessary 

to repair, replace, or rehabilitate the 

structure or fill, which may include 

minor deviations to account for changes 

in materials, construction techniques, 

requirements of other regulatory 

agencies, or current construction codes 

or safety standards. Such minor 

deviations could be done to improve 

conditions to facilitate aquatic species 

movements. General conditions 20 and 

21 address the protection of historic 

properties and actions to be taken if 

previously unknown remains or artifacts 

are discovered during the maintenance 

activity. 


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Several commenters recommended 

adding the word ‘‘or stabilization’’ after 

‘‘repair, rehabilitation, replacement’’ in 

paragraph (a) to clarify that stabilization 

activities are included in paragraph (a). 

Two commenters requested that 

practicability be considered with the 

‘‘minimum necessary.’’ One commenter 

requested that the NWP include the 

requirements of other regulatory 

agencies as a reason for allowing minor 

deviations in a structure’s configuration 

or filled area. 

We do not believe it would be 

appropriate to include stabilization 

activities under paragraph (a) since 

some stabilization activities may result 

in more than a minor deviation in the 

structure’s configuration or filled area. 

District engineers already consider what 

is practicable when reviewing proposed 

NWP 3 activities, and we do not believe 

it is necessary to provide additional 

clarification. We agree that the 

requirements of other regulatory 

agencies is an appropriate basis for 

making minor changes in a structure or 

filled area during maintenance, 

especially if those regulatory 

requirements help protect aquatic 

resources. 

Several commenters stated that the 

placement of new or additional riprap to 

protect small structures be included in 

paragraph (a). A commenter requested 

clarification that the placement of pipe 

liners and concrete repairs to flow lines 

of pipes are examples of maintenance 

activities authorized by this NWP. One 

commenter expressed concern that 

authorizing the expansion of existing 

projects into waters of the United States 

discourages avoidance and 

minimization of adverse impacts and 

violates the 404(b)(1) Guidelines. 

Another commenter indicated that work 

that is immediately adjacent to the 

project is not maintenance and that the 

work should be limited to the extent of 

the original project. 

The placement of riprap to protect a 

structure or fill is more appropriately 

authorized by paragraph (b) of this 

NWP, after the district engineer reviews 

the pre-construction notification. If the 

installation of pipe liners or concrete 

repairs to flow lines are necessary and 

result only in a minor deviation to the 

structure’s configuration or filled area, it 

may be authorized under paragraph (a). 

Paragraph (a) only authorizes minor 

deviations to the structure or filled area 

that are necessary to conduct the repair, 

rehabilitation, or replacement activity, 

and complies with the general condition 

requiring on-site avoidance and 

minimization. 

One commenter said that the permit 

should require that the Corps be 

notified, within 12 months of the date 

of the damage, for activities involving 

the repair, rehabilitation, or replacement 

of structures or fills destroyed or 

damaged by storms, floods, fire or other 

discrete events. 

The repair, rehabilitation, or 

replacement of structures or fills 

destroyed or damaged by these types of 

events does not require pre-construction 

notification. This is because restoring a 

structure or fill to its pre-event 

configuration will not result in more 

than minimal adverse effects relative to 

the pre-event status quo. If a project 

proponent wants a waiver of the twoyear limit, the district engineer can 

issue a waiver if warranted, without 

reviewing a pre-construction 

notification. 

Some commenters expressed 

opposition over the proposed change 

from ‘‘and’’ to ‘‘and/or’’ under 

paragraph (b). They recommended 

retaining the current language because 

they indicated that making the change 

to ‘‘and/or’’ would cause confusion as to 

which provision of this NWP would be 

used to authorize riprap placement. The 

commenters also said that this change 

would result in the regulation of 

excavation activities that do not result 

in more than incidental fallback. 

Another commenter was concerned that 

the change to ‘‘and/or’’ suggested that 

the addition of riprap triggered preconstruction notification. 

The use of the term ‘‘and/or’’ means 

that paragraph (b) authorizes the 

removal of accumulated sediments or 

debris, the placement of new or 

additional riprap to protect the 

structure, or both activities. This NWP 

authorizes the removal of accumulated 

sediment and debris if that activity 

involves a regulated discharge of 

dredged or fill material. This NWP also 

authorizes the removal of accumulated 

sediments and debris in the vicinity of 

existing structures from section 10 

waters. If a project proponent seeks 

authorization to place new or additional 

riprap near the structure, then preconstruction notification is required in 

accordance with paragraph (b) of this 

NWP. 

One commenter said that the use of 

riprap should be discouraged and only 

authorized if other options are not 

possible. Another commenter suggested 

placing a limit on the amount of riprap 

that can be placed under paragraph (b). 

One commenter stated that the 

placement of new or additional riprap is 

not maintenance and should not be 

authorized by NWP 3. One commenter 

recommended requiring mitigation 

techniques, such as weep holes, when 

steel sheet piling is used for the 

maintenance activity. 

Riprap may be necessary to protect 

the integrity of these structures. We 

have modified the next to last sentence 

of paragraph (b) to clarify that new or 

additional riprap may be placed to 

protect the structure or ensure the safety 

of the structure. In response to a preconstruction notification (which is 

required for all placement of new or 

additional riprap under paragraph (b) of 

this NWP), best management practices 

or other mitigation measures may be 

required by the district engineer to 

minimize adverse effect to the aquatic 

environment. 

One commenter said that this NWP 

should not authorize maintenance 

dredging and that NWP 19 should be 

used instead. This commenter also 

recommended adding a cubic yard limit 

for the amount of dredging that is 

authorized. Another commenter 

recommended that the removal of 

sediment should be limited to 100 feet 

instead of 200 feet. One commenter 

suggested increasing the linear foot limit 

to 500 feet. One commenter also 

suggested that the applicant be required 

to provide information to ensure that 

sediments proposed to be removed are 

not contaminated. 

Paragraph (b) may be used to 

authorize the removal of accumulated 

sediment and debris from section 10 

waters, and the 200 linear foot limit is 

appropriate to ensure minimal adverse 

effects. District and division engineers 

can condition this NWP to reduce the 

limit to less than 200 linear feet. 

Maintenance dredging for the purposes 

of navigation may be authorized by 

NWP 19 and may not be authorized by 

this NWP. The only excavation 

authorized by this NWP is excavation 

necessary for the maintenance, repair, 

rehabilitation, or replacement of the 

structure, and then only within the 

limits established in the permit. It is not 

necessary to require contaminant testing 

for the sediments to be removed as a 

general condition of the permit, because 

for many cases there is reason to believe 

that no contaminants are present in the 

material. If there is reason to believe 

that contaminants are present, the 

district engineer may require 

contaminant testing and/or best 

management practices to control the 

release of contaminants on a casespecific basis. 

One commenter objected to the 

proposed removal of the words ‘‘[w]here 

maintenance dredging is proposed’’ 

from the ‘‘Notification’’ paragraph. 

Another commenter said that preconstruction notification should only be 


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required when maintenance dredging is 

contemplated. 

Pre-construction notification is 

required for all activities covered under 

paragraph (b). When a permittee 

submits the pre-construction 

notification for activities covered under 

paragraph (b), they also must submit 

information regarding the original 

design capacities and configurations of 

the outfalls, intakes, small 

impoundments, and canals. The deleted 

phrase is meant to clarify the 

‘‘Notification’’ provision. 

A commenter asked if the term 

‘‘upland’’ means ‘‘above the ordinary 

high water mark.’’ That commenter also 

requested clarification as to what 

constitutes ‘‘temporary’’ in terms of how 

long temporary fills can be kept in 

place. Another commenter asked for a 

definition of ‘‘minor deviations’’ and 

two commenters recommended that 

‘‘immediately adjacent’’ be defined. 

There may be wetlands landward of 

the ordinary high water mark of a river 

or other water of the United States, so 

it would not be appropriate to define 

‘‘uplands’’ as suggested in the previous 

paragraph. Since some waters and 

wetlands are not subject to Clean Water 

Act jurisdiction, we have changed the 

text of paragraph (b) to require all 

dredged or excavated materials to be 

deposited and retained in an area that 

has no waters of the United States, 

unless otherwise specifically approved 

by the district engineer under separate 

authorization. Waters of the United 

States will be identified in accordance 

with applicable laws, regulations, and 

guidance, as discussed above, and is not 

affected by the issuance of these NWPs. 

What constitutes a temporary fill is at 

the discretion of the district engineer. 

Determining what is a minor deviation 

and immediately adjacent is also at the 

discretion of the district engineer. The 

Corps believes this is appropriate 

because it is difficult to identify bright 

line definitions for these terms that are 

applicable in all circumstances. If an 

applicant is unsure whether a specific 

activity qualifies, he or she should 

consult the appropriate Corps district 

office. 

Several commenters said that preconstruction notification should not be 

required for activities authorized by 

paragraph (b), to reduce delays. Other 

commenters requested removal of the 

pre-construction notification 

requirements for sediment and debris 

removal, because the work is often 

conducted immediately after storm 

events when a timely response is critical 

to public safety. Another commenter 

also requested that no pre-construction 

notification be required for activities 

under paragraph (b), if the waters are 

ephemeral or intermittent streams. 

Other commenters said that preconstruction notification should be 

required for all activities authorized by 

this NWP. 

We believe that the pre-construction 

notification requirements for this NWP 

are appropriate. Pre-construction 

notification is required for those 

activities that may have the potential to 

cause more than minimal adverse effects 

on the aquatic environment. Activities 

authorized by paragraph (b) usually 

involve larger impacts than those 

authorized by paragraph (a) and 

therefore warrant pre-construction 

notification to ensure that those 

activities will result in minimal adverse 

effects on the aquatic environment. 

One commenter suggested that this 

NWP should require the use of best 

management practices to avoid 

sediment loading of waters. One 

commenter suggested that paragraph (c) 

should be conditioned to protect 

downstream water quality and prohibit 

sediment discharges. Two commenters 

said that general condition 2 should not 

apply to NWP 3 activities. 

General condition 12 requires the use 

of sediment and erosion controls to 

minimize sediment inputs during 

construction. General condition 2 does 

apply to this NWP, to ensure that 

aquatic life movements can continue 

after the maintenance activity is 

conducted. 

One commenter said that Tribes 

should be notified to avoid impacts to 

tribal treaty natural resources and 

cultural resources. Two commenters 

said that this NWP should be 

conditioned to allow fish migration to 

continue. One of these commenters also 

stated that these activities should not 

restrict water flows or constrict 

channels. One commenter said that this 

NWP should be conditioned to address 

slope stability to prevent overburden 

material from going into the water. 

Another commenter recommended that 

all stream crossings span the bankfull 

width and, in cases where the structures 

have a bottom, the structure bottom 

shall match stream slope. 

District engineers have conducted 

government-to-government consultation 

with Tribes to determine which NWP 

activities should be subject to projectspecific consultation to protect Tribal 

treaty natural resources and cultural 

resources. General Condition 18 

specifies that no activity or its operation 

may impair reserved tribal rights, 

including, but not limited to, reserved 

water rights and treaty fishing and 

hunting rights. General condition 2 

requires that NWP activities be 

constructed to maintain aquatic life 

movements, and general condition 9 

requires that water flows be maintained 

to the maximum extent practicable. The 

appropriate size for stream crossings 

will be determined on a case-by-case 

basis, to comply with the applicable 

general conditions. 

A commenter recommended an 

addition to the ‘‘Note’’, which 

references the section 404(f) exemption 

for maintenance. This commenter 

suggested that the note include 

clarification as to who can use the 

exemption for maintenance of irrigation 

and drainage ditches. 

The section 404(f) exemption for 

maintenance of irrigation ditches and 

drainage ditches can be used by anyone 

that qualifies for the exemption. If a 

particular activity does not qualify for 

the exemption because of the recapture 

provision in section 404(f)(2) or for any 

other reason, NWP 3 may be used to 

authorize the maintenance activity, if it 

meets the terms and conditions of the 

NWP. 

This NWP is reissued with the 

modifications discussed above. 

NWP 4. Fish and Wildlife Harvesting, 

Enhancement, and Attraction Devices 

and Activities. There were no changes 

proposed for this NWP. One commenter 

suggested adding fish aggregating 

devices to the list of devices and 

activities authorized by this NWP. Fish 

aggregating devices are man-made 

objects used to attract ocean-going 

pelagic fish. Before these devices, 

commercial fishing used purse seining 

to target surface-visible aggregations of 

birds and dolphins, which were used as 

a signal of the presence of tuna schools 

below. However, the by-catch of 

dolphins became a significant issue. The 

demand for dolphin-safe tuna was a 

driving force for fish aggregating 

devices. Therefore, we concur with the 

comment and have added that device to 

this NWP. This NWP is reissued with 

the modification discussed above. 

NWP 5. Scientific Measurement 

Devices. We proposed to modify this 

NWP to require the removal of the 

device and any associated structures or 

fills at the conclusion of the study. We 

also proposed to add meteorological 

stations to the list of examples of the 

types of devices authorized by this 

NWP, as well as current gages and 

biological observation devices. 

One commenter suggested that each of 

the listed devices be defined and have 

footprint and height limitations. 

Another commenter said that 

meteorological stations should not be 

authorized by this NWP. One 

commenter supported adding 

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and biological observation devices as 

examples of the types of devices 

authorized by this NWP. Another 

commenter stated the Corps should 

define a maximum period required for 

a meteorological tower study. 

We do not believe it is necessary to 

provide definitions for each of these 

devices and add limits. These devices 

are usually small in size and since most 

of them are structures they do not 

typically result in a loss of waters of the 

United States. This NWP already has a 

25 cubic yard limit for weirs and 

flumes. Division engineers can 

regionally condition this NWP to 

establish additional limits, including 

maximum time frames for studies. In 

response to an NWP verification 

request, district engineers may also 

place limits on these devices and their 

use. 

One commenter suggests the Corps 

clarify the requirements for the removal 

of a scientific measurement device, and 

suggested that the NWP not require 

excavation to remove the entire 

structure. This commenter also said that 

cutting off the structure near the 

substrate of the waterbody and leaving 

the buried foundation may result in less 

environmental damage during removal. 

Another commenter said that where 

meteorological towers are used for longterm data collection and preliminary 

testing for wind turbines, those 

meteorological towers would be 

removed during the wind energy facility 

decommissioning process. One 

commenter stated that the device should 

be removed ‘‘upon completion of the 

use of the device to measure and record 

scientific data.’’ 

We have modified the provision in 

the NWP to require the removal of the 

device when it will no longer be used 

to measure and record scientific data. 

Meteorological towers used in wind 

energy generation facility preliminary 

testing and operations could be left in 

place until the facility is 

decommissioned. We have also changed 

the text to state that structures or fills 

must be removed to the maximum 

extent practicable, which would allow 

the foundation to remain if removing 

the foundation would cause more 

adverse effects to the waters or wetlands 

than leaving the foundation in place. 

We also added the word ‘‘foundation’’ 

to the examples of structures or fills that 

may be associated with a scientific 

measurement device. 

This NWP is reissued with the 

modifications discussed above. 

NWP 6. Survey Activities. We 

proposed to modify this NWP to specify 

how exploratory trenches are backfilled 

by stating the work ‘‘must not drain a 

water of the United States’’ and to 

replace the 25 cubic yard limit for 

temporary pads with a 1⁄10-acre limit. 

Several commenters supported 

changing the limit from 25 cubic yards 

to 1⁄10-acre. Two commenters expressed 

concern that removing the 25 cubic yard 

limit would result in more than minimal 

cumulative effects to aquatic resources. 

One commenter recommended adding 

wetland delineation sampling activities 

to the list of examples of activities 

authorized by this NWP. Several others 

recommended adding conditions to 

require removal of the temporary fills 

and re-establishment of pre-construction 

contours and reseeding of affected areas 

after completion of work. One 

commenter requested a definition of 

‘‘temporary pad.’’ One commenter 

recommended that exploratory 

trenching should not be authorized 

below the ordinary high water mark of 

any waters of the United States. 

We are changing the limit of this NWP 

from 25 cubic yards to 1⁄10-acre. We 

have added ‘‘sample plots or transects 

for wetland delineations’’ as an example 

of an activity authorized by this NWP. 

General condition 13, removal of 

temporary fills, requires temporary fills 

to be removed in their entirety and the 

area revegetated, as appropriate. We do 

not believe it is necessary to define 

‘‘temporary pad’’ for purposes of this 

NWP, since it is simply a temporary fill 

that must be removed upon completion 

of the survey activity. We do not agree 

that exploratory trenching should be 

prohibited below the ordinary high 

water mark since these activities result 

in temporary impacts to the aquatic 

environment. 

This NWP is reissued with the 

modification discussed above. 

NWP 7. Outfall Structures and 

Associated Intake Structures. We did 

not propose any changes to NWP. One 

commenter objected to the reissuance of 

this NWP, stating that these activities 

adversely affect aquatic vegetation or 

areas designated as critical habitat for 

fish foraging and spawning, through 

increases in turbidity, discharges of 

nutrients and contaminants, alteration 

of near-shore areas, and scouring 

vegetation within the plume. Another 

commenter recommended that outfall 

structures not be placed in wetlands or 

constructed in such a manner that 

would create shoreline pockets capable 

of trapping debris. One commenter 

recommended conditioning this NWP to 

ensure that the outfall structure not 

extend into the receiving water and 

impair navigation. One commenter 

suggested that for activities proposed to 

occur on state-owned submerged lands, 

a separate authorization would be 

required from that state. 

In waters that have been designated as 

Essential Fish Habitat in accordance 

with the Magnuson-Stevens Fishery 

Conservation and Management Act, 

consultation with the National Marine 

Fisheries Service will be conducted for 

proposed activities that may adversely 

affect Essential Fish Habitat. That 

consultation will often result in 

conservation recommendations that will 

protect habitat for fish foraging and 

spawning. General condition 22, 

designated critical resource waters, will 

also reduce adverse effects to fish 

foraging and spawning areas caused by 

NWP activities in those critical resource 

waters. Division engineers may 

regionally condition this NWP to restrict 

or prohibit its use in specific waters, 

including those that provide important 

habitat. In response to a preconstruction notification, district 

engineers may also exercise 

discretionary authority if the proposed 

activity would result in more than 

minimal adverse effects on the aquatic 

environment, including vegetated 

shallows and fish spawning and feeding 

areas. These structures may be designed 

so that they do not trap debris. General 

condition 14, proper maintenance, 

requires authorized structures and fills 

to be properly maintained, which may 

include periodic removal of debris from 

outfall structures and associated intake 

structures, to ensure that these 

structures continue to function 

properly, do not trap debris, and do not 

cause more than minimal adverse effects 

to nearshore aquatic environments. 

Compliance with general condition 1, 

navigation, will prevent adverse impacts 

to navigation. Permittees are responsible 

for obtaining any other Federal, state or 

local permits that may be required. 

The NWP is reissued without change. 

NWP 8. Oil and Gas Structures on the 

Outer Continental Shelf. We proposed 

to modify this NWP to update the name 

of the former Minerals Management 

Service to the Bureau of Ocean Energy 

Management Regulation, and 

Enforcement (BOEMRE). 

One commenter expressed support for 

the proposed modification. One 

commenter recommended that no oil 

and gas structures or activities be 

authorized through the nationwide 

permit process. 

After the proposal to reissue this NWP 

was published, the Bureau of Ocean 

Energy Management (BOEM) became 

the agency responsible for issuing leases 

for oil and gas structures on the outer 

continental shelf. We have modified the 

text of NWP 8 to reflect this change. 

This NWP only authorizes structures 


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erected within areas of the outer 

continental shelf leased by the Bureau 

of Ocean Energy Management. The 

general environmental concerns are 

addressed in the required NEPA 

documentation prepared by BOEM prior 

to issuing a lease. The Corps role is 

limited to reviewing impacts on 

navigation and national security, as 

stated in 33 CFR part 322.5(f). 

This NWP is reissued as proposed. 

NWP 9. Structures in Fleeting and 

Anchorage Areas. There were no 

changes proposed for this NWP, and no 

comments were received. This NWP is 

reissued without change. 

NWP 10. Mooring Buoys. There were 

no changes proposed for this NWP. One 

commenter stated a notice to Tribes 

needs to be provided to avoid adverse 

effects to Tribal treaty fishing access. 

One commenter recommends 

prohibiting the use of this NWP in 

‘‘downgraded shellfish harvest areas.’’ 

Another commenter said that the permit 

should be conditioned to require 

permittee’s to provide information on 

the location of the mooring buoy, 

including a site plan drawn to scale that 

shows the distance of the buoy from the 

shore, mark the Corps permit number on 

the buoy, and a statement that the buoy 

satisfies U.S. Coast Guard requirements. 

One commenter suggested adding a 

limit on the number of buoys installed 

per acre, based on the number and size 

of the moored vessels. 

Division engineers can regionally 

condition this NWP to prohibit its use 

in areas where mooring buoys may 

impact access to Tribal treating fishing 

areas. General condition 18 states that 

NWP activities cannot impair reserved 

tribal rights. Division engineers can 

impose regional conditions to restrict or 

prohibit its use in shellfish harvesting 

areas. We do not agree that preconstruction notification for the 

activities authorized by this NWP is 

necessary, to require prospective 

permittees to submit detailed 

information on the location of the 

proposed mooring buoy, a detailed site 

plan, and a statement that it complies 

with U.S. Coast Guard requirements. All 

applicable Coast Guard regulations must 

be complied with independent of the 

conditions in this NWP. We believe that 

it is not necessary to limit this NWP, at 

the national level, to install a particular 

number of mooring buoys per acre. 

Division engineers may also regionally 

condition this NWP to impose such 

restrictions. 

This NWP is reissued without change. 

NWP 11. Temporary Recreational 

Structures. There were no changes 

proposed for this NWP. One commenter 

recommended requiring that structures 

authorized under this NWP be removed 

immediately after use ceases, instead of 

the 30 days specified in the NWP. 

The Corps believes that the current 

requirements for the removal of 

temporary structures are sufficient. 

Where necessary, shorter time periods 

for removal can be imposed through 

regional conditioning or through special 

conditions provided in activity-specific 

NWP verifications. 

The NWP is reissued without change. 

NWP 12. Utility Line Activities. We 

proposed to modify this NWP to clarify 

how to calculate the loss of waters of the 

United States for a single and complete 

project that involves an access road. 

This proposed change was intended as 

a clarification of long-standing practice, 

not a substantive revision. 

Several commenters supported the 

proposed change to this NWP. Another 

commenter stated the proposed 

clarification would severely restrict the 

use of NWP 12, because it changes the 

definition of single and complete 

project. One commenter requested 

further clarification of the intent and 

applicability of the term ‘‘single and 

complete’’ and suggested we replace it 

with ‘‘single and complete linear 

projects’’ wherever the former phrase is 

found in NWP 12 since the NWP applies 

to linear projects and their associated 

facilities and activities. Two 

commenters requested confirmation that 

the calculation of impacts for purposes 

of satisfying the NWP 12 threshold is 

done separately for each crossing. 

Another commenter objected to the 

definition of ‘‘single and complete 

project’’ at 33 CFR 330.2(i) and the NWP 

definitions section and stated mitigation 

should be required for utility lines that 

result in the loss of greater than 1⁄2-acre. 

This modification of the NWP does 

not change the definition of single and 

complete project and does not affect its 

implementation, except to clarify that 

only losses of waters of the United 

States associated with a single and 

complete project would be considered 

when determining whether the acreage 

limit or pre-construction notification 

threshold is exceeded. However, it is 

correct that the Corps long-standing 

practice (which we are not changing) 

has been to generally calculate impacts 

for purposes of satisfying the 1⁄2-acre 

threshold separately for each separate 

and distant crossing, and we have 

clarified this in the definitions section 

by adding separate definitions that 

explain how single and complete 

projects are determined for linear and 

non-linear projects. We do not agree that 

in the text of this NWP the term ‘‘single 

and complete project’’ should be 

replaced with ‘‘single and complete 

linear project.’’ Although the vast 

majority of utility lines are linear 

projects where the crossings are at 

separate and distant locations, and thus 

considered separate single and complete 

projects, there may be circumstances 

where the separate crossings of a 

waterbody are too close together to be 

considered separate single and complete 

projects, and one NWP authorization 

would be evaluated for those closelyspaced crossings. Therefore, we have 

retained the more generic term ‘‘single 

and complete project’’ in the text of this 

NWP. Other supporting components of 

a utility line, such as substations, may 

not be considered linear projects in 

some circumstances. District engineers 

may exercise discretionary authority 

and require compensatory mitigation for 

utility line activities that require preconstruction notification and result in 

the loss of aquatic resources. 

One commenter stated the Corps 

should clarify that the only relevant 

activity for purposes of NWP 12 is a 

discharge of dredged or fill material into 

waters of the United States. One 

commenter said that no discharges 

should be authorized in waters below 

the ordinary high water mark or in areas 

that provide fish habitat functions. This 

commenter also said that utility lines 

should be buried at least six feet below 

the authorized federal channel depth. 

One commenter stated that mechanized 

land clearing of forested wetlands for 

installation of utility lines should not be 

authorized by NWP 12. 

The activities authorized by this NWP 

are not limited to discharges of dredged 

or fill material. This NWP also 

authorizes structures or work in 

navigable waters of the United States 

that require authorization under Section 

10 of the Rivers and Harbors Act of 

1899. We do not agree that discharges 

should be prohibited in open waters, 

below the ordinary high water mark. 

Such activities often result in minimal 

adverse effects on the aquatic 

environment and qualify for general 

permit authorization. Division engineers 

can restrict or prohibit use of this NWP 

in certain waters, through the approval 

of regional conditions. The appropriate 

depth a utility line should be buried 

below a federal channel should be 

determined on a case-by-case basis. 

Mechanized landclearing of a forested 

wetland in a utility line right-of-way 

may only result in a conversion of 

wetland type, and not result in 

permanent loss of waters of the United 

States. District engineers may require 

compensatory mitigation to offset 

permanent losses of wetland functions 

when such mechanized landclearing 

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One commenter stated that 

authorizing the loss of 1⁄2-acre of waters 

of the United States for each crossing 

results in more than minimal adverse 

environmental effects. Another 

commenter said that the 1⁄2-acre limit 

should apply to the entire utility line 

project, because the cumulative effects 

of the utility line must be considered. 

One commenter stated that this NWP 

should also limit stream impacts to 300 

linear feet. Several commenters asked 

whether the conversion of a forested 

wetland to a scrub-shrub wetland 

counts toward the 1⁄2-acre limit. 

The 1⁄2-acre limit applies to each 

crossing that is considered to be a 

separate single and complete project, 

because they are sited at distant 

locations from other crossings that 

constitute the linear project. Each 

separate and distant crossing should be 

evaluated to determine if it meets the 

terms and conditions of the NWP, and 

cumulative effects of the overall utility 

line should be evaluated to determine if 

the adverse cumulative effects on the 

aquatic environment are more than 

minimal and therefore do not qualify for 

NWP authorization. Separate utility line 

crossings are usually on different water 

bodies, and may also be in widely 

separated watersheds. Such factors 

should be considered when assessing 

cumulative impacts. The ‘‘Definitions’’ 

section provides further clarification on 

single and complete projects. The 

conversion of a forested wetland to a 

scrub shrub wetland does not constitute 

a permanent loss of waters of the United 

States, and thus does not count towards 

the acreage limit, even though it may 

result in the permanent loss of certain 

functions, which may require 

compensatory mitigation. 

One commenter said that some utility 

lines and associated renewable energy 

projects may have unintended negative 

impacts on the Department of Defense 

mission. For example, high voltage 

transmission lines could potentially 

interfere with long-range radar 

surveillance, homeland defense, testing, 

and training missions. This commenter 

requested that pre-construction 

notifications for NWP 12 activities 

involving the construction of overhead 

utility lines in waters of the United 

States be coordinated with the 

Department of Defense, by sending a 

copy of the pre-construction notification 

to the Department of Defense Siting 

Clearinghouse. Department of Defense 

Siting Clearinghouse staff will review 

the pre-construction notification and 

contact the project proponent if they 

identify potential negative impacts to 

Department of Defense operations, 

testing, and training missions. 

We have added Note 4 to this NWP, 

which states that a copy of the preconstruction notification will be 

provided to the Department of Defense 

Siting Clearinghouse if the proposed 

activity involves an overhead utility line 

constructed in waters of the United 

States. This coordination process will 

not interfere or delay the district 

engineer’s decision on the preconstruction notification, which must 

be made within the timeframes 

specified in the NWP general 

conditions. The coordination process 

will consist of districts sending the 

Department of Defense Siting 

Clearinghouse copies of preconstruction notifications and NWP 

verifications, and Clearinghouse staff 

will work with project proponents to 

address effects to military operations. 

One commenter stated that the 

definition of a utility line in the NWP 

is too expansive and should not include 

liquescent or slurry substances. This 

commenter asked if utility lines could 

also be used to transport waste 

products. One commenter stated that 

terms and conditions of the NWP 

should require projects to use existing 

trenches or cables whenever possible, 

and require that sidecast material be put 

back in place within 24 hours. One 

commenter requested that temporary fill 

be defined and that compensatory 

mitigation should be required for 

temporary fills left in place for two 

years. One commenter said that 

enforcing the time periods for temporary 

side casting is too difficult. One 

commenter requested more detail 

regarding the circumstances under 

which a district engineer would extend 

the period of temporary side casting up 

to a total of 180 days. One commenter 

stated the side casting in areas with 

known or probable sediment 

contamination should be prohibited. 

One commenter stated the placement of 

excavated materials into any waterway 

should be prohibited. 

Water or sewer lines are generally 

recognized to be utility lines, and are 

used to transport liquid or slurry 

substances. They may also be used to 

transport waste products, such as 

sewage or industrial byproducts. We do 

not agree that existing trenches or cable 

should be a requirement of this NWP, 

since many new utility lines 

constructed in waters of the United 

States result in minimal adverse effects 

on the aquatic environment. However, 

project sponsors should consider the 

use of existing trenches and cables 

where practicable as one way of 

avoiding or minimizing adverse impacts 

to the aquatic environment, which is 

required by general condition 23, 

mitigation. It is not practicable to 

require side cast material to be put back 

into the original trench or pit within 24 

hours, and we have retained the current 

language concerning temporary side 

casting. It is the district engineer’s 

discretion on whether to extend the 

period of temporary side casting. That 

discretion would be based on the sitespecific environmental conditions, the 

activity, practicability considerations, 

and other factors. District engineers can 

restrict or prohibit side casting in areas 

where sediment contamination may be 

a concern. Excavated materials are 

generally not placed in flowing waters, 

and should be retained in areas outside 

of flowing waters with proper sediment 

and erosion controls. 

One commenter objected to 

authorizing the expansion of utility line 

substations, stating that those activities 

should require individual permits and a 

finding of compliance with the Clean 

Water Act Section 404(b)(1) Guidelines 

and public interest review. 

The expansion of utility line 

substations does not generally warrant a 

full public interest review and activityspecific Section 404(b)(1) Guidelines 

analysis since it is an expansion of an 

existing facility. In response to a preconstruction notification, the district 

engineer will review the proposed 

expansion of a substation and exercise 

discretionary authority if it would result 

in more than minimal individual and 

cumulative adverse effects on the 

aquatic environment. 

Two commenters stated the 

construction of temporary access roads 

will require a submerged lands 

authorization and would require a 

submerged land lease for long-term use. 

The use of NWP 12 does not obviate 

the need for the project proponent to 

obtain any other federal, state, or local 

permits that may be required, including 

permits from states that hold title to 

submerged lands. 

One commenter said that this NWP 

should have fewer pre-construction 

notification thresholds to expedite 

pipeline safety repairs and 

infrastructure projects. One commenter 

supported retaining the 1⁄10-acre 

threshold pre-construction notification. 

We believe all of the current preconstruction notification thresholds are 

necessary because of the variety of 

utility line activities authorized by NWP 

12 (i.e., utility line construction, 

maintenance, repair, and removal, the 

construction, maintenance, or 

expansion of utility line substations, the 

construction or maintenance of 

foundations for overhead transmission 

lines, and the construction of access 

roads) and to allow district engineers 


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the opportunity to review those 

activities to determine whether they 

will result in minimal adverse effects on 

the aquatic environment. Pipeline 

maintenance may be authorized by 

NWP 3 or NWP 12, and use of NWP 3 

would not usually trigger a preconstruction notification requirement. 

Many pipeline maintenance activities 

may also be authorized by NWP 12, 

without pre-construction notification. 

The 1⁄10-acre pre-construction 

notification threshold remains in this 

NWP. 

One commenter recommended that 

this NWP require the use of specific 

equipment such as low ground pressure 

equipment and wide tires to minimize 

adverse effects to wetlands. Another 

commenter said that this NWP should 

be conditioned to require the use of best 

management practices to reduce 

sediment loads into waters. One 

commenter stated that this NWP does 

not require sufficient avoidance and 

minimization of waters of the United 

States. One commenter suggested 

requiring the installation of barriers next 

to utility line trenches to prevent 

amphibians and reptiles from falling 

into the trench and to reduce sediment 

transport into waters of the United 

States during precipitation events. One 

commenter said that pipes installed 

over rivers and streams should have 

shut-off valves to minimize the potential 

for discharges to occur if the pipe is 

breached. 

The use of equipment that minimizes 

adverse effects to waters of the United 

States is addressed by general condition 

11, equipment, which requires 

permittees to take measures to minimize 

soil disturbance, such as placing heavy 

equipment on mats when working in 

wetlands, mudflats, or other waters. 

Division or district engineers may 

condition this NWP, either through the 

regional conditioning process or 

through activity-specific conditions 

added to an NWP 12 authorization, to 

require the use of best management 

practices. General condition 23, 

mitigation, requires permittees to design 

and construct their activities to avoid 

and minimize adverse effects to waters 

of the United States. A requirement to 

install barriers next to utility line 

trenches, or the use of shut-off valves in 

pipes constructed over waters, is more 

appropriately addressed through the 

regional conditioning process or 

through activity-specific conditions 

added to an NWP 12 authorization 

during the review of a pre-construction 

notification or NWP verification request. 

One commenter stated that this NWP 

could streamline the authorization of 

offshore wind energy generation 

facilities, but two of the terms and 

conditions may be problematic. The first 

is the prohibition against side casting 

when sediments would be dispersed by 

currents or other forces. The second is 

the 1⁄2-acre limit, which may prohibit 

use of this NWP to authorize the 

installation of cables that transfer the 

energy generated by wind turbines. 

The transmission cable that runs from 

an offshore wind energy generation 

facility to a land-based facility or 

distribution system may be constructed 

so that the trench for the cable is 

backfilled immediately after the cable is 

laid into the trench. That immediate 

backfilling would minimize dispersion 

by currents or other forces in those 

waters. The placing of a power 

transmission cable on the sea bed is 

considered a structure under our 

regulations for implementing Section 10 

of the Rivers and Harbors Act of 1899 

(see 33 CFR 322.2(b)), and not a loss of 

waters of the United States subject to 

the 1⁄2-acre limit in NWP 12. 

One commenter recommended 

requiring coordination with Tribes to 

avoid impacts to Tribal treaty natural 

resources and cultural resources. 

Another commenter said that 

coordination with State Historic 

Preservation Officers should be required 

to protect historic properties. 

Division engineers can regionally 

condition this NWP to require 

coordination with Tribes, to ensure that 

this NWP does not adversely affect 

Tribal treaty natural resources and 

cultural resources. General condition 

20, historic properties, addresses 

compliance with the National Historic 

Preservation Act, which requires 

consultation for activities that have the 

potential to cause effects to historic 

properties, including tribal resources 

that meet the definition of ‘‘historic 

property.’’ General condition 17, tribal 

rights, requires that no NWP activity or 

its operation may impair reserved treaty 

rights, such as reserved water rights and 

treaty fishing and hunting rights. 

One commenter requested 

clarification that individual permits are 

not automatically required for NWP 12 

activities when a Corps district 

participates as a cooperating agency for 

an environmental impact statement. 

Even though an environmental impact 

statement may be prepared for a 

particular utility line, the National 

Environmental Policy Act process does 

not prohibit the Corps from using NWP 

12 to authorize the construction, 

maintenance, repair, and removal of 

utility lines and associated facilities in 

waters of the United States, as long as 

the activity complies with all applicable 

terms and conditions and results in 

minimal individual and cumulative 

adverse effects on the aquatic 

environment. NEPA requires 

consideration of all environmental 

impacts, not only those to aquatic 

resources, so there may well be 

situations where aquatic impacts are 

minimal even though environmental 

impacts more generally are not. These 

other environmental impacts would be 

addressed by the lead agency preparing 

the environmental impact statement. 

The district engineer will exercise 

discretionary authority to require an 

individual permit for any utility line 

activity that he or she determines does 

not meet the terms and conditions of 

NWP 12. 

One commenter suggested modifying 

Note 1 to limit submission of NWP 12 

pre-construction notifications and 

verifications to the National Oceanic 

and Atmospheric Administration’s 

National Ocean Service (NOS), since 

NOS only produces charts for waters in 

the coastal United States, Great Lakes, 

and United States territories. 

We have modified Note 1 to require 

district engineers to send copies of NWP 

12 pre-construction notifications and 

verifications to NOS in those regions of 

the country. 

This NWP is reissued with the 

modifications discussed above. 

NWP 13. Bank Stabilization. We 

proposed modifying this NWP by 

removing the waiver provision in 

paragraph (c) that allowed district 

engineers to authorize bank stabilization 

fills that exceeded one cubic yard per 

running foot below the ordinary high 

water mark or high tide line to 

encourage the use of bioengineered 

techniques for bank stabilization. To 

conform with the proposed change to in 

paragraph (c), we proposed to remove 

the third pre-construction notification 

threshold for bank stabilization fills that 

exceeded one cubic yard per running 

foot, since these fills would no longer be 

allowed. We also proposed changing 

this NWP to authorize temporary 

structures and fills necessary for the 

construction of bank stabilization 

activities. 

Many commenters recommended that 

this NWP not be reissued, and stated 

that all bank stabilization should be 

evaluated under individual permit 

procedures. One commenter asserted 

that bank stabilization activities should 

be authorized with NWP 3 in man-made 

ditches and canals and NWP 13 in 

natural waterways. Two commenters 

said this NWP should not authorize new 

bank stabilization activities. Some 

commenters recommended modifying 

this NWP so that it would not authorize 

new vertical bulkheads and seawalls. 


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One commenter stated that this NWP 

does not result in minimal individual 

and cumulative adverse effects on the 

aquatic environment because these 

activities accelerate coastal erosion and 

retreat. Additional commenters said that 

these activities result in more than 

minimal individual and cumulative 

effects. Some of these commenters said 

that this NWP has more than minimal 

adverse effects on low-order ephemeral 

and intermittent streams. One 

commenter said that this NWP should 

not be applicable to both riverine and 

lacustrine systems and recommended 

that separate NWPs be developed that 

would address the different erosional 

processes in those systems. Several 

commenters stated that this NWP 

should not be reissued because of 

adverse effects to coastal environments, 

as well as sea turtles and other 

endangered species and their habitats. 

Another commenter recommended that 

bank stabilization only be permitted by 

this NWP if it is part of a habitat 

improvement project or has other net 

improvements in aquatic function. 

The terms and conditions for this 

NWP are appropriate for limiting bank 

stabilization activities so that they have 

minimal individual and cumulative 

effects on the aquatic environment, 

while allowing landowners and other 

entities to protect their property and 

safety. NWP 3 only authorizes minor 

amounts of rip rap associated with 

maintenance activities. It is more 

appropriate to authorize bank 

stabilization activities in man-made 

waterways through NWP 13. In many 

coastal waters and rivers it is necessary 

to utilize hard bank protection 

structures, because wave energy and 

currents are too strong for 

bioengineering or other techniques to 

successfully prevent or reduce erosion. 

We do not agree that there should be 

separate NWPs developed to authorize 

bank stabilization activities in riverine 

and lacustrine waters. Bank stabilization 

that may affect endangered or 

threatened species require preconstruction notification and 

compliance with general condition 18, 

endangered species. We also do not 

agree that this NWP should be limited 

to habitat improvement projects, 

because it is often necessary to install 

bank stabilization structures and fills to 

protect property and safety. 

Two commenters said that NWP 13 

should not be reissued because it 

authorizes activities that may prevent 

retreat that would be necessary to adapt 

to sea level rise caused by climate 

change. These commenters also said 

that sea level rise needs to be 

considered in the decision on whether 

to reissue this NWP. These commenters 

also stated that the structures and fills 

authorized by NWP 13 exacerbate 

erosion in areas where sea level rise will 

occur. 

Coastal and riparian areas are 

dynamic landscapes. They are 

constantly changing as a result of 

erosional and depositional processes. 

Landowners seek Department of the 

Army authorization for bank 

stabilization activities to protect their 

property and provide safety. The 

purpose of NWP 13 activities is to 

protect land on which residences, 

commercial buildings, infrastructure, 

and other features are located. The 

Corps regulations recognize that a 

riparian landowner has a right to protect 

his or her property from erosion (see 33 

CFR 320.4(g)(3)). When a district 

engineer evaluates a permit application 

for bank stabilization activities, 

including pre-construction notifications 

for NWP 13 activities, he or she 

considers the current environmental 

conditions at the site of the proposed 

activity, as well as the reasonably 

foreseeable direct, indirect, and 

cumulative effects that might be caused 

by the proposed activity. At the present 

time, there is a considerable amount of 

uncertainty surrounding climate change, 

and any associated sea level rise that 

may occur as a result of climate change. 

To the extent there is reliable 

information about projected sea level 

rise during the reasonably foreseeable 

future in the vicinity of a proposed 

activity, the district engineer will take 

that information into account when 

determining whether a proposed NWP 

13 activity will have minimal individual 

and cumulative adverse effects on the 

aquatic environment. We do not agree 

that the structures and fills authorized 

by NWP 13 will accelerate erosion in 

areas affected by changing sea level rise 

caused by climate change. The bank 

stabilization structures and fills 

authorized by this NWP must be 

properly designed, so that they have 

minimal individual and cumulative 

adverse effects on coastal and riparian 

erosion and deposition processes. As 

sea level rise occurs, bank stabilization 

activities may no longer be effective, 

and it may be necessary for landowners 

to relocate. 

Two commenters suggested limiting 

all projects to a maximum length of 500 

linear feet, except for allowing 

bioengineering projects to exceed that 

length on a case-specific basis if the 

district engineer waives that limit. One 

commenter recommended not allowing 

vertical bulkheads longer than 500 feet. 

One commenter recommended limiting 

replacement of vertical bulkheads and 

seawalls to a maximum length of 200 

feet. Another commenter recommended 

a 300 linear foot maximum project 

length for shoreline protection on 

coastal areas or lakes. One commenter 

suggested a 300 linear foot maximum 

length for bioengineering projects and a 

150 foot maximum length for all other 

bank stabilization projects. Two 

commenters requested clarification 

regarding project length in paragraph (b) 

as it relates to activities that stabilize 

both banks (left and right) of a stream. 

Many commenters supported the 

district engineer waiver for the 500 

linear foot limit for any projects. 

The limits in this NWP are sufficient 

to ensure that the NWP authorizes only 

those activities that have minimal 

adverse effects on the aquatic 

environment, although division 

engineers may regionally condition the 

NWP to reduce those limits to account 

for local environmental conditions and 

the ecological functions and services 

provided by waters of the United States 

in those areas. For streams, the linear 

foot limit in paragraph (b) applies to a 

single and complete project for the bank 

stabilization activity measured along the 

length of the stream segment, which 

may involve discharging dredged or fill 

material along either one or both stream 

banks. We have retained the ability for 

district engineers to waive the 500 

linear foot limit. 

One commenter requested a definition 

for bank stabilization. Many 

commenters asked for a definition of 

bioengineering. One commenter said 

that bioengineering techniques should 

include living plant material and soil as 

the primary structural components to 

reinforce soil and to stabilize slopes. 

One commenter recommended requiring 

native vegetation in bioengineering 

projects where vegetation is the primary 

or secondary component of a project. 

We do not believe that a definition of 

bioengineering is necessary because 

there is a wide variety of bioengineering 

techniques and project proponents and 

district engineers generally understand 

what it means in a local context. It is not 

possible at the national level to envision 

every possible variation of technique 

and materials that would reasonably fit 

within the meaning of this term, but 

generally bioengineering involves the 

use of a combination of vegetation and 

hard materials instead of only hard 

materials such as rip-rap for bank 

stabilization. Also, as explained below, 

the final NWP does not make a 

distinction between bioengineering and 

other bank stabilization techniques. We 

agree that bioengineering, for the 

purposes of bank stabilization, includes 

providing protection from erosion and 


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providing habitat for aquatic species. 

We also agree that bioengineered 

techniques can slow erosion rates and 

can have beneficial effects on habitat for 

macroinvertebrates and fish which is 

why we proposed to modify this NWP 

to encourage greater use of this 

technique. 

Several commenters recommended 

the NWP encourage the use of natural 

materials over riprap. One commenter 

said that only native plant species 

should be used for bioengineered bank 

stabilization. Another commenter 

recommended using natural stream 

design methods for erosion prevention. 

Several commenters objected to the 

placement of plant material in waters of 

the United States, and also objected to 

the planting of willows and similar 

species in and along waterways because 

these types of woody plants clog 

waterways and cause maintenance 

problems at bridge and culvert 

crossings. 

Division engineers can regionally 

condition this NWP to encourage 

bioengineering or the use of natural 

materials for bank stabilization in 

waters subject to lower energy waves 

and currents. The use of plant materials 

as a component of a bank stabilization 

activity can have beneficial 

environmental effects, such as providing 

shading and habitat for near-shore 

organisms, or for riparian ecosystems. 

Proper maintenance should be done to 

remove plants that colonize waterways, 

especially at culverts or bridges. We 

have added a provision to this NWP 

stating that if bioengineering or 

vegetative bank stabilization is used, 

invasive plant species should not be 

used, because Executive Order 13112, 

Invasive Species, states that agencies 

should not ‘‘authorize, fund, or carry 

out actions that it believes are likely to 

cause or promote the introduction or 

spread of invasive species in the United 

States or elsewhere.’’ The Executive 

Order states there are economic, 

ecological, and human health impacts 

that are caused by invasive species, and 

we believe that invasive species should 

not be used for bioengineering bank 

stabilization activities authorized by 

this NWP because of the adverse 

environmental effects those species can 

cause. 

Many commenters supported the 

proposed modification of paragraph (c) 

to only allow bioengineering projects to 

exceed one cubic yard per running foot, 

and to not allow waivers from the 

district engineer for other types of 

projects. Many other commenters 

objected to limiting that flexibility to 

bioengineering techniques, stating that 

bank protection structures are necessary 

in high energy coastal and riverine 

environments, and said that the waiver 

in the 2007 NWP 13 should be 

reinstated. Some commenters suggested 

removing paragraph (c) entirely. Several 

of these commenters thought the 

proposal would encourage 

bioengineering methods for achieving 

the necessary bank stabilization. Many 

commenters stated that the waiver to the 

cubic yard limit should be removed 

from paragraph (c) to ensure that the 

NWP authorizes only those activities 

with minimal adverse effects on the 

aquatic environment. Many commenters 

asserted that bioengineering methods for 

bank stabilization are unproven and not 

as effective at preventing erosion as 

hard structures. A few commenters 

suggested that the preference for 

bioengineering would be a hardship on 

local governments. Another commenter 

suggested that bioengineering 

techniques are rarely successful in arid 

areas and in ephemeral waterways. 

Another commenter added that the 

hydraulic forces in large rivers and tidal 

areas require the use of large stone, the 

size of which exceeds the one cubic 

yard per running foot average size, and 

are not conducive to bioengineering. 

Several commenters said that 

bioengineering is not always 

appropriate for protecting infrastructure 

such as roads and bridges, and 

requested that the one cubic yard per 

foot waiver be left in place to protect 

these structures. One commenter 

suggested modifying the NWP to require 

alternatives analyses for each proposed 

project using an established hierarchy, 

beginning with bioengineering as the 

most preferable bank stabilization 

method and ending with the hard bank 

stabilization structures. One commenter 

observed that bank stabilization using 

bioengineering or any other method will 

still result in adverse effects, and 

suggested all bank stabilization 

activities should be located landward of 

the ordinary high water mark. 

In response to the many commenters 

that objected to removing the provision 

allowing district engineers to waive, 

after reviewing a pre-construction 

notification, the one cubic yard per 

running foot limit, we have reinstated 

that provision in this NWP. We have 

also reinstated the third preconstruction notification threshold that 

was in the 2007 version of NWP, which 

requires pre-construction notification 

for discharges exceeding one cubic yard 

per running foot along the bank below 

the plan of the ordinary high water mark 

or the high tide line. We acknowledge 

that bioengineering may not be 

appropriate in all waters, because it may 

not result in effective bank stabilization. 

We have thus determined that it is not 

appropriate to establish a hierarchy of 

preferred bank stabilization options 

because such decisions are best left to 

district engineers that review projectspecific pre-construction notifications, 

and can take into account the 

characteristics of the waterbody and the 

surrounding area, and determine which 

bank stabilization method would be 

most effective and environmentally 

preferable. We agree, however, that 

bioengineering techniques may be 

environmentally preferable in many 

situations and that project proponents 

should consider such techniques where 

practicable in order to comply with the 

general requirement to avoid and 

minimize adverse effects to the aquatic 

environment. It is not practicable to 

require all bank stabilization activities 

to be located landward of the ordinary 

high water mark. 

One commenter asked if the volume 

of fill buried deeply below 

bioengineering or turf reinforcement 

mats could be exempted from the 

volume of fill that counts towards the 

one cubic yard per running foot limit in 

paragraph (b). Another commenter said 

that buried stone does not meet the 

regulatory definition of fill material, and 

said the volume of stone buried below 

the ordinary high water mark should not 

count towards the one cubic yard per 

running foot limit. One commenter 

suggested replacing the words ‘‘below 

the plane of’’ with ‘‘within the’’ when 

describing the ordinary high water mark 

in paragraph (c). 

The definition of ‘‘fill’’ found in 33 

CFR part 323.2 clearly states that rock 

is fill material, and burying rock in a 

waterway constitutes a discharge of fill 

material. The volume of the buried 

stone, along with all other fill material, 

must be determined and that volume 

placed below the plane of the ordinary 

high water mark or high tide line is 

considered when reviewing the 

proposed project. We have retained the 

language in NWP because the phrase 

‘‘below the plane of ’’ more accurately 

describes the Corps jurisdiction in 

waters of the United States. To the 

extent that the location and type of fill 

placed below the plane of the ordinary 

high water mark affects the potential for 

adverse effects to the aquatic 

environment, the district engineer 

would consider such factors in deciding 

whether to grant a waiver request. 

Several commenters said that 

paragraph (d) should prohibit fills in 

special aquatic sites, including 

wetlands. One commenter opposes 

removing the waiver provision in 


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paragraph (d) for work in special aquatic 

sites. 

We believe that the pre-construction 

notification process affords the district 

engineer an appropriate opportunity to 

review proposed activities in special 

aquatic sites. Many streams and 

shorelines include, or are bordered by, 

special aquatic sites, and precluding use 

of this permit in these areas severely 

limits its usefulness for projects that 

have no more than minimal adverse 

effects on the aquatic environment. 

Additionally, it may be beneficial in 

some watersheds to stabilize eroding 

banks, even though small amounts of 

special aquatic sites may be impacted by 

a bank stabilization activity. Paragraph 

(d) requires a written determination 

concluding that the activity will result 

in minimal adverse effects. If a written 

waiver is not issued by the district 

engineer, then this NWP does not 

authorize such activities and the project 

proponent will have to obtain another 

form of DA authorization. 

Several commenters expressed 

support for inclusion of temporary fills 

required to accomplish work authorized 

under this NWP. One commenter said 

that temporary fills should remain in 

place if their removal would do more 

damage than allowing them to remain in 

place. One commenter requested a list 

of mandatory best management 

practices developed for temporary fills 

authorized by this NWP. 

If the district engineer determines that 

temporary fills should remain in place 

those fills may be authorized by another 

NWP, a regional general permit, or 

individual permit. We do not agree that 

specifically requiring best management 

practices is appropriate, although 

division engineers may regionally 

condition this NWP to add appropriate 

best management practices. District 

engineers may also add conditions to 

the NWP to require specific best 

management practices for a particular 

activity. 

Several commenters stated that preconstruction notification should be 

required for all activities authorized by 

this NWP. One commenter requested 

that no pre-construction notification be 

required for any bank stabilization 

exceeding one cubic yard per running 

foot in ephemeral and intermittent 

waters. One commenter suggested 

removing all pre-construction 

notification requirements from work 

done under this NWP in man-made 

waterways. One agency recommended 

lowering a pre-construction notification 

threshold to 100 feet for hard bank 

stabilization projects such as riprap, and 

300 feet for bioengineering projects. One 

commenter claimed it would be 

burdensome and costly to submit a preconstruction notification for every bank 

stabilization project. 

We do not agree that it is necessary 

to require pre-construction notification 

for all activities authorized by this 

NWP. A large number of small bank 

stabilization activities are conducted 

each year that result in minimal adverse 

effects on the aquatic environment. We 

believe that the existing preconstruction notification thresholds are 

sufficient for satisfying the minimal 

adverse effects requirement for general 

permits, and division engineers can 

regionally condition this NWP to 

impose lower pre-construction 

notification thresholds, including 

requiring pre-construction notification 

for all activities. 

Two commenters said that bank 

stabilization activities must avoid 

impacting tribal rights, tribal natural 

resources, and tribal cultural resources. 

Many commenters said that while bank 

stabilization projects may reduce 

erosion at a site, they may transfer or 

accelerate erosion in other areas of a 

waterbody. 

General condition 17, tribal rights, 

prohibits the impairment of all reserved 

tribal rights. We acknowledge that bank 

stabilization activities may cause 

indirect effects in other areas of the 

waterbody and those indirect effects 

should be evaluated during the review 

of a pre-construction notification, if it is 

required. Activities that do not require 

a pre-construction notification have 

minimal adverse effects on the aquatic 

environment. 

Some commenters asked that 

compensatory mitigation be required for 

all activities authorized by this NWP. A 

few commenters remarked that 

compensatory mitigation should be 

required for adverse effects on high 

quality riparian areas. Another 

commenter said that mitigation should 

be required when sheet piling is used to 

stabilize banks. 

We do not believe compensatory 

mitigation should be required for all 

bank stabilization activities. District 

engineers will determine when 

compensatory mitigation is necessary to 

ensure that an activity results in 

minimal individual and cumulative 

adverse effects on the aquatic 

environment. 

This NWP is reissued with the 

modifications discussed above. 

NWP 14. Linear Transportation 

Projects. There were no changes 

proposed for this NWP. One commenter 

suggested that this NWP should 

authorize only the maintenance of 

existing linear transportation projects 

because the construction of new linear 

transportation projects results in more 

than minimal adverse environmental 

effects. One commenter said that this 

NWP should not authorize parking lots. 

One commenter stated that activities in 

tidal waters should not be authorized by 

this NWP because any proposed linear 

transportation project impacting tidal 

wetlands require an individual permit 

to more thoroughly assess impacts on 

those aquatic habitats. 

This NWP should not be limited to 

authorizing the maintenance of existing 

linear transportation projects. The terms 

and conditions of this NWP, including 

its acreage limits and pre-construction 

notification thresholds, provide an 

effective means for authorizing linear 

transportation projects with minimal 

individual and cumulative adverse 

effects on the aquatic environment. 

Parking lots may be an integral part of 

a single and complete linear 

transportation project and may be 

authorized under this NWP. Small 

linear transportation projects 

constructed or maintained in tidal 

waters may be authorized by this NWP, 

if they comply with appropriate 

thresholds and result in minimal 

adverse effects on the aquatic 

environment. Division engineers can 

regionally condition this NWP to restrict 

or prohibit the use of this NWP to 

authorize structures or fills in tidal 

waters where necessary. 

Most commenters suggested adding a 

linear foot limit to this NWP to ensure 

that it only authorizes activities with 

minimal adverse effects on the aquatic 

environment, stating that the current 

NWP authorizes large amounts of small 

streams to be permanently lost or 

significantly altered. One commenter 

recommended a 100 linear foot limit for 

the loss of perennial, intermittent, and 

ephemeral streams. One commenter said 

that the 1⁄2-acre limit is too large when 

compared to other NWPs that limit 

impacts to 1⁄10-acre. One commenter 

suggested limiting private roads to 200 

feet in length, with a maximum width 

of 16 feet. One commenter 

recommended that public road projects 

with multiple crossings should have a 

maximum cumulative limit of two acres 

for all crossings associated with that 

project. 

We believe the 1⁄2-acre and 1⁄3-acre 

limits are appropriate for ensuring that 

the NWP authorizes only those linear 

transportation projects that result in 

minimal individual and cumulative 

adverse effects on the aquatic 

environment. Division engineers can 

regionally condition this NWP to 

decrease these acreage limits or impose 

linear foot limits to provide additional 

protection for wetlands and other waters 


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in a particular district or region. We do 

not agree that public and private 

crossings should have different acreage 

limits. The environmental effects are not 

dependent on the status of the entity 

who proposes to construct the project. A 

200 linear foot limit was removed from 

NWP 14 in 2007 to simplify this NWP. 

The Corps is not aware of situations 

where this change resulted in projects 

being authorized that had more than 

minimal adverse effects. 

One commenter asserted that using 

this NWP prevents the public from 

commenting on large transportation 

projects. Another commenter said that 

this NWP should not authorize 

expansion of existing projects, because 

it discourages avoidance and 

minimization and is contrary to the 

404(b)(1) Guidelines. One commenter 

stated that use of this NWP for the 

expansion, modification, or 

improvement of previously authorized 

projects could result in cumulative 

impacts that exceed the acreage limits 

and said the impacts of previously 

authorized projects should count 

towards the acreage limit. 

Linear transportation projects that 

involve small losses of waters of the 

United States and result in minimal 

adverse effects on the aquatic 

environment would not generally 

generate substantive public comments 

in response to a public notice and 

should not require public notices. It is 

appropriate to authorize expansions, 

modifications, or improvements to 

existing projects, as long as those 

activities comply with the terms and 

conditions of the NWP, including the 

applicable acreage limit. An expansion, 

modification, or improvement of an 

existing project has few practicable 

alternatives available because it is a 

change to a previously constructed 

project. Alternatives that would involve 

relocating an existing project are likely 

to result in more adverse effects to the 

aquatic environment. An expansion, 

modification, or improvement of a 

previously authorized single and 

complete linear transportation project 

should include the previously 

authorized losses of waters of the 

United States when determining 

whether the acreage limit would be 

exceeded by the expanded, modified, or 

improved project, if the expansion, 

modification, or improvement is not a 

separate single and complete project. 

Factors that may affect this 

determination include the length of time 

between the original project and the 

expansion, modification or 

improvement; the degree of 

independent utility of the original 

project and the expansion, modification 

or improvement; and the degree to 

which the expansion, modification or 

improvement may have been already 

envisioned, or planning might already 

have begun, at the time the original 

project was authorized. Under no 

circumstance will district engineers 

allow ‘‘piecemealing’’ of projects (for 

this or any other NWP) in order to meet 

thresholds. 

One commenter requested that the 

term ‘‘minimum necessary’’ used in the 

first paragraph of this NWP be defined. 

One commenter asked if temporary fill 

may be put in place for up to two years 

without requiring any mitigation, and 

another commenter requested a 

definition for ‘‘temporary.’’ One 

commenter suggested that culverts or 

other appropriate measures should be 

required to maintain existing drainage 

patterns, all stream crossings should 

span the bankfull width of a stream, and 

in cases where bottomless culverts or 

bridge structures are not used, the 

bottom of the structure should match 

stream slope. Another commenter 

suggested that the NWP should require 

the use of best management practices to 

avoid sediment loading of waters and 

that best management practices should 

be used in upland areas and within 

waters to protect downstream water 

quality. 

The decision as to whether a stream 

channel modification is the ‘‘minimum 

necessary’’ and whether a fill is 

‘‘temporary’’ is to be determined on a 

case-by-case basis, after considering the 

specifics of the proposed activity and 

the types of aquatic resources proposed 

to be impacted by the linear 

transportation project. General 

condition 2, aquatic life movements, 

and general condition 9, management of 

water flows, require that linear 

transportation projects be designed to 

sustain corridors for aquatic life 

movements and maintain, to the 

maximum extent practicable, the preconstruction course, condition, 

capacity, and location of streams and 

other open waters. General condition 

12, soil erosion and sediment controls, 

requires permittees to take appropriate 

measures to reduce or prevent 

movements of sediment into waters 

during construction. Water quality 

management measures may also be 

required by district engineers on a caseby-case basis after evaluating a preconstruction notification. 

One commenter said that preconstruction notification should be 

required for stream impacts that exceed 

100 linear feet. Another commenter 

stated that any stream channel 

modifications should require preconstruction notification. One 

commenter suggested requiring low 

ground pressure equipment, wide tires, 

rubberized racks, lightweight 

equipment, and the use of varied paths 

to avoid repeatedly crossing wetlands at 

the same location, to protect wetlands. 

One commenter suggested sending preconstruction notifications to tribes to 

avoid impacts to tribal treaty natural 

and cultural resources. One commenter 

recommended that the Corps consult 

with the Federal Highway 

Administration to streamline projects 

and align with their efforts. 

The present pre-construction 

notification thresholds provide 

sufficient protection for streams, and 

division engineers can regionally 

condition this NWP to require preconstruction notification for proposed 

losses of stream beds that would exceed 

a specified amount. Streams with riffle 

and pool complexes are considered to 

be special aquatic sites under the 

404(b)(1) Guidelines and would require 

pre-construction notification. General 

condition 11, equipment, establishes 

requirements for equipment working in 

wetlands or mudflats and we believe 

this general condition provides 

sufficient protection for those types of 

construction impacts. Division 

engineers can regionally condition this 

NWP to require pre-construction 

notification for activities that may affect 

tribal treaty resources, and consult with 

those tribes before making a decision on 

whether the activity is authorized by 

this NWP. This NWP, as well as other 

NWPs such as NWP 23, provides a 

means for streamlining the 

authorization of linear transportation 

projects and working cooperatively with 

the Federal Highway Administration 

and state departments of transportation. 

The NWP is reissued without change. 

NWP 15. U.S. Coast Guard Approved 

Bridges. We proposed to modify this 

NWP by removing reference to the U.S. 

Coast Guard authorizing the discharge 

of dredged or fill material into waters of 

the United States as part of their bridge 

permit. We also proposed to reference 

the U.S. Coast Guard’s bridge permitting 

authority under Section 9 of the Rivers 

and Harbors Act of 1899 and other 

applicable laws. We proposed to add 

section 10 to the regulatory authorities 

so that discharges authorized under 

Section 404 of the Clean Water Act 

would be also authorized under the 

Rivers and Harbors Act. 

One commenter agreed with adding 

section 10 authority to this NWP, which 

they believed would help clarify a 

sometimes confusing permitting 

scenario. Another commenter objected 

to adding section 10 authority, stating 

that the section 9 permits issued by the 


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U.S. Coast Guard for bridge and 

causeway construction satisfy all 

requirements of the Rivers and Harbors 

Act of 1899 and adding section 10 

authorization is not necessary. One 

commenter requested clarification 

regarding the applicability of section 10 

to the U.S. Coast Guard approved 

bridges over both navigable-in-fact and 

historically navigable waters of the 

United States. One commenter 

requested definitions of the terms 

‘‘causeway’’ and ‘‘approach fills.’’ 

We agree that the U.S. Coast Guard’s 

section 9 permit satisfies the permit 

requirements of the Rivers and Harbors 

Act and have removed the reference to 

section 10 from the NWP. Discharges of 

dredged or fill material associated with 

the construction of bridges across 

navigable waters of the United States 

require separate authorization under 

Section 404 of the Clean Water Act, 

since navigable waters of the United 

States are also considered waters of the 

United States under the Clean Water 

Act, and discharges of dredged or fill 

material into waters of the United States 

require section 404 permits, unless they 

are eligible for an exemption from 

permit requirements. Historically 

navigable waters of the United States 

may still be subject to jurisdiction under 

Rivers and Harbors Act of 1899, 

depending on the case-specific 

circumstances. We do not believe it is 

necessary to define what causeways and 

approach fills are, since they would be 

identified in the specific plans approved 

by the U.S. Coast Guard as part of their 

section 9 permit. 

This NWP is reissued with the 

modification discussed above. 

NWP 16. Return Water From Upland 

Contained Disposal Areas. We did not 

propose any changes to this NWP. This 

NWP provides section 404 authorization 

for the discharge of return water from a 

dredged material placement facility 

located in uplands, because that 

discharge of return water into waters of 

the United States has been 

administratively defined as a ‘‘discharge 

of dredged material’’ (see 33 CFR 

323.2(d)(1)(ii)). One commenter said the 

NWP should address both the technical 

requirements and water quality of the 

return water due to the potential for the 

return water to degrade water quality for 

natural heritage resources. One 

commenter said that pre-construction 

notification should be required for 

activities authorized by this NWP to 

ensure that suspended contaminated 

sediments do not reenter waterways and 

impact state submerged lands. 

The water quality certification issued 

for a specific dredging project should 

address any water quality concerns for 

natural heritage resources. We do not 

agree that pre-construction notification 

should be required for this NWP 

because any required sediment testing 

would identify contaminants. The 

sediment testing and potential impacts 

to water quality are more appropriately 

considered through the water quality 

certification process. We have modified 

this NWP to clarify that disposal of 

dredged material in an area that has no 

waters of the United States does not 

require a section 404 permit, because 

disposal of dredged material may occur 

in non-jurisdictional wetlands and 

waters, not just uplands. 

The NWP is reissued with the 

modification discussed above. 

NWP 17. Hydropower Projects. No 

changes were proposed for this NWP. 

Several commenters said that this 

category of activities is inappropriate for 

authorization under an NWP because of 

the scope and scale of these projects. 

One commenter stated that these 

activities result in more than minimal 

adverse effects on the aquatic 

environment, especially downstream 

effects such as the loss of riffle and pool 

complexes and degradation of water 

quality through increased sediment 

loads. 

This NWP authorizes small 

hydropower projects that have minimal 

adverse effects on the aquatic 

environment. All activities authorized 

by this NWP require pre-construction 

notification, so that district engineers 

can review each proposed hydropower 

project and make a case-specific 

determination whether the minimal 

effects requirement has been met. 

Discretionary authority will be 

exercised, and another form of 

Department of the Army authorization 

would be required, if the district 

engineer determines that a particular 

hydropower project would result in 

more than minimal individual and 

cumulative adverse effects to the aquatic 

environment or any other public interest 

review factor. District engineers may 

also require compensatory mitigation to 

offset losses of aquatic resource 

functions. 

This NWP is issued without change. 

NWP 18. Minor Discharges. We did 

not propose modifications to this NWP. 

Several commenters expressed support 

for the reissuance of this NWP. A few 

commenters said that this NWP does not 

comply with the ‘‘similar in nature’’ 

requirement for general permits. Other 

commenters asserted that the 

cumulative impacts resulting from the 

use of this NWP would be more than 

minimal. Another commenter said that 

this NWP should not authorize 

discharges into waters that provide 

forage fish habitat or that contain 

aquatic vegetation. One commenter 

stated that the NWP should not be used 

to authorize discharges in rare aquatic 

environments such as vernal pools. 

We believe that the small discharges 

of dredged or fill material authorized by 

this NWP comply with the similar in 

nature requirement for general permits. 

District engineers will review preconstruction notifications and may 

assert discretionary authority to add 

activity-specific conditions to the NWP 

authorization to ensure that the activity 

results in minimal adverse 

environmental effects. Division 

engineers may regionally condition this 

NWP to restrict or prohibit its use in 

specific waters or categories of waters, 

including fish foraging areas, vegetated 

shallows, or vernal pools. 

One commenter stated that the limit 

for this NWP should only be expressed 

in terms of area filled (i.e., up to 1⁄10- 

acre) and not include the volumetric 

limit (i.e., 25 cubic yards). Another 

commenter said that all discharged 

material should consist of clean, 

uncontaminated sand, crushed rock, or 

stone. One commenter recommended 

adding language requiring that the 

discharge will not result in significant 

changes to stream geomorphology or 

hydrology, and that the discharge will 

not impede navigation. 

The 25 cubic yard limit for regulated 

excavation activities and the 1⁄10-acre 

limit for losses of waters of the United 

States caused by discharges of dredged 

or fill material are both necessary to 

ensure that this NWP authorizes only 

those activities that have minimal 

individual and cumulative adverse 

effects on the aquatic environment. 

General condition 6, suitable material, 

prohibits the use of unsuitable fill 

material. The fill material must not have 

toxic pollutants that are present in toxic 

amounts. Compliance with general 

condition 9, management of water 

flows, will ensure that the activity does 

not cause more than minimal adverse 

effects to stream geomorphology or 

hydrology. General condition 1, 

navigation, states that NWP activities 

cannot cause a more than minimal 

adverse effect to navigation. 

This NWP is reissued without change. 

NWP 19. Minor Dredging. There were 

no changes proposed for this NWP. One 

commenter recommended that the NWP 

include a cumulative volume limit for 

multiple single and complete dredging 

projects. One commenter recommended 

modifying the NWP to require that 

dredge material be limited to a 

maximum of 25 cubic yards from a 

1,000 square foot area, not disturb 

sediments in an area known or 


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suspected to contain toxic pollutants, 

and the disposal of dredged material at 

an upland location. Another commenter 

said that pre-construction notification 

should be required for all activities to 

ensure that sediments are not 

contaminated and do not cause impacts 

to state owned land. One commenter 

stated that the activities authorized by 

this NWP are not similar in nature and 

do not result in cumulative minimal 

adverse environmental effects. 

This NWP may be used only once for 

each single and complete project (see 

general condition 15, single and 

complete project). Therefore, each single 

and complete dredging project is subject 

to the 25 cubic yard limit. District 

engineers will also review preconstruction notifications and other 

requests for NWP verifications, and will 

exercise discretionary authority if they 

determine that the use of this NWP in 

a particular region is resulting in more 

than minimal cumulative adverse effects 

on the aquatic environment. We believe 

that the 25 cubic yard limit is sufficient 

to satisfy the minimal adverse 

environmental effects requirement for 

general permits, and that an areal limit, 

such as the 1,000 square feet 

recommended above, is not necessary. 

Division engineers may impose regional 

conditions on this NWP to restrict or 

prohibit its use in waters known to have 

contaminated sediments or in waters 

where there is sufficient reason to 

believe that there are contaminated 

sediments, that would cause more than 

minimal adverse effects to water quality 

if they were disturbed by these minor 

dredging activities. A separate 

Department of the Army authorization 

must be obtained if the project 

proponent plans to deposit the dredged 

material into waters of the United 

States, including jurisdictional 

wetlands. Absent such authorization, 

the dredged material must be deposited 

in an upland area or an approved 

dredged material disposal facility. 

This NWP is reauthorized without 

change. 

NWP 20. Response Operations for Oil 

and Hazardous Substances. We 

proposed to change the name of this 

NWP, and modify its terms and 

conditions to authorize a wider set of 

activities, such as containment and 

mitigation actions, to more effectively 

authorize efforts to manage releases of 

oil or hazardous substances. We also 

proposed to authorize training exercises 

for the cleanup of oil and hazardous 

substances, including those that involve 

temporary structures or fills. 

Five commenters expressed support 

for the proposed changes to this NWP. 

One commenter objected to the 

proposed modifications, stating that the 

NWP could authorize large dredge and 

fill operations that would result in net 

adverse effects on the aquatic 

environment that would be more than 

minimal. One commenter stated that the 

NWP should be limited to interim 

response activities and that a separate 

permit should be required for final 

restoration response. Another 

commenter said that there should be a 

requirement to remove temporary 

structures and fill. This commenter also 

recommended that the NWP include 

criteria for temporary structures or fills, 

such as a requirement to restore 

wetlands to the maximum extent 

practicable, to ensure there are no 

lasting impacts from these activities. A 

commenter said that this NWP should 

require coordination with the 

appropriate state wetland or water 

resources program. 

This NWP authorizes activities in 

waters of the United States to remediate 

spills of oil and hazardous substances, 

which normally results in 

environmental benefits. We do not agree 

that the NWP should be limited to 

interim responses. It should also 

authorize the final response activity that 

results in the removal of the oil or 

hazardous substances, as well as the 

authorization to remove any temporary 

structures or fills, to the extent that a 

Department of the Army permit is 

required to remove such temporary 

structures or fills. General condition 13, 

removal of temporary fills, requires 

temporary fills to be removed in their 

entirety, and the affected areas 

revegetated, if necessary. We do not 

agree that this NWP should require 

coordination with state wetland or 

water resource agencies, since those 

agencies are likely to have an 

independent authority to regulate such 

response activities, as well as their own 

procedures for reviewing and approving 

those activities. As a practical matter, 

such remediation efforts almost always 

involve coordination among multiple 

agencies. 

This NWP is reissued as proposed. 

NWP 21. Surface Coal Mining 

Activities. We proposed three options 

concerning this NWP. The first option 

was not to reissue NWP 21 and to let it 

expire on March 18, 2012. The other 

two options consisted of reissuing the 

NWP with modifications. Option 2 was 

to reissue NWP 21 with a 1⁄2-acre limit, 

including a 300 linear foot limit for the 

loss of stream bed. Under Option 2, 

NWP 21 would not authorize discharges 

of dredged or fill material into waters of 

the United States to construct valley 

fills. Option 3 was similar to Option 2, 

but under Option 3 NWP 21 could 

authorize discharges of dredged or fill 

material into waters of the United States 

to construct valley fills. In the February 

16, 2011, proposal, Option 2 was 

identified as the Corps preferred option. 

Both Options 2 and 3 require a preconstruction notification for activities 

authorized by NWP 21, and permittees 

would have to receive written 

authorization from the district engineer 

prior to commencing the activity. 

A large majority of commenters 

supported Option 1 and opposed the 

reissuance of NWP 21, including any 

modification of that NWP. Over 26,000 

of those comments were form letters. 

Several commenters recommended 

adopting Option 2. Two commenters 

supported Option 3. Many commenters 

stated that NWP 21 should be reissued 

without change from the NWP issued in 

2007. 

While some commenters expressed 

support for Option 1, they also said that 

if NWP 21 is to be reissued, Option 2 

should be selected and modified to 

remove the provision allowing district 

engineers to waive the 300 linear foot 

limit for the loss of intermittent or 

ephemeral stream bed. Another 

commenter stated that if NWP 21 is 

reissued, it should not authorize any 

losses of intermittent or perennial 

streams. 

We believe that district engineers 

should have the ability to waive the 300 

linear foot limit for the loss of 

ephemeral or intermittent stream bed if 

they make a case-specific determination 

that the proposed activity will result in 

minimal individual and cumulative 

adverse effects on the aquatic 

environment. For proposed activities 

under paragraph (b) of NWP 21 that 

would result in the loss of greater than 

300 linear feet of intermittent or 

ephemeral stream bed, district engineers 

will coordinate the pre-construction 

notifications with the resource agencies, 

to solicit their comments (see paragraph 

(d) of general condition 31). Those 

comments will be used by the district 

engineer in making his or her minimal 

adverse effects determination. The loss 

of intermittent or perennial streams 

caused by NWP 21 activities may still 

result in minimal individual and 

cumulative adverse effects on the 

aquatic environment, and in such cases 

authorization by NWP is appropriate. 

Note that the 300 linear foot limit may 

not be waived for perennial streams. 

Activities authorized under paragraph 

(a) of NWP 21 do not require agency 

coordination because paragraph (a) does 

not authorize any expansion of surface 

coal mining activities in waters of the 

United States and the district engineer 

previously determined, and must again 


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1The Office of Surface Mining has announced its 

intention to further revise these requirements 

however such revisions will not be in place at the 

time the NWPs are reissued. The Corps may 

reconsider these limits in future promulgations of 

the NWPs based on its experience and any changes 

in the broader regulatory context. 

confirm in writing, that those activities 

will result in minimal individual and 

cumulative adverse effects and qualify 

for NWP authorization. Many of the 

surface coal mining activities authorized 

under the 2007 NWP 21 already had 

agency coordination because they 

resulted in the loss of greater than 1⁄2- 

acre of waters of the United States. 

Many commenters stated their 

preference for Option 2 because it 

would not allow valley fills for surface 

coal mining activities, which they 

believe substantially alter watersheds 

and associated headwater streams, and 

generally are alleged to cause more than 

minimal adverse effects on the aquatic 

environment. One commenter suggested 

adding a provision that would prohibit 

the use of NWP 21 for activities 

associated with mountain-top removal 

mining. 

We have selected Option 2 for the 

reissuance of NWP 21, and have made 

some additional modifications to reduce 

hardships on permittees who previously 

obtained authorization under the NWP 

21 issued on March 12, 2007, and 

invested substantial resources in 

reliance on that NWP authorization. 

These modifications are discussed in 

greater detail below. In addition, we 

have added a definition of ‘‘valley fill’’ 

to the NWP to clarify the activities to 

which the valley fill prohibition applies. 

For the purposes of this NWP, a ‘‘hollow 

fill’’ is considered a valley fill. This 

NWP authorizes discharges of dredged 

or fill material into waters of the United 

States when those discharges are 

associated with surface coal mining 

activities. The Corps review is focused 

on the individual and cumulative 

adverse effects to the aquatic 

environment, and determining 

appropriate mitigation that may be 

needed to ensure that the adverse effects 

on the aquatic environment are 

minimal, individually and 

cumulatively. It does not extend to the 

mining operation as a whole. The 

Surface Mining Control and 

Reclamation Act of 1977 (SMCRA), 30 

U.S.C. 1201 et seq., and its 

implementing regulations address the 

environmental impacts of proposed 

surface coal mining operations as a 

whole, including adverse effects to 

uplands and changes in land use. 

SMCRA is administered by the Office of 

Surface Mining Reclamation and 

Enforcement and states with approved 

regulatory programs under SMCRA. 

Two commenters supported Option 3, 

and they said the production of energy 

from all sources, including surfacemined coal, is vitally important to the 

short-term economic recovery of the 

United States and the long-term energy 

independence and economic prosperity 

of our country. Another commenter said 

there is no need to limit NWP 21 to 1⁄2- 

acre and 300 linear feet and prohibit 

valley fills, because district engineers 

review every pre-construction 

notification and can require an 

individual permit if necessary. 

We have adopted Option 2 because it 

provides greater assurance that NWP 21 

will authorize only those discharges of 

dredged or fill material into waters of 

the United States that have minimal 

individual and cumulative adverse 

effects on the aquatic environment. 

Surface coal mining activities that 

involve discharges of dredged or fill 

material that require section 404 permits 

but do not qualify for NWP 21 may be 

authorized by other forms of 

Department of the Army authorization, 

such as individual permits or regional 

general permits. We have added the 1⁄2- 

acre limit, and the 300 linear foot limit 

for the loss of stream bed, to make this 

NWP consistent with many of the other 

NWPs (e.g., NWPs 29, 39, 40, 42, 43, 44, 

and 51). We have also added a 

prohibition against using this NWP to 

authorize discharges of dredged or fill 

material into waters of the United States 

to construct valley fills. Such limits are 

necessary to constrain the adverse 

effects to the aquatic environment, to 

ensure compliance with the statutory 

requirement that general permits, 

including NWPs, may only authorize 

those activities that have minimal 

individual and cumulative adverse 

effects on the aquatic environment. We 

do not believe it is efficient to rely on 

the pre-construction notification process 

alone to ensure minimal adverse 

environmental effects. Many other 

NWPs use a combination of acreage 

and/or linear foot limits and preconstruction notification requirements 

to ensure compliance with Section 

404(e) of the Clean Water Act, as well 

as 33 CFR 322.2(f) and 33 CFR 323.2(h). 

Previous versions of NWP 21 did not 

have any acreage or linear foot limits, 

and relied solely on the preconstruction notification review process 

and permit conditions to reduce adverse 

effects on the aquatic environment to 

satisfy the minimal adverse 

environmental effects requirement for 

general permits. We believe that 

approach is no longer appropriate 

because of the inconsistency with other 

NWPs, the possibility that larger losses 

of waters of the United States might be 

authorized, and the difficulty of 

documenting minimal adverse effect 

determinations for losses of aquatic 

resource area and functions that exceed 

those allowed in other NWPs. We note 

that part of the basis for the earlier 

approach was the environmental review 

that occurs in connection with obtaining 

a SMCRA permit, and that the SMCRA 

regulations related to stream protection 

have changed since the previous NWP 

21 was issued.1 The new acreage and 

linear foot limits will ensure that this 

NWP contributes no more than minimal 

individual and cumulative adverse 

effects to the aquatic environment, by 

limiting the amount of waters of the 

United States that can be filled by each 

NWP 21 activity. 

Many commenters said the Corps 

should fulfill its June 2009 

determination to prohibit the use of 

NWP 21 to authorize surface coal 

mining activities in six states in 

Appalachia because these activities 

result in more than minimal adverse 

effects to the aquatic environment, 

individually and cumulatively. Some 

commenters said the proposed 

reissuance of NWP 21 is contrary to the 

Corps June 18, 2010, decision to 

suspend NWP in the Appalachian 

region of Kentucky, Ohio, Pennsylvania, 

Tennessee, Virginia, and West Virginia, 

which stated that continued use of this 

NWP may result in more than minimal 

adverse effects to aquatic resources. 

Many commenters stated that surface 

coal mining activities in Appalachia 

have resulted in the loss of a couple of 

thousand miles of streams, substantially 

degraded water quality, and are harmful 

to the health and drinking water of 

Appalachian citizens. They also said the 

Corps should follow science and stop 

issuing permits, including individual 

permits, for surface coal mining 

activities in these six Appalachian states 

because those activities cause 

significant degradation of waters of the 

United States, and this region cannot 

afford to lose more of its vital natural 

resources. 

In accordance with the June 11, 2009, 

memorandum of agreement 

implementing the interagency action 

plan on Appalachian Surface Coal 

Mining, which was signed by the 

Department of the Army, the 

Department of Interior, and the U.S. 

Environmental Protection Agency, the 

Corps issued a proposal in the Federal 

Register on July 15, 2009, to modify 

NWP 21 so that it would not authorize 

discharges of dredged or fill material 

into waters of the United States in the 

Appalachian region of Kentucky, Ohio, 

Pennsylvania, Tennessee, Virginia, and 


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West Virginia (see 74 FR 34311). In the 

June 18, 2010, issue of the Federal 

Register (75 FR 34711), the Corps 

announced the suspension of NWP 21 

in the Appalachian region of six states 

(i.e., Kentucky, Ohio, Pennsylvania, 

Tennessee, Virginia, and West Virginia) 

and said that it would consider 

modifying NWP 21. 

As a result of our review of the 

comments received in response to the 

February 16, 2011, proposal we have 

determined that it would be appropriate 

to adopt Option 2 and substantially 

modify NWP 21 by imposing acreage 

and linear foot limits, as well as 

prohibiting its use to authorize 

discharges of dredged or fill material 

into waters of the United States to 

construct valley fills associated with 

surface coal mining activities, to ensure 

that the NWP authorizes only those 

activities that result in minimal 

individual and cumulative adverse 

effects on the aquatic environment. The 

1⁄2-acre and 300 linear foot limits will 

substantially reduce the amount of 

stream bed and other waters lost as a 

result of activities authorized by this 

NWP, and limit this NWP to minor fills 

associated with surface coal mining 

activities, such as the construction of 

sediment ponds. Issues relating to the 

use of individual permits to authorize 

discharges of dredged or fill material 

into waters of the United States 

associated with surface coal mining 

activities are outside the scope of the 

NWP reissuance process and are not 

addressed in this rule. 

The proposed reissuance of NWP 21, 

as well as the selection of Option 2 to 

reissue the NWP with 1⁄2-acre and 300 

linear foot limits and a prohibition 

against authorizing discharges of 

dredged or fill material into waters of 

the United States to construct valley 

fills, is not contrary to the suspension of 

NWP 21 in the Appalachian region of 

these six states. The NWP reissued 

today has been substantially modified 

from the 2007 version of NWP 21, with 

paragraph (a) authorizing Corps district 

engineers to re-authorize activities that 

were previously verified under the 2007 

NWP 21 authorization where that would 

be appropriate, and paragraph (b) 

imposing the acreage and linear foot 

limits stated above, as well as the 

condition prohibiting its use for the 

construction of valley fills in waters of 

the United States, on new NWP 21 

activities. The substantial changes in the 

terms and conditions of the reissued 

NWP 21 will ensure that the activities 

authorized by this NWP result in 

minimal individual and cumulative 

adverse effects on the aquatic 

environment. District engineers will 

review pre-construction notifications for 

activities authorized under paragraph 

(b) of this NWP and may require 

compensatory mitigation to offset losses 

of waters of the United States and 

ensure the adverse effects on the aquatic 

environment are minimal, individually 

and cumulatively. Compensatory 

mitigation required for activities 

verified under the 2007 NWP 21 will 

continue to be required, and may be 

augmented if the district engineer 

determines that they do not adequately 

compensate for losses of aquatic 

resource function and ensure minimal 

individual and cumulative adverse 

effects. Suspension of an NWP is an 

interim measure to be taken if there are 

substantive concerns that an NWP 

activity is potentially causing more than 

minimal adverse environmental effects, 

while the Corps collects additional 

information and considers 

modifications to that NWP to satisfy 

statutory or regulatory requirements for 

general permits, such as compliance 

with Section 404(e) of the Clean Water 

Act. We fully considered the comments 

received in response to the July 15, 

2009, proposal to suspend NWP 21 and 

used those comments to develop the 

three options presented in the February 

16, 2011, proposal to reissue NWP 21. 

We have now determined that adopting 

Option 2 addresses the concern that led 

to our previous suspension of NWP 21 

in the six Appalachian states, but in a 

more effective and equitable way. It is 

not the geographic location of activities, 

but rather the nature of these activities 

and their associated discharges that may 

lead to more than minimal adverse 

effects. By prohibiting the use of NWP 

21 for discharges associated with valley 

fills and activities exceeding 

appropriate thresholds, which are 

consistent with the thresholds used for 

many other NWPs, we can ensure that 

activities that may result in more than 

minimal individual and cumulative 

adverse effects obtain individual 

permits, and those activities that will 

not result in more than minimal adverse 

effects can be authorized by an NWP, 

regardless of the region of the country 

in which they occur. 

Only those surface coal mining 

activities involving discharges into 

waters of the United States that received 

written authorization under the 2007 

NWP 21 may be eligible for 

authorization under paragraph (a) of this 

NWP. Activities that were subject to the 

June 18, 2010, suspension of NWP 21 in 

the Appalachian region of the six states 

may be eligible for NWP 21 

authorization under paragraph (b) if 

they do not result in the loss of greater 

than 1⁄2-acre of waters of the United 

States, do not result in the loss of greater 

than 300 linear feet of stream bed 

(unless that 300 linear foot limit for 

intermittent and ephemeral streams is 

waived by the district engineer after 

agency coordination and making a 

written determination that the activity 

will result in minimal individual and 

cumulative adverse effects on the 

aquatic environment), and do not 

involve discharges of dredged or fill 

material into waters of the United States 

to construct valley fills. 

One commenter objected to the 

proposed reissuance of NWP 21, stating 

that it authorizes impacts for activities 

that are not similar in nature, such as 

mining operations, impoundments, 

processing plants, and road crossings. 

The commenter said that the Corps 

decision documents do not recognize 

that impoundments can cause massive 

spills or contaminate well water. 

We do not agree that this NWP 

authorizes activities that are not similar 

in nature. This NWP authorizes surface 

coal mining activities, a broad category 

that includes a variety of features that 

may be constructed by discharging 

dredged or fill material into waters of 

the United States, the activities 

regulated by the Corps under Section 

404 of the Clean Water Act. Discharges 

of dredged or fill material into waters of 

the United States may be used to 

construct sediment ponds, road 

crossings, etc. that are necessary to 

conduct surface coal mining activities, 

or they may occur while coal is being 

mined (e.g., mine-throughs). 

Impoundments constructed in waters of 

the United States should be properly 

maintained (see general condition 14, 

proper maintenance). District engineers 

may also require non-Federal permittees 

to demonstrate that those impoundment 

structures comply with applicable dam 

safety criteria (see general condition 24, 

safety of impoundment structures). 

One commenter said that if NWP 21 

was reissued and could be used to 

authorize valley fills, the Corps would 

violate the requirement in the 404(b)(1) 

Guidelines that no discharge of dredged 

or fill material shall be permitted which 

will cause or contribute to significant 

degradation of waters of the United 

States. This commenter also stated that 

the proposed 300 linear foot limit for 

the loss of stream bed would not 

prevent significant degradation of 

streams, and objected to the proposed 

waiver of that limit for intermittent and 

ephemeral streams, if the district 

engineer determined that such a loss 

would result in minimal adverse effects 

on the aquatic environment. 


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The NWP 21 reissued today does not 

authorize discharges of dredged or fill 

material into waters of the United States 

to construct valley fills, unless under 

paragraph (a) the activity was 

previously verified under the 2007 NWP 

21 and the district engineer has 

determined that those activities still 

qualify for NWP 21 authorization under 

the 2012 NWP general conditions, 

applicable regional conditions, and any 

activity-specific conditions such as 

compensatory mitigation requirements. 

For those previously authorized surface 

coal mining activities, the district 

engineer determined that the adverse 

effects on the aquatic environment are 

minimal, individually and 

cumulatively. To re-verify the NWP 

authorization under the 2012 NWP 21, 

the district engineer must determine 

that the activity continues to result in 

minimal individual and cumulative 

adverse effects on the aquatic 

environment. Surface coal mining 

activities that involve discharges of 

dredged or fill material into waters of 

the United States for the construction of 

valley fills that were not previously 

verified under the 2007 NWP 21 are 

subject to paragraph (b) of the 2012 

NWP 21 and cannot be authorized by 

NWP 21. Discharges of dredged or fill 

material into waters of the United States 

authorized by NWP 21 require water 

quality certification. If water quality 

certification is not obtained or waived, 

that activity is not authorized by NWP 

21. The water quality certifications 

issued by states are to be considered by 

district engineers to be conclusive 

regarding water quality issues, unless 

the Regional Administrator of the U.S. 

Environmental Protection Agency 

advises the district engineer of other 

water quality concerns that need to be 

taken into consideration. The 

construction of impoundments 

authorized by NWP 21 is generally a 

minor cause of changes to water quality. 

Most of the changes to water quality are 

due to the overall surface coal mining 

activity and the change in land use 

(including uplands) that occurs as a 

result of those mining activities. The 

discharges of dredged or fill material 

into waters of the United States 

authorized by NWP 21 constitute a 

small proportion of the overall fill 

placed in a watershed to dispose of the 

rock, soil, and other materials that are 

produced by the surface coal mining 

activity. As water percolates through the 

larger overall fill that has been placed in 

uplands and streams, the water 

chemistry changes. The effluent 

discharged from impoundments 

constructed to trap sediments and other 

materials to reduce their transport to 

downstream waters is regulated under 

Section 402 of the Clean Water Act, and 

requires a National Pollutant Discharge 

Elimination System (NPDES) permit. 

The NPDES permit is issued by states 

that have approved programs or the U.S. 

EPA. 

One commenter said the Corps has 

ignored cumulative impacts from 

discharges of dredged or fill material 

previously authorized by NWP 21 in 

proposing Option 2 as a preferred 

alternative. The commenter also stated 

that the draft decision documents fail to 

provide any evidence that would 

support a minimal effects determination 

and that the Corps only considers 

cumulative effects during the five year 

period the NWP is in effect and this 

ignores the fact that valley fills bury 

streams permanently, whether 

authorized by past nationwide or 

individual permits, or in the future. The 

commenter also said that Option 2 

ignores the cumulative amount of 

stream loss or acreage in a watershed 

from multiple permits. 

We have taken into account 

cumulative impacts from discharges of 

dredged or fill material previously 

authorized by NWP 21, and cumulative 

effects of discharges of dredged or fill 

material previously authorized by 

individual permits, when developing 

the proposal to reissue NWP 21, 

including Option 2. For NWP 21 

activities that were not previously 

authorized by the 2007 NWP 21, 

paragraph (b) of NWP 21 imposes a 1⁄2- 

acre limit on NWP 21, as well as a 300 

linear foot limit for losses of stream bed, 

and does not authorize discharges of 

dredged or fill material into waters of 

the United States to construct valley 

fills. These changes will reduce the 

number of surface coal mining activities 

authorized by NWP 21, when compared 

to previous versions of NWP 21, which 

had no acreage or linear foot limits, and 

could be used to authorize discharges of 

dredged or fill material into waters of 

the United States to construct valley 

fills. We determined that these limits 

will ensure that the adverse effects of 

discharges authorized by NWP 21 are 

minimal, both individually and 

cumulatively. Under the National 

Environmental Policy Act, an 

assessment of cumulative effects has to 

consider the past, present, and 

reasonably foreseeable future actions 

regardless of what agency (Federal or 

non-federal) or person undertakes such 

actions (see 40 CFR 1508.7). In addition, 

the 404(b)(1) Guidelines require a 

different approach to cumulative effects 

analysis for the issuance of a general 

permit, such as NWP 21. The 404(b)(1) 

Guidelines require the Corps or other 

permitting authority to predict 

cumulative effects by evaluating the 

number of individual discharges of 

dredged or fill material into waters of 

the United States expected to be 

authorized by that general permit until 

it expires (see 40 CFR 230.7(b)(3)). 

The decision document for this NWP 

includes evaluations of cumulative 

effects under both approaches, and 

concludes that the reissuance of this 

NWP, including the imposition of the 

1⁄2-acre limit, 300 linear foot limit, and 

prohibition against authorizing valley 

fills on activities that were not 

previously authorized under the 2007 

NWP 21, as well as the pre-construction 

notification requirements and other 

procedural safeguards, will authorize 

only those activities with minimal 

individual and cumulative adverse 

effects on the aquatic environment. 

Activities authorized under the 2007 

NWP 21 were already determined by 

district engineers to result in minimal 

individual and cumulative adverse 

effects on the aquatic environment. The 

other procedural safeguards include the 

authority for division engineers to 

modify, suspend, or revoke NWP 21 

authorizations on a regional basis, and 

the authority for district engineers to 

modify NWP 21 authorizations by 

adding conditions, such as 

compensatory mitigation requirements, 

to ensure minimal individual and 

cumulative adverse effects on the 

aquatic environment. District engineers 

may also assert discretionary authority 

to require individual permits in cases 

where the adverse effects will be more 

than minimal. 

Under the National Environmental 

Policy Act approach to assessing 

cumulative effects, the decision 

document discusses, in general terms, 

the various activities (Federal, nonFederal, and private actions) that may 

adversely affect the quantity and quality 

of aquatic resources in a watershed or 

other geographic region used for 

cumulative effects analysis, regardless 

of whether those activities occurred in 

the past or are expected to occur in the 

present or reasonably foreseeable future. 

Under the 404(b)(1) Guidelines 

approach for assessing cumulative 

effects of the issuance of a general 

permit such as NWP 21, the decision 

document evaluates the number of 

discharges of dredged or fill material 

into waters of the United States 

expected to occur during the five-year 

period the NWP would be in effect, as 

well as the estimated loss of waters of 

the United States and compensatory 

mitigation. District and division 

engineers are to supplement these 


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analyses when they prepare 

supplemental decision documents for 

this NWP, and these supplemental 

decision documents are to include 

cumulative effects analyses at a regional 

level. which can be highly informative 

regarding impacts at a local watershed 

level. The appropriate geographic scope 

of those cumulative effects analyses are 

at the discretion of the division or 

district engineers. 

The Corps considers and addresses 

cumulative environmental effects of 

NWP 21 (and other NWPs) in two 

distinct ways. First, when Corps 

Headquarters evaluates and proposes to 

issue or re-issue a NWP (such as NWP 

21), we evaluate cumulative effects at 

the national level, using available 

national information on aquatic 

resource status and trends and the 

general effects human activities have on 

aquatic resources. The cumulative 

effects analyses presented in the 

Headquarters decision documents 

reflect these national-scale evaluations 

and conclusions supporting the 

promulgation of the NWP from Corps 

Headquarters. 

Second, division and district 

engineers monitor the use of the NWPs 

on a regional level, and will modify, 

suspend, or revoke applicable NWPs 

when necessary if the use of those 

NWPs is likely to result in more than 

minimal individual and cumulative 

adverse effects on the aquatic 

environment within a particular 

watershed, ecoregion, state, county, or 

other appropriate geographic area. To 

address regional and site-specific 

environmental considerations, we rely 

on the Corps district offices that receive 

pre-construction notifications required 

by the terms and conditions of the NWP 

to evaluate the relevant regional and 

site-specific environmental 

considerations. The Corps district may 

add conditions to the NWP 

authorization, including compensatory 

mitigation requirements, to ensure that 

the individual and cumulative adverse 

effects on the aquatic environment 

caused by the NWP activity are 

minimal, and therefore qualify for NWP 

authorization. If conditions cannot be 

added to the NWP authorization to 

ensure that minimal individual and 

cumulative adverse effects on the 

aquatic environment occur, the district 

engineer will exercise discretionary 

authority and notify the applicant that 

an individual permit is required. 

One commenter said there is 

insufficient support for the Corps 

position that the required compensatory 

mitigation will attenuate cumulative 

impacts on the Nation’s aquatic 

resources by providing aquatic resource 

functions and services, so the net effects 

will be minimal. Another commenter 

stated that the Corps relies heavily on 

mitigation, such as stream creation, 

restoration, and enhancement, but there 

is no evidence that stream creation 

works. The commenter also indicated 

that the 404(b)(1) Guidelines provide 

that no permit may rely on mitigation 

techniques unless they have been 

demonstrated to be effective in 

circumstances similar to those under 

consideration, and that the 2008 

compensatory mitigation rule requires 

that the district engineer assess the 

likelihood for ecological success. The 

commenter said the Corps cannot issue 

an NWP without assessing mitigation 

effectiveness and success in the specific 

context in which the mitigation 

technique would be used. The 

commenter concluded that the Corps 

mitigation analysis fails to contain any 

discussion of stream functions that 

would be lost from potential NWP 

activities and whether compensatory 

mitigation can replace those functions. 

Compensatory mitigation can be an 

effective means of offsetting losses of 

aquatic resource functions caused by 

activities authorized by Department of 

the Army permits, including NWP 21 

activities, if it is thoughtfully planned, 

implemented, and monitored. 

Compensatory mitigation projects must 

be carefully sited, planned, and 

designed to be ecologically successful in 

providing stream or wetland functions. 

Site selection is a critical step in 

developing and implementing an 

ecologically successful compensatory 

mitigation project. With the 

promulgation of 33 CFR part 332 on 

April 10, 2008 (73 FR 19594), the Corps 

Regulatory Program adopted 

requirements and standards to improve 

compensatory mitigation practices for 

offsetting losses of aquatic resource 

functions. Under the 2008 rule, a 

watershed approach should be used for 

establishing compensatory mitigation 

requirements that will successfully 

provide aquatic resource functions to 

offset losses of those functions caused 

by permitted activities. 

The 2008 rule identifies streams as 

‘‘difficult-to-replace’’ resources and 

states that if further avoidance and 

minimization of stream impacts is not 

practicable, the required compensatory 

mitigation should be provided through 

stream rehabilitation, enhancement, or 

preservation since those techniques 

have a greater certainty of success (see 

33 CFR 332.3(e)(3)). The preamble to the 

2008 rule includes a detailed discussion 

of the scientific status of stream 

restoration and concludes that there has 

been success with stream rehabilitation, 

enhancement, and preservation 

activities (see 73 FR 19596–19598). In 

accordance with the 2008 rule, the 

Corps is not relying on stream creation 

as a mechanism to provide 

compensatory mitigation for NWP 21 

activities. In cases where compensatory 

mitigation is required for NWP 21 

activities, those compensatory 

mitigation requirements will be 

specified as activity-specific conditions 

of NWP 21 authorizations. The required 

components of a compensatory 

mitigation plan are specified at 33 CFR 

332.4(c)(2)–(14), and the district 

engineer will evaluate each 

compensatory mitigation proposal to 

assess its potential for ecological 

success, and consider the relevant 

factors provided in 33 CFR 332.3. The 

compensatory mitigation plan must be 

approved by the district engineer and 

monitoring will be required to assess 

whether the compensatory mitigation 

project is meeting its objectives and is 

successfully meeting its ecological 

performance standards. The district 

engineer will review monitoring reports, 

and if the compensatory mitigation 

project is not meeting its ecological 

performance standards, he or she will 

require the responsible party to identify 

and implement adaptive management 

measures to make changes to provide a 

successful mitigation project. If adaptive 

management is not likely to result in an 

ecologically successful compensatory 

mitigation project that will be sufficient 

for offsetting lost aquatic resource 

functions that result from the permitted 

activity, alternative compensatory 

mitigation may be required. Financial 

assurances may also be required to help 

ensure the success of the required 

compensatory mitigation. 

The 404(b)(1) Guidelines, which 

address habitat development and 

restoration as a means of minimizing 

adverse effects to plant and animal 

populations (40 CFR 230.75(d)), 

recommend the use of techniques that 

have been demonstrated to be effective. 

That provision is consistent with the 

section on difficult-to-replace resources 

(33 CFR 332.3(e)(3)/40 CFR 

230.93(e)(3)), which states that 

rehabilitation, enhancement, and 

preservation should be used to provide 

the required compensatory mitigation to 

offset permitted impacts to such 

resources because there is greater 

certainty that such stream rehabilitation, 

enhancement, and preservation will be 

ecologically successful and offset those 

permitted impacts. The decision 

document for this NWP contains a 

general discussion of the functions 

provided by streams, as well as general 


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citations supporting our position that 

stream rehabilitation and enhancement 

can provide stream functions to offset 

functions lost as a result of permitted 

activities. It is not necessary for the 

decision document to provide a 

comprehensive analysis of the state of 

stream restoration success. The 

approach discussed above, and in 33 

CFR part 332, is consistent with the 

Council on Environmental Quality’s 

January 14, 2011, guidance on the 

‘‘Appropriate Use of Mitigation and 

Monitoring and Clarifying the 

Appropriate Use of Mitigated Findings 

of No Significant Impact.’’ That 

guidance advocates the use of adaptive 

management to take corrective actions if 

the required mitigation fails to achieve 

projected environmental outcomes, 

which is also required by the Corps 

compensatory mitigation regulations in 

33 CFR part 332. 

One commenter said that the Corps 

has failed to analyze whether surface 

coal mining activities authorized by 

NWP 21 will cause significant 

degradation to ‘‘special aquatic sites,’’ 

such as riffle and pool complexes. This 

commenter asserted that valley fills and 

mining through streams frequently 

buries riffle and pool complexes, and 

these special aquatic sites are protected 

by stringent restrictions on discharges of 

fill material into such sites. The 

commenter also stated that practicable 

alternatives that do not involve burying 

riffles and pools are presumed to be 

available unless clearly demonstrated 

otherwise and such alternatives are 

presumed to have less adverse impacts 

on the aquatic ecosystem. This 

commenter said the Corps should deny 

a permit if it lacks sufficient information 

to determine whether the proposed 

discharge complies with the Guidelines. 

The activities authorized by this NWP 

comply with the 404(b)(1) Guidelines, 

even though it authorizes discharges of 

dredged or fill material into waters of 

the United States that may be classified 

as special aquatic sites such as riffle and 

pool complexes. Each activity 

authorized by an NWP does not require 

a project-specific 404(b)(1) Guidelines 

analysis—that analysis is done before 

the NWP or any other type of general 

permit is issued (see 40 CFR 230.7). The 

404(b)(1) Guidelines do not prohibit the 

use of general permits to authorize 

discharges of dredged or fill material 

into special aquatic sites. A 

determination of significant degradation 

does not focus simply on the loss of a 

special aquatic site caused by the 

discharge of dredged or fill material. It 

requires a broader analysis. The process 

for determining whether significant 

degradation occurs consists of applying 

the provisions of the 404(b)(1) 

Guidelines holistically, and assessing 

the effects of the proposed discharge of 

pollutants on human health and 

welfare; aquatic life and wildlife; 

aquatic ecosystem diversity, 

productivity, and stability; and 

recreational, aesthetic, and economic 

values. For activities authorized by 

general permits, the evaluation of 

alternatives in accordance with 40 CFR 

230.10(a) does not directly apply (see 40 

CFR 230.7(b)(1)). Paragraph (a) of 

general condition 23, mitigation, 

requires project proponents to design 

and construct NWP activities to avoid 

and minimize adverse effects to the 

aquatic environment to the maximum 

extent practicable on the project site. 

Several commenters stated that 

surface coal mines are already heavily 

regulated under SMCRA, which 

includes a variety of requirements to 

protect waters of the United States, so 

additional requirements are not needed 

to ensure that adverse effects to the 

aquatic environment are minimal. Two 

of these commenters stated NWP 21 

should be reissued without change 

because of SMCRA requirements. One 

commenter said the authority to 

authorize stream and wetland impacts 

caused by mining activities should rest 

solely with the SMCRA regulatory 

authority. 

There is often more than one Federal 

law that regulates surface coal mining 

activities, especially in cases where 

those activities involve discharges of 

dredged or fill material into waters of 

the United States. While most aspects of 

surface coal mining are regulated under 

SMCRA, surface coal mining and 

reclamation activities involving 

discharges of dredged or fill material 

into waters of the United States also 

require permits issued under Section 

404 of the Clean Water Act. The 

statutory and regulatory standards 

established under SMCRA are different 

than those established under Section 

404 of the Clean Water Act, including 

section 404(e) which authorizes the 

Corps to issue general permits. One of 

the objectives of SMCRA is to ensure 

that surface coal mining activities are 

conducted in an environmentally 

responsible manner and that the land 

disturbed by mining is adequately 

reclaimed. One of the objectives of the 

Clean Water Act is to ‘‘restore and 

maintain the physical, chemical, and 

biological integrity of the Nation’s 

waters.’’ Under the regulations 

implementing SMCRA, surface coal 

mining and reclamation activities must 

be conducted in a manner that will 

‘‘minimize the disturbance of the 

hydrologic balance within the permit 

and adjacent areas’’ and that will 

‘‘prevent material damage to the 

hydrologic balance outside the permit 

area.’’ As part of the SMCRA permitting 

process, potential changes to the quality 

and quantity of surface and groundwater 

are evaluated to ensure that material 

damage to the hydrologic balance 

outside the permit area will not occur. 

Other factors considered under SMCRA 

include: pre- and post-mining land uses, 

backfilling and grading activities, 

disposal of excess spoil, and the 

protection or replacement of water 

supplies. 

Under Section 404 of the Clean Water 

Act, the 404(b)(1) Guidelines provide 

the substantive criteria for evaluating 

the environmental effects of proposed 

discharges of dredged or fill material 

into waters of the United States. The 

404(b)(1) Guidelines are not focused on 

considering effects to water quality and 

quantity. The 404(b)(1) Guidelines also 

require examination of the effects that 

discharges of dredged or fill material 

will have on physical, chemical, and 

biological attributes of waters of the 

United States. The 404(b)(1) Guidelines 

at 40 CFR part 230 require the Corps to 

evaluate the effects of discharges of 

dredged or fill material, including 

general permits that authorize such 

discharges, on the applicable criteria 

listed in subparts C through F. Examples 

of criteria in those subparts are: 

Substrate; suspended particulates/ 

turbidity; water; current patterns and 

water circulation; normal water 

fluctuations; threatened and endangered 

species; fish, crustaceans, mollusks, and 

other aquatic organisms in the food web; 

other wildlife; wetlands; riffle and pool 

complexes; municipal and private water 

supplies; recreational and commercial 

fisheries; water-related recreation; and 

aesthetics. The threshold for issuance of 

general permits such as NWP 21 is a 

determination that the authorized 

activities would result in no more than 

minimal individual or cumulative 

adverse environmental effects. 

There is no corresponding threshold 

under SMCRA and its implementing 

regulations, which do not require that 

permit applications be evaluated in 

terms of the 404(b)(1) Guidelines. 

Instead, section 507(b)(11) of SMCRA 

requires that the permit applicant 

prepare a determination of the probable 

hydrologic consequences of the 

proposed operation with respect to the 

hydrologic regime and the quantity and 

quality of water in surface and ground 

water systems. Section 510(b)(3) of 

SMCRA requires that the regulatory 

authority use this determination and 

other available information to prepare 

an assessment of the probable 


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cumulative impact of all anticipated 

mining in the area on the hydrologic 

balance. The SMCRA regulatory 

authority may not issue a permit unless 

it first finds that the operation has been 

designed to prevent material damage to 

the hydrologic balance outside the 

permit area. While there is some 

overlap, the thresholds for permit 

issuance under SMCRA are not the same 

as the thresholds under Section 404 of 

the Clean Water Act. Given the different 

permit issuance thresholds of SMCRA 

and Section 404 of the Clean Water Act, 

NWP 21 authorizations cannot only rely 

on the environmental reviews 

conducted under SMCRA to satisfy the 

minimal effects requirement. 

Section 404 of the Clean Water Act 

applies to all discharges of dredged or 

fill material into waters of the United 

States, unless those activities qualify for 

an exemption under Section 404(f) of 

the Clean Water Act. Section 404(f) does 

not specifically exempt surface coal 

mining activities. For those activities 

that do not qualify for an exemption 

from the permit requirements of the 

CWA, the Corps must evaluate 

applications for Department of the Army 

permits, including general permits, and 

either apply the 404(b)(1) Guidelines (if 

an individual permit is required) or 

determine whether the proposed 

activity qualifies for NWP authorization. 

This NWP provides an efficient means 

of authorizing discharges of dredged or 

fill material into waters of the United 

States that result in minimal individual 

and cumulative adverse effects on the 

aquatic environment. Corps districts 

work with SMCRA regulatory 

authorities to reduce duplication, but 

each agency must still ensure that 

proposed activities comply with their 

respective statutes and implementing 

regulations. 

Two commenters stated the primary 

effect of adopting any of the three 

options proposed for NWP 21 in the 

February 16, 2011, Federal Register 

notice would be to require proposed 

surface coal mining activities involving 

discharges of dredged or fill material 

into waters of the United States to be 

evaluated under the individual permit 

process. This would cause an 

unnecessary additional delay and 

expense to mine operators and require 

the Corps to get additional personnel 

and funding to process additional 

individual permit applications in a 

timely manner. One commenter 

suggested that NWP 21 should be 

reissued as it was in 2007, and that 

regional conditions should be used in 

Appalachia to ensure those activities 

result in minimal adverse effects on the 

aquatic environment. This commenter 

said this approach would allow western 

coal producers to continue their 

operations without negative 

consequences. 

We acknowledge that reissuing NWP 

21 with a 1⁄2-acre limit, a 300 linear foot 

limit for the loss of stream bed, and not 

authorizing discharges of dredged or fill 

material into waters of the United States 

to construct valley fills, will result in 

more surface coal mining activities 

requiring Clean Water Act Section 404 

individual permits. To provide an 

equitable and less burdensome 

transition to the new limits to NWP 21, 

under paragraph (a) NWP 21 continues 

to authorize surface coal mining 

activities that were previously 

authorized under the 2007 NWP 21 

without those new limits. Under 

paragraph (b), the 1⁄2-acre and 300 linear 

foot limits, as well as the prohibition 

against authorizing discharges of 

dredged or fill material into waters of 

the United States to construct valley 

fills, apply to surface coal mining 

activities that were not authorized by 

the 2007 NWP 21. Expansions of 

activities that were previously verified 

under the 2007 NWP 21 do not qualify 

for paragraph (a) of NWP 21. 

Continuing to authorize surface coal 

mining activities that were verified 

under the 2007 NWP 21 will reduce 

burdens on the regulated public while 

protecting the aquatic environment in 

accordance with the requirements of 

Section 404(e) of the Clean Water Act. 

These project proponents who received 

verifications under the 2007 NWP 21 

expended substantial resources to 

obtain their authorizations. If they 

cannot comply with the new limits 

imposed on NWP 21 it would impose a 

significant hardship to require those 

operators to cease surface coal mining 

activities in waters of the United States 

while they apply for individual permits 

and wait for a decision. We estimate 

that there are approximately 70 surface 

coal mining activities across the country 

that were authorized by the 2007 NWP 

21 that may qualify for authorization 

under paragraph (a) of NWP 21 when it 

goes into effect on March 19, 2012. To 

obtain authorization under paragraph (a) 

of the 2012 NWP 21, these project 

proponents do not need to submit a preconstruction notification since they 

already did so under the 2007 NWP 21 

and that notification will be on file at 

the district office. Instead, those project 

proponents only need submit a letter to 

the district engineer requesting 

verification under the 2012 NWP 21. 

That letter should be sent to the district 

engineer by February 1, 2013, although 

that deadline may be extended in 

writing by the district engineer. This 

date allows the district engineer 

approximately 45 days for review of the 

letter before the expiration of the oneyear period that is allowed for 

completion of activities authorized 

under the 2007 NWP 21. Any changes 

to the previously authorized surface 

coal mining activity must also be 

described in that letter, so that the 

district engineer can determine whether 

the activity still results in minimal 

individual and cumulative adverse 

effects on the aquatic environment and 

is eligible for authorization under 

paragraph (a) of NWP 21. The district 

engineer will review such requests and 

notify the permittee whether the activity 

is authorized by the 2012 NWP 21. 

There will be no agency coordination of 

these previously authorized NWP 21 

activities. Any currently applicable 

regional conditions and any activityspecific conditions, such as 

compensatory mitigation requirements, 

would apply to the NWP authorization. 

The district engineer may also revise 

such conditions and requirements if the 

existing ones are determined not to be 

adequate to ensure minimal adverse 

effects. If the permittee does not receive 

a written verification from the district 

engineer prior to the expiration of the 

one-year period provided in 33 CFR 

330.6(b), the permittee must cease all 

activities until such verification is 

received because that one-year period 

cannot be extended. The surface coal 

mine activity must be authorized under 

the 2012 NWP 21 or another form of 

Department of the Army authorization 

to discharge dredged or fill material into 

waters of the United States after the oneyear period ends on March 18, 2013. 

The district engineer may also extend 

the February 1, 2013, deadline by 

notifying the permittee in writing, if he 

or she needs less than 45 days to make 

a decision on the 2012 NWP 21 

authorization. The Corps encourages 

operators who received a 2007 NWP 21 

verification and plan to operate past 

March 18, 2013, to submit their letter as 

soon as possible to allow for 

uninterrupted NWP 21 permit coverage. 

Expansions of previously verified NWP 

21 activities that result in greater losses 

of waters of the United States are not 

authorized under paragraph (a) will 

require a different form of Department 

of the Army authorization if they do not 

qualify for authorization under 

paragraph (b) of NWP 21. If the surface 

coal mining activity involving 

discharges of dredged or fill material 

into waters of the United States 

authorized under paragraph (a) cannot 

be completed by the time the 2012 NWP 

21 expires, then the project proponent 


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will have to obtain an individual permit 

or regional general permit, if the activity 

does not qualify for an applicable NWP 

issued in 2017. The Corps recommends 

that any projects that will extend 

beyond March 18, 2017, that do not 

meet the new limits in NWP 21 apply 

for an individual permit and allow 

sufficient time for the Corps to process 

their application to allow uninterrupted 

coverage when the new NWP 21 expires 

in 2017. 

The limits added to paragraph (b) of 

NWP 21 will ensure that this NWP 

authorizes only those activities that 

have minimal adverse effects on the 

aquatic environment, individually and 

cumulatively. These limits will also 

result in more new projects needing to 

obtain individual permits. The Corps 

has the resources necessary to process 

those individual permit applications in 

a timely manner. It is important for coal 

mine operators to consider the 

advantages of obtaining individual 

permits for surface coal mining 

activities. In accordance with Section 

404(e) of the Clean Water Act, general 

permits, including NWPs, can be issued 

for a period of no more than five years. 

Individual permits can be issued for 

longer periods of time—the expiration 

date for an individual permit is at the 

discretion of the district engineer, who 

will take into account the characteristics 

of the proposed activity and the amount 

of time expected to be needed to 

complete the regulated activities. 

Therefore, it would often be 

advantageous for a surface coal mine 

operator to obtain an individual permit 

that would authorize discharges of 

dredged or fill material into waters of 

the United States for the expected 

operational timeframe for that particular 

coal mine. Under NWP 21, no 

authorization could be issued for a time 

period of more than five years. If the 

NWP 21 activity is not completed by the 

expiration date of the NWP 

authorization then the project 

proponent would have to notify the 

district engineer and obtain another 

NWP verification. 

Nationwide permit NWP 21 preconstruction notifications require 

substantial resources to evaluate 

proposed activities and determine 

whether they result in minimal 

individual and cumulative adverse 

effects on the aquatic environment, and 

whether compensatory mitigation is 

needed to comply with the minimal 

adverse environmental effects 

requirement for general permits. Under 

the 2007 NWP 21, the project proponent 

could not proceed until he or she 

obtained an NWP 21 verification. The 

substantial amount of review required 

for both NWP 21 pre-construction 

notifications and individual permit 

applications both involve considerable 

amounts of resources from the Corps, so 

we do not expect a significant increase 

in workload or processing times to 

occur through the implementation of 

Option 2 and the modifications we 

made to that option for the final NWP. 

In response to the NWP 21 proposal, 

one commenter said the Corps was 

attempting to decide on behalf of the 

United States government how much 

coal mining should take place, or what 

scale of mining operations is 

appropriate. The commenter suggested 

that the Corps only concern should be 

the scale of the regulated activity and 

not the scale of the mining operation. 

The commenter stated that the Corps 

evaluation of surface coal mining 

activities should be focused on impacts 

to aquatic resources. One commenter 

said the proposed changes to NWP 21 

would have a significant effect on 

energy supply, since the ability to 

obtain permits in a timely manner is 

essential to the production of coal, 

which provides over 30 percent of 

America’s electric power. 

The three options provided in the 

February 16, 2011, Federal Register 

notice were intended to solicit comment 

to assist the Corps in identifying an 

option for the reissuance of NWP 21 that 

would comply with the statutory and 

regulatory requirements for general 

permits. Those options were developed 

to determine which terms and 

conditions (if any) should be established 

to ensure that NWP 21 authorizes only 

those activities that result in minimal 

adverse effects on the aquatic 

environment. The proposal does not 

affect how much coal mining may take 

place, nor does it have a significant 

effect on energy supply, because those 

surface coal mining activities that do 

not qualify for NWP 21 authorization 

may be authorized by individual 

permits or general permits, if such 

general permits are available. The Corps 

review is focused on adverse effects to 

aquatic resources, as well as other 

public interest review factors. The limits 

on the use of NWP 21 are expressed in 

terms of impacts to the aquatic 

environment, not the scale of the mining 

operation. Other aspects of surface coal 

mining activities are regulated by 

OSMRE or delegated states under 

SMCRA. 

One commenter said that NWP 21 

should not apply to ephemeral waters 

because they are not jurisdictional 

waters of the United States. Several 

commenters stated that NWP 21 

encourages operators to design their 

projects within the scope of the NWP 

rather than seek an individual permit, 

thereby reducing impacts. These 

commenters said that there may be a net 

gain of wetland acreages because of 

reclamation practices at surface coal 

mines. 

Ephemeral streams are waters of the 

United States if they meet the definition 

of ‘‘waters of the United States’’ at 33 

CFR part 328 and applicable guidance 

on Clean Water Act jurisdiction, such as 

the guidance issued in 2008 entitled 

‘‘Clean Water Act Jurisdiction Following 

the U.S. Supreme Court’s Decision in 

Rapanos v. United States and Carabell 

v. United States.’’ The NWP 21 issued 

in 2007 did not have any acreage or 

linear foot limits, which are the primary 

tools used to encourage avoidance and 

minimization to qualify for NWP 

authorization. Except for those 

previously verified 2007 NWP 21 

activities authorized under paragraph 

(a), the NWP 21 reissued today has a 1⁄2- 

acre limit and a 300-linear foot limit for 

losses of stream bed, which will be more 

effective in encouraging project 

proponents to avoid and minimize 

losses of waters of the United States to 

quality for NWP 21 authorization. We 

acknowledge that there may be net gains 

in wetland acreage at some surface coal 

mining reclamation sites, but we have 

imposed limits on NWP 21 because of 

concerns about losses of stream bed and 

the potential for surface coal mining 

activities to have more than minimal 

adverse effects on the aquatic 

environment, individually and 

cumulatively. 

One commenter disagreed with the 

Corps assertion that valley fills 

substantially alter watersheds and result 

in adverse impacts on the aquatic 

environment. This commenter also said 

that Options 2 and 3 do not allow the 

Corps the flexibility to increase the 

amount of stream bed loss above the 300 

linear foot limit. The commenter also 

objected to the proposed interagency 

coordination for activities resulting in a 

loss of greater than 1,000 linear feet of 

intermittent and ephemeral stream beds, 

and said the Corps has not suggested 

any reasons for this restrictive 

provision. 

Surface coal mining activities 

involving the construction of valley fills 

result in substantial changes to the 

watersheds of the headwater streams 

that are primarily impacted by these 

activities. Those watersheds are 

changed by the large amounts of land 

clearing and earthmoving that occur 

during the mining activity. The 

construction of the valley fill itself 

causes changes to the geomorphology of 

the watershed, which affects water 

quality and watershed hydrologic 


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functions, such as water collection, 

transport, and storage. It is well 

documented in the scientific literature 

that changes in land use affect the 

quantity and quality of streams, 

wetlands, and other aquatic resources. 

Examples of such scientific studies are 

cited in the decision document for this 

NWP. The 300 linear foot limit for 

losses of stream bed is generally 

necessary to ensure that NWP 21 

authorizes only those activities that 

result in minimal adverse effects on the 

aquatic environment. However, that 300 

linear foot limit may be waived by the 

district engineer if the proposed activity 

involves filling or excavating 

intermittent or ephemeral stream beds 

and the district engineer determines, in 

writing, that that activity will result in 

minimal individual and cumulative 

adverse effects on the aquatic 

environment. Agency coordination for 

proposed losses of greater than 300 

linear feet of intermittent or ephemeral 

stream bed is intended to provide 

information that will assist the district 

engineer in making his or her minimal 

adverse effects determination. 

One commenter said all Corps 

divisions and districts should add 

regional modification alternatives to 

address differences in aquatic resources 

functions. This commenter also stated 

that the proposal provides that the 

cumulative impact analysis for an NWP 

21 is not limited to assessing impacts of 

the use of the NWP 21 on a national 

basis and is not limited to activities 

authorized by NWPs or other 

Department of Army permits. The 

commenter acknowledged that the 

Corps considers activities not regulated 

by the Corps, including private actions 

and those resulting in changes in the 

use of uplands next to or near wetlands, 

streams, or other aquatic resources 

during the cumulative effects analysis. 

It is at the division engineer’s 

discretion whether to add regional 

conditions to an NWP to ensure that the 

NWP authorizes only those activities 

that have minimal individual and 

cumulative adverse effects on the 

aquatic environment. In addition, 

district engineers may modify NWP 

authorizations by adding activityspecific conditions to minimize adverse 

environmental effects. The decision 

documents comply with the two 

relevant approaches for conducting 

cumulative effects analyses: (1) The 

approach provided in the Council on 

Environmental Quality’s definition of 

‘‘cumulative impact’’ provided in their 

National Environmental Policy Act 

regulations at 40 CFR 1508.7, and (2) the 

approach indicated in the 404(b)(1) 

Guidelines at 40 CFR 230.7(b). 

One commenter said the proposed 

changes to NWP 21 will actually 

increase impacts because mining 

operators will need to increase the size 

of their mining sites to make the 

individual permit process cost effective. 

The commenter said operators will no 

longer be able to afford to mine the 

smaller reserve areas, so larger mine 

areas would need to be permitted. 

The changes to NWP 21 are 

appropriate to help ensure that this 

NWP complies with the statutory 

requirements for general permits, in that 

it may only authorize activities that 

have minimal individual and 

cumulative adverse environmental 

effects. Surface coal mining activities 

involving discharges of dredged or fill 

material into waters of the United States 

that do not qualify for NWP 

authorization will be evaluated as 

individual permits if applicable regional 

general permits are not available. 

Activities authorized by individual 

permits must comply with the 404(b)(1) 

Guidelines and undergo an alternatives 

analysis. A public interest review will 

also be conducted during the individual 

permit review process. Mining 

companies will have to make their own 

decisions on whether it is economically 

viable to mine smaller reserve areas, and 

apply for Department of the Army 

authorization if proposed activities 

involve discharges of dredged or fill 

material into waters of the United 

States. 

One commenter said that if Option 2 

is adopted, it should include a 

definition of valley fill. A commenter 

stated that the utility of NWP 21 would 

be substantially reduced because losses 

of waters of the United States caused by 

the construction of attendant features 

such as ponds and roads would be 

counted towards the 1⁄2-acre and 300 

linear foot limits. Another commenter 

indicated that the 1⁄2-acre limit would 

only authorize small sediment ponds. 

This commenter stated that small 

sediment ponds would not be able to 

effectively service a typical mine site. 

One commenter requested clarification 

on whether the amount of stream that is 

impounded for sediment ponds will be 

counted as a loss of waters of the United 

States and whether these ponds will 

have to be removed upon completion of 

the mining. 

We have added a definition of the 

term ‘‘valley fill’’ to the text of this 

NWP. While fewer surface coal mining 

activities involving discharges of 

dredged or fill material into waters of 

the United States would be authorized 

by NWP 21 when compared to previous 

issued versions of this NWP, the new 

terms and conditions of this NWP, 

including the 1⁄2-acre and 300 linear foot 

limits, are necessary to ensure that this 

NWP authorizes only those activities 

that have minimal individual and 

cumulative adverse effects on the 

aquatic environment. If the construction 

of larger sediment ponds does not 

qualify for NWP 21 authorization, 

activities may be authorized by 

individual permits or applicable 

regional general permits. In the 

definition of ‘‘loss of waters of the 

United States’’ the loss of stream bed is 

determined by the amount of linear feet 

of stream bed that is filled or excavated. 

As to whether sediment ponds would 

have to be removed upon completion of 

the mining operation, that would be a 

case-specific determination made by the 

district engineer after taking into 

account requirements of the SMCRA 

authority. 

One commenter asked how many 

surface coal mining activities may be 

authorized each year with NWP 21 if 

Option 2 is selected. One commenter 

said the proposed changes to NWP 21 

would be costly to small businesses and 

disagreed with the Corps statement that 

the revised NWPs will not impose 

substantially higher costs on small 

entities than those of existing permits. 

Another commenter indicated that the 

proposed changes to NWP 21 would 

result in more environmental impact 

statements being required because of the 

amount of wetlands in their area. 

In section 6.2.2 of the decision 

document for this NWP, we provide 

estimates of the number of times we 

predict NWP 21 will be used each year. 

Under paragraph (b), we estimate that 

NWP 21 will be used approximately 11 

times per year, although more activities 

may qualify for NWP 21 authorization if 

project proponents do additional 

avoidance and minimization to reduce 

losses of waters of the United States to 

satisfy the acreage and linear foot limits. 

As discussed above, we estimate that, 

across the country, approximately 70 

NWP 21 activities verified under the 

2007 NWP 21 might be re-verified under 

paragraph (a) of the 2012 NWP 21. The 

estimate provided in the decision 

document was based on an analysis of 

past use of NWP 21, and it is a rough 

estimate because NWP 21 did not have 

an acreage or linear foot limit and we 

cannot predict how many activities can 

be modified to comply with the new 

limits. Therefore, it is difficult to 

accurately predict how often project 

proponents will qualify for 

authorization under the NWP 21 issued 

today. Since fewer surface coal mining 

activities are likely to qualify for NWP 

21 authorization, and more will require 

individual permits, we acknowledge 


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that there will be greater compliance 

costs for small businesses. In the 

preamble to the proposal, where we 

discuss compliance with the Regulatory 

Flexibility Act, we state that the 

proposed NWPs would not result in a 

significant impact on a substantial 

number of small entities. That statement 

was made in the context of considering 

all of the 48 NWPs proposed to be 

reissued and the two proposed new 

NWPs. Some NWPs, such as NWP 48, 

will require fewer pre-construction 

notifications and other requirements on 

small entities while other NWPs, such 

as NWP 21, will have more stringent 

requirements to satisfy the minimal 

adverse environmental effects standard 

and will authorize fewer activities. We 

do not agree that these changes to NWP 

21 will result in significantly more 

environmental impact statements. The 

threshold for NWP authorization, as 

well as for other general permits, is 

minimal adverse environmental effects. 

The threshold for preparing an 

environmental impact statement is that 

the activity constitutes a major Federal 

action significantly affecting the quality 

of the human environment. Since the 

threshold that triggers the requirement 

to prepare an environmental impact 

statement is greater than the minimal 

adverse environmental effects threshold 

for NWP activities, activities that were 

previously authorized by NWP should 

generally not require an environmental 

impact statement if they are instead 

evaluated through the individual permit 

process. Environmental assessments 

should suffice to provide National 

Environmental Policy Act compliance 

for most, if not all, of those activities. If 

the adverse effects on the aquatic 

environment for a proposed NWP 

activity are determined by the district 

engineer to be more than minimal 

individually and cumulatively, then 

discretionary authority should be 

exercised and the proposed activity 

evaluated through the individual permit 

process. 

Many commenters said that that it 

would be more appropriate to establish 

different NWP terms and conditions for 

different areas of the United States, 

because of vast differences in geological, 

topographical, climatologically and 

ecological regimes in areas where coal 

resources are located across the country. 

One of these commenters recommended 

focusing on the use of regional 

conditions to address regional 

differences in coal mining techniques 

and issues, instead of modifying NWP 

21. 

An NWP is developed to authorize 

specific categories of activities across 

the country that have minimal 

individual and cumulative adverse 

effects on the aquatic environment and 

is issued by Corps Headquarters. There 

must be a national decision document 

for each NWP, and to issue that NWP, 

there must be a finding that the NWP 

will authorize only those activities that 

have minimal individual and 

cumulative adverse effects on the 

aquatic environment. Division and 

districts prepare supplemental decision 

documents to explain whether regional 

conditions are needed to satisfy the 

minimal adverse effects requirement. 

Regional conditions are added to an 

NWP at a division engineer’s discretion 

and Corps Headquarters cannot mandate 

the adoption of regional conditions. 

The national decision documents 

acknowledge that regional conditions 

approved by division engineers and 

activity-specific conditions added to 

NWP authorizations are procedures to 

be relied upon to satisfy the minimal 

adverse environmental effects 

requirement. In those areas of the 

country where surface coal mining 

activities result in minimal individual 

and cumulative adverse effects on the 

aquatic environment but exceed the 

limits of NWP 21, division and district 

engineers may issue regional general 

permits that have different terms and 

conditions than NWP 21, including 

larger acreage or linear foot limits. 

Those regional general permits are a 

more appropriate mechanism for 

considering local geologic, topographic, 

climatologic, and ecological 

characteristics. 

Some commenters stated that 

Executive Order 13563, ‘‘Improving 

Regulation and Regulatory Review’’ asks 

federal agencies to tailor regulations to 

impose the least burden on society, 

including individuals, businesses of 

differing sizes, and other entities. These 

commenters said that adding additional 

redundant review by Federal agencies 

violates this Executive Order and 

threatens energy supplies. One of these 

commenters said the proposal to reissue 

NWP 21 with modifications is contrary 

to the objectives of Executive Order 

13563 because it fails to use the best, 

most innovative and least burdensome 

tools for achieving regulatory ends and 

that the proposed limits in NWP 21 are 

redundant, inconsistent, or overlapping 

with other regulations. 

As explicitly recognized in Executive 

Order 13563 itself, an Executive Order 

does not supersede Federal laws, such 

as the requirements in the Clean Water 

Act, the Rivers and Harbors Act of 1899, 

the Endangered Species Act, and the 

National Historic Preservation Act. 

Section 404(e) of the Clean Water Act 

states that general permits (including 

NWPs) authorize categories of activities 

that are similar in nature and result only 

in minimal individual and cumulative 

adverse environmental effects. The 

Corps complied with Section 2 of 

Executive Order 13563 by seeking 

public comment on the proposal to 

reissue NWP 21 with modifications, for 

a 60-day comment period. The Corps 

has determined that the changes to NWP 

21 are necessary to comply with the 

requirements of Section 404(e) of the 

Clean Water Act. We have modified 

Option 2 by authorizing activities 

verified under the 2007 NWP 21 (see 

paragraph (a) of NWP 21), to provide an 

equitable transition to the new limits in 

NWP 21 and reduce burdens on the 

regulated public. The authority for the 

district engineer to waive the linear foot 

limit for losses of intermittent and 

ephemeral streams if the impacts are not 

more than minimal is also intended to 

minimize regulatory burden. As 

discussed earlier in this section, the 

terms and conditions of NWP 21 are not 

duplicative with the requirements of 

other Federal agencies. While surface 

coal mining activities are more broadly 

regulated under the Surface Mining 

Control and Reclamation Act by the 

Office of Surface Mining Reclamation 

and Enforcement or approved states, the 

Corps regulates discharges of dredged or 

fill material into waters of the United 

States, and focuses its evaluation on the 

effects those discharges have on the 

aquatic environment or its other public 

interest review factors (see 33 CFR 

330.1(d) and (e)(2)). Those activities that 

do not qualify for NWP authorization 

may be authorized by other forms of 

Department of the Army authorization, 

such as individual permits or regional 

general permits. The standards the 

Corps uses to ensure compliance with 

the Clean Water Act differ from the 

standards used by the Office of Surface 

Mining Reclamation and Enforcement or 

approved states to ensure compliance 

with the Surface Mining Control and 

Reclamation Act, and those standards 

are not redundant. 

A commenter disagreed with the 

Corps statement that the proposed 

NWPs are not a significant energy action 

as defined by Executive Order 13211 

because of the proposed changes to 

NWP 21. The commenter said the Corps 

must prepare a Statement of Energy 

Effects as required by the Executive 

Order, including a description of the 

adverse impacts expected to the 

production of coal, the nation’s primary 

electrical generation fuel supply. One 

commenter said that the time frames for 

evaluating NWP 21 pre-construction 

notifications should be similar to those 


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of other NWPS, and NWP 21 should not 

require the project proponent to wait 

until he or she receives a written NWP 

verification even if the 45-day review 

period has passed. 

The changes to NWP 21 are 

appropriate and help to ensure that the 

NWP authorizes only those discharges 

of dredged or fill materials into waters 

of the United States that have minimal 

adverse effects on the aquatic 

environment, individually and 

cumulatively. Surface coal mining 

activities that involve discharges of 

dredged or fill material into waters of 

the United States that do not qualify for 

NWP authorization may be authorized 

by individual permits or, if available, 

applicable regional general permits, 

which would still support the 

production of coal to supply the 

nation’s energy needs. Given the 

adverse environmental effects 

associated with surface coal mining 

activities involving discharges of 

dredged or fill material into waters of 

the United States, which are discussed 

in the decision document for this NWP, 

we believe it is necessary to retain the 

existing requirement that the project 

proponent may not proceed with the 

NWP 21 activity until after he or she has 

obtained a written NWP 21 verification. 

Project proponents are already 

accustomed to complying with this 

requirement and plan accordingly. 

One commenter suggested 

establishing a grandfathering period for 

surface coal mining activities authorized 

by the NWP 21 issued in 2007, to allow 

permittees to complete their currently 

approved mitigation plans without an 

added burden of updating permits. 

Another commenter asked how project 

proponents are expected to transition 

from the current 2007 NWP 21 to one 

of the selected options for reissuing 

NWP 21, if NWP 21 is reissued under 

either Option 2 or 3. 

As discussed above, we have revised 

NWP 21 to continue the NWP 

authorization for surface coal mining 

activities that were verified under the 

2007 NWP 21, to provide project 

proponents until March 18, 2017, to 

complete those activities under NWP 

21. The acreage limits, linear foot limits, 

and prohibition against discharges of 

dredged or fill material into waters of 

the United States to construct valley 

fills apply to those surface coal mining 

activities that were not previously 

authorized by the 2007 NWP 21. We 

believe this approach for transitioning 

to the new NWP 21 limits provides both 

protection to the aquatic environment 

and is equitable to those members of the 

regulated public who made substantial 

investments in reliance on a previously 

verified NWP 21 authorization. 

One commenter said that a preconstruction notification should be 

required for all NWP 21 activities, so 

plans and permit conditions could be 

reviewed to ensure that contaminated 

water being generated during these 

activities is not later reaching open 

water and impacting state-owned lands. 

One commenter expressed concern that 

historic resources impacts are not 

considered under SMCRA in cases 

where the program has been delegated 

to states. 

To be authorized by this NWP, the 

project proponent must submit a preconstruction notification, so that the 

district engineer can evaluate the 

proposed activity and ensure that it 

qualifies for NWP authorization. 

Activities authorized by this NWP must 

comply with general condition 20, 

historic properties. If the proposed 

activity has the potential to cause effects 

to historic properties, consultation 

under Section 106 of the National 

Historic Preservation Act will be 

conducted before the district engineer 

determines whether the activity is 

authorized by NWP. 

This NWP is reissued with the 

modifications discussed above. 

NWP 22. Removal of Vessels. There 

were no changes proposed for this NWP, 

and no comments were received. This 

NWP is reissued without change. 

NWP 23. Approved Categorical 

Exclusions. There were no changes 

proposed for this NWP. One commenter 

requested that this NWP be limited to 

federal applicants only. One commenter 

requested that the NWP be modified to 

allow any agency with categorical 

exclusions to use this NWP, not just 

those that have been approved by the 

Office of the Chief of Engineers. One 

commenter recommended adding 

references to requirements to comply 

with other applicable federal laws, such 

as Section 106 of the National Historic 

Preservation Act. One commenter stated 

that this NWP does not take into 

consideration the actions that may 

impact Tribal treaty cultural or natural 

resources and requested that 

notification be provided to affected 

tribes regardless if considered a 

categorical exclusion. 

This NWP applies only to those 

activities ‘‘undertaken, assisted, 

authorized, regulated, funded or 

financed, in whole or in part, by another 

Federal agency or department.’’ In 

certain instances, another agency, such 

as a state department of transportation, 

may legally assume the responsibility 

for categorical exclusion determinations 

for a Federal entity. To ensure 

compliance with the requirements for 

general permits, it is necessary for the 

Office of the Chief of Engineers to 

review and approve agency categorical 

exclusions for use with this NWP. In 

cases where the Federal agency is 

responsible for compliance with the 

National Historic Preservation Act, the 

Endangered Species Act, or other 

Federal laws, the Corps can accept their 

compliance, as long as it adequately 

covers the activity authorized by the 

NWP. The same principle applies for 

Tribal treaty natural or cultural 

resources: If the agency issuing the 

categorical exclusion that qualifies for 

NWP 23 authorization has sufficiently 

addressed the Tribal treaty resources, 

then the Corps district can accept that 

as a basis for compliance with general 

condition 17, tribal rights. 

One commenter stated that this NWP 

authorizes activities that are not similar 

in nature, and its use does not result in 

minimal adverse effects on the aquatic 

environment. One commenter said that 

the approved categorical exclusions 

need to be reassessed to ensure that they 

still meet the minimal adverse 

environmental effects requirement for 

general permit activities. One 

commenter said that pre-construction 

notification should be required for all 

NWP 23 activities to ensure adequate 

interagency coordination. Another 

commenter said that reporting to the 

Corps should be required for any 

activity that affects wetlands, 

encroaches on a regulatory floodway, 

affects the water level of a 100-year 

flood event, or affects waters designated 

as critical resource waters. 

This NWP, along with the Regulatory 

Guidance Letter listing the approved 

categorical exclusions, authorizes 

activities that are similar in nature. The 

Corps believes that their eligibility for 

NEPA compliance using a categorical 

exclusion is an appropriate basis of 

‘‘similarity’’ for their authorization 

under this NWP. Based on the NEPA 

requirements for use of categorical 

exclusions, the Corps has determined 

that these activities will result in 

minimal individual and cumulative 

adverse effects on the aquatic 

environment, and division engineers 

have the authority to regionally 

condition this NWP to restrict or 

prohibit its use if they determine that 

these activities are resulting in more 

than minimal adverse environmental 

effects. We do not agree that the 

approved categorical exclusions need to 

be re-evaluated because of the length of 

time that has passed since they were 

originally approved. Agencies have an 

on-going responsibility to review their 

categorical exclusions and ensure that 


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the activities they authorize still qualify 

for this type of NEPA compliance. 

Division engineers may also regionally 

condition this NWP to require agency 

coordination for specific categorical 

exclusions that have been approved for 

use with this NWP. We do not agree that 

reporting or pre-construction 

notification should be required for all 

activities that may affect wetlands. 

Activities that encroach upon regulatory 

floodways or affect 100-year flood 

elevations are more appropriately 

addressed through applicable Federal 

Emergency Management Agencyapproved state or local floodplain 

management requirements (see general 

condition 10). General condition 22, 

designated critical resource waters, 

requires pre-construction notification 

for any NWP 23 activity that is proposed 

in designated critical resource waters 

and wetlands adjacent to those waters. 

The proposed NWP is reissued with 

no changes. 

NWP 24. Indian Tribe or State 

Administered Section 404 Programs. 

There were no changes proposed for this 

NWP, and no comments were received. 

This NWP is reissued without change. 

NWP 25. Structural Discharges. We 

did not propose any changes to this 

NWP. One commenter stated that 

concrete should be cured for a full seven 

days before coming in contact with 

water. One commenter stated structures 

constructed by such discharges on stateowned lands may require a ‘‘use 

authorization’’ from the state. 

Specific requirements for the curing 

of concrete are more appropriately 

addressed as regional conditions or 

activity-specific conditions added to an 

NWP 25 authorization. Project 

proponents are responsible for obtaining 

any other federal, state, or local permits 

that may be required for a particular 

activity. 

The NWP is reissued without change. 

NWP 27. Aquatic Habitat Restoration, 

Establishment, and Enhancement 

Activities. We proposed to modify this 

NWP by adding ‘‘the removal of small 

dams’’ to the list of examples of 

activities authorized by this NWP. We 

also proposed to remove the phrase 

‘‘that has not been abandoned’’ that 

modifies the term ‘‘prior converted 

cropland.’’ We proposed to change 

‘‘Notification’’ provisions (1) and (2) so 

that certain stream restoration, 

rehabilitation, and enhancement 

activities would be subject to the 

reporting provision instead of requiring 

pre-construction notification. Lastly, we 

proposed to modify ‘‘Notification’’ 

provision (1) by adding the U.S. Forest 

Service to the list of Federal agencies 

that can develop stream or wetland 

enhancement, restoration, or 

establishment agreements. 

Many commenters supported the 

addition of removal of small dams to the 

list of examples of activities authorized 

by this NWP. One commenter said that 

if this NWP is modified to authorize the 

removal of small dams, the NWP should 

also authorize discharges of dredged or 

fill material to re-establish appropriate 

stream channel configurations, with a 

1⁄2-acre limit for the stream channel 

reconfiguration. Some of these 

commenters requested clarification as to 

what constitutes a ‘‘small dam.’’ One 

commenter agreed with the addition of 

removing small dams but expressed 

concern regarding potential impacts to 

water quality when a small dam is 

removed. One commenter 

recommended requiring sediment 

testing before authorizing the removal of 

small dams. 

After further consideration, we have 

determined that since the NWP 27 

issued in 2007 authorized the 

installation, removal, and maintenance 

of small water control structures (which 

clearly includes small dams), it is not 

necessary to modify this NWP by adding 

the removal of small dams to the list of 

examples of activities authorized by 

NWP 27, so we have not made this 

proposed change. We agree that the 

NWP should also authorize the 

restoration of the stream channel that 

were affected by the construction of a 

small water control structure, if that 

water control structure is to be removed. 

We do not agree that such activities 

should be limited to 1⁄2-acre, since this 

NWP authorizes only aquatic resource 

restoration, establishment, and 

enhancement activities that result in net 

increases in aquatic resource functions 

and services. Aquatic resource habitat 

restoration and enhancement activities 

involving the removal of small water 

control structures should be designed 

and implemented to prevent or 

minimize the movement of pollutants, 

including chemical compounds 

adsorbed to sediments that have 

accumulated in the impoundment, from 

the impounded area once the small 

water control structure is removed. 

Sediment testing may be required on a 

case-by-case basis if there are 

substantive concerns about potential 

contaminants. 

Several commenters suggested that 

NWP 27 activities be subject to strict 

technical guidelines and enforceable 

success criteria commensurate with the 

scope of the activity being undertaken. 

A number of commenters expressed 

concern that some of the activities 

authorized by NWP 27 may result in a 

loss of waters rather than a net gain. 

One commenter said that aquatic 

resource restoration, establishment, and 

enhancement activities should have 

management plans that include goals 

and objectives, baseline conditions, 

effective monitoring requirements, and 

adaptive management plans. This 

commenter stated that without this level 

of documentation, the effectiveness of 

any restoration, establishment, or 

enhancement activity cannot be 

effectively evaluated for success. One 

commenter recommended adding a 

requirement for performance bonds to 

ensure that these activities are 

monitored and are achieving their goals 

and objectives. 

For those NWP 27 activities that 

require pre-construction notification, 

the prospective permittee is required to 

submit a complete pre-construction 

notification, with the information listed 

in paragraph (b) of general condition 31. 

Activities conducted in accordance with 

agreements with other Federal or state 

agencies should be adequately 

documented to determine whether there 

will be net increases in aquatic resource 

functions and services. When Corps 

districts review the reports required for 

activities conducted under agency 

agreements, they will assess whether 

those activities will satisfy the terms 

and conditions of this NWP. If a 

particular activity does not, then the 

district will notify the project proponent 

within 30 days of when the report was 

submitted to the district engineer. This 

NWP requires authorized activities to 

result in net increases in aquatic 

resource functions and services, which 

will generally add acreage to the 

nation’s aquatic habitat base. Although 

there may be some NWP 27 activities 

that result in a decrease in aquatic 

resource area to increase the functional 

capacity of those aquatic habitats, such 

changes are acceptable because it is the 

ecosystem functions, and the benefits 

people derive from those functions, that 

are important to society. To provide 

better information to assess whether 

there will be a net increase in aquatic 

resource functions and services, we 

have added a provision to the reporting 

requirement that requires the 

prospective permittee to provide 

information on the baseline ecological 

conditions at the project site, such as a 

delineation of wetlands, streams, and/or 

other aquatic habitats. Unless the 

activities authorized by this NWP are to 

be used as compensatory mitigation for 

Department of the Army permits (e.g., 

mitigation banks or in-lieu fee projects), 

the project proponent is not required to 

submit mitigation plans that comply 

with 33 CFR 332.4. The aquatic resource 


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restoration, establishment, or 

enhancement activity should be 

sufficiently documented to help district 

engineers decide whether the terms and 

conditions of this NWP are satisfied. 

Performance bonds or other types of 

financial assurances may be required on 

a case-by-case basis, if such assurances 

are necessary to provide funding to be 

used for remediation or adaptive 

management. 

One commenter requested that this 

NWP authorize the rehabilitation or 

enhancement of tidal streams, stating 

that such activities would result in net 

increases in the functions and services 

provided by existing tidal aquatic 

resources and would not be contrary to 

the provision that prohibits the 

relocation of tidal waters or the 

conversion of tidal waters to other 

aquatic uses. One commenter pointed 

out that NWP 27 covers a wide range of 

habitat restoration and enhancement 

activities and there should be greater 

flexibility to allow resource managers to 

plan for sea level rise. This commenter 

recommended adding the beneficial use 

of dredged material as a thin layer 

application to provide sediment to 

sediment starved marshes, which may 

provide substrate to maintain those 

marshes as local sea levels rise. One 

commenter suggested modifying this 

NWP by clarifying that it authorizes 

activities that involve removing or 

modifying existing drainage ditches and 

structures, to establish or re-establish 

wetland or stream hydrology. Another 

commenter suggested adding the reestablishment of submerged aquatic 

vegetation or emergent tidal wetlands in 

areas where those plant communities 

previously existed. One commenter 

supported the inclusion of mechanized 

land clearing to remove non-native 

invasive species in this NWP. 

We agree that the rehabilitation or 

enhancement of tidal streams should be 

authorized by this NWP and have 

modified the first paragraph to include 

this category of activities. The 

enhancement of tidal wetlands may be 

accomplished by minor additions of 

sediment to facilitate changes in tidal 

marsh elevation that may successfully 

track sea level rise. We agree with 

providing more clarity concerning the 

types of ditch manipulations that can be 

used for restoring wetland hydrology 

and have removed the phrase ‘‘and 

drainage ditches’’ after ‘‘the backfilling 

of artificial channels’’ and replaced it 

with ‘‘such as drainage tiles, and the 

filling, blocking, or reshaping of 

drainage ditches to restore wetland 

hydrology’’ after ‘‘the removal of 

existing drainage structures.’’ We also 

agree that the re-establishment of 

submerged aquatic vegetation or 

emergent tidal wetlands should be 

authorized by this NWP, as long as 

those shallow water habitat and wetland 

types previously existed in the project 

area. Such re-establishment activities 

would not constitute a conversion of 

tidal waters to other aquatic uses; 

instead it would be a form of 

rehabilitation of those habitat types. We 

have retained the provision authorizing 

mechanized land clearing to remove 

non-native, invasive plant species. 

One commenter requested that the 

terms ‘‘type’’ and ‘‘natural wetland’’ be 

defined in the paragraph that describes 

the activities that are not authorized by 

this NWP. Another commenter 

supported the provision that prohibits 

the conversion of natural wetlands to 

another aquatic use and recommended 

that this prohibition also be applied to 

the conversion of one type of aquatic 

habitat to another. One commenter said 

that the NWP should clearly state that 

wetlands with documented hydrologic 

alterations are not ‘‘natural’’ wetlands 

and that hydrologic restoration of these 

wetlands is not to be considered a 

conversion of a natural wetland to 

another ‘‘type’’ but instead it should be 

considered as wetland rehabilitation. 

One commenter stated that a provision 

should be added to this NWP to clarify 

that compensatory mitigation is not 

required for activities authorized by this 

NWP since they must result in net 

increases in aquatic resource functions 

and services. 

As indicated by the parenthetical in 

the first sentence of the referenced 

paragraph, the term ‘‘type’’ as used for 

the purposes of this NWP refers to the 

general category of aquatic resource, 

such as wetland or stream. We do not 

believe it would be appropriate to 

define the term ‘‘natural wetland’’ 

except to contrast it with constructed 

wetlands, such as those that are often 

used to treat wastewater. District 

engineer have the discretion to 

determine what constitutes a ‘‘natural 

wetland’’ for the purposes of this NWP. 

We have added a sentence to this 

paragraph to clarify that changes in 

wetland plant communities that are 

caused by restoring wetland hydrology 

are to be considered wetland 

rehabilitation activities that are 

authorized by this NWP. Such wetland 

rehabilitation activities are not to be 

considered conversions to another 

aquatic habitat type. We concur that 

compensatory mitigation should not be 

required for NWP 27 activities and have 

added a sentence to the text of the NWP 

to clearly state this stipulation. 

One commenter said that the NWP 

should prohibit the relocation of 

naturally occurring non-tidal aquatic 

resources. One commenter suggested 

changing the conversion provision to 

state that no wetlands may be converted 

to open water impoundments rather 

than limiting the prohibition to tidal 

wetlands. Another commenter stated 

that while they understand the need for 

language to clarify that conversion from 

‘‘streams to wetlands’’ is not desirable, 

there are some areas that have been 

drained or ditched to create water flow 

away from agricultural land, where 

there was previously a wetland. This 

commenter asked whether 

reestablishing wetlands on the site 

could be authorized by this NWP. The 

commenter said that the NWP is too 

restrictive and has the potential to 

prohibit activities that may result in 

aquatic resources that are more 

appropriately integrated into the 

landscape. 

The relocation of non-tidal waters and 

wetlands on a project site, including 

relocation activities that convert open 

water impoundments to non-tidal 

wetlands and vice versa, can result in 

net increases in aquatic resource 

functions and services when viewed in 

a watershed context. Therefore, we do 

not agree that it is appropriate to 

exclude such activity from coverage 

under this NWP if it meets all other 

conditions, including a net increase in 

resource functions and services. Ditches 

that were constructed in wetlands to 

drain those wetlands are not considered 

streams for the purposes of this 

provision of the NWP. As discussed 

earlier, this NWP authorizes the filling, 

blocking, or reshaping of drainage 

ditches to restore wetland hydrology. 

One commenter asked if the removal 

of bulkheads, derelict structures, and 

pilings, can be authorized by this NWP 

while another suggested that the NWP 

allow for the temporary use of spat (e.g., 

larval oysters) collecting devices for the 

purpose of shellfish restoration. 

The removal of structures in navigable 

waters of the United States is authorized 

by this NWP if it is a part of an aquatic 

habitat restoration or enhancement 

activity. The temporary use of spat 

devices for oyster habitat restoration is 

more appropriately authorized by NWP 

4. 

One commenter said that the 

provisions concerning shellfish seeding 

are not clear and asked if the intent of 

the NWP is to authorize shellfish 

seeding activities to enhance threatened 

shellfish populations. This commenter 

also said that shellfish enhancement 

activities should be limited to native 

species. One commenter recommended 

authorizing shellfish restoration 

activities without requiring preVerDate Mar<15>2010 18:29 Feb 17, 2012 Jkt 226001 PO 00000 Frm 00033 Fmt 4701 Sfmt 4703 E:\FR\FM\21FEN2.SGM 21FEN2

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construction notification when such 

activities are conducted or approved by 

a government agency with resource 

management oversight. One commenter 

requested we not include shellfish 

restoration activities in this NWP, 

because these activities alter existing 

substrate and benthic habitat and 

should be reviewed under the 

individual permit evaluation process. 

This commenter also recommended 

imposing a one-acre limit for the 

placement of scattered shell. 

This NWP authorizes shellfish 

seeding activities, which may help 

increase shellfish populations in 

specific waters. Division engineers may 

regionally condition this NWP to limit 

shellfish seeding activities to native 

species. Further, in response to a preconstruction notification or report, a 

district engineer may exercise 

discretionary authority and condition a 

specific NWP authorization to limit it to 

the seeding of native shellfish species. 

We do not agree that there should be no 

pre-construction notification 

requirement if there is oversight by 

another government entity with the 

responsibility for managing shellfish 

resources. Since these activities occur in 

navigable waters, the Corps needs to 

review them on a case-by-case basis to 

ensure that they result in minimal 

individual and cumulative adverse 

effects on the aquatic environment and 

navigation and provide net increases in 

aquatic resource functions and services. 

Shellfish restoration activities should be 

authorized by this NWP because 

shellfish provide important ecosystem 

services in aquatic ecosystems, 

including the improvement of water 

quality. In most cases, the changes to 

benthic habitat are minor when 

compared to the ecosystem services 

provided by the shellfish. We also do 

not agree that there should be a one-acre 

limit for the placement of shell to 

construct oyster habitat because larger 

oyster habitat construction activities can 

still result in a net increase in aquatic 

resource functions and services. 

One commenter said that stream 

restoration projects should be limited to 

500 linear feet. One commenter stated 

that the construction of small nesting 

islands and the alteration of rare or 

imperiled wetlands should be not be 

authorized by this NWP. This 

commenter also suggested acreage limits 

for categories of activities authorized by 

this NWP, such as limiting excavation of 

wetlands to provide shallow water 

habitat for wildlife to 1⁄2-acre in altered 

wetlands; excavating no more than 11⁄2- 

acre of wetlands that have been 

regularly farmed within the past five 

years or wetlands documented to be 

dominated by invasive species; a 3-acre 

limit for excavation activities; and 

limiting the placement of fill for the 

construction of dikes, berms, or water 

control structures to two acres. This 

commenter also recommended limiting 

impoundments to a maximum height of 

six feet, with a maximum impounded 

area of no more than five acres during 

a design flood. This commenter also 

said that enhancement of hydrology 

should not be authorized unless a state 

agency concurs that the wetland has 

been farmed within the last five years or 

is dominated by invasive species. 

Since this NWP authorizes only those 

aquatic habitat restoration, 

establishment, and enhancement 

activities that result in net increases in 

aquatic resource functions and services, 

we do not agree that the recommended 

limits should be added to this NWP. 

Division engineers can regionally 

condition this NWP to restrict or 

prohibit its use over specific geographic 

areas or categories of waters. In response 

to a pre-construction notification, 

district engineers can add conditions to 

the NWP authorization to ensure that 

the NWP authorizes only those activities 

that result in minimal adverse effects on 

the aquatic environment. 

Two commenters supported the 

addition of the United States Forest 

Service as a federal agency that can 

develop agreements for the restoration, 

enhancement, or establishment of 

streams and wetlands. One commenter 

recommended removing the reversion 

provision of NWP 27. Another 

commenter said that the reversion 

provision should be eliminated or 

significantly modified because it is 

inconsistent with other NWPs. Two 

commenters stated that the reversion of 

wetlands should not be authorized if the 

wetlands were being used for 

compensatory mitigation. One 

commenter asked how many acres of 

wetlands could be reverted under this 

NWP. One commenter asked whether a 

‘‘USDA Technical Service Provider’’ 

includes county soil and water 

conservation districts. 

The reversion provision is necessary 

for those aquatic resource restoration, 

enhancement, or establishment 

activities that are done in accordance 

with binding agreements, voluntary 

actions, or permits, where those 

agreements, actions, or permits allow 

the project proponent to revert the 

affected lands to its prior condition. If 

the reversion provision is removed, it 

would create a disincentive to do 

certain aquatic restoration, 

enhancement, or establishment 

activities that could provide some 

aquatic resource functions and services 

for a substantial period of time and 

benefit the watershed. Nationwide 

permit 27 differs from the other NWPs 

because of the types of activities it 

authorizes. As stated in the Note at the 

end of NWP 27, reversion of an area 

used as a compensatory mitigation 

project is not authorized by this NWP. 

We do not track the acreage of wetland 

or stream restoration and enhancement 

activities, or of wetland establishment 

activities, that were authorized by NWP 

27 and might be eligible for reversion. 

There is no limit on the amount of 

wetlands that can be reverted under a 

single authorization, provided all 

conditions of the NWP are met. County 

soil and water conservation districts can 

register with the U.S. Department of 

Agriculture to be a technical service 

provider. 

One commenter said that preconstruction notifications should 

include photographs, a description of 

pre-project site conditions, and a 

discussion of general aquatic resource 

functions and services anticipated to be 

provided by the activity. Another 

commenter stated that pre-construction 

notification should be required for all 

activities. 

Paragraph (b) of general condition 31, 

pre-construction notification, requires 

prospective permittees to submit 

documentation that describes the 

proposed activity, including the 

anticipated loss of waters of the United 

States and, if appropriate, sketches that 

help clarify the project. The preconstruction notification also must 

include a delineation of wetlands, other 

special aquatic sites, and other aquatic 

habitats. We do not agree that preconstruction notification should be 

required for all activities. The reporting 

requirements for those activities that do 

not require pre-construction notification 

provide sufficient opportunity for 

district engineers to notify a project 

proponent if the proposed work does 

not comply with the terms and 

conditions of the NWP. We have 

modified the ‘‘Reporting’’ provision of 

this NWP to require the permittee to 

submit information on the baseline 

ecological conditions at the project site, 

such as a delineation of wetlands, 

streams, and/or other aquatic habitats. 

We have also changed the 

‘‘Notification’’ provision of this NWP by 

replacing the phrase ‘‘the activity’’ with 

‘‘any activity’’ to clarify that any activity 

that does not require reporting requires 

a pre-construction notification. The last 

sentence of this NWP has been changed 

to clarify that appropriate 

documentation concerning the 

agreement, voluntary action, or Surface 

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permit is to be provided to the district 

engineer to fulfill the reporting 

requirement. 

One commenter said the NWP should 

require the use of best management 

practices to avoid sediment loading of 

waters especially when mechanized 

land clearing or work is conducted in 

waters of the United States. The 

commenter stated that best management 

practices, such as floating barriers, 

should also be used in upland areas to 

protect downstream water quality. One 

commenter stated that Tribes should be 

notified to ensure that NWP 27 activities 

avoid impacts to tribal treaty natural 

resources and cultural resources. 

General condition 12, soil erosion and 

sediment controls, requires permittees 

to implement appropriate soil and 

erosion and sediment controls during 

the work. In response to a preconstruction notification, district 

engineers can add conditions to the 

NWP authorization to require more 

specific sediment and erosion controls. 

Division engineers can impose regional 

condition on this NWP to require 

notification of the appropriate Tribe or 

Tribes if a proposed activity might affect 

tribal treaty natural resources and 

cultural resources. General condition 

17, Tribal rights, requires that no NWP 

activity or its operation impair reserved 

treaty rights, including treaty fishing 

and hunting rights. Cultural resources 

are protected through the requirements 

of general condition 20, historic 

properties, and general condition 21, 

discovery of previously unknown 

remains and artifacts. 

This NWP is reissued with the 

modifications discussed above. 

NWP 28. Modifications of Existing 

Marinas. There were no changes 

proposed for this NWP. Two 

commenters recommended adding a 

condition to ensure the modification 

does not encroach upon additional 

waters. One commenter suggested 

adding a condition to require a 

minimum maneuvering distance for an 

outside slip to the boundary of the 

marina’s riparian interest area. One 

commenter stated that modifications for 

marinas on state-owned aquatic lands 

should require pre-construction 

notification. 

This NWP clearly states that it does 

not authorize expansions of existing 

marinas. Since the NWP does not 

authorize expansions of existing 

marinas, it is not necessary to add a 

condition to provide a minimum 

maneuvering distance. Concerns about 

modifications to marinas constructed on 

state-owned submerged lands are more 

appropriately addressed through a state 

authorization process. 

This NWP is reissued without change. 

NWP 29. Residential Developments. 

We proposed to modify this NWP by 

changing the waiver provision for 

activities resulting in the loss of greater 

than 300 linear feet of intermittent and 

ephemeral stream bed, to clarify that the 

district engineer will only issue the 

waiver after making a project-specific 

written determination that the activity 

will result in minimal adverse effects. 

One commenter said that this NWP 

should not be reissued. One commenter 

suggested revoking this NWP because of 

the large scale of these projects and 

associated impacts to waters and said 

that individual permits should be 

required for these activities. Two 

commenters stated that the use of this 

NWP permit to authorize 1⁄2-acre losses 

of waters of the United States would 

result in more than minimal adverse 

effects on an individual and cumulative 

basis. Two commenters said that this 

NWP should not authorize residential 

subdivisions, and should be limited to 

single family homes. Four commenters 

recommended decreasing the acreage 

limit for losses of waters of the United 

States to 1/4-acre. Two commenters 

suggested increasing the acreage limit to 

1 acre. One commenter requested 

clarification on whether the acreage 

limits are applied cumulatively when 

there is any subsequent expansion of a 

residential development. 

We do not agree that this NWP should 

not be reissued or limited to single 

family homes. The construction of 

residential developments, including 

multiple unit residential developments, 

may have minimal individual and 

cumulative adverse effects on the 

aquatic environment, and is appropriate 

for NWP authorization if it meets the 

conditions of this NWP. Provided the 

limits are met, the effects to waters of 

the United States are similar whether 

single family homes or groups of single 

family homes are constructed as a result 

of using this NWP to authorize 

discharges of dredged or fill material 

into waters of the United States. The 1⁄2- 

acre limit, as well as the other terms and 

conditions of this NWP, is consistent 

with longstanding limits on this and 

other NWPs, and is appropriate for 

ensuring that this NWP authorizes only 

those activities with minimal adverse 

effects on the aquatic environment. 

Division engineers can regionally 

condition this NWP to reduce the 

acreage limit or restrict or prohibit its 

use in specific regions or waters. In 

response to a pre-construction 

notification, district engineers may 

exercise discretionary authority to add 

conditions to the NWP authorization or 

require an individual permit. The 1⁄2- 

acre and 300 linear foot limits apply to 

single and complete projects. If a project 

proponent requests NWP authorization 

to conduct additional discharges of 

dredged or fill material into waters of 

the United States and modify a 

previously authorized single and 

complete residential development 

project, both the previously authorized 

losses and the additional losses are 

applied to the 1⁄2-acre and/or 300 linear 

foot limits. If the modification to the 

residential development is a separate 

single and complete project with 

independent utility from the previously 

authorized residential development, 

then a separate NWP authorization may 

be issued. The ‘‘Definitions’’ section 

includes further clarification regarding 

single and complete projects. 

Several commenters objected to 

providing district engineers with the 

authority to waive the 300 linear foot 

limit for the loss of intermittent and 

ephemeral stream bed on a case-by-case 

basis after reviewing a pre-construction 

notification and determining that the 

proposed activity results in minimal 

adverse environmental effects. One 

commenter said that the waiver 

provision would result in more than 

minimal cumulative adverse effects on a 

watershed basis. Another commenter 

stated that use of the waiver would 

authorize the losses of large amounts of 

headwater streams. A few commenters 

suggested the waiver provision should 

be removed from this NWP. Three 

commenters recommended increasing 

the linear foot limit for the loss of 

stream bed to 500 feet. Two commenters 

supported the clarification that a finding 

of minimal adverse environmental 

effects would be required to issue a 

waiver. 

Responses to comments regarding the 

300 linear foot limit for losses of stream 

bed and the waiver provision for the 

loss of greater than 300 linear feet of 

intermittent and ephemeral stream beds 

are discussed in a previous section of 

this preamble. We are retaining the 300 

linear foot limit for stream bed impacts, 

as well as the ability for district 

engineers to provide written waivers of 

the 300 linear foot limit for losses of 

intermittent and ephemeral stream beds. 

One commenter recommended that 

compensatory mitigation be required for 

all unavoidable impacts to wetlands 

authorized under this NWP. Several 

commenters said that the NWP should 

require permittees to minimize on-and 

off-site impacts and avoid flooding, 

because the general conditions do not 

adequately address flooding or water 

quality impacts. Several commenters 

said that this NWP should not authorize 

residential subdivisions unless the 


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project proponents can demonstrate 

those subdivisions will not cause an 

increased flood hazard on other 

properties. 

We do not agree that it is necessary 

to require compensatory mitigation for 

all activities authorized by this NWP to 

satisfy the minimal adverse 

environmental effects requirement for a 

general permit. For many small losses of 

waters of the United States authorized 

by this NWP, it is not practicable to 

require compensatory mitigation to 

offset those losses, especially in areas 

where there are no mitigation bank or 

in-lieu fee program credits available. 

The requirements for permitteeresponsible mitigation in 33 CFR 332.1 

through 332.7 impose substantial 

documentation and planning 

requirements that affect the 

practicability of providing ecologically 

successful permittee-responsible 

mitigation, especially for small losses of 

waters of the United States. 

Compensatory mitigation for NWP 

activities is only necessary in cases 

where the district engineer makes a 

project-specific determination that 

compensatory mitigation is needed to 

ensure that the activity results in 

minimal individual and cumulative 

adverse effects on the aquatic 

environment (see 33 CFR 330.1(e)(3)). 

General condition 23, mitigation, 

requires permittees to avoid and 

minimize adverse effects to waters of 

the United States on the project site, to 

the maximum extent practicable. 

Concerns about adverse effects on 

floodplains and floodways are more 

appropriately addressed by the state and 

local agencies that have the primary 

responsibility for floodplain 

management. General condition 10, fills 

within 100-year floodplains, requires 

permittees to comply with applicable 

Federal Emergency Management 

Agency-approved state or local 

floodplain management requirements. 

Most floodplains are uplands, not 

waters of the United States, and the 

Clean Water Act Section 404 permit 

program cannot be used to manage 

floodplain impacts, except for 

discharges of dredged or fill material or 

other pollutants into wetlands and other 

jurisdictional waters that are located in 

floodplains. Residential developments, 

whether they are single units or 

multiple-unit subdivisions, must 

comply with all terms and conditions of 

this NWP, including the requirement 

that they result in minimal adverse 

environmental effects. 

One commenter said that this NWP 

should not authorize activities that 

result in adverse impacts to state or 

federally listed threatened or 

endangered species or their habitats, or 

where there are rare or imperiled habitat 

types. One stated that this NWP should 

not authorize discharges of dredged or 

fill material below the ordinary high 

water mark of any water of the United 

States or areas of fish habitat. One 

commenter said that attendant features 

should be limited to a garage, a 

driveway no more than 16 feet wide, 

parking or vehicle turn areas, lawns that 

are no more than 15 feet from the 

building pad, septic fields, utilities, 

deck foundations, and access paths. One 

commenter suggested modifying this 

NWP to require culverts and other 

measures to maintain pre-construction 

drainage patterns on the site. One 

commenter said this NWP should 

require on-site sewage treatment 

systems. 

Compliance with the federal 

Endangered Species Act is addressed by 

general condition 18. Compliance with 

state or local threatened or endangered 

species laws or ordinances, or state or 

local requirements to avoid rare or 

imperiled habitats, is the responsibility 

of the permittee. Since all activities 

authorized by this NWP require preconstruction notification, district 

engineers will review proposed 

activities that involve discharging 

dredged or fill material into open 

waters, including fish habitat, to ensure 

that those activities result in minimal 

adverse effects on the aquatic 

environment. The text of the NWP 

provides examples of the types of 

attendant features that may be 

authorized. Further restrictions on those 

attendant features may be provided 

through regional conditions imposed by 

Division engineers or activity-specific 

conditions added to an NWP 29 

authorization by a District engineer. 

General condition 9, management of 

water flows, requires permittees to 

maintain, to the maximum extent 

practicable, the pre-construction course, 

condition, capacity, and location of 

open waters, such as streams, except 

under certain situations identified in the 

text of the general condition. Sewage 

treatment system requirements for 

residential developments are the 

primary responsibility of state or local 

governments. 

One commenter requested 

clarification on whether this NWP can 

be used to authorize phased 

development projects. Several 

commenters suggested limiting this 

NWP to a single use. 

General condition 15, single and 

complete project, states that the same 

NWP can only be used once for the 

same single and complete project. If a 

particular phase of a phased 

development project is a single and 

complete project with independent 

utility, a separate NWP 29 authorization 

can be used to authorize that single and 

complete non-linear project. 

Two commenters said that the NWP 

should require vegetated buffers. One 

commenter stated that district engineers 

have too much discretion regarding 

buffers and the general condition 

restricts buffers so that they are not as 

effective as they could be. 

Compensatory mitigation for activities 

authorized by NWP 29 may be provided 

through the establishment and 

maintenance of riparian areas next to 

open waters. Paragraph (f) of general 

condition 23 addresses the use of 

riparian areas as compensatory 

mitigation, with recommended widths. 

The recommended widths are based in 

part on the minimum width necessary 

for riparian areas to help protect or 

improve water quality, and in part on 

the principle that the amount of 

compensatory mitigation must be 

roughly proportional to the permitted 

impacts (see 33 CFR 320.4(r)(2)). Since 

the NWP has an acreage limit of 1⁄2-acre, 

any required compensatory mitigation 

must be roughly proportional to the 

authorized loss of waters of the United 

States. 

This NWP is reissued as proposed. 

NWP 30. Moist Soil Management for 

Wildlife. No changes were proposed for 

this NWP and no comments were 

received. This NWP is reissued without 

change. 

NWP 31. Maintenance of Existing 

Flood Control Facilities. We proposed to 

modify this NWP to authorize, in cases 

where a section 404 and/or section 10 

permit would be required, the removal 

of vegetation from levees associated 

with a flood control project. 

Several commenters supported the 

proposed modification and said that 

vegetation removal is a critical 

component of the maintenance of a 

flood control project to ensure 

continued effectiveness and integrity of 

levees and other flood control facilities. 

Two commenters objected to the 

proposed modification. One commenter 

opposed the removal of vegetation from 

flood control facilities, stating the 

vegetation has ecological importance. 

One commenter said that vegetation 

removal is not regulated by the Corps. 

One commenter stated that if the plant 

species proposed to be removed have 

cultural and medicinal Native American 

traditional uses, consultation with the 

Tribe or another type of permit should 

be required for the activity. 

We have retained the proposed 

language in this NWP, to authorize the 

removal of vegetation from a levee, 


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when that activity involves a discharge 

of dredged or fill material into waters of 

the United States or is considered to be 

work in navigable waters of the United 

States for the purposes of Section 10 of 

the Rivers and Harbors Act of 1899. We 

agree that vegetation removal that does 

not involve such a discharge does not 

require a DA permit. Division engineers 

can regionally condition this NWP to 

identify plant species that have cultural 

and medicinal uses by Tribes, and to 

require government-to-government 

consultation to address impacts to such 

species. General condition 17, Tribal 

rights, protects reserved treaty rights, 

including reserved water rights and 

treaty fishing and hunting rights. 

Natural or cultural tribal trust resource 

concerns can still be addressed through 

the NWP decisionmaking process, and 

would not necessarily result in 

requiring an individual permit. 

Several commenters said that 

vegetation may strengthen the integrity 

of levees and stated that individual 

permits should be required for 

vegetation removal. One commenter 

stated that vegetation on levees should 

be allowed or retained as part of levee 

management and that the vegetation 

should be removed only if specific levee 

maintenance or safety concerns are 

identified. One commenter stated that 

not allowing flood control districts to 

remove vegetation from levees would 

put them into non-compliance with 

their permits and with other state and 

local approvals. One commenter said 

that the removal of vegetation from a 

levee should only be authorized after 

Endangered Species Act consultation 

has been completed. 

The decision on whether vegetation 

needs to be removed from a levee to 

maintain its functional and structural 

integrity is more appropriately made by 

those entities that are responsible for 

ensuring the integrity and functional 

effectiveness of that levee. That decision 

is not the responsibility of the Corps 

Regulatory Program or its staff. The 

NWP is only a means to provide 

Department of the Army authorization 

for such activities, if a section 404 and/ 

or section 10 permit is required. If the 

vegetation removal may affect a listed 

species under the Endangered Species 

Act, and a Department of the Army 

permit is required, the Corps will 

conduct section 7 consultation in 

accordance with general condition 18, 

endangered species, unless another 

Federal agency has already fulfilled the 

section 7 requirements, or the project 

proponent has complied with the 

Endangered Species Act and received an 

Endangered Species Act Section 10 

permit. 

Several commenters said that there 

should be an acreage limit for vegetation 

removal. Another commenter 

recommended imposing a linear foot 

limit on vegetation removal. One 

commenter recommended revoking this 

NWP in California. 

Since this NWP authorizes 

maintenance activities, we do not 

believe there should be an acreage or 

linear foot limit on vegetation removal. 

Division engineers may also add 

regional conditions to this NWP to 

impose acreage or linear foot limits on 

vegetation removal. 

One commenter stated that many 

NWP authorizations are related to the 

maintenance baseline and the NWP 

should provide more details about the 

maintenance baseline approval process. 

This commenter suggested that the NWP 

specify: the deadline for completion, the 

responsible party, the regulating entity 

that approves the maintenance baseline, 

etc. One commenter requested 

clarification on the timeframe for 

approval of the maintenance baseline. 

The current terms and conditions of 

the NWP provide sufficient details on 

what is needed to establish the 

maintenance baseline. Approval of the 

maintenance baseline is to be made 

within the 45-day review period, which 

begins once a complete pre-construction 

notification is received by the 

appropriate Corps district office. The 

pre-construction notification must 

include a description of the 

maintenance baseline. 

Many commenters expressed concern 

about the mitigation provision of this 

NWP, especially the one-time limit for 

mitigation per facility regardless of the 

number of times maintenance occurs. 

These commenters said that limiting 

compensatory mitigation may result in 

more than minimal adverse 

environmental effects, including 

adverse impacts to floodplains and 

increased flood risk. These commenters 

recommended requiring mitigation for 

each maintenance activity. One 

commenter stated that vegetation 

removal should not be authorized 

because effective compensatory 

mitigation cannot be provided. One 

commenter said that certain riparian 

functions, such as shading, and losses of 

aesthetic values, cannot be provided 

through off-site mitigation. 

We do not agree that compensatory 

mitigation should be required for each 

maintenance activity. On-going 

maintenance of flood control facilities is 

necessary to ensure that those projects 

fulfill their intended purposes. Any 

compensatory mitigation that was 

required when the maintenance baseline 

was established is sufficient to offset 

losses of aquatic resource functions. If 

maintenance is done in a timely 

manner, there is likely to be little in 

terms of increases in aquatic resource 

functions between maintenance 

activities. The purpose of maintaining 

these flood control facilities is to reduce 

flood risk. Riparian functions that 

increased between maintenance 

activities do not need to be replaced by 

imposing compensatory mitigation 

requirements on this NWP. 

Several commenters said that the use 

of this NWP results in more than 

minimal individual and cumulative 

impacts, and may also inhibit 

comprehensive basin-wide flood risk 

management planning and restoration 

approaches. 

We do not agree that these 

maintenance activities cause more than 

minimal adverse effects on the aquatic 

environment, on an individual or 

cumulative basis. This NWP is intended 

as a tool to support appropriate flood 

management activities, including 

comprehensive flood risk management 

planning and restoration processes, 

where maintenance of existing flood 

control structures is required. 

One commenter recommended 

modifying the pre-construction 

notification provision to require a 

topographic map identifying the 

disposal site. One commenter said that 

the 1996 Water Resources Development 

Act allows for regional variations in 

vegetation management on levees. 

The NWP already requires the 

prospective permittee to submit 

information concerning the location of 

the dredged material disposal site. 

There are a variety of maps that could 

be used to provide that information, and 

we do not believe it should be restricted 

to topographic maps. We have modified 

this NWP to state that all dredged 

material must be placed in an area that 

has no waters of the United States or in 

a separately authorized disposal site, 

since the disposal of dredged material 

into non-jurisdictional waters and 

wetlands, as well as uplands, does not 

require DA authorization. As stated 

above, the decision on whether to 

remove vegetation is the responsibility 

of the entity charged with managing and 

maintaining the flood control facility. 

This NWP is reissued with the 

modifications discussed above. 

NWP 32. Completed Enforcement 

Actions. There were no changes 

proposed for this NWP. One commenter 

recommended adding a condition to the 

NWP requiring that the state be a party 

to any lawsuit, or have an opportunity 

to review the consent or settlement 

agreement. Another commenter 

requested coordination with any 


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affected Tribes prior to administering an 

enforcement action to ensure that Tribal 

treaty resources are protected. 

This NWP only provides Federal 

authorization under Section 10 of the 

Rivers and Harbors Act of 1899 and 

Section 404 of the Clean Water Act, and 

it is not appropriate to modify this NWP 

to require state involvement in these 

actions. States are often involved as coregulators in enforcement activities, 

under various authorities, and this NWP 

in no way undercuts those authorities. 

General condition 17, tribal rights, states 

that no activity or its operation may 

impair reserved tribal rights. 

This NWP is reissued as proposed. 

NWP 33. Temporary Construction, 

Access, and Dewatering. We did not 

propose any changes to this NWP. 

Several commenters recommended that 

the Corps define the term ‘‘temporary.’’ 

One commenter said that ‘‘temporary’’ 

should be less than two years, another 

stated that one year should be the limit, 

and a third commenter suggested 90 

days as the limit for what constitutes a 

temporary structure or fill. Several 

commenters stated that the NWP should 

require a specific timeframe and 

deadline for completion of revegetation 

activities. Other commenters said that 

any revegetation should use only native 

plant species associated with the 

general habitat type that had existed 

prior to construction. 

The term ‘‘temporary’’ should be 

determined by district engineers on a 

case-by-case basis, after considering 

factors such as the type of project, the 

waters affected by the activity, the 

construction techniques and equipment 

used, etc. In response to a preconstruction notification, district 

engineers can add conditions to the 

NWP authorization to impose specific 

time frames for revegetating affected 

areas. Activity-specific conditions may 

also be added to the NWP authorization 

to specify the plant species to be used 

at the site. 

One commenter asked why the NWP 

would state that a separate section 10 

permit is required if a structure is left 

in place in navigable waters of the 

United States after completion of 

construction, especially if the 

waterbody is not a section 10 water. 

This commenter wondered how a 

‘‘structure’’ constructed in a nonSection 10 water could be left in place 

and still qualify as a temporary 

structure. 

In some cases, it may be more 

environmentally beneficial to leave part 

of a structure in place in navigable 

waters of the United States, when 

complete removal of the structure is 

expected to result in substantial adverse 

environmental effects. For example, a 

structure may be cut near the ocean 

bottom, but part of the structure and its 

foundation left in place, because 

removing the entire structure and its 

foundation would result in substantial 

disturbance of the ocean bottom. 

Leaving those portions of the original 

structure and foundation in place 

requires a permit under Section 10 of 

the Rivers and Harbors Act of 1899 

because it constitutes an obstruction 

that may alter the course, condition, or 

capacity of navigable waters of the 

United States. A structure left in place 

in a waterbody subject only to section 

404 jurisdiction does not require section 

10 authorization. Such a structure 

would not require a section 404 permit 

unless it meets the definition of fill 

material (see 33 CFR 323.3(c)). 

One commenter asked why NWP 33 

activities require pre-construction 

notification for temporary structures, 

work, and discharges while these types 

of activities may be authorized under 

NWPs 3, 12, 13, and 14 without a preconstruction notification. 

While temporary structures, work, 

and fills are authorized by NWPs 3, 12, 

13, and 14, those NWPs have terms and 

conditions to help ensure that those 

activities result in minimal adverse 

effects on the aquatic environment. 

Since NWP 33 can be used to authorize 

temporary structures, work, and 

discharges done in association with a 

wide variety of other categories of 

activities, that uncertainty makes it 

necessary to require pre-construction 

notification for all activities authorized 

by NWP 33. Such a requirement allows 

the Corps to review the temporary and 

permanent impacts that are likely to 

occur as a result of the overall activity. 

One commenter stated that the NWP 

should never authorize temporary fills 

that impact more than 1,000 square feet 

or discharge more than 25 cubic yards 

into waters of the U.S., and temporary 

structures or construction mats shall not 

impact more than 1⁄10-acre. One 

commenter stated that the NWP should 

require that geotextile fabric be installed 

prior to placement of fill material, and 

two commenters suggested that 

temporary culverts and bridges in 

streams should be required to match the 

bankfull width and stream slope. 

Another commenter stated that all 

slurry resulting from dewatering 

operation should be discharged through 

a filter bag or pumped to a sump located 

away from wetlands and surface waters 

and allowed to filter through natural 

upland vegetation, gravel filters, or 

other engineered devices for a sufficient 

distance and/or period of time necessary 

to remove sediment or suspended 

particles. One commenter stated that 

cofferdams should be required to be 

maintained in good working order 

throughout the duration of the project. 

We do not agree that there should be 

acreage, linear foot, or cubic yard limits 

on this NWP since it authorizes 

temporary structures, work, or 

discharges, and all activities require preconstruction notification. In response to 

a pre-construction notification, district 

engineers can add activity-specific 

conditions to the NWP authorization to 

impose limits or require specific best 

management practices or specific 

construction techniques to minimize 

adverse effects to the aquatic 

environment where necessary. 

We have modified this NWP to state 

that temporary fill must be entirely 

removed to an area that has no waters 

of the United States, since the 

placement of fill material into nonjurisdictional waters and wetlands, as 

well as uplands, does not require DA 

authorization. 

The NWP is reissued with the 

modification discussed above. 

NWP 34. Cranberry Production 

Activities. We did not propose any 

changes to the NWP. One commenter 

said that this NWP should not authorize 

losses of wetland functions. Two 

commenters expressed concern that the 

10-acre limit would allow significant 

losses of wetland acreage and functions 

and values, if the 10-acre limit is 

applied only to the five year period the 

NWP is in effect. These commenters 

proposed making the 10-acre limit apply 

to future activities. One commenter 

suggested limiting the NWP 

authorization to a single cranberry 

production unit. One commenter said 

that this NWP should not be reissued. 

This NWP does not authorize 

discharges of dredged or fill material 

that would result in a net loss of waters 

of the United States. While there would 

be some loss of wetland function as 

wetlands are converted for cranberry 

production, the NWP requires wetland 

acreage to be maintained. There would 

be no loss of wetland acreage over time 

due to future activities since the NWP 

does not authorize discharges of 

dredged or fill material that would 

result in permanent losses of wetland 

acres. This NWP applies to single and 

complete cranberry production 

activities, which would be identified by 

district engineers during the review of 

pre-construction notifications. 

This NWP is reissued without change. 

NWP 35. Maintenance Dredging of 

Existing Basins. There were no changes 

proposed for this NWP. Two 

commenters recommended adding 

limits to this NWP. Two commenters 


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said this NWP should not be used in 

areas with suspected sediment 

contamination, especially in areas 

where there might be contamination 

from fuel. Another commenter stated 

the applicant should demonstrate that 

the sediment is not contaminated. One 

commenter asked that the term 

‘‘upland’’ be clarified to state that it 

means land located above the ordinary 

high water mark. One commenter stated 

that this NWP would have greater utility 

if it authorized beneficial use of dredged 

material, such as wetland restoration, 

enhancement, or establishment 

activities. 

Since this NWP authorizes only 

maintenance dredging activities in 

existing marina basins, we do not 

believe it is necessary to add an acreage 

limit or other type of quantitative limit. 

Division engineers can regionally 

condition this NWP to require 

notification to the district engineer. This 

NWP is limited to maintenance 

dredging in marina basins, access 

channels to marinas, and boat slips, 

which are likely to have some degree of 

contaminated sediment in the substrate 

because of past and present boat use, 

especially in larger marinas. Removal of 

such contaminated sediments, and 

complying with the requirement in the 

NWP to deposit the dredged material in 

an upland site, will help ensure the 

activity results in minimal adverse 

effects on the aquatic environment. 

Defining the term ‘‘upland’’ to mean 

lands located above an ordinary high 

water mark would be incorrect. There 

may be wetlands landward of the 

ordinary high water mark. We have 

modified this NWP to state that dredged 

material must be placed in an area that 

has no waters of the United States, since 

the disposal of dredged material into 

non-jurisdictional waters and wetlands, 

as well as uplands, does not require DA 

authorization. The district engineer may 

issue a separate Department of the Army 

authorization to a project proponent 

who wants to use the dredged material 

to restore, enhance, or establish 

wetlands. 

One commenter stated that 

precautions should be taken to ensure 

that dredging equipment does not 

entrain or kill any Federally-listed 

species and recommend that preemptive 

trawling around the dredge head be 

conducted to capture or relocate state or 

federally listed species. 

General condition 18 addresses 

compliance with the Endangered 

Species Act, and section 7 consultation 

is required for any activity that may 

affect listed species or is located in 

designated critical habitat. 

This NWP is reissued with the 

modification discussed above. 

NWP 36. Boat Ramps. We did not 

propose any changes to this NWP. One 

commenter said that boat ramps should 

not be authorized by NWPs because 

they cause significant environmental 

impacts, including impacts to Tribal 

treaty fishing activities and access. One 

commenter stated that this NWP should 

be limited to individual riparian lot 

owners and not authorize commercial 

boat ramps. One commenter said that 

the NWP should require notification to 

the state agency responsible for 

managing state-owned submerged lands. 

The terms and conditions of this NWP 

(specifically the limits on fill volume 

and ramp width) will ensure that the 

NWP authorizes only those activities 

that result in minimal adverse effects on 

the aquatic environment. Division 

engineers may regionally condition this 

NWP to restrict or prohibit its use in 

specific waters or geographic areas if 

they have concerns that more than 

minimal individual and cumulative 

adverse environmental effects may 

occur. In response to a pre-construction 

notification, district engineer may add 

activity-specific conditions to the NWP 

authorization to satisfy the minimal 

adverse environmental effects 

requirement. We do not agree that this 

NWP should be limited to private land 

owners. Commercial boat ramps that 

comply with the terms and conditions 

of this NWP will also result in minimal 

adverse environmental effects. The 

potential for adverse effects is based on 

the footprint of the ramp, which is 

limited by the conditions of this NWP, 

not its ownership. State agencies 

responsible for managing submerged 

lands may develop their own 

procedures for regulating and 

authorizing the construction of boat 

ramps on submerged lands. The Corps 

has neither the authority nor the 

resources to enforce any state 

requirements with respect to such lands. 

Two commenters recommended 

reducing the pre-construction 

notification thresholds for this NWP. 

One commenter suggested limiting 

discharges of dredged or fill material to 

25 cubic yards, with a maximum boat 

ramp width of 12 feet. Another 

commenter said that the quantitative 

limits for this NWP should not be 

waived. One commenter stated that the 

current 50 cubic yard limit is too small 

and should be increased to authorize 

larger boat ramps. 

The pre-construction notification 

thresholds are sufficient for ensuring 

that this NWP authorizes activities with 

minimal individual and cumulative 

adverse effects on the aquatic 

environment. We have retained the 

provision authorizing district engineers 

to issue written waivers to the 50 cubic 

yard and/or 20 foot width limits, if a 

proposed activity is determined to result 

in minimal adverse environmental 

effects. The waiver provision may be 

used to authorize larger boat ramps, as 

long as they are determined by the 

district engineer to result in minimal 

adverse environmental effects. 

One commenter asked for clarification 

on what is meant by placement in the 

upland. One commenter said that these 

activities may affect historic properties 

and the activity should not be 

authorized unless the state concurs that 

there are no documented resources 

within the permit area. 

We have modified paragraph (d) to 

clarify that all excavated material must 

be removed to an area that has no waters 

of the United States, because some 

wetlands and waters are not subject to 

Clean Water Act jurisdiction and section 

404 permits are not required to 

discharge dredged or fill material into 

those non-jurisdictional wetlands and 

waters. A separate Department of the 

Army authorization is required if the 

project proponent wants to deposit the 

excavated material into waters of the 

United States. Activities authorized by 

this NWP must comply with general 

condition 20, historic properties, as well 

as general condition 21, discovery of 

previously unknown remains and 

artifacts. District engineers will conduct 

National Historic Preservation Act 

Section 106 consultation if they 

determine the proposed activity has the 

potential to cause effects to any historic 

property. 

This NWP is reissued as proposed. 

NWP 37. Emergency Watershed 

Protection and Rehabilitation. No 

changes were proposed for this NWP. 

Two commenters stated that in their 

region, flood control activities including 

those authorized by this NWP, are 

important and suggested reducing the 

45-day waiting period for preconstruction notifications to 21 days. 

Two commenters expressed support for 

allowing district engineers to waive the 

pre-construction notification 

requirements in cases where there is an 

unacceptable hazard to life or a 

significant loss of property or economic 

hardship will occur. One commenter 

said that although this NWP is intended 

to authorize watershed protection and 

rehabilitation, these activities may 

result in a net loss of waters and 

appropriate mitigation should be 

required. 

We do not believe it would be 

appropriate to reduce the preconstruction notification review period 


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for this NWP from 45 days to 21 days. 

The NWP provides flexibility for the 

emergency watershed protection and 

rehabilitation activities to proceed 

immediately if there is an unacceptable 

hazard to life or a significant loss of 

property or economic hardship will 

occur. The NWP does not allow the 

district engineer to waive the preconstruction notification requirement in 

cases where there would be 

unacceptable hazards to life or 

significant losses of property or 

economic hardships. If a project 

proponent wants to use NWP 37 to 

authorize an emergency watershed 

protection and rehabilitation activity, 

pre-construction notification is 

required. This is a minimally 

burdensome requirement that can be 

complied with quickly which allows the 

district engineer to verify that there is a 

genuine emergency. In addition, in 

response to a pre-construction 

notification, the district engineer may 

condition the NWP authorization to 

require compensatory mitigation to 

offset losses of aquatic resources and 

ensure that the adverse effects on the 

aquatic environment are minimal (see 

33 CFR 330.1(e)(3) and general 

condition 23, mitigation). 

The NWP is reissued without change. 

NWP 38. Cleanup of Hazardous and 

Toxic Waste. We did not propose any 

changes for this NWP. One commenter 

stated the NWP should be revoked 

because hazardous waste cleanup from 

aquatic areas has the potential to cause 

significant adverse environment effects 

during and after the cleanup activities. 

This commenter said that these 

activities require site-specific review 

and should not be authorized by NWP. 

Another commenter recommended 

adding a condition to the NWP to 

require minimization, to the maximum 

extent possible, of impacts to waters and 

wetlands, and require restoration of the 

affected areas. 

The cleanup of hazardous and toxic 

wastes, if conducted properly, will 

improve the aquatic environment by 

removing harmful chemicals and other 

substances that are likely to degrade the 

quality of wetlands, streams, and other 

aquatic resources, as well as the 

functions they provide. This NWP 

requires pre-construction notification, 

which will provide the district engineer 

the opportunity to review the proposed 

activity, including available site-specific 

information, to determine if that activity 

qualifies for NWP authorization. This 

NWP authorizes cleanup activities 

conducted, ordered, or sponsored by 

other government agencies, which have 

also reviewed those activities. In some 

cases these activities need to be 

commenced quickly and it could cause 

additional harm to the aquatic 

environment if they had to wait for an 

individual permit to be issued. The 

district engineer may also add activityspecific conditions to the NWP 

authorization to require compensatory 

mitigation, including restoration or 

rehabilitation of affected aquatic 

resources (see 33 CFR 330.1(e)(3) and 

general condition 23, mitigation) to 

satisfy the minimal adverse 

environmental effects requirement for 

general permits. 

This NWP is reissued without change. 

NWP 39. Commercial and 

Institutional Developments. We 

proposed to modify this NWP by 

changing the waiver provision for 

activities resulting in the loss of greater 

than 300 linear feet of intermittent and 

ephemeral stream bed, to clarify that the 

district engineer will only issue the 

waiver after making a project-specific 

written determination that the activity 

will result in minimal adverse effects. 

Two commenters expressed support 

for the proposed modification. One 

commenter said that intermittent 

streams should be removed from the 

waiver provision so that the 300 linear 

foot limit could be waived only for 

losses of ephemeral streams. One 

commenter recommended removing the 

waiver provision. 

We have retained the provision 

allowing the 300 linear foot limit to be 

waived for losses of intermittent stream 

bed, since such activities may, in some 

cases, result in minimal adverse effects 

on the aquatic environment. General 

comments concerning the 300 linear 

foot limit to the loss of stream bed are 

discussed in a separate section of the 

preamble. 

One commenter urged the elimination 

of the pre-construction notification 

because that requirement results in 

delays and increases in cost. One 

commenter recommended conducting a 

natural heritage database search if a 

waiver determination is made that the 

activity will result in minimal adverse 

effects. 

The pre-construction notification 

requirement is necessary so that all of 

these activities are reviewed by district 

engineers to ensure that those activities 

result in minimal adverse effects on the 

aquatic environment. District engineers 

may add conditions to the NWP 

authorization to require compensatory 

mitigation or other measures to comply 

with the minimal adverse 

environmental effects requirement 

established for general permits. District 

engineers may consider information 

from state natural heritage databases 

where appropriate when evaluating a 

pre-construction notification involving a 

proposed waiver of the 300 linear foot 

limit. 

Two commenters suggested increasing 

the acreage limit from 1⁄2 to one acre. 

Another said that acreage limits should 

be established on a regional or 

watershed basis, instead of a single 

national acreage limit. Two commenters 

suggested increasing the linear foot limit 

to 500 feet. One commenter stated that 

the NWP should not authorize activities 

that are not water dependent. 

We believe that both the 1⁄2-acre limit 

and the 300 linear foot limit are 

necessary to ensure that this NWP 

authorizes activities that result only in 

minimal individual and cumulative 

adverse effects on the aquatic 

environment. Division engineers can 

regionally condition this NWP to further 

ensure only minimal adverse effects to 

the aquatic environment occur in a 

particular area or region, based on 

region specific conditions. District 

engineers can also add specific 

conditions to an NWP authorization to 

ensure minimal individual or 

cumulative adverse effects. The 

statutory basis for authorizing activities 

by general permits is that they have 

minimal adverse effects, individually 

and cumulatively, not that they be water 

dependent. 

One commenter said that commercial 

and institutional developments are 

typically phased developments, are 

larger in scale than other projects, and 

should not be authorized by NWP. One 

commenter said that this NWP should 

not be reissued because these activities 

result in more than minimal cumulative 

adverse effects to wetlands and streams. 

One commenter suggested requiring 

compensatory mitigation for all 

activities authorized by this NWP. Two 

commenters said that this NWP should 

include a requirement to establish 

buffers next to waters of the United 

States, clarification that the limits apply 

to the project site and not to multiple 

applicants, and a provision requiring 

flood protections. One commenter 

stated industrial facilities that may be 

authorized by this NWP cause indirect 

impacts to water quality that could be 

significant and suggested not reissuing 

this NWP. 

Phased developments may be 

authorized by general permits, as long 

as they comply with all applicable terms 

and conditions of those general permits. 

In particular, an NWP may only be used 

once for each single and complete 

project. The limits in this NWP, which 

are consistent with those in many other 

NWPs, will generally ensure minimal 

adverse effects. In specific watersheds 

or other geographic areas where a 


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district engineer is concerned that the 

use of NWP 39 may result in more than 

minimal cumulative adverse effects to 

the aquatic environment, the division 

engineer may regionally condition this 

NWP to restrict or prohibit its use to 

ensure that the threshold for minimal 

individual and cumulative adverse 

effects on the aquatic environment is 

not exceeded. We do not agree that 

compensatory mitigation should be 

required for all activities authorized by 

this NWP. District engineers will add 

activity-specific conditions to the NWP 

authorization to require compensatory 

mitigation in accordance with general 

condition 23, mitigation (also see 33 

CFR 330.1(e)(3)), where necessary to 

ensure minimal effects. The 

establishment and maintenance of 

riparian areas next to open waters, or 

buffers next to wetlands, may be 

required as compensatory mitigation, in 

accordance with general condition 23, 

mitigation, and the regulations at 33 

CFR part 332. The acreage limits of this 

NWP apply to single and complete 

projects, even though a single and 

complete project may have more than 

one project proponent. In general, a 

commercial development project in 

which a developer prepares a large site 

and then markets individual lots to 

individual builders would be 

considered one single and complete 

project and the acreage limits would 

apply to the development as a whole. 

See the definition of ‘‘single and 

complete non-linear project’’ for further 

information. General condition 10, fills 

in 100-year floodplains, requires 

permittees to comply with applicable 

state or local floodplain management 

requirements that have been approved 

by the Federal Emergency Management 

Agency. District engineers will review 

pre-construction notifications 

requesting NWP 39 authorization for 

industrial facilities to ensure that 

adverse effects to water quality caused 

by the NWP activity are minimal, 

individually and cumulatively. 

One commenter objected to 

authorizing the expansion of 

commercial and institutional 

developments into waters of the United 

States, stating that it discourages 

avoidance and minimization and is 

contrary to the 404(b)(1) Guidelines. 

One commenter requested clarification 

whether this NWP applies to new 

project construction or existing 

construction projects so the acreage 

limits are applied cumulatively for both 

the original construction and any 

subsequent expansion of the 

development. One commenter asked 

whether certain categories of activities 

that were not authorized by the 2007 

version of NWP 39, specifically new golf 

courses, new ski areas, or oil or gas 

wells, could be expanded through the 

authorization provided by this NWP. 

Three commenters suggested 

eliminating the exclusion for the 

construction of oil and gas wells and 

attendant features. 

The expansion of commercial and 

institutional developments into waters 

of the United States may qualify for 

NWP authorization, as long as it 

complies with all applicable terms and 

conditions of the NWP and results in 

minimal individual and cumulative 

adverse effects on the aquatic 

environment. This NWP complies with 

the 404(b)(1) Guidelines, especially 40 

CFR 230.7, which addresses the 

issuance of general permits. The acreage 

limit applies to a single and complete 

project. The expansion of an existing 

commercial or institutional 

development may only be authorized 

under a separate NWP authorization if 

it is a separate single and complete 

project with independent utility. For 

example, one or more phased 

components of a commercial or 

institutional development may have 

independent utility and may be 

authorized as separate single and 

complete projects. The expansion of 

existing golf courses or ski areas may be 

authorized by this NWP. We agree that 

the construction of pads for oil and gas 

wells is a type of commercial 

development that would be appropriate 

for inclusion in this NWP. District 

engineers may add conditions to NWP 

39 authorizations to require the removal 

of these pads and restoration of the site 

once oil or gas extraction operations 

have ceased and the wells will no longer 

be used. 

One commenter said that this NWP 

could be used to authorize activities 

associated with wind energy generating 

structures, solar towers, or overhead 

utility lines, which have the potential to 

interfere with Department of Defense’s 

long range surveillance, homeland 

defense, testing, and training missions. 

This commenter requested that copies of 

NWP 39 pre-construction notifications 

and NWP verification letters for these 

activities be provided to the Department 

of Defense Siting Clearinghouse, so that 

the Department of Defense could have 

an opportunity to coordinate with the 

project proponent to ensure that long 

range surveillance, homeland defense, 

testing, and training missions are not 

adversely affected by these activities. 

We have added a Note at the end of 

this NWP to require district engineers to 

send pre-construction notifications and 

NWP verification letters to the 

Department of Defense Siting 

Clearinghouse if NWP 39 is proposed to 

be used, and is used, to authorize the 

construction of wind energy generating 

structures, solar towers, or overhead 

transmission lines. The Department of 

Defense Siting Clearinghouse is 

responsible for coordinating with the 

project proponent and resolving any 

potential effects on Department of 

Defense long range surveillance, 

homeland defense, testing, and training 

missions. 

This permit is reissued with the 

modification discussed above. 

NWP 40. Agricultural Activities. We 

proposed to modify this NWP so the 300 

linear foot limit applies to all stream 

losses, not just drainage ditches 

constructed in streams. To waive the 

300 linear foot limit for losses of 

intermittent or ephemeral stream bed, 

the district engineer would have to 

make a project-specific written 

determination that the activity will 

result in minimal adverse effects. 

Two commenters support the changes 

and said the modification would ensure 

NWP 40 authorizes activities with 

minimal adverse effects on the aquatic 

environment. One commenter opposed 

expanding the 300 linear foot limit to all 

stream losses, stating that the NWP 

should not authorize the loss of natural 

streams. Another commenter 

recommended removing intermittent 

streams from the waiver provision to 

limit it to ephemeral streams. One 

commenter said that waivers for the loss 

of greater than 300 linear feet of 

intermittent and ephemeral streams 

should not be issued until a natural 

heritage database search was completed. 

Two commenters stated that the acreage 

limit and the ability to waive the 300 

linear foot limit do not adequately 

address cumulative impacts and 

requested the waiver provision be 

removed. 

Comments concerning the 300 linear 

foot limits for the loss of stream bed and 

the waiver process are discussed in a 

previous section of the preamble. We 

are adopting the proposed language for 

the waiver provision. We are retaining 

the provision allowing the 300 linear 

foot limit to be waived for losses of 

ephemeral and intermittent stream bed, 

since such activities may result in 

minimal adverse effects on the aquatic 

environment. District engineers may 

consider information from state natural 

heritage databases when evaluating a 

pre-construction notification involving a 

proposed waiver of the 300 linear foot 

limit. We believe that both the 1⁄2-acre 

limit and 300 linear foot limit for stream 

bed losses, along with the division 

engineer’s authority to add regional 


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conditions to this NWP and the district 

engineer’s authority to add activityspecific conditions to an NWP 

authorization, will ensure that the NWP 

authorizes activities with minimal 

individual and cumulative adverse 

effects on the aquatic environment. 

Division engineers may also suspend or 

revoke this NWP in watersheds or other 

geographic areas if they find that use of 

the NWP would result in more than 

minimal cumulative adverse 

environmental effects. 

One commenter stated the 1⁄2-acre 

limit should be based on farm tract and 

asserted NWP 40 allows for the 

incremental fill of agricultural wetlands. 

One commenter stated that roadside 

stands should not be considered farm 

buildings for authorization under this 

permit. Another commenter 

recommended farm building pads be 

limited to areas that have been in 

existing, ongoing, agricultural 

production since at least 1980. One 

commenter remarked concern that this 

NWP allows fills in waters for nonwater dependent uses. Another 

commenter asserted this NWP should 

not authorize farm ponds in wetlands. 

The 1⁄2-acre limit applies to a single 

and complete project. The district 

engineer will determine, after 

considering the specific circumstances 

for a pre-construction notification, 

whether the single and complete project 

should be based on a farm tract, 

property boundary, or other appropriate 

geographic area. Road stands may be 

considered farm buildings for the 

purposes of this NWP. We do not agree 

that building pads for farm buildings 

should be limited to existing 

agricultural areas, or that they should be 

treated differently than building pads 

authorized by NWPs 29 or 39. General 

permits, including NWPs, may 

authorize activities that are not waterdependent, as long as the general permit 

is issued in accordance with the 

requirements in the 404(b)(1) Guidelines 

at 40 CFR 230.7. 

This NWP is reissued as proposed. 

NWP 41. Reshaping Existing Drainage 

Ditches. There were no changes 

proposed for this NWP. Several 

commenters requested adding more 

terms and conditions to this NWP to 

provide requirements concerning slope 

stability, conducting a natural heritage 

database search, limiting the NWP to 

reshaping no more than one mile of 

drainage ditch, and placing the 

excavated material in uplands. One 

commenter suggested replacing the 

phrase ‘‘for the purpose of improving 

water quality’’ with ‘‘for the purpose of 

improving water quality or public 

safety.’’ This commenter also said the 

NWP should authorize drainage 

improvements beyond the original asbuilt capacity. One commenter stated 

that this NWP should not be exempt 

from compensatory mitigation 

requirements even though the activity is 

designed to improve water quality. 

We do not agree that the suggested 

additional terms and conditions are 

necessary to ensure that this NWP 

authorizes ditch reshaping activities 

that have minimal adverse effects on the 

aquatic environment. The drainage 

ditch slope is more appropriately 

determined on a case-by-case basis. 

District engineers have the discretion to 

consult state natural heritage databases 

while reviewing pre-construction 

notifications. The authorized activities 

are intended to improve water quality, 

so there is no need to impose a one mile 

limit or require compensatory 

mitigation. Reshaping a drainage ditch 

to improve water quality may involve 

discharging dredged or fill material into 

jurisdictional waters within the ditch. 

This NWP was originally issued to 

encourage activities that would help 

improve water quality within a 

watershed, not to provide for public 

safety. Discharging dredged or fill 

material into waters of the United States 

to reshape existing drainage ditches 

primarily for the purposes of public 

safety may be authorized by other 

NWPs, regional general permits, or 

individual permits. 

This NWP is reissued as proposed. 

NWP 42. Recreational Facilities. We 

proposed to modify this NWP by 

changing the waiver provision for 

activities resulting in the loss of greater 

than 300 linear feet of intermittent and 

ephemeral stream bed, to clarify that the 

district engineer will only issue the 

waiver after making a project-specific 

written determination that the activity 

will result in minimal adverse effects. 

Two commenters said that the 1⁄2-acre 

limit of this NWP does not ensure 

minimal adverse effects, and one of 

these commenters stated that the 300 

linear foot limit for stream bed losses 

does not ensure minimal adverse effects 

either. Several commenters supported 

the proposed waiver provision, since it 

emphasizes that the appropriate test is 

that the activity results in minimal 

adverse effects. One commenter 

suggested removing intermittent streams 

from the waiver provision because of 

the potential for significant impacts to 

intermittent streams. 

The 1⁄2-acre limit is the appropriate 

limit to ensure that the activities 

authorized by this NWP result in 

minimal adverse effects on the aquatic 

environment. This limit has been in 

place over several permit terms and 

multiple NWPs and we are not aware of 

evidence that it has allowed projects 

that do not meet the minimal effects 

requirement to be authorized, nor have 

commenters provided such evidence. 

Division engineers may regionally 

condition this NWP to reduce the 

acreage limit or revoke the NWP if its 

use would result in more than minimal 

individual and cumulative adverse 

effects on the aquatic environment. The 

300 linear foot limit for losses of stream 

bed is also necessary to ensure minimal 

adverse environmental effects. The 

waiver provision is discussed in a 

separate section of the preamble. We are 

retaining the 300 linear foot limit for 

stream bed impacts, as well as the 

ability for district engineers to provide 

written waivers of the 300 linear foot 

limit for losses of intermittent and 

ephemeral stream beds. 

One commenter suggested adding a 

condition to this NWP to limit fill 

pathways on public lands to six feet 

wide, with a maximum length of 200 

feet, and require open pile or floating 

boardwalks/docks by prohibiting the 

discharges below the ordinary high 

water mark of inland lakes, streams, or 

the Great Lakes, or areas that otherwise 

provide fish habitat functions of any 

kind. 

We do not believe the recommended 

restrictions are necessary to ensure that 

the NWP authorizes only those activities 

that result in minimal adverse effects on 

the aquatic environment. Division 

engineers may add regional conditions 

to this NWP to limit certain activities or 

require specific construction 

techniques. Division engineers may also 

restrict or prohibit the use of this NWP 

in certain waters to protect important 

resources, such as fish habitat. 

One commenter supports requiring 

pre-construction notification for all 

activities authorized by this NWP. One 

commenter said that the activities 

authorized by this NWP are not similar 

in nature. One commenter suggested 

adding a condition requiring 

recreational facilities to be integrated 

into the natural landscape and not 

substantially change pre-construction 

grades or deviate from natural landscape 

contours. One commenter requested 

clarification as to when an easement 

will not be required. 

We have retained the requirement that 

all project proponents who want to use 

this NWP must submit a preconstruction notification. This NWP 

authorizes a specific category of 

activities (i.e., recreational facilities) 

and complies with the ‘‘similar in 

nature’’ requirement of Section 404(e) of 

the Clean Water Act. We do not agree 

that it is necessary to require 


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recreational facilities to be integrated 

into the natural landscape and not 

substantially change pre-construction 

grades. The 1⁄2-acre and 300 linear foot 

limits, as well as the requirement to 

avoid and minimize adverse effects to 

waters of the United States to the 

maximum extent practicable on the 

project site (see general condition 23, 

mitigation), help ensure that the NWP 

authorizes activities that result in 

minimal adverse effects. Conservation 

easements or other appropriate longterm protection instruments will only be 

required, if necessary, for areas that are 

used to provide compensatory 

mitigation for activities authorized by 

this NWP. 

This permit is reissued as proposed. 

NWP 43. Stormwater Management 

Facilities. We proposed to modify this 

NWP by adding low impact 

development stormwater management 

features to the examples of types of 

stormwater management facilities that 

may be authorized by this NWP. We 

also proposed to modify this NWP by 

changing the waiver provision for 

activities resulting in the loss of greater 

than 300 linear feet of intermittent and 

ephemeral stream bed, to clarify that the 

district engineer will only issue the 

waiver after making a project-specific 

written determination that the activity 

will result in minimal adverse effects. 

One commenter expressed support for 

the proposed modifications. One 

commenter suggested that the acreage 

limit should be increased from 1⁄2-acre 

to one acre to increase the utility and 

usefulness of this NWP. Several 

commenters said this NWP should not 

authorize new stormwater management 

facilities. One commenter stated that the 

NWP should only authorize the 

construction of an outfall structure. A 

couple of commenters said that this 

NWP should be changed to clarify that 

only constructed wetlands may be used 

to detain, retain, or treat stormwater. 

We do not agree that the acreage limit 

for this NWP should be increased from 

1⁄2-acre to one acre. The 1⁄2-acre limit is 

necessary to ensure that this NWP 

authorizes only those activities that 

result in minimal individual and 

cumulative adverse effects on the 

aquatic environment. The construction 

of new stormwater management 

facilities may be authorized by this 

NWP (if all other conditions are met), 

because those activities often result in 

minimal adverse environmental effects 

and help protect the aquatic 

environment by preventing or reducing 

the amount of pollutants that enter 

streams, coastal waters, and other 

aquatic habitats. Stormwater 

management facilities are an important 

tool for fulfilling the objective of the 

Clean Water Act, by protecting and 

restoring the physical, chemical, and 

biological integrity of our Nation’s 

waters. The construction of stormwater 

management facilities may involve 

discharges of dredged or fill material 

into jurisdictional wetlands, so it would 

not be appropriate to limit this NWP to 

constructed wetlands for the detention, 

retention, or treatment of stormwater. 

We have substantially modified the 

first paragraph of this NWP to clarify 

how construction and maintenance 

activities may be authorized by this 

NWP, including the application of the 

waste treatment system exclusion at 33 

CFR 328.3(a)(8). Section 328.3(a)(8) 

states that ‘‘[w]aste treatment systems, 

including treatment ponds or lagoons 

designed to meet the requirements of’’ 

the Clean Water Act are not waters of 

the United States. The first half of this 

paragraph provides examples of the 

types of stormwater management 

facilities that may be authorized by this 

NWP, if the construction of those 

facilities involves discharges of dredged 

or fill material into waters of the United 

States. The second half of this paragraph 

states that to the extent that a section 

404 permit is required, this NWP also 

authorizes discharges of dredged or fill 

material into waters of the United States 

for the maintenance of stormwater 

management facilities. Therefore, this 

NWP authorizes maintenance activities 

involving discharges of dredged or fill 

material if the stormwater management 

facility is not eligible for the waste 

treatment system exclusion. A section 

404 permit is not required for a 

discharge of dredged or fill material into 

a waste treatment system that qualifies 

for the waste treatment system 

exclusion at 33 CFR 328.3(a)(8). 

Several commenters supported the 

addition of low impact development 

stormwater management features to the 

examples of activities authorized by this 

NWP. One commenter said that while 

the construction of low impact 

development stormwater management 

features may need a Department of the 

Army permit in some circumstances, the 

maintenance of low impact 

development stormwater management 

features does not require a section 404 

permit. This commenter also stated that 

requiring Department of the Army 

permits for maintenance activities in 

watersheds that have total maximum 

daily load requirements would result in 

needless paperwork without any 

environmental benefits. One commenter 

requested an explanation of the value of 

low impact development stormwater 

management facilities and examples of 

those facilities that may be authorized 

by this NWP. One commenter expressed 

concern that areas not subject to Clean 

Water Act jurisdiction, such as swales 

and upland areas holding waters only 

for short periods of time, may be 

considered to be waters of the United 

States if they are used for low impact 

development stormwater management 

features. Several commenters requested 

a definition for ‘‘low impact 

development stormwater features’’ in 

the definitions section. One commenter 

asked whether hybrid or combined bank 

protection and stormwater management 

techniques are authorized by this NWP 

or authorized by other NWPs. 

We have modified the text of this 

NWP to clarify that the construction of 

low impact development integrated 

management features is authorized by 

this NWP, if the construction involves 

discharges of dredged or fill material 

into waters of the United States. We 

have also provided examples of the 

types of low impact development 

integrated management features that 

may be authorized by this NWP, such as 

bioretention facilities (e.g., rain 

gardens), vegetated filter strips, grassed 

swales, and infiltration trenches. After 

these low impact development 

integrated management features are 

constructed, they may not be waters of 

the United States and subsequent 

maintenance may not require further 

Department of the Army authorization. 

The jurisdictional status of these 

features will be determined by district 

engineers on a case-by-case basis, after 

applying the appropriate regulations 

and guidance. The Corps of Engineers 

wetland delineation manual and the 

applicable regional supplement will be 

used to determine whether a particular 

feature is a wetland under the definition 

at 33 CFR 328.3(b). Many low impact 

development integrated management 

features may not have wetland 

hydrology because they are designed to 

improve water infiltration. By 

modifying this NWP to make it clear 

that it can be used to authorize 

discharges of dredged or fill material to 

construct low impact development 

integrated management features, we are 

providing general permit authorization 

for activities that will help state and 

local entities comply with the total daily 

maximum loads established for a 

watershed or watershed. We do not 

believe it is necessary to define the term 

‘‘low impact development stormwater 

management features’’ in the Definitions 

section of the NWPs because the text of 

the NWP provides examples of those 

features. This NWP may authorize some 

minor bank stabilization associated with 

the construction of a stormwater 


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management facility. Bank protection 

may be authorized by this NWP or 

another appropriate NWP. 

One commenter asked whether this 

NWP authorizes discharges of dredged 

or fill material for the construction of 

new stormwater facilities in intermittent 

or ephemeral streams that are waters of 

the United States. One commenter 

recommended prohibiting the 

construction of new stormwater 

management facilities in intermittent 

streams to avoid impacts to numerous 

rare and threatened and endangered 

species. Another commenter said this 

NWP should only authorize activities in 

ephemeral streams. 

We do not believe it is necessary to 

limit the construction of new 

stormwater management facilities to 

ephemeral streams. District engineers 

will review pre-construction 

notifications and determine whether the 

proposed activities will have minimal 

adverse effects on intermittent and 

ephemeral streams. Activities 

authorized by this NWP must also 

comply with general condition 18, 

Endangered Species. State-listed rare 

species may be further protected 

through the establishment of regional 

conditions by division engineers, after a 

public notice and comment process. 

Several commenters objected to 

allowing the district engineer to waive 

the 300 foot limit for the loss of 

intermittent or ephemeral stream bed. 

Another commenter suggested 

increasing the linear limit for the loss of 

stream beds to 500 feet before requiring 

a waiver, to authorize more activities. 

Several commenters stated the waiver 

provision should be removed and losses 

of waters of the United States should be 

limited to 1⁄2-acre or 300 linear feet of 

stream bed. Another commenter stated 

that no waivers should be allowed 

under any circumstances. One 

commenter suggested that waivers for 

losses of intermittent and ephemeral 

stream beds not be issued until the 

appropriate natural heritage resources 

database is consulted to inform the 

minimal adverse impact determination. 

We are retaining the provision 

allowing district engineers to waive the 

300 linear foot limit for the loss of 

intermittent and ephemeral streams, 

upon making a written determination 

that the discharge will result in minimal 

adverse effects. The 300 linear foot limit 

should not be increased to 500 linear 

feet, to ensure that any loss of perennial 

stream bed results in no more than 

minimal individual and cumulative 

adverse effects on the aquatic 

environment. District engineers may use 

available information, including state or 

local natural heritage resources 

databases, to help make the minimal 

adverse effects determination. 

Some commenters suggested 

combining the maintenance component 

of this NWP with NWP 3 since both 

include maintenance activities. Another 

commenter suggested limiting this NWP 

to authorizing only the maintenance of 

stormwater management facilities 

constructed and used for the primary 

purpose of providing stormwater 

detention, retention and treatment. 

As discussed above, we have 

modified this NWP to clarify that Clean 

Water Act Section 404 permits would 

not be required for maintenance 

activities (or other discharges of dredged 

or fill materials) involving stormwater 

management facilities that qualify for 

the waste treatment system exclusion at 

33 CFR 328.3(a)(8) because these are 

excluded from the definition of waters 

of the United States. We do not believe 

it is necessary to combine maintenance 

authorized by NWP 43 with the 

maintenance activities authorized by 

NWP 3, since NWP 3 authorizes a 

variety of maintenance activities. Some 

stormwater management facilities may 

have purposes or uses other than 

stormwater detention, retention or 

treatment, so maintenance should still 

be authorized by this NWP, if a section 

404 permit is required and the activity 

results in minimal adverse effects on the 

aquatic environment. 

One commenter suggested that if a 

development project is required to 

install stormwater management 

facilities, the entire development should 

be treated as the ‘‘area of potential 

effects’’ for the purposes of compliance 

with Section 106 of the National 

Historic Preservation Act. One 

commenter recommended requiring any 

contaminated materials to be properly 

handled and disposed of. 

The permit area for section 106 

compliance will be determined by 

applying the criteria in Appendix C of 

33 CFR part 325, the Corps Regulatory 

Program’s procedures for the protection 

of historic properties, as well as the 

interim guidance issued on April 25, 

2005, and January 31, 2007. In general, 

as is made clear in these regulations and 

guidance, the Corps does not agree that 

the area of potential effects for an NWP 

that is needed for a discharge involving 

one aspect of a development project 

necessarily encompasses the entire 

project, though this may be true in 

individual cases depending on the facts 

and circumstances. Compliance with 

general condition 20, Historic 

Properties, is required for activities 

authorized by this NWP. In response to 

a pre-construction notification, the 

district engineer may add activityspecific conditions to the NWP 

authorization to protect waters of the 

United States from adverse effects due 

to contaminated materials. 

This NWP is reissued with the 

modifications discussed above. 

NWP 44. Mining Activities. We 

proposed to add the 300 linear foot limit 

for the loss of stream bed, which for 

intermittent and ephemeral stream beds 

can be waived by the district engineer 

if he or she makes a written 

determination concluding that the 

activity will result in minimal adverse 

effects. 

One commenter requested the NWP 

be revoked due to the large scale of 

these activities and their impacts on 

water quality. One commenter said this 

NWP should only authorize mining 

activities that have been permitted by 

state agencies. This commenter also 

stated that this NWP should not 

authorize peat mining or in-stream 

gravel mining. One commenter 

recommended expanding the categories 

of applicable waters to include tidal 

waters, since the term ‘‘adjacent’’ has 

not been adequately defined. 

The terms and conditions of this 

NWP, including the addition of the 300 

linear foot limit for the loss of stream 

bed, help ensure that the NWP 

authorizes only those activities that 

have minimal individual and 

cumulative adverse effects on the 

aquatic environment. Division engineers 

can regionally condition this NWP to 

restrict or prohibit its use in specific 

waters or categories of waters, or in 

particular geographic regions. After 

reviewing a pre-construction 

notification, the district engineer may 

add activity-specific conditions to the 

NWP authorization to require water 

quality management measures so that 

the activity causes only minimal 

degradation of water quality (see general 

condition 25, water quality), or he or 

she may exercise discretionary authority 

and require an individual permit if it is 

not possible to reduce the adverse 

effects so that they are no more than 

minimal. Division engineers may also 

regionally condition this NWP to 

prohibit or restrict peat mining or instream gravel mining. We do not agree 

that the NWP should be expanded to 

authorize discharges of dredged or fill 

material into tidal waters, since such 

activities may result in more than 

minimal adverse effects on the aquatic 

environment. The term ‘‘adjacent’’ is 

defined in the Corps regulations at 33 

CFR 328.3(c) and is used to identify 

wetlands that are waters of the United 

States by virtue of being adjacent to 

jurisdictional waters. 


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Many commenters opposed adding 

the 300 linear foot limit for the loss of 

stream bed and stated that the 300 linear 

foot limit should not apply to smaller 

tributaries. One commenter 

recommended increasing the linear foot 

limit to 500 feet. One commenter said 

the proposed linear foot limit would 

have the effect of preventing mining of 

more than one million tons of mineable 

reserves. One commenter stated that 

waivers to the 300 linear foot limit 

should not be issued without evaluating 

documented natural heritage resources 

located in the project area. 

As stated above, the 300 linear foot 

limit is being added to help ensure that 

the NWP authorizes only those activities 

that result in minimal adverse effects on 

the aquatic environment and other 

applicable public interest review 

factors. Increasing the linear foot limit 

for the loss of stream bed to 500 feet 

increases the likelihood that these 

mining activities would result in more 

than minimal adverse effects and 

therefore not comply with the 

requirements of Section 404(e) of the 

Clean Water Act. Mining activities that 

do not qualify for NWP authorization 

may be authorized by individual 

permits or other general permits, such 

as regional general permits issued by 

district engineers. District engineers will 

evaluate appropriate information before 

waiving the 300 linear foot for losses of 

intermittent or ephemeral stream bed, 

which may include state natural 

heritage resource databases. In areas 

where district engineers have 

designated state natural heritage sites as 

critical resources, compliance with 

general condition 22, designated critical 

resource waters will protect those 

natural heritage sites. 

This NWP is reissued as proposed. 

NWP 45. Repair of Uplands Damaged 

by Discrete Events. We proposed to 

modify this NWP to clarify that it does 

not authorize beach restoration. We also 

proposed to change the Note, to make it 

clear that the NWP authorizes 

discharges of dredged or fill material 

into waters of the United States 

associated with the restoration of 

uplands. 

One commenter requested that a 1⁄2- 

acre limit be placed on activities 

authorized under this NWP. One 

commenter said that authorizing 

activities under this NWP within 

channel migration zones can have more 

than minimal adverse environmental 

effects and impair stream functions if 

those activities attempt to force a stream 

back into previously occupied channels. 

This commenter said the NWP should 

be conditioned to prohibit fills that 

would attempt to move the stream 

channel to a previous course within the 

stream channel migration zone. One 

commenter suggested modifying this 

NWP to limit it to reconfiguring the 

affected area, and not authorize 

increases to the size of structures or 

fills. Another commenter supported 

allowing dredging or excavation in all 

waters of the United States under this 

NWP in conjunction with the repair of 

uplands. 

We do not believe that it is necessary 

to impose a 1⁄2-acre limit to this NWP, 

because it limits the repair of uplands 

to the contours, or ordinary high water 

mark, that existed before the damage 

occurred. This NWP also limits 

dredging to the minimum necessary to 

restore the damaged uplands, and does 

not authorize significant alterations to 

pre-event bottom contours of the 

waterbody. The minor fills authorized 

by this NWP are unlikely to 

substantially alter stream migration. 

Because this NWP is limited to restoring 

uplands to pre-event configurations, it 

does not authorize more than minimal 

changes in the size of structures or fills 

that may be constructed on or near 

uplands. 

One commenter said that fills should 

be limited to the post-event ordinary 

high water mark. Another commenter 

made a similar recommendation, but 

suggested that an exception should be 

provided in cases where there is a need 

to respond to immediate threats to a 

primary structure or to infrastructure. 

We do not agree that fills should be 

limited to the post-event ordinary high 

water mark. The purpose of this NWP is 

to authorize discharges of dredged or fill 

material into waters of the United States 

for the repair of uplands that have been 

damaged by discrete events and have 

minimal adverse effects on the aquatic 

environment. In some cases, it may not 

be practicable to limit fills to where the 

new ordinary high water mark is 

located, in cases where the discrete 

event changes the location of the 

ordinary high water mark. 

One commenter said that Tribes 

should be notified to avoid impacts to 

Tribal treaty natural resources and 

cultural resources. Two commenters 

supported the proposed changes to the 

Note. One commenter stated that all 

bank stabilization authorized by this 

NWP must also satisfy the terms and 

conditions of NWP 13. 

Division engineers can regionally 

condition this NWP to identify areas 

where there are Tribal treaty natural and 

cultural resources, so that consultation 

can be conducted with those Tribes to 

ensure that impacts to those resources 

are appropriately considered during 

review of pre-construction notifications. 

General condition 17, Tribal rights, 

prohibits the impairment of reserved 

tribal rights such as reserved water 

rights and treaty fishing and hunting 

rights. We have retained the proposed 

changes to the Note at the end of this 

NWP. This NWP provides separate 

authorization for discharges of dredged 

or fill material that are necessary to 

repair uplands that have been damaged 

by discrete events, including the 

placement of fills necessary to stabilize 

the bank. Unlike NWP 13, this NWP 

limits bank stabilization so that it does 

not exceed the land contours that 

existed before the damage occurred. 

Nationwide permit 13 may be used in 

conjunction with this NWP to authorize 

bank stabilization for restored uplands 

in cases where it is not practicable to 

limit bank stabilization to the pre-event 

ordinary high water mark or contours. 

The NWP is reissued as proposed. 

NWP 46. Discharges in Ditches. We 

did not propose any changes to this 

NWP. Most commenters asked why this 

permit was needed since upland ditches 

are not subject to Clean Water Act 

jurisdiction, and any discharges of 

dredged or fill material into these 

ditches are exempt by statute under 

Section 404(f) of the Clean Water Act. 

Some commenters noted that the Corps 

does not assert Clean Water Act 

jurisdiction over many upland ditches 

and should not attempt to regulate these 

ditches by reissuing this NWP. 

This NWP authorizes discharges of 

dredged or fill material into a specific 

category of ditches (i.e., those non-tidal 

ditches that meet all four criteria in the 

first paragraph of the NWP), if those 

ditches have been determined to be 

waters of the United States. Section 

404(f) of the Clean Water Act only 

exempts discharges of dredged or fill 

material for the construction or 

maintenance of irrigation ditches, or the 

maintenance of drainage ditches, while 

this NWP authorizes a different set of 

activities which would require a Section 

404 permit. For example, this NWP 

authorizes discharges of dredged or fill 

material that may completely fill the 

specific category of upland ditch 

described in the NWP, if that ditch is 

determined to be a water of the United 

States after either the Corps or EPA 

makes a jurisdictional determination. 

We recognize that many ditches 

constructed in uplands are not waters of 

the United States, but there are some 

ditches constructed in uplands that may 

be determined to be waters of the 

United States after evaluating the 

specific characteristics of those ditches. 

The preamble to the Corps November 

13, 1986, final rule states the non-tidal 

drainage and irrigation ditches 


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excavated on dry land are generally not 

considered to be waters of the United 

States, but the Corps and EPA reserve 

the right on a case-by-case basis to 

determine whether a particular 

waterbody is a water of the United 

States (see 51 FR 41217). Joint guidance 

issued in December 2008 by EPA and 

the Corps provides additional 

clarification as to when ditches are and 

are not considered to be waters of the 

United States (see http://water.epa.gov/ 

lawsregs/guidance/wetlands/upload/ 

2008_12_3_

wetlands_CWA_Jurisdiction_

Following_Rapanos120208.pdf; p. 12). 

Some commenters said there are 

impacts to upland ditches that could 

impair water quality downstream and 

that compensatory mitigation should be 

required to minimize adverse effects 

caused by activities authorized by this 

NWP. One commenter recommended 

that district engineers evaluate impacts 

to natural heritage resources during 

their review of pre-construction 

notifications. 

For those activities authorized by this 

NWP, the district engineer will review 

the pre-construction notification and 

determine whether the activity results 

in only minimal adverse effects, 

including whether compensatory 

mitigation is necessary to ensure that 

the authorized activity results in 

minimal adverse effects on the aquatic 

environment, including water quality. 

During the review of a pre-construction 

notification, the district engineer may 

consult natural heritage resource 

databases to more effectively evaluate 

the potential adverse effects on the 

aquatic environment. 

This NWP is reissued as proposed. 

NWP 47. Pipeline Safety Program 

Designated Time Sensitive Inspections 

and Repairs. We proposed to not 

reauthorize this NWP because it was 

issued in 2007 in reliance on the 

development of the Pipeline Repair and 

Environmental Guidance System 

(PREGS) by the Pipeline and Hazardous 

Materials Safety Administration. Since 

PREGS was not developed and 

deployed, and paragraph (h) of the NWP 

required permittees to use PREGS to 

submit post-construction reports, no 

activity could be authorized by NWP 47. 

Two commenters asked why this 

NWP was not proposed to be reissued. 

Three commenters agreed with allowing 

the NWP to expire and supported the 

Corps position that designated time 

sensitive inspections and repairs can be 

authorized under NWP 3, Maintenance 

and NWP 12, Utility Line Activities. 

One commenter said that there should 

be an NWP to authorize emergency 

repair activities to fix natural gas 

pipeline leaks, pressure malfunctions, 

natural disaster damage, terrorist 

threats, or other events that pose a 

danger to public safety. One commenter 

suggested issuing a new NWP to 

authorize activities licensed by the 

Federal Energy Regulatory 

Commission’s blanket certificate 

program. 

Existing NWPs, such as NWPs 3 and 

12, may be used to authorize discharges 

of dredged or fill material or structures 

or work in navigable waters of the 

United States associated with pipeline 

inspections and repairs. Some of these 

activities do not require preconstruction notification to qualify for 

NWP authorization. There are other 

approaches available, such as 

emergency permitting procedures, to 

allow emergency repair activities that 

do not qualify for general permit 

authorization to proceed if there is ‘‘an 

unacceptable hazard to life, a significant 

loss of property, or an immediate, 

unforeseen, and significant economic 

hardship’’ (see 33 CFR 325.2(e)(4)). We 

do not believe it is necessary to develop 

a new NWP to authorize activities that 

are granted blanket certificates by the 

Federal Energy Regulatory Commission. 

Many of these activities may be 

authorized by existing NWPs, such as 

NWPs 3 and 12. 

This NWP is not reissued. 

NWP 48. Commercial Shellfish 

Aquaculture Activities. We proposed to 

modify this NWP by removing the 

reporting requirement, which applied to 

all activities that did not require preconstruction notification. We also 

proposed to add the information 

previously required in that report to the 

PCN information requirements. This 

information includes: A map showing 

the boundaries of the project area, with 

latitude and longitude coordinates for 

each corner of the project area; the 

name(s) of the cultivated species; and 

whether canopy predator nets are being 

used. In addition, we proposed to 

remove the pre-construction notification 

requirement for changes in species 

cultivated, as long as those species had 

been previously cultivated in the 

waterbody. We proposed to modify this 

NWP to authorize activities associated 

with the expansion of existing 

commercial shellfish aquaculture 

operations. We requested comments on 

modifying this NWP or issuing a new 

NWP to authorize new commercial 

shellfish aquaculture activities. 

Many commenters said the NWP 

should be reissued, and recommended 

many changes. Several commenters 

stated that this NWP should not be 

reissued. Most commenters expressed 

support for removing the reporting 

requirements for all activities that did 

not require pre-construction 

notification, stating that the paperwork 

was unnecessary given the current 

regulation of the industry by other 

entities, such as state and local 

governments. One commenter said that 

the reporting requirements should be 

maintained to ensure protection of 

resources. Other commenters suggested 

that pre-construction notification 

should be required for all activities. 

Several commenters said that the NWP 

should only authorize maintenance 

activities. One commenter stated that 

shellfish aquaculture methods are 

sufficiently different for the species 

cultivated that issuing a single NWP to 

authorize these activities is 

inappropriate. Another commenter said 

that all commercial shellfish 

aquaculture activities should be 

authorized under one NWP. Two 

commenters stated that the NWP should 

only authorize harvesting that occurs by 

hand. One commenter stated that these 

activities may impact tribal fishery 

access and fishing rights, and 

coordination with the affected tribes 

should be required. 

We have reissued this NWP and made 

several changes. Properly sited, 

operated, and maintained commercial 

shellfish aquaculture activities support 

populations of shellfish that provide 

important ecological functions and 

services for coastal waters, and should 

be authorized by a single NWP. We have 

removed the reporting requirements for 

this NWP and substantially reduced the 

number of pre-construction notification 

thresholds. Division engineers may 

regionally condition this NWP to 

establish additional pre-construction 

notification thresholds if necessary to 

ensure that this NWP authorizes only 

those activities that have minimal 

adverse effects on the aquatic 

environment. We do not agree that preconstruction notification should be 

required for all activities authorized by 

this NWP, because these activities are 

regulated by a number of other 

government agencies, especially at the 

federal and state government levels. In 

addition, the discharges of dredged or 

fill material into waters of the United 

States authorized by this NWP will 

result in minimal adverse 

environmental effects to the 

environmental criteria established 

under the Clean Water Act. The 

shellfish populations supported by the 

activities authorized by this NWP help 

support the objective of the Clean Water 

Act because they improve water quality 

through the conversion of nutrients into 

biomass (i.e., shellfish growth) and the 


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removal of suspended materials through 

filter feeding. Commercially grown 

shellfish also provide some habitat 

functions for the aquatic environment. 

Impacts to submerged aquatic vegetation 

will, in many cases, be evaluated 

through the pre-construction 

notification review process. For 

commercial shellfish aquaculture 

activities in new project areas, adverse 

effects to submerged aquatic vegetation 

will be minimal because of the 1⁄2-acre 

limit. Impacts to coastal aquatic habitat 

and species of concern in those habitats 

are more appropriately addressed 

through consultation conducted under 

the Essential Fish Habitat provisions of 

the Magnuson-Stevens Fishery 

Conservation and Management Act and/ 

or Section 7 of the Endangered Species 

Act. 

We do not agree that the NWP should 

be limited to hand harvesting activities. 

We have retained the pre-construction 

notification requirement for activities 

involving dredge harvesting, tilling, or 

harrowing in areas inhabited by 

submerged aquatic vegetation. General 

condition 17, tribal rights, states that 

NWP activities may not impair reserved 

tribal rights, including treaty fishing and 

hunting rights. In addition, division 

engineers may regionally condition this 

NWP to identify areas where Tribes 

must be notified of these activities and 

government-to-government consultation 

conducted to avoid or minimize impacts 

to tribal fishery access and fishing 

rights. 

One commenter said that the 

restoration of indigenous species would 

be prevented if cultivation was limited 

to only those species that were 

previously commercially cultivated. 

Another commenter recommended 

requiring pre-construction notification if 

there were a proposed change in species 

cultivated that was not part of a stateapproved list. Some commenters 

suggested that pre-construction 

notification should not be required for 

changes in harvesting methods. Another 

commenter said that pre-construction 

notification should be required if the 

culture method changed from bottom 

culture to floating or suspended culture 

to allow district engineers to evaluate 

potential navigation issues. One 

commenter indicated that the NWP 

should authorize demonstration projects 

less than one acre in size and another 

said that non-commercial shellfish 

aquaculture activities should be 

authorized, since states, local 

governments, and non-governmental 

organizations engage in recreational and 

commercial aquaculture. One 

commenter recommended adding a 

provision that would require the 

permittee to implement measures to 

prevent the spread of aquatic nuisance 

species, such as prohibiting the transfer 

of materials used for commercial 

shellfish aquaculture activities from one 

project site to another unless 

appropriate measures have been taken 

to ensure that those materials are free of 

aquatic nuisance species. This 

commenter said a note should be added 

to the NWP, to prohibit the transfer of 

equipment used in commercial shellfish 

aquaculture activities from one 

waterbody to another waterbody, unless 

that equipment has been allowed to dry 

out for a minimum of 90 days or treated 

in accordance with a regional aquatic 

nuisance control plan, to prevent the 

introduction of aquatic nuisance species 

into the other waterbody. 

We have modified this NWP to 

provide more flexibility in the species 

cultivated, specifically, to allow the 

cultivation of nonindigenous species as 

long as those species have been 

previously cultivated in the waterbody. 

We recognize that there has been 

commercial production of 

nonindigenous species over many years 

in certain waterbodies, and activities 

requiring Department of the Army 

authorization associated with those 

commercial operations should be 

authorized by this NWP. We have 

retained the prohibitions against 

cultivating aquatic nuisance species 

defined by the Nonindigenous Aquatic 

Nuisance Prevention and Control Act of 

1990. We have also added Note 2 to the 

NWP, to reduce the risk of introducing 

aquatic nuisance species by requiring 

treatment of materials taken from one 

waterbody to another in accordance 

with the applicable regional aquatic 

nuisance species management plan. 

Division engineers may add regional 

conditions to the NWP to make 

permittees aware of the regional aquatic 

nuisance species management plan that 

may be applicable to NWP 48 activities. 

We agree that pre-construction 

notification should not be required for 

changes in harvesting methods because 

harvesting methods have temporary 

impacts and result in minimal adverse 

effects. A possible exception is dredge 

harvesting in areas inhabited by 

submerged aquatic vegetation, which 

still requires pre-construction 

notification. We also agree that preconstruction notification should be 

required if the grower proposes to 

change from bottom culture to floating 

or suspended culture in a project area, 

or if it is an activity in a new project 

area that requires the installation and 

use of floating or suspended gear, so 

that effects to navigation can be 

evaluated. This NWP authorizes 

commercial shellfish aquaculture 

activities undertaken by states, local 

governments, and non-governmental 

organizations. Shellfish seeding 

activities to improve shellfish 

populations may be authorized by NWP 

27. Small recreational shellfish 

aquaculture activities may be authorized 

by other applicable NWPs, such as NWP 

4. Other recreational shellfish 

aquaculture activities may be authorized 

by regional general permits or 

individual permits. Restoration 

aquaculture activities may be authorized 

by NWP 27. 

One commenter stated that the 

structures and fill activities authorized 

by the NWP were too broad and should 

be refined. This commenter 

recommended prohibiting the long-term 

use of trays if sediment is compacted 

and diversity is diminished. One 

commenter said that structures and fill 

should be limited to shell spat only, 

while another commenter stated that 

shell planting should be allowed on any 

size parcel without pre-construction 

notification. 

The structures and fills authorized by 

this NWP are limited to those necessary 

to conduct commercial shellfish 

aquaculture activities. We have retained 

the provision that states that the NWP 

does not authorize attendant features 

such as docks, piers, boat ramps, 

stockpiles or staging areas, or the 

deposition of shell material back into 

waters of the United States as waste. We 

have removed the pre-construction 

notification threshold for commercial 

shellfish aquaculture activities that are 

more than 100 acres in size, because we 

do not believe it is necessary to require 

pre-construction notification for existing 

operations with a valid lease, permit, or 

other appropriate instrument that has 

been approved by the appropriate state 

or local government agency, unless the 

activity triggers any of the preconstruction notification thresholds. 

One commenter requested changes to 

the definition of shell seeding, citing 

concerns over the use of potentially 

environmentally damaging materials. 

Another commenter supported the use 

of terms such as ‘‘suitable substrate’’ 

and ‘‘appropriate materials’’ due to the 

decreasing availability of shell cultch 

and new research and development 

regarding materials. One commenter 

said that use of the term ‘‘submerged 

aquatic vegetation’’ allowed for the 

destruction of eelgrass, because eelgrass 

is often not inundated with tidal waters. 

One commenter asked whether 

traditional oyster culture practices were 

of special concern. 

The definition of the term ‘‘shellfish 

seeding’’ in the Definitions section of 


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the NWP provides examples of 

appropriate materials that may be used 

for shellfish seeding activities. Through 

the issuance of regional conditions, 

division engineers can restrict or 

prohibit the use of certain materials for 

shellfish seeding. In response to a preconstruction notification, district 

engineers may add activity-specific 

conditions to an NWP authorization to 

prohibit the use of certain materials for 

shellfish seeding. Eelgrass is commonly 

considered to be a species of submerged 

aquatic vegetation and we intend it to be 

covered by the provisions regarding 

submerged aquatic vegetation, 

regardless of whether it is fully 

submerged in all tidal conditions or not. 

Many commenters requested 

clarification as to when pre-construction 

notification is required and what 

constitutes a project area for the 

purposes of this NWP. Several 

commenters recommended that preconstruction notifications should only 

be required once and not for each 

subsequent reissuance of this NWP if 

the commercial shellfish aquaculture 

operation has not changed. One 

commenter asked if the lease holder is 

required to provide pre-construction 

notifications annually if the lease covers 

an area greater than 100 acres. One 

commenter inquired whether preconstruction notification is required 

when the operator is only working on 30 

acres of a 200-acre project site. One 

commenter said that multiple preconstruction notifications should not be 

required from a lease holder that has 

multiple 100-acre leases; instead, one 

pre-construction notification should 

cover all those leases. 

We have reduced the number of preconstruction notification thresholds in 

this NWP. The pre-construction 

notification thresholds in this NWP 

focus on those activities that should be 

reviewed by district engineers to: 

(1) Ensure that floating or suspended 

aquaculture facilities do not cause more 

than minimal adverse effects on 

navigation or, (2) ensure that both 

cultivating species that have not been 

previously cultivated in the waterbody 

and dredge harvesting, tilling, or 

harrowing in areas of submerged aquatic 

vegetation do not cause more than 

minimal adverse effects on the aquatic 

environment. 

To support our objective to be more 

consistent with state and local agencies 

that regulate commercial shellfish 

aquaculture activities, we have 

redefined project area so that it is based 

on leases or permits issued by an 

appropriate state or local government 

agency that is responsible for allocating 

subtidal or intertidal lands for 

commercial shellfish production. The 

project area may also be based on rights 

to conduct shellfish aquaculture that are 

established by treaty, such as treaties 

executed between the United States 

Government and Indian Tribes. Project 

area may also be identified through an 

easement, lease, deed, or contract which 

establishes an enforceable property 

interest to conduct aquaculture 

activities on subtidal or intertidal lands. 

We have removed the preconstruction notification requirement 

for relocating existing operations into 

portions of the project area not 

previously used for aquaculture 

activities, since the permit or lease 

issued by the state or local government 

agency has already authorized that area 

for use in commercial shellfish 

aquaculture. There is no need to address 

expansions in this NWP if the proposed 

expansions are within the project area 

authorized by the state or local 

government lease or other appropriate 

instrument. For example, preconstruction notification is not required 

if an operator who is only working on 

30 acres of a 200-acre project area 

decides to conduct operations beyond 

those 30 acres within the 200 acre 

project area. 

We have removed the preconstruction notification threshold for 

project areas greater than 100 acres. 

Since we have limited the preconstruction notification thresholds to 

focus on activities that may adversely 

affect submerged aquatic vegetation and 

changes in operations that may 

adversely affect navigation or involve 

species not previously cultivated in the 

waterbody, most on-going activities will 

not require pre-construction 

notification, thereby substantially 

decreasing the paperwork burden on 

current commercial shellfish 

aquaculture operators. The lease holder 

is not required to provide a preconstruction notification annually no 

matter what the size of the project area 

as long as the lease holder has a valid 

lease, permit, or other appropriate 

instrument that has been approved by 

the appropriate state or local 

government agency for the project area, 

and none of the pre-construction 

notification thresholds are triggered. For 

example, pre-construction notification 

is not required if the lease holder is only 

working within an existing authorized 

200-acre project area no matter how 

much or little of that area is cultivated. 

However, if the lease holder proposes to 

cultivate a species of oyster in the 200- 

acre project area not currently present in 

the waterbody, pre-construction 

notification would be required. The 

activities also do not require preconstruction notification unless the 

activities involve dredge harvesting, 

tilling, or harrowing in areas of 

submerged aquatic vegetation. If the 

lease holder’s operations within the 

200-acre project area change from one 

on-bottom technique to another onbottom technique, pre-construction 

notification is not required. However, if 

the operations are proposed to change 

from an on-bottom culture method to a 

floating or suspended culture method, 

pre-construction notification is 

required. Lastly, if an operator obtains a 

lease for a new project area and wishes 

to conduct any commercial shellfish 

aquaculture activities in the new project 

area, pre-construction notification is 

required. 

One commenter said that requiring 

pre-construction notification for 

aquaculture relocation and expansion is 

unnecessary if the area is already leased 

but transferred to another owner. 

Another commenter recommended that 

any NWP authorizations should still be 

valid when the lease is transferred to 

another operator and use has not 

changed. One commenter stated that 

pre-construction notification should not 

be required for expansions into newly 

leased areas since the site conditions are 

usually the same. 

Pre-construction notification is not 

required for expansions of commercial 

shellfish activities as long as the 

expansion occurs within the project area 

specified by an permit, lease, or other 

instrument issued by the appropriate 

state or local agency, and as long as 

none of the pre-construction notification 

thresholds are triggered. This would 

apply to an activity in a new location 

within the project area, or to an activity 

that would utilize a larger acreage of the 

project area, as long as none of those 

activities require pre-construction 

notification. If an activity is proposed by 

an operator in a new project area, 

however, pre-construction notification 

is required. An NWP verification can be 

transferred to a new project proponent, 

if he or she has obtained an interest in 

the subtidal or intertidal lands, 

provided appropriate procedures are 

followed for the transfer of the NWP 

verification (see general condition 29, 

transfer of nationwide permit 

verifications). 

One commenter asked whether or not 

an NWP verification can be issued prior 

to a state issuing a lease. Another 

commenter said that NWP 48 should be 

delegated to the states who issue leases 

to reduce duplicative paperwork. One 

commenter stated that pre-construction 

notification should not be required 

when a state already evaluates impacts 

to submerged aquatic vegetation prior to 


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granting leases. Another commenter 

said that certain states do not issue 

leases in areas with submerged aquatic 

vegetation, so it is not necessary for the 

Corps to address that issue. 

The district engineer may issue an 

NWP verification before the state makes 

its decision on a lease application. It is 

necessary to respond to a complete preconstruction notification within 45 days 

to retain the authority to add activityspecific conditions, which would 

ensure that the NWP activity results in 

minimal adverse effects on the aquatic 

environment. Since there is not 

consistent regulation of commercial 

shellfish aquaculture activities among 

all of the states, we do not agree that 

certain Federal interests, such as 

navigation and impacts to special 

aquatic sites, should be delegated to the 

states. In evaluating a pre-construction 

notification triggered by potential 

impacts to submerged aquatic 

vegetation, the district engineer would 

consider any evaluation of such impacts 

that had been previously conducted by 

the state if this is submitted with the 

PCN. 

Many commenters expressed 

concerns regarding impacts to species 

protected under the Endangered Species 

Act, designated critical habitat, and 

essential fish habitat. One commenter 

asked if compliance with the 

Endangered Species Act was required 

for both existing and new activities. 

Another recommended that a detailed 

eelgrass, macroalgae, and forage fish 

survey should be required for each preconstruction notification. One 

commenter stated that NWP 

authorization should not be granted in 

areas adjacent to forage fish or critical 

habitat. 

Activities authorized by this NWP 

must comply with general condition 18, 

endangered species. Any new or 

existing activity that involves discharges 

of dredged or fill material or structures 

or work in navigable waters of the 

United States that might affect listed 

species or designated critical habitat 

require pre-construction notification to 

the district engineer, so that Section 7 

consultation can be conducted. We do 

not agree that pre-construction 

notifications should include surveys for 

eelgrass, microalgae, or forage fishes. 

The district engineer may request 

additional information from the project 

sponsor if needed to conduct Section 7 

consultation. An activity may be 

authorized in critical habitat if a section 

7 biological opinion is issued and 

impacts to critical habitat are 

authorized. 

One commenter recommended that 

the Corps work closely with the 

National Oceanic and Atmospheric 

Administration to streamline the review 

and approval of aquaculture projects. 

Some commenters said that the 

commercial shellfish aquaculture 

industry is not sufficiently regulated at 

the local, state, or federal level. One 

commenter said that enforceable 

conditions need to be added to NWP 48 

authorizations to protect the aquatic 

environment. One commenter 

recommended implementing a regional 

ecosystem-based management approach. 

We have worked closely with the 

National Oceanic and Atmospheric 

Administration and other Federal 

agencies to develop this NWP, and we 

disagree that there is not already 

sufficient government oversight of these 

activities at the various levels of 

government. In response to a preconstruction notification, the district 

engineer may add activity-specific 

conditions to the NWP authorization to 

ensure that the authorized activity 

results in minimal adverse effects on the 

aquatic environment, individually and 

cumulatively. A regional ecosystembased management approach is more 

appropriately undertaken by Corps 

districts and interested Federal, State, 

and local government agencies, not at 

the national level. 

Many commenters expressed concern 

regarding the environmental impacts 

associated with expansions of 

commercial shellfish aquaculture 

activities and for new activities. One 

commenter said that expansion 

proposals should not be reviewed as 

restoration activities since non-native 

species are a serious threat. Several 

commenters stated that the 

environmental benefits do not offset the 

environmental impacts, introduction of 

invasive species, impacts to native 

species such as flatfish and other sandy 

bottom species, reduction of species 

diversity, elimination of native animal 

and plant species, harassment and 

destruction of migrating birds, and the 

introduction of plastics. Other 

commenters expressed concern 

regarding impacts from geoduck 

cultivation and harvesting on the 

environment as well as on wild geoduck 

populations, and the cultivation and 

harvesting of other non-native species. 

Two commenters stated that geoduck 

cultivation and harvesting has only 

minimal impacts. 

When properly sited, operated, and 

maintained, commercial shellfish 

aquaculture activities generally result in 

minimal adverse effects on the aquatic 

environment and in many cases provide 

environmental benefits by improving 

water quality and wildlife habitat, and 

providing nutrient cycling functions. 

These activities are subjected to an 

extensive amount of regulation at the 

Federal and state government levels, 

and often the local government level. 

The introduction of invasive species can 

occur through many mechanisms, and 

the types of species approved for 

commercial aquaculture activities are 

regulated. This NWP does not authorize 

discharges of dredged or fill material or 

structures or work in navigable waters 

of the United States associated with the 

cultivation of nonindigenous species 

that have not been previously cultivated 

in the waterbody or the cultivation of 

aquatic nuisance species as defined in 

the Nonindigenous Aquatic Nuisance 

Prevention and Control Act of 1990. 

Furthermore, division engineers may 

add regional conditions to the NWP to 

require permittees to use specific 

practices that will prevent the spread of 

aquatic nuisance species. Such 

measures may vary, depending on the 

species of concern and which 

techniques would be the most effective 

means to prevent the spread of such 

species. Adverse effects that may result 

from geoduck cultivation are more 

appropriately addressed by Corps 

districts, since this activity is limited in 

geographic scope. Division engineers 

may regionally condition this NWP to 

restrict or prohibit its use to authorize 

discharges of dredged or fill material 

into waters of the United States or 

structures or work in navigable waters 

of the United States associated with 

geoduck production. 

Several commenters stated that the 

expansion of commercial shellfish 

aquaculture activities will result in 

more than minimal cumulative adverse 

effects and should not be authorized by 

NWP. One commenter said that all 

activities authorized by this NWP 

should require reporting to assess 

cumulative effects. Another commenter 

suggested that cumulative effects on 

water quality should be evaluated for 

water bodies with multiple aquaculture 

facilities. 

As stated above, commercial shellfish 

aquaculture activities provide habitat, 

water quality, and nutrient cycling 

functions and when properly sited, 

operated, and maintained are unlikely 

to result in more than minimal 

cumulative adverse effects on the 

aquatic environment. Division engineers 

may restrict or prohibit use of this NWP 

in geographic regions or specific 

waterbodies where more than minimal 

cumulative adverse effects may occur. 

One commenter stated that shellfish 

aquaculture activities have economic 

impacts that were not sufficiently 

addressed in the draft decision 

documents. For example, county and 


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state health agencies are required to 

regulate water quality, which costs 

taxpayer money. This commenter said 

that changes to aesthetics associated 

with expansion of these activities, such 

as noise, odor, and viewshed impacts 

should also be considered. Impacts to 

recreational uses of the affected 

waterbodies could occur if expansions 

greater than 100 acres in size are 

authorized. This commenter also said 

that new and expanded operations 

should not be proposed in national 

parks or historic monuments, but 

existing operations should be allowed to 

continue. The commenter also stated 

that any projects in river delta regions 

should be carefully evaluated due to the 

sensitive nature of these brackish 

environments. 

The draft decision documents briefly 

discuss economics as one of the public 

interest review factors that are 

considered before the Corps issues a 

permit, including a general permit. 

Shellfish aquaculture activities, in 

general, help improve water quality 

because many of the commercially 

cultivated species are filter feeders that 

remove nutrients and suspended 

materials from the water column. By 

removing nutrients, eutrophication and 

similar water quality problems are 

lessened. Water quality benefits 

provided by commercially grown 

shellfish help reduce costs of 

remediating local water quality 

problems. Commercial shellfish 

aquaculture activities have minimal 

adverse effects to aesthetics, and are 

likely to result in little change in local 

baseline levels of noise, odor, or views 

when compared to other waterfront uses 

in coastal residential areas, such as 

private and commercial boats, as well as 

the piers, wharves, marinas, and 

anchorage or mooring areas where those 

vessels are kept. Coastal areas are used 

by a wide variety of people. Effects on 

recreational uses of the waterbody 

should also be considered during the 

review of specific commercial shellfish 

aquaculture activities. Division 

engineers may regionally condition this 

NWP to restrict or prohibit its use to 

authorize new project areas and/or new 

activities in existing project areas in 

national parks or in the vicinity of 

historic monuments. The protection of 

waters near river deltas or other 

categories of waters is more 

appropriately accomplished through 

regional conditions imposed by division 

engineers. 

One commenter stated that because 

commercial shellfish aquaculture may 

be limited by farm runoff, increasing 

production could require farmland to 

cease in operation. Another commenter 

stated that shellfish farming is a good 

gauge of water quality in an area since 

poor water quality necessitates closure 

of shellfish farms. In contrast, another 

commenter said the potential for 

aquaculture operations to harvest 

continuously as farm size increased 

would result in permanently suspended 

particulates and increased turbidity 

which would damage ecosystems. 

Changes in farming operations that 

may be related to commercial shellfish 

aquaculture activities in nearby waters 

is outside of the Corps regulatory 

authority. Such issues are more 

appropriately addressed by state or local 

governments, who have the primary 

responsibility for land use decisions. 

We recognize that commercial shellfish 

aquaculture can help improve water 

quality. Harvesting operations may 

increase turbidity, but we believe such 

impacts are temporary and minor. 

We received many comments in 

response to our proposal to consider 

issuing a new NWP or modifying NWP 

48 to authorize new commercial 

shellfish aquaculture activities. Many 

commenters supported modifying NWP 

48 to authorize new activities, and 

suggested terms and conditions. One 

commenter recommended limiting new 

activities to ten acres or less. One 

commenter stated that there should be 

no limits on new activities because 

shellfish aquaculture has only minimal, 

short-term adverse environmental 

impacts, and the shellfish themselves 

provide valuable ecological services. 

Two commenters stated that all new 

shellfish aquaculture activities except 

floating culture should be authorized 

under the NWP, because floating 

facilities have potential to impact 

navigation. One commenter said 

limitations on new activities should be 

imposed on NWP 48 and reconsidered 

when the proposal to reissue the NWPs 

is developed in 2016. Other commenters 

said that new activities should not be 

authorized by NWP because of their 

environmental impacts. Another 

commenter stated that new activities 

should not be authorized by NWP 

unless bottom culture methods are used 

(except for grow-out bags), harvesting is 

done by hand, and only native species 

are cultivated. One commenter stated 

that baseline habitat assessments should 

be provided and no operations should 

occur within 180 feet of marine 

vegetation, eelgrass, or sand dollar beds. 

We are modifying NWP 48 to 

authorize commercial shellfish 

aquaculture activities in new project 

areas, provided the project proponent 

obtains a valid authorization (e.g., a 

lease or permit from the appropriate 

state or local government agency 

responsible for granting such leases or 

permits) and the activity will not 

directly affect more than 1⁄2-acre of 

submerged aquatic vegetation beds. Preconstruction notification is required for 

all commercial shellfish aquaculture 

activities in new project areas. Preconstruction notification is also 

required for activities in a project area 

if they involve dredge harvesting, 

tilling, or harrowing in areas inhabited 

by submerged aquatic vegetation or if 

the activities involve the change from 

bottom culture to floating or suspended 

culture in order to assess potential 

impacts to navigation. In addition, 

general condition 14, proper 

maintenance, requires the permittee to 

properly maintain any authorized 

structure or fill. Therefore, any 

authorized commercial shellfish 

aquaculture activity and its associated 

equipment shall be properly maintained 

so as to not pose a hazard to navigation. 

The pre-construction notification 

thresholds will provide an opportunity 

for district engineers to evaluate the 

potential adverse effects to navigation 

and vegetated shallows, conservation, 

and other applicable public interest 

review factors, and ensure that those 

adverse effects are minimal. We agree 

that commercial shellfish aquaculture 

activities can provide important 

functions and services to the aquatic 

environment and should be authorized 

by NWP, with appropriate notification 

thresholds and limits. Division 

engineers may regionally condition this 

NWP to restrict or prohibit its use in 

specific waters or geographic areas, if 

there are concerns that these activities 

may have more than minimal adverse 

effects on certain species or specific 

types of aquatic resources. 

This NWP is reissued with the 

modifications discussed above. 

NWP 49. Coal Remining Activities. 

We proposed to clarify how the 40 

percent of newly mined area is 

determined. We also proposed to 

modify the pre-construction notification 

provision to require the prospective 

permittee to submit documentation 

describing how the overall mine plan 

will result in a net increase in aquatic 

resource functions. 

Several commenters supported the 

reissuance of NWP 49 and said no 

restrictions should be imposed because 

remining permits are one of the most 

significant tools to alleviate the 

environmental effects of past mining 

activities. Many commenters said this 

NWP should not be reissued. Some of 

these commenters stated that these 

activities result in more than minimal 

cumulative adverse effects. Many 

commenters objected to the lack of 


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limits for filling stream channels and 

said this NWP should not authorize the 

construction of valley fills or refuse fills. 

Other commenters stated that the 

functional increase associated with remining will still be insufficient to offset 

adverse effects of filling stream beds and 

that stream mitigation will not 

effectively replace lost stream functions. 

We believe authorizing remining of an 

unreclaimed site and requiring actions 

to restore unreclaimed areas is one of 

the most effective ways to reverse 

degraded water quality in a watershed. 

Therefore, we have not imposed any 

new limits or restrictions on this NWP. 

All activities authorized by this NWP 

must result in net increases in aquatic 

resource functions, which will help 

manage cumulative effects on a 

watershed basis. Cumulative effects 

assessments have revealed the reduction 

in acid mine drainage and/or 

sedimentation in downstream segments 

of stream channels has resulted in 

functional improvements in many 

watersheds. The states of Ohio, 

Pennsylvania, Virginia, and West 

Virginia frequently use remining 

activities to reduce acid mine drainage 

and sedimentation and have data to 

demonstrate these improvements. 

We do not believe this permit should 

have linear foot or acreage limits, since 

this NWP authorizes discharges of 

dredged or fill material into waters of 

the United States to reclaim previously 

mined sites that were unreclaimed, 

abandoned, forfeited, and typically 

exhibit poor water quality and present 

safety hazards. These unreclaimed 

mines may have unreclaimed highwalls, 

unvegetated mine spoil, disconnected 

stream segments, and/or pit 

impoundments. We, as well as other 

state and federal agencies, recognize 

that remining and reclaiming these areas 

is one of the most successful means for 

improving water quality, because these 

activities reduce sedimentation and acid 

mine drainage. Due to advances in 

mining technology and equipment, it is 

now economically viable to remove coal 

from these unreclaimed and abandoned 

mine sites. These sites can be combined 

with adjacent unmined areas to develop 

a project that is economically viable. In 

many cases the net result of combining 

remining of a previously mined site 

with new surface coal mining activities 

in adjacent areas is to facilitate 

reclamation of the older mine site and 

reduce acid mine drainage and sediment 

from the older mine site to downstream 

stream segments. Furthermore, this 

NWP provides an incentive to remine 

degraded areas, similar to the 1987 

Rahall Amendments to the Clean Water 

Act, which enables mine operators to 

apply for the U.S. Environmental 

Protection Agency’s modified effluent 

limits developed specifically for 

remining projects. 

Project proponents who want to use 

this NWP must submit pre-construction 

notifications. The pre-construction 

notification describes how the overall 

mining plan will result in a net increase 

in aquatic resource functions. If there is 

an appropriate functional assessment 

protocol available for the types of 

aquatic resources in that geographic 

area, project proponents are encouraged 

to use that functional assessment 

protocol to demonstrate how the activity 

will result in a net increase in aquatic 

resource functions. The description of 

the proposed project required by 

paragraph (b)(3) of general condition 31 

should describe the restoration that will 

take place on the project site. District 

engineers may add activity-specific 

conditions to this NWP to require more 

detailed restoration plans prior to 

discharging dredged or fill material into 

waters of the United States, as well as 

monitoring plans that will be used to 

assess whether the remining and 

associated reclamation activities are 

resulting in net increases in aquatic 

resource functions. Supplemental 

compensatory mitigation may be 

required in some instances, such as the 

implementation of mitigation projects 

near the project site, to remove or 

reduce causes of aquatic resource 

impairment and ensure that the overall 

activity not only results in minimal 

individual and cumulative adverse 

effects on the aquatic environment but 

in a net increase in aquatic resource 

functions, as required by this NWP. 

Several commenters indicated the 

general public should have the right to 

comment on the proposal before the 

district engineer issues the NWP 

verification. One commenter said all 

activities associated with remining 

should require individual permits and 

another commenter objected to 

combining unmined lands required for 

restoration with previously mined lands 

because that would categorize unmined 

land as unreclaimed land, and result in 

additional adverse environmental 

effects. One commenter stated that 

slurry impoundments should not be 

authorized by this NWP. 

We believe these activities are 

appropriate for general permit 

authorization and should not require a 

public notice and comment process. 

District engineers may assert 

discretionary authority and require an 

individual permit for proposed 

activities if they believe those activities 

will result in more than minimal 

adverse effects on the aquatic 

environment. It is appropriate to 

authorize discharges of dredged or fill 

material into waters of the United States 

for some new mining activities, to 

provide an incentive to restore 

unreclaimed mine lands, and provide 

net increases in aquatic resource 

functions. Impacts to the newly mined 

area would not be categorized as 

remining. Adverse effects to waters of 

the United States associated with the 

new mining would be subject to the 

general condition 23, mitigation, and 

the district engineer may add conditions 

to the NWP authorization to require 

mitigation located near the project site 

or out-of-kind mitigation to compensate 

for losses of aquatic resource functions. 

Typical surface coal mining projects, 

including remining, do not include 

slurry impoundments, as these 

impoundments are typically associated 

with the wastewater resulting from coal 

processing plants. This NWP does not 

authorize the construction of coal 

processing plants. 

Many commenters said the Corps is 

making the review process associated 

with NWP 49 more onerous, which will 

decrease the utility of the NWP, and 

should focus on the environmental 

benefits that can be realized from this 

nationwide permit. 

The proposed changes to this NWP, 

which we are adopting, do not make it 

more difficult to use NWP 49. The 

requirement to provide information 

with the pre-construction notification to 

explain how the overall activity will 

result in net increases in aquatic 

resource functions is necessary to 

ensure compliance with the terms and 

conditions of the NWP. Clarification of 

how to apply the 40 percent provision 

to determine how much new area could 

be mined will provide consistency in 

implementation. For example, a site 

may be proposed to be remined under 

this NWP. If 30 acres of the site has been 

previously mined and is proposed to be 

remined, and 30 acres of the site is 

unmined and is necessary to make it 

economically feasible to reclaim the 

remined area, then 40% of the 

combined acreage of the remined and 

reclaimed areas, or 40% of 60 acres 

which equals 24 acres, can be newly 

mined. In another example, if you have 

a 1,000-acre site, and 600 acres are 

affected by previously unreclaimed 

mining activities and 200 acres are 

needed to reclaim the 600 acres, then 

40% of 800 acres (the summation of the 

previously unreclaimed mining 

activities site and the site needed to 

reclaim the previously mined site), or 

320 acres may be newly mined. As there 

are only 200 acres remaining at the 

1,000-acre site, those 200 acres may be 


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authorized under NWP 49 for newly 

mined activities. 

One commenter said they did not 

understand the rationale for establishing 

the threshold for newly mined areas at 

40 percent, if removing the small 

amount of remaining coal reserves will 

be far more attractive to coal mine 

operators if the percentage was 

increased to allow mining on larger 

areas of unmined lands. One commenter 

said the 40 percent limitation becomes 

an obstacle when the remaining coal 

seam is deep within the hillside and 

large amounts of overburden require 

removal. This commenter suggested 

increasing the limit for newly mined 

areas to 50 or 60 percent to encourage 

more restoration of unreclaimed areas. 

The commenter recommended adding a 

provision allowing district engineers to 

waive the 40 percent threshold in 

certain situations, such as when the 

operator receives an approved pollution 

abatement plan with best management 

practices, the remining activity is 

located in a completed Acid Mine 

Drainage Abatement Treatment 

watershed area, and watersheds with 

established total daily maximum loads. 

Several commenters objected to the 

provision stating that the Corps would 

consider the SMCRA agency’s decision 

regarding the amount of currently 

undisturbed adjacent lands needed to 

facilitate the remining and reclamation 

of the previously mined area, stating 

that it creates duplicative and 

potentially conflicting layers of 

regulation to an already highly regulated 

industry. 

The 40 percent limit was established 

when NWP 49 was first issued in 2007, 

and was based on the recognition that 

some new coal mining may have to be 

conducted to provide incentives to 

remine and reclaim previously mined 

lands. The 40 percent limit is intended 

to facilitate compliance with the 

minimal adverse effects requirement for 

the NWPs. We do not agree that it 

would be appropriate to add a provision 

allowing district engineers to waive the 

40 percent limit. Remining and 

reclamation activities involving 

discharges of dredged or fill material 

into waters of the United States that 

require larger proportions of newly 

mined areas may be authorized by 

individual permits. The expertise 

provided by the agencies responsible for 

implementing SMCRA is necessary to 

help the Corps make its determination 

of compliance with the terms and 

conditions of this NWP. 

One commenter stated this NWP 

should look holistically at overall water 

and site improvements, improvement in 

the safety of the area by the elimination 

of pits and highwalls, and reclamation 

of sites without the use of public funds. 

We have focused this NWP on 

authorizing those activities that provide 

net increases in aquatic resource 

functions. The consideration of overall 

site improvements, increased safety, and 

the lack of use of public funds is more 

appropriately addressed by other 

agencies or programs. 

This NWP is reissued as proposed. 

NWP 50. Underground Coal Mining 

Activities. We proposed to place a 1⁄2- 

acre limit on this NWP, as well as a 300- 

linear foot limit for losses of stream bed. 

We also proposed a provision that 

allows district engineers to waive the 

300 linear foot limit for losses of 

intermittent or ephemeral stream bed by 

making a written determination 

concluding that the discharge of 

dredged or fill material will result in 

minimal adverse effects. 

Several commenters objected to the 

reissuance of this NWP, stating that it 

authorizes activities with more than 

minimal individual and cumulative 

adverse effects on the aquatic 

environment. Several commenters 

stated that activities authorized by this 

NWP will result in the loss of stream 

functions and adversely impact water 

quality downstream of the mine site. 

Several commenters said this NWP does 

not comply with the Section 404(b)(1) 

Guidelines and that the cumulative 

impacts analysis is too general and fails 

to consider past actions. 

We have imposed a 1⁄2-acre limit on 

this NWP, as well as a 300 linear foot 

limit for the loss of stream bed. Preconstruction notification is required for 

all activities authorized by this NWP, 

and the permittee may not begin work 

in waters of the United States until an 

NWP verification is issued by the 

district engineer. These requirements, as 

well as the ability of district engineers 

to exercise discretionary authority and 

modify the NWP authorization by 

imposing activity-specific conditions, 

will help ensure that the NWP 

authorizes only those activities with 

minimal individual and cumulative 

adverse effects on the aquatic 

environment. Division engineers may 

regionally condition this NWP to restrict 

or prohibit its use in specific geographic 

regions, waters, or watersheds if the use 

of this NWP would authorize activities 

with more than minimal individual and 

cumulative adverse effects. When 

reviewing pre-construction 

notifications, district engineers will also 

evaluate whether the proposed activity 

will cause more than minimal direct 

and indirect adverse effects to water 

quality downstream of the mine site. 

The issuance of this NWP complies with 

the 404(b)(1) Guidelines, and we have 

complied with the requirements at 40 

CFR 230.7. The cumulative effects 

analysis provided in the decision 

document in accordance with the 

National Environmental Policy Act 

considers the effects of past actions, to 

the extent that they have continuing 

effects on the aquatic environment. 

Under the 404(b)(1) Guidelines, the 

cumulative effects analysis involves 

prediction of the number of discharges 

likely to be regulated by a general 

permit until its expiration (see 40 CFR 

230.7(b)(3)). That regulation, as well as 

40 CFR 230.11(g), does not state that the 

effects of past actions have to be 

considered for the purposes of the 

404(b)(1) Guidelines analysis, although, 

as stated above, we have considered 

such effects in connection with our 

NEPA analysis. 

Several commenters stated that NWP 

50 should not have any acreage and/or 

linear foot limitations as these limits 

would essentially render the permit 

unusable for underground mining 

operations. 

We do not agree that the 1⁄2-acre limit 

and the 300 linear foot limit for stream 

bed losses make this NWP unusable. 

This NWP authorizes discharges of 

dredged or fill material into waters of 

the United States for underground coal 

mining activities, provided those 

activities result in minimal adverse 

effects on the aquatic environment. 

Since these coal mining activities occur 

underground, losses of waters of the 

United States are usually small in size 

because they are limited to discharges of 

dredged or fill material in waters of the 

United States to construct infrastructure 

and impoundments to support those 

mining activities. Underground coal 

mining activities that result in the loss 

of greater than 1⁄2-acre of waters of the 

United States, or more than 300 linear 

feet of perennial stream bed, may be 

authorized by individual permits or, if 

available, regional general permits. 

One commenter stated that districts 

have incorrectly classified perennial 

streams and that impacts to special 

aquatic sites (e.g., riffle and pool 

complexes) have not been properly 

considered. Another commenter said 

that Clean Water Act jurisdiction does 

not extend to ephemeral and 

intermittent streams. Several 

commenters indicated stream mitigation 

measures are not effective and the Corps 

has failed to provide a rational 

explanation as to how mitigation will 

attenuate cumulative effects. 

Classifying a stream as perennial, 

intermittent, or ephemeral is done by 

district engineers by evaluating 

available information on stream flow, 


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including information that may be 

submitted by a project proponent in 

support of a pre-construction 

notification. A site visit may also be 

conducted to identify perennial, 

intermittent, or ephemeral stream 

segments. Impacts to special aquatic 

sites such as riffle and pool complexes 

will be considered when reviewing a 

pre-construction notification, and 

discretionary authority will be asserted 

if the district engineer determines that 

the adverse effects on the aquatic 

environment are more than minimal. 

Both intermittent and ephemeral 

streams are subject to Clean Water Act 

jurisdiction if they are determined by 

district engineers to be waters of the 

United States after applying the 

appropriate regulations and guidance. 

Stream rehabilitation and enhancement 

activities have been shown to improve 

the ecological functions provided by 

those aquatic ecosystems. Stream 

compensatory mitigation projects must 

comply with the applicable 

requirements provided in general 

condition 23, mitigation, and the 

compensatory mitigation regulations at 

33 CFR 320.4(r) and 33 CFR part 332. 

District engineers will review and 

approve mitigation plans, and will 

require alternative or additional 

compensatory mitigation if they 

determine the proposed compensatory 

mitigation will not be sufficient to 

successfully offset the losses of aquatic 

resources caused by the permitted 

activity. Compensatory mitigation 

projects must be implemented in 

accordance with their approved 

mitigation plans. District engineers will 

also require monitoring of these 

compensatory mitigation projects, and 

require remediation and adaptive 

management if those mitigation projects 

are not providing the intended aquatic 

resource functions. If a district engineer 

determines that a compensatory 

mitigation project is not ecologically 

successful and fails to fulfill its 

objectives, district engineers may 

require alternative compensatory 

mitigation to comply with the 

mitigation requirements established 

through conditions added to the NWP 

authorization. 

Several commenters indicated the 

activities regulated by this NWP are also 

heavily regulated by SMCRA, the 

Federal Mine Safety and Health Act 

(MSHA), and the state mining and water 

resource programs; therefore, no limits 

should be imposed on the permit. One 

commenter said the limits and the 

waiver process is highly subjective and 

results in uncertainty in the Regulatory 

Program. One commenter stated that 

limitations imposed on this NWP could 

potentially require applicants to seek 

individual permits for all underground 

mining actions, which may result in a 

requirement to prepare an 

environmental impact statement. This 

commenter said that there should be a 

transition period without acreage or 

linear foot limits so that underground 

coal mining activities could continue to 

be authorized by this NWP until an 

individual permit can be obtained. One 

commenter said that reissuing NWP 50 

with the 1⁄2-acre and 300 linear foot 

limits would result in significant job 

losses for their company, which consists 

of Native Americans who comprise 62 

percent of their workforce. One 

commenter said that the new limits on 

this NWP would also increase the Corps 

workload. 

This NWP provides authorization 

required under Section 404 of the Clean 

Water Act, for discharges of dredged or 

fill material into waters of the United 

States. The acreage and linear foot limits 

of this NWP are necessary to ensure that 

authorized activities result in minimal 

adverse effects on the aquatic 

environment. Compliance with other 

laws may be required for surface coal 

mining activities, but those decisions 

are made by the agencies responsible for 

administering those laws. District 

engineers will consider the criteria in 

paragraph (1) of section D, ‘‘District 

Engineer’s Decision’’ and other 

appropriate criteria, when making a 

minimal effects determination for a 

proposed NWP activity. Activities that 

result in the loss of greater than 1⁄2-acre 

of waters of the United States require 

individual permits, unless those 

activities qualify for applicable regional 

general permits. If an individual permit 

is required, district engineers will 

determine whether an environmental 

impact statement is necessary to comply 

with the requirements of the National 

Environmental Policy Act. We do not 

agree that there should be a transition 

period for these activities, because the 

acreage and linear foot limits are 

necessary to comply with Section 404(e) 

of the Clean Water Act, and past use of 

this NWP indicates that the average loss 

of waters of the United States was 0.21 

acre per NWP 50 activity. While there 

might be an increase in the number of 

individual permits, we do not believe it 

will be a large workload increase. As 

with all NWPs, an activity that was 

authorized under the 2007 NWPs has 

until March 18, 2013, to be completed 

under this authorization. 

One state agency indicated 

implementation of the limits would 

result in increased workload for their 

staff and requested that funding be 

provided to their office to mitigate this 

increase. One commenter stated that 

sites which contain reclaimed and 

abandoned mines associated with deep 

mining operations with portals and/or 

bat habitat should be assessed for bat 

use. 

Any workload increase due to the 

addition of the 1⁄2-acre and 300 linear 

foot limits would be borne primarily by 

the Corps districts. It does not directly 

impose additional workload on state 

agencies. The SMCRA permits required 

for all mining activities must go through 

advanced coordination with the U.S. 

Fish and Wildlife Service regarding 

endangered bat species and with the 

State natural resources agencies 

regarding state listed bat species. Effects 

to wildlife, including bats, that are not 

federally-listed as endangered or 

threatened, or state-listed bat species, 

will also be addressed through the 

SMCRA permit process. For federallylisted bat species, activities authorized 

by this NWP must also comply with 

general condition 18, endangered 

species. 

This NWP is reissued as proposed. 

NWP 51. Land-Based Renewable 

Energy Generation Facilities. This NWP 

was proposed as NWP A to authorize 

the discharges of dredged or fill material 

into non-tidal waters of the United 

States, excluding non-tidal wetlands 

adjacent to tidal waters, for the 

construction, expansion, or 

modification of land-based renewable 

energy production facilities. Examples 

include infrastructure to generate solar 

(concentrating solar power and 

photovoltaic), biomass, wind or 

geothermal energy and their collection 

systems. Attendant features may 

include, but are not limited to roads, 

parking lots, utility lines, and 

stormwater management facilities. We 

proposed a 1⁄2-acre limit for this NWP, 

including the loss of no more than 300 

linear feet of stream bed, unless for 

intermittent and ephemeral stream beds 

the district engineer waives this 300 

linear foot limit by making a written 

determination concluding that the 

discharge will result in minimal adverse 

effects. 

Several commenters objected to the 

issuance of this NWP, stating that the 

Corps had failed to explain why the 

direct and indirect impacts resulting 

from the land-based renewable energy 

projects authorized by this NWP would 

be minimal, including the impacts 

caused by construction and operation of 

these facilities. These commenters said 

that individual permits should be 

required for these facilities. One of these 

commenters said that biomass facilities 

will significantly add to greenhouse gas 


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emissions and expressed the belief that 

biomass facilities will lead to increased 

land-clearing for harvest, planting and 

re-planting of trees. Several commenters 

stated that wind turbines will cause 

direct mortality on birds and bats and 

adversely affect critical avian and bat 

habitat. Two commenters stated that 

wind-generated energy facilities should 

incorporate guidelines developed by the 

U.S. Fish and Wildlife Service to 

minimize impacts to avian and bat 

species. One commenter stated that 

land-based wind and solar renewable 

energy facilities are not water 

dependent and should always require 

individual permits to allow for a 

thorough alternatives analysis for site 

selection. Several commenters stated 

that the activities authorized by this 

NWP are not similar in nature, since 

they involve various types of renewable 

energy facilities that have different 

adverse environmental effects. 

This NWP authorizes discharges of 

dredged or fill material into waters of 

the United States for the construction, 

expansion, or modification of landbased renewable energy facilities. 

Unless the operation of these facilities 

involves discharges of dredged or fill 

material into waters of the United 

States, the Corps does not authorize, or 

have any Federal control or 

responsibility over, their operation. We 

believe that the construction, expansion, 

or modification of these facilities has 

minimal adverse effects on the aquatic 

environment, individually and 

cumulatively. Division engineers can 

regionally condition this NWP to restrict 

or prohibit its use in waters of the 

United States, where the discharges of 

dredged or fill material are likely to 

result in more than minimal adverse 

effects on the aquatic environment. 

While there may be emissions of 

greenhouse gases during construction 

activities involving discharges of 

dredged or fill material into waters of 

the United States, those direct emissions 

will generally not exceed de minimus 

levels of a criteria pollutant or its 

precursors and are exempted by 40 CFR 

93.153. Emissions of greenhouse gases 

that occur from the operation of a landbased renewable energy generation 

facility, as well as emissions that occur 

when harvesting plant material for 

biomass energy production and 

operating the energy generation facility, 

are outside the Corps scope of analysis 

under the National Environmental 

Policy Act, because the Corps does not 

have the legal authority to control such 

emissions. The 404(b)(1) Guidelines do 

not include any requirements to assess 

effects of proposed discharges of 

dredged or fill material into waters of 

the United States on greenhouse gas 

emissions. Land clearing that may be 

conducted for the harvesting, planting, 

and replanting of trees that provide fuel 

for biomass energy facilities is not 

authorized by this NWP, and if such 

activities involve discharges of dredged 

or fill material into waters of the United 

States, a separate Department of the 

Army permit is required. 

If the construction, expansion, or 

modification of a land-based renewable 

energy facility involves discharges of 

dredged or fill material into waters of 

the United States, and that activity may 

affect an endangered or threatened 

species, or is located in designated 

critical habitat, Endangered Species Act 

Section 7 consultation is required, and 

the activity cannot proceed until section 

7 consultation is completed. We have 

added general condition 19, migratory 

birds and bald and golden eagles, to 

clarify that if an activity regulated by 

the Corps will result in the ‘‘take’’ of a 

migratory bird or a Bald or Golden 

Eagle, and a ‘‘take’’ permit is required 

from the U.S. Fish and Wildlife Service, 

it is the responsibility of the permittee 

to apply for, and obtain, the appropriate 

‘‘take’’ permits from the U.S. Fish and 

Wildlife Service. The draft Land-based 

Wind Turbine Guidelines developed by 

the U.S. Fish and Wildlife Service are 

voluntary guidelines that project 

proponents may incorporate into their 

land-based wind energy projects. The 

Corps does not have the authority to 

condition this NWP to incorporate the 

recommendations provided in those 

guidelines. Water dependency is not a 

requirement for authorization by general 

permit, including nationwide permits. 

The water dependency test in the 

404(b)(1) Guidelines guides the 

alternatives analysis for activities that 

require individual permits under 

Section 404 of the Clean Water Act. 

The activities authorized by this NWP 

(i.e., discharges of dredged or fill 

material into waters of the United States 

for the construction, expansion, or 

modification of land-based renewable 

energy facilities) are similar in nature. 

The Corps interprets the ‘‘similar in 

nature’’ requirement in Section 404(e) of 

the Clean Water Act broadly, to cover 

general categories of activities. The 

discharges of dredged or fill material 

authorized by this NWP will have 

similar effects on the aquatic 

environment, by replacing waters of the 

United States with dry land, or altering 

their characteristics, when renewable 

energy facilities are constructed, 

modified, or expanded. 

Two commenters expressed concern 

that if NWP A is issued, all land-based 

renewable energy facilities will require 

pre-construction notification because 

they could only be authorized by this 

NWP. Several commenters stated that 

NWP A should not be issued because all 

types of land-based renewable energy 

facilities can be authorized by existing 

NWPs, such as NWPs 12, 14, 18, 25, and 

39, and it is not necessary to issue a new 

NWP that requires pre-construction 

notification for all activities. They also 

said that the issuance of NWP A would 

contradict the Corps stated goals of 

reducing administrative burdens on the 

regulated public, and utilizing its 

resources to focus on those projects that 

could be more environmentally 

damaging. One commenter stated that 

the pre-construction notification 

requirement would cause an 

unnecessary burden on project 

proponents, especially the requirement 

to provide a delineation of waters of the 

United States in the project area. 

We are retaining the requirement that 

all activities authorized by this NWP 

require pre-construction notification, so 

that district engineers can evaluate these 

activities and add activity-specific 

conditions, if necessary, to ensure that 

they result in minimal individual and 

cumulative adverse effects on the 

aquatic environment. Other NWPs may 

be used to authorize discharges of 

dredged or fill material into waters of 

the United States for activities that may 

be associated with land-based 

renewable energy facilities. We do not 

intend issuance of this NWP to restrict 

currently available options for use of 

other NWPs to authorize any such 

discharges. For example, NWP 12 may 

be used to authorize discharges of 

dredged or fill material associated with 

the construction, maintenance, repair, 

or removal of utility lines for land-based 

renewable energy facilities. Likewise, 

NWP 14 may be used to authorize road 

crossings in waters of the United States 

within a land-based renewable energy 

facility. Project proponents may specify 

which NWP they wish to use to provide 

the requisite Department of the Army 

authorization under Section 404 of the 

Clean Water Act and/or Section 10 of 

the Rivers and Harbors Act of 1899. If 

the proposed activity qualifies for 

authorization under that particular 

NWP, the district engineer will issue a 

verification letter. This NWP fulfills the 

objectives of the NWP program, since 

many land-based renewable energy 

projects require discharges of dredge or 

fill material into waters of the United 

States that would not qualify for NWPs 

12 or 14, or other NWPs that do not 

require pre-construction notification. 

One commenter suggested changing 

the pre-construction notification 


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threshold to 1⁄10-acre, so that 

compensatory mitigation would not be 

required for activities resulting in the 

loss of less than 1⁄10-acre of waters of the 

United States. Another commenter said 

that requiring pre-construction 

notification for losses of less than 1⁄10- 

acre removes incentives to minimize 

losses of waters of the United States to 

less than 1⁄10-acre. Two commenters 

stated that increasing the preconstruction notification threshold to 

1⁄10-acre would be more consistent with 

Executive Order 13212, Actions To 

Expedite Energy-Related Projects. 

We do not agree that the preconstruction notification threshold 

should be increased to 1⁄10-acre to match 

the pre-construction notification 

thresholds for NWP 12 or 14, since 

utility lines or road crossings may be 

only partial components of a land-based 

renewable energy generation facility. It 

should be noted that NWP 14 requires 

pre-construction notification for any 

discharge into a special aquatic site, 

including wetlands, which means that 

many NWP 14 activities that result in a 

loss of less than 1⁄10-acre require preconstruction notification. Nationwide 

permit 12 should be used when the only 

activities that require Department of the 

Army authorization are discharges of 

dredged or fill material to construct, 

maintain, repair, or remove utility lines. 

Therefore, in Note 1 we state that NWP 

12 is to be used to authorize those 

utility line activities, as long as those 

activities comply with the terms and 

conditions of NWP 12, including 

applicable regional conditions and any 

case-specific conditions imposed by the 

district engineer. This NWP authorizes 

building pads for the renewable energy 

generation devices and attendant 

features associated with those devices, 

such as parking lots and stormwater 

management facilities. If more than one 

NWP is used to authorize a land-based 

renewable energy generation facility, the 

activity must comply with general 

condition 28, use of multiple 

nationwide permits, which states that 

the loss of waters of the United States 

cannot exceed the acreage limit of the 

NWP with the highest specified acreage 

limit. Compensatory mitigation is at the 

discretion of the district engineer, and 

will be required when necessary to 

ensure that the authorized activity 

results in minimal individual and 

cumulative adverse effects on the 

aquatic environment. Paragraph (a) of 

general condition 23, mitigation, 

requires permittees to avoid both 

temporary and permanent adverse 

effects to waters of the United States on 

the project site. The issuance of this 

NWP supports the objective of 

Executive Order 13212, by providing 

NWP authorization for some activities 

that would otherwise require individual 

permits because they do not qualify for 

any of the existing NWPs. 

Two commenters agreed that NWP A 

is needed but said that many land-based 

renewable energy projects would not 

qualify because the losses of waters of 

the United States frequently exceed the 

acreage or linear foot limits. One 

commenter suggested increasing the 

acreage limit to one acre and the linear 

foot limit to 500 linear feet of stream 

bed, and allow the district engineer to 

waive the 500 linear foot limit if he or 

she determines that the activity will 

result in minimal adverse 

environmental effects. One commenter 

stated that NWP A should not allow 

waivers for stream bed losses in excess 

of 300 linear feet. 

We believe that there will be a 

sufficient number of land-based 

renewable energy generation facilities 

authorized by this NWP to warrant its 

issuance. As with all general permits, 

this NWP will also provide an incentive 

for project proponents to reduce losses 

of waters of the United States to qualify 

for NWP authorization, instead of 

having to apply for individual permit 

authorization, if there are no regional 

general permits available to authorize 

these activities. The 1⁄2-acre and 300 

linear foot limits are necessary to ensure 

that this NWP authorizes only those 

activities that have minimal individual 

and cumulative adverse effects on the 

aquatic environment, and are consistent 

with the limits in many other NWPs. 

Division engineers can regionally 

condition this NWP to reduce the 

acreage limit or linear foot limits, or 

revoke this NWP in specific waters or 

geographic areas where the adverse 

effects on the aquatic environment may 

be more than minimal. In response to a 

pre-construction notification, the 

district engineer may add activityspecific conditions to the NWP 

authorization to impose requirements to 

satisfy the minimal adverse 

environmental effect requirement. The 

300 linear foot limit for the loss of 

intermittent and ephemeral stream bed 

can only be waived when the district 

engineer makes a written determination 

that the loss of that stream bed will 

result in minimal adverse 

environmental effects, after evaluating 

the site-specific characteristics of the 

project. 

Several commenters said that all preconstruction notifications should be 

coordinated with other Federal and state 

agencies. One commenter stated that 

agency coordination should be required 

whenever a request for a waiver of the 

300 linear foot limit is being evaluated 

by the district engineer. One commenter 

stated that this NWP should not include 

the waiver provision because of 

potential impacts to cultural resources 

and historic properties. 

We do not believe it is necessary to 

coordinate all activities authorized by 

this NWP with Federal and state 

agencies. District engineers will 

carefully evaluate these preconstruction notifications and 

determine whether the proposed 

activities qualify for NWP authorization. 

Agency coordination is required for preconstruction notifications for proposed 

activities resulting in the loss of 

intermittent or ephemeral stream bed in 

excess of 300 linear feet. Activities 

authorized by this NWP must also 

comply with general condition 20, 

historic properties and district engineers 

will conduct section 106 consultation if 

a proposed activity may have the 

potential to cause effects to any historic 

properties listed, or eligible for listing, 

on the National Register of Historic 

Places. 

Several commenters requested 

clarification on whether land-based 

renewable energy facilities would be 

considered as single and complete 

linear projects or single and complete 

non-linear projects. Several commenters 

asked if the linear features of these 

facilities, such as roads, utilities, and 

transmission lines, could be categorized 

as linear projects, while the 

construction of other components of the 

project, such as parking lots and 

buildings, would be considered as nonlinear projects. A few commenters said 

terms and conditions should be added 

to the NWP to specify that the definition 

of single and complete linear project 

would always be used for linear 

components of the overall facility. One 

commenter stated that the activities 

authorized by this NWP should be 

considered one single and complete 

project because all renewable energy 

devices and their attendant features, 

including both linear and non-linear 

components, are required for the facility 

to have independent utility. 

We have added Note 1 to this NWP 

to clarify that the NWP authorizes 

discharges of dredged or fill material 

into waters of the United States for the 

construction, expansion, or 

modification of a land-based renewable 

energy generation facility, including 

attendant features within that facility, 

and that utility lines that are used to 

transfer energy from the renewable 

energy generation facility to a 

distribution system, regional grid, or 

other facility are generally considered to 


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be separate single and complete linear 

projects. Those utility lines may be 

authorized by NWP 12 or other 

Department of the Army authorization. 

A similar approach should be used for 

roads or other types of utility lines (e.g., 

sewage or water lines) constructed to 

provide access to, or service, the landbased renewable energy generation 

facility. We are using the term 

‘‘generally’’ in Note 1 because crossings 

of waters of the United States have to be 

at separate and distant locations to be a 

single and complete project. Crossings 

that are close together would not be 

considered separate single and complete 

projects. Since the configuration of 

land-based renewable energy generation 

facilities can vary substantially, district 

engineers will use their discretion to 

determine which activities are single 

and complete linear projects and which 

activities are single and complete nonlinear projects, after evaluating the 

specific circumstances of a particular 

project. For example, the devices used 

to collect wind or solar energy may be 

arranged in a grid or in a linear 

configuration. 

One commenter asked how the permit 

area would be determined for landbased renewable energy facilities. 

Specifically, the commenter asked 

whether the permit area would be the 

entire area bound by the perimeter of 

the facility, or just those areas within 

the facility where there are discharges of 

fill material into waters of the United 

States. 

Identifying the permit area for the 

purposes of compliance with general 

condition 20, historic properties, is 

accomplished by applying the criteria in 

Appendix C to 33 CFR part 325, 

specifically paragraph 1(g), as well as 

the interim guidance issued on April 25, 

2005 (paragraph 6(d)). The permit area 

will be determined by district engineers 

after considering the project-specific 

circumstances. 

Several commenters stated that this 

NWP should not authorize activities in 

certain geographic areas, such as the 

Great Lakes. One commenter said that 

approval may be required for facilities 

that would impact state-owned waters 

or submerged lands. 

Division engineers have the authority 

to suspend or revoke this NWP in 

specific waters or geographic areas. 

Division engineers may also add 

regional conditions to restrict or 

prohibit its use in certain waters or 

regions. In response to a preconstruction notification, district 

engineers may add activity-specific 

conditions to the NWP authorization to 

ensure that the activity results in 

minimal adverse effects on the aquatic 

environment. Project proponents must 

obtain all applicable Federal, state, or 

local authorizations, such as state 

permits to authorize activities on stateowned waters or submerged lands. 

One commenter said that this NWP 

could be used to authorize activities 

associated with wind energy generating 

structures, solar towers, or overhead 

transmission lines, which have the 

potential to interfere with Department of 

Defense’s long range surveillance, 

homeland defense, testing, and training 

missions. This commenter requested 

that copies of pre-construction 

notifications and NWP verification 

letters for these activities be provided to 

the Department of Defense Siting 

Clearinghouse, so that the Department 

of Defense could have an opportunity to 

coordinate with the project proponent to 

ensure that long range surveillance, 

homeland defense, testing, and training 

missions are not adversely affected by 

these activities. 

We have added Note 2 to this NWP 

to require district engineers to send preconstruction notifications and NWP 

verification letters to the Department of 

Defense Siting Clearinghouse if this 

NWP is proposed to be used to 

authorize the construction of wind 

energy generating structures, solar 

towers, or overhead transmission lines. 

The Department of Defense Siting 

Clearinghouse is responsible for 

coordinating with the project proponent 

and resolving any potential effects on 

Department of Defense long range 

surveillance, homeland defense, testing, 

and training missions. 

Proposed NWP A is issued as NWP 

51, with the changes discussed above. 

NWP 52. Water-Based Renewable 

Energy Generation Pilot Projects. This 

NWP was proposed as NWP B to 

authorize structures or work in 

navigable waters of the United States 

and discharges of dredged or fill 

material into waters of the United 

States, for the construction, expansion, 

or modification of water-based wind or 

hydrokinetic renewable energy 

generation pilot projects and their 

attendant features. Attendant features 

may include, but are not limited to landbased distribution facilities, roads, 

parking lots, utility lines, and 

stormwater management facilities. We 

proposed a 1⁄2-acre limit for this NWP, 

including the loss of no more than 300 

linear feet of stream bed, unless for 

intermittent and ephemeral stream beds 

the district engineer waives this 300 

linear foot limit by making a written 

determination concluding that the 

discharge will result in minimal adverse 

effects. 

Several commenters supported the 

issuance of this NWP. Some of these 

commenters provided suggestions to 

improve the NWP. Two commenters 

said the acreage limit should be 

increased from 1⁄2-acre to one acre and 

the linear foot limit be increased from 

300 linear feet to 500 linear feet. One 

commenter stated that the NWP limits 

impacts to 1⁄2-acre without taking into 

consideration the aggregate capacity of 

the facility, only the number of 

generation units. One commenter said 

the pre-construction notification 

threshold should be increased to 1⁄10- 

acre to be consistent with the preconstruction notification threshold of 

some of the other NWPs that authorize 

similar activities, such as NWP 12. This 

commenter asked why activities 

associated with water-based renewable 

energy projects should be subject to 

closer scrutiny than other energy-related 

activities. 

We are issuing this NWP with the 1⁄2- 

acre and 300 linear foot limits, and 

restricting its use to pilot projects, to 

ensure that this NWP authorizes only 

those activities that have minimal 

adverse effects on the aquatic 

environment. Division engineers can 

impose regional conditions on this NWP 

to decrease these limits, if there is 

potential for these activities to result in 

more than minimal adverse effects on 

the aquatic environment in a particular 

waterbody or geographic area. 

Individual permits, with a public notice 

and comment process, should be 

required for larger-scale water-based 

renewable energy generation facilities 

that are not pilot projects and involve 

activities that require Department of the 

Army authorization. Use of technologies 

other than wind or hydrokinetic devices 

for water-based renewable energy 

generation facilities may be authorized 

by other forms of Department of the 

Army permits, if such permits are 

required for the construction, 

expansion, modification, or removal of 

those devices. We are requiring preconstruction notification for all 

activities authorized by this NWP, so 

that district engineers can evaluate the 

proposed work and make a projectspecific determination that the adverse 

effects on navigation, the aquatic 

environment, and other public interest 

review factors would be minimal, 

individually and cumulatively. It 

should be noted that NWP 12 only 

authorizes discharges of dredged or fill 

material, or structures or work in 

navigable waters of the United States, 

for the construction, maintenance, or 

repair of utility lines, and that all NWP 

12 activities in section 10 waters require 


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pre-construction notification. Therefore, 

there are few differences in preconstruction notification thresholds for 

this NWP and other NWPs that may 

authorize similar activities. However, as 

with NWP 51, it is not our intent to 

limit any currently available options for 

use of other applicable NWPs to cover 

discharges of dredge or fill material 

associated with activities involved in 

the construction of water-based 

renewable energy generation pilot 

projects. Rather, this NWP provides an 

additional option for authorization of 

such discharges that are not currently 

covered by any other NWP. 

Several commenters also stated that 

the limit of 10 generation units should 

either be eliminated or further defined. 

Several commenters said the 10 

generation unit limit should be removed 

to allow projects that employ different 

technologies to be authorized by this 

NWP. Several commenters said that the 

total number of generation units should 

be defined as the total number of units 

per each single and complete project. 

We believe the 10-unit limit is 

necessary to ensure that these pilot 

projects are small in scope, to ensure 

they would not have significant adverse 

environmental effects. The 10-unit limit, 

as well as the 1⁄2-acre and 300 linear foot 

limits, apply to single and complete 

projects. The information collected 

during these pilot projects will be useful 

in evaluating the potential productivity, 

feasibility, and environmental effects of 

larger scale water-based renewable 

energy generation facilities, which will 

require other types of authorization if 

they require DA permits. 

Numerous commenters objected to the 

issuance of this NWP. Most of these 

commenters said that these activities 

will result in more than minimal 

individual and cumulative adverse 

effects on the aquatic environment. 

Several commenters said that there is 

not sufficient understanding of the 

environmental effects of these activities 

to warrant issuance of an NWP. Some 

commenters stated that these activities 

should be authorized by individual 

permits, with a full public notice and 

comment process and National 

Environmental Policy Act 

documentation. A few commenters said 

this NWP should not be used to 

authorize activities in the Great Lakes. 

The terms and conditions of this 

NWP, including the 1⁄2-acre limit, the 

300 linear foot limit, and the 10-unit 

limit will ensure that this NWP 

authorizes only those activities with 

minimal adverse effects on the aquatic 

environment. All activities authorized 

by this NWP require pre-construction 

notification, which provides district 

engineers with the opportunity to 

review each proposed activity and 

determine whether the adverse effects 

on the aquatic environment will be 

minimal. District engineers may add 

activity-specific conditions to the NWP 

authorization which require actions to 

mitigate adverse environmental effects. 

District engineers may also exercise 

discretionary authority to require an 

individual permit if permit conditions 

will not be sufficient to comply with the 

minimal adverse environmental effects 

requirement for general permits. 

Division engineers may impose regional 

conditions to restrict or prohibit the use 

of this NWP in certain waters or specific 

geographic areas, including the Great 

Lakes. 

Several commenters requested a 

definition of the term ‘‘pilot project.’’ 

Some of these commenters said that this 

term could be interpreted broadly, in 

part because much of the technology 

used for water-based renewable energy 

generation facilities is in the early stages 

of development. In contrast, another 

commenter stated that not defining the 

term ‘‘pilot project’’ would restrict the 

applicability of this NWP. One 

commenter suggested that this NWP not 

be limited to pilot projects. One 

commenter recommended limiting pilot 

projects to those that will be used as 

demonstration projects or test projects 

to determine the practicability of waterbased renewable energy generation at a 

particular site. One commenter said that 

this NWP should not be limited to small 

offshore wind energy pilot projects, and 

that this NWP should authorize offshore 

wind energy projects of any duration to 

encourage the development of 

renewable energy technologies. 

We have added a provision to this 

NWP that defines the term ‘‘pilot 

project.’’ The definition is similar to 

how the Federal Energy Regulatory 

Commission describes hydrokinetic 

pilot projects in their April 2008 white 

paper on licensing hydrokinetic pilot 

projects. The definition in the NWP 

focuses on the experimental nature of 

pilot projects, and their use in collecting 

data on the performance of the device in 

generating energy for other uses and the 

effects of the devices on the 

environment, including the aquatic 

environment. Due to the recent 

development of this technology, we 

believe it is necessary to limit these 

water-based renewable energy 

generation facilities to pilot projects, to 

provide more information on potential 

adverse effects to the aquatic 

environment. In a future reissuance of 

the NWPs, we may consider expanding 

the scope of this NWP to authorize other 

small-scale water-based renewable 

energy generation facilities. A waterbased renewable energy generation 

facility that is not a pilot project and 

does not qualify for an applicable 

regional general permit is more 

appropriately evaluated through the 

standard permit process, including a 

full public interest review. 

One commenter stated that even pilot 

projects may result in more than 

minimal adverse effects on the aquatic 

environment because of indirect effects 

caused by blade strikes on birds and 

potential obstructions to navigation 

when these pilot projects are sited in 

navigable rivers. One commenter said 

the 10 generation unit limit may not be 

effective in ensuring that single and 

complete projects do not cause more 

than minimal adverse environmental 

effects on a cumulative basis or comply 

with monitoring requirements. 

District engineers will review preconstruction notifications and 

determine whether the proposed 

activity complies with all terms and 

conditions of the NWP and may add 

activity-specific conditions, such as 

authorizing less than 10 units, to 

minimize adverse effects to navigation, 

the aquatic environment, and other 

public interest review factors such as 

impacts to fish and wildlife values. 

Indirect effects caused by the operation 

of these pilot projects, such as wind 

turbine blade strikes on birds, should be 

addressed through compliance with the 

appropriate Federal laws, such as the 

Endangered Species Act, Migratory Bird 

Treaty Act, or Bald and Golden Eagle 

Protection Act. Compliance with the 

Endangered Species Act is addressed 

through general condition 18. As stated 

in general condition 19, project 

proponents are responsible for obtaining 

any take permits that may be required 

under the Migratory Bird Treaty Act or 

the Bald and Golden Eagle Protection 

Act. The project proponent should 

contact the local office of the U.S. Fish 

and Wildlife Service to determine 

whether a take permit is required for 

that project. Impacts to fish or other 

aquatic organisms caused by 

hydrokinetic energy units should be 

considered by district engineers when 

reviewing pre-construction notifications 

for activities authorized by this NWP. 

District engineers may also suspend or 

revoke NWP authorizations if they 

determine those activities are causing 

more than minimal adverse 

environmental effects to the aquatic 

environment. Division engineers may 

impose regional conditions on this NWP 

to reduce the number of units 

authorized by this NWP, or restrict or 

prohibit its use in specific waters or 

other geographic areas. 


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Several commenters requested 

clarification of applicability of the 300 

linear foot stream limit to the ocean 

floor or the Great Lakes because those 

waters are not characterized as streams. 

A few commenters suggested that the 

300 linear foot limit does not apply to 

water-based renewable energy 

generation pilot projects in the ocean or 

large rivers, since activities in those 

waters does not result in a loss of stream 

bed. 

We agree that the 300 linear foot limit 

does not apply to the construction, 

expansion, modification, or removal of 

water-based wind or hydrokinetic 

renewable energy devices in the ocean, 

Great Lakes, or large navigable rivers, 

since those activities do not result in 

loss of stream bed. The 300 linear foot 

limit also does not apply to the 

installation or removal of transmission 

lines on the ocean floor, the bottom of 

the Great Lakes, or the substrate of large 

navigable rivers. Transmission lines 

placed on the bottom of navigable 

waters are generally considered to be 

structures, not fill. District engineers 

will evaluate the techniques used to 

place transmission lines on the bottom 

of navigable waters and determine 

whether there is a discharge of dredged 

or fill material, and whether that 

discharge of dredged or fill results in a 

loss of waters of the United States 

subject to the 300 linear foot limit. The 

installation of transmission lines in 

these navigable waters in trenches that 

are backfilled constitutes a temporary 

impact and is not applied to the 300 

linear foot limit for the loss of stream 

bed. The 300 linear foot limit for the 

loss of stream bed applies primarily to 

the construction of land-based attendant 

features, such as distribution facilities, 

control facilities, roads, parking lots, 

and stormwater management facilities. 

We have added a provision to this NWP 

to clarify that the placement of a 

transmission line on the bed of a 

navigable water of the United States 

from the renewable energy generation 

unit(s) to a land-based collection facility 

is considered a structure regulated 

under Section 10 of the Rivers and 

Harbors Act of 1899, and not a discharge 

of fill material under Section 404 of the 

Clean Water Act. The placement of the 

transmission line on the bed of the 

navigable water is not considered a loss 

of waters of the United States that 

applies towards the 1⁄2-acre limit or 300 

linear foot limit of the NWP. 

Several commenters requested the 

addition of more categories of sensitive 

habitat where this NWP could not be 

used to authorize structures or work in 

navigable waters of the United States or 

discharges of dredged or fill material 

into waters of the United States for 

water-based renewable energy 

generation pilot projects. Two 

commenters suggested adding coral 

reefs to the list of prohibited areas. 

Another commenter suggested adding 

National wildlife refuges, state parks, 

state wildlife management areas, 

designated significant coastal areas, 

critical habitats for Federally-listed 

endangered and threatened species, 

important bird areas, or any sensitive 

environmental area. One commenter 

recommended adding eelgrass beds, 

seagrass beds, kelp beds, macro-algae 

beds, vegetated shallows, and shellfish 

beds to the list of excluded areas. 

The proposed NWP B stated that it 

did not authorize activities in coral 

reefs. This NWP is also subject to 

general condition 22, designated critical 

resource waters, which prohibits using 

this NWP to authorize discharges of 

dredged or fill material into critical 

resource waters and their adjacent 

wetlands. Critical resource waters 

include marine sanctuaries and marine 

monuments managed by the National 

Oceanic and Atmospheric 

Administration, and National Estuarine 

Research Reserves. District engineers 

may designate additional critical 

resource waters, after notice and an 

opportunity for public comment. 

Division engineers may also impose 

regional conditions to restrict or 

prohibit the use of this NWP in specific 

categories of waters or in certain 

geographic areas. In response to a preconstruction notification, district 

engineers may exercise discretionary 

authority and require an individual 

permit if the proposed activity will 

result in more than minimal adverse 

effects on the aquatic environment. 

One commenter said that district 

engineers should not be authorized to 

waive the 300 linear foot limit for the 

loss of intermittent and ephemeral 

stream bed. One commenter suggested 

that all pre-construction notifications 

requesting a waiver of the 300 linear 

foot limit should be coordinated with 

the Federal and state resource agencies. 

For those losses of more than 300 

linear feet of intermittent and ephemeral 

stream bed that result in minimal 

adverse effects on the aquatic 

environment, it is appropriate for 

district engineers to have the authority 

to waive the 300 linear foot limit. This 

approach is consistent with the 

statutory requirement that activities 

authorized by general permits, 

including NWPs, result in minimal 

individual and cumulative adverse 

environmental effects. Agency 

coordination is required for proposed 

losses of greater than 300 linear feet of 

intermittent and ephemeral stream bed. 

Two commenters recommended 

adding a provision to this NWP that 

requires the removal of structures 

associated with any activity authorized 

under this NWP, once the pilot project 

has been completed. One commenter 

suggested adding more examples of 

attendant features that may be 

authorized by this NWP, such as control 

rooms, trailers, vaults and sheds since 

these are common features of land-based 

distribution facilities. 

We have added a paragraph to this 

NWP that requires the permittee to 

remove the generation units, 

transmission lines, and other structures 

or fills associated with the pilot project 

once the pilot project is completed, 

unless they are authorized by a separate 

Department of the Army authorization, 

such as another NWP, an individual 

permit, or a regional general permit. 

Pilot units may be integrated into a 

permanent water-based renewable 

energy generation facility after the 

experimental phase has been completed, 

and the permanent facility has been 

authorized by any required Department 

of the Army permits. We have also 

added ‘‘removal’’ to the first sentence of 

this NWP, to clarify that the NWP also 

authorizes the removal of structures and 

fills associated with water-based 

renewable energy generation pilot 

projects, if, for example, the removal of 

structures or fills from navigable waters 

of the United States would require 

authorization under Section 10 of the 

Rivers and Harbors Act of 1899. 

Furthermore, we added a clarification of 

‘‘completion of the pilot project,’’ which 

will be identified as the date of 

expiration of the FERC (Federal Energy 

Regulatory Commission) license, or the 

expiration date of the NWP 

authorization if no FERC license is 

issued. If the project proponent wants to 

continue operating the pilot project after 

the expiration of the FERC license, he or 

she should apply for another form of DA 

permit, such as an individual permit. If 

the pilot project was only authorized by 

NWP 52, it may be verified under a 

reissued NWP 52, if NWP 52 is reissued 

in 2017. Reauthorization under a 

reissued NWP 52 may require 

submission of a new pre-construction 

notification, to ensure that the pilot 

project still meets the terms and 

conditions of the reissued NWP 52. We 

have added ‘‘control facilities’’ to the 

list of examples of attendant features. 

One commenter recommended adding 

a note to the NWP to require a mutual 

agreement between the Corps, the 

United States Coast Guard, and a 

prospective permittee to ensure 


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navigational safety. One commenter 

stated that the NWP should include a 

provision requiring compliance with 

state permit requirements to ensure a 

consistent and thorough environmental 

review. One commenter said that this 

NWP should require project proponents 

to comply with the Department of the 

Interior’s suggested practices for avian 

protection to protect birds from 

electrocution. 

We do not agree that it is necessary 

to require the execution of agreements 

between the Corps, United States Coast 

Guard, and the prospective permittee to 

ensure navigation safety. District 

engineers will review pre-construction 

notifications and exercise discretionary 

authority if the proposed activity will 

have more than minimal adverse effects 

on navigation. The permittee must 

comply with applicable United States 

Coast Guard requirements to mark or 

light structures in navigable waters. It is 

the permittee’s responsibility to obtain 

any other Federal, state, or local 

authorizations that may be required for 

the water-based renewable energy 

generation pilot project. The permittee 

may voluntarily incorporate into his or 

her project the Department of the 

Interior’s recommended practices for 

protecting birds from electrocution. If 

the proposed NWP activity may affect 

endangered or threatened bird species, 

Endangered Species Act Section 7 

consultation will be conducted, which 

may also address potential effects to 

those species caused by electrocution. 

In accordance with general condition 

19, migratory birds and bald and golden 

eagles, it is the permittee’s 

responsibility to obtain any ‘‘take’’ 

permits that may be required under the 

U.S. Fish and Wildlife Service’s 

regulations governing compliance with 

the Migratory Bird Treaty Act and the 

Bald and Golden Eagle Protection Act. 

One commenter said that this NWP 

could be used to authorize activities 

associated with wind energy generating 

structures, solar towers, or overhead 

transmission lines, which have the 

potential to interfere with Department of 

Defense’s long range surveillance, 

homeland defense, testing, and training 

missions. This commenter requested 

that copies of pre-construction 

notifications and NWP verification 

letters for these activities be provided to 

the Department of Defense Siting 

Clearinghouse, so that the Department 

of Defense could have an opportunity to 

coordinate with the project proponent to 

ensure that long range surveillance, 

homeland defense, testing, and training 

missions are not adversely affected by 

these activities. 

We have added Note 4 to this NWP 

to require district engineers to send preconstruction notifications and NWP 

verification letters to the Department of 

Defense Siting Clearinghouse if this 

NWP is proposed to be used to 

authorize the construction of wind 

energy generating structures, solar 

towers, or overhead transmission lines. 

The Department of Defense Siting 

Clearinghouse is responsible for 

coordinating with the project proponent 

and resolving any potential effects on 

Department of Defense long range 

surveillance, homeland defense, testing, 

and training missions. 

Proposed NWP B is issued as NWP 

52, with the changes discussed above. 

General Conditions 

One commenter suggested reordering 

the general conditions to better 

aggregate concepts based on importance 

to permittees and the resources 

potentially affected. One commenter 

recommended placing general 

conditions 14 and 20 together because 

they both address cultural resources. 

One commenter said that proposed 

general condition 30, pre-construction 

notification, should become general 

condition 1 because of its importance 

for potential users of the NWPs, in terms 

of the pre-construction notification 

requirements. 

With one exception, we have retained 

the order of the general conditions 

because we believe they are in a logical 

order. We have moved proposed general 

condition 14, discovery of previously 

unknown remains and artifacts, to 

become general condition 21 so that it 

follows general condition 20, historic 

properties. We have retained the preconstruction notification general 

condition in its place as the last general 

condition (as general condition 31), 

because the text of the NWPs state 

which activities require preconstruction notification. 

Two commenters suggested new 

general conditions to minimize 

construction impacts. One suggestion 

was to require flagging construction 

limits to protect nearby aquatic areas 

and the other recommended a general 

condition to address temporary 

crossings or structures. 

Requirements to flag construction 

limits are more appropriately addressed 

through activity-specific conditions 

added to an NWP authorization, when 

the district engineer determines such 

flagging is necessary to ensure the 

authorized activity results in minimal 

adverse effects on the aquatic 

environment. General condition 13, 

removal of temporary fills, and general 

condition 9, management of water 

flows, adequately address the concerns 

about temporary crossings and 

structures. 

One commenter said the phrase ‘‘as 

appropriate’’ should be deleted from the 

Note at the beginning of Section C, 

Nationwide Permit General Conditions. 

We have changed this phrase to ‘‘as 

applicable’’ to clarify that a permittee is 

responsible for complying with general 

conditions that are pertinent to a 

particular NWP activity. 

Comments on Specific General 

Conditions 

GC 1. Navigation. We did not propose 

any changes to this general condition 

and no comments were received. The 

general condition is adopted as 

proposed. 

GC 2. Aquatic Life Movements. We 

proposed to modify this general 

condition to provide added protection 

to the aquatic environment by 

promoting the use of bottomless 

culverts, when it is practicable to use 

those types of culverts to maintain 

movements of aquatic organisms. 

Two commenters supported the 

proposed changes to this general 

condition. One commenter said that all 

crossings should be designed by using a 

stream simulation technique. Another 

commenter stated that requirements for 

bottomless culverts should only apply 

to new activities. Many commenters 

said that culverts that are installed with 

their bottoms below the grade of the 

stream bed can be as effective as 

bottomless culverts in improving 

conditions for aquatic life movement 

while still being cost effective and 

providing the intended function of 

allowing movement of aquatic 

organisms. 

Many commenters objected to the 

proposed changes to this general 

condition, and most of these 

commenters requested that the reference 

to the use of bottomless culverts be 

removed, stating that in many cases that 

bottomless culverts are not practicable 

or cannot be used in many locations. A 

large number of commenters expressed 

concern that requiring the use of 

bottomless culverts would significantly 

increase costs and would not be 

feasible. Several commenters disagreed 

that the use of bottomless or buried 

culverts reduces overall impacts to 

streams, and some commenters said that 

use of bottomless culverts can cause 

adverse effects to streams by increasing 

erosion and head cuts. One commenter 

recommended promoting the use of 

alternative measures or techniques to 

maintain aquatic life movements. Some 

commenters said that the proposed 

changes to this general condition would 


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result in all affected activities requiring 

pre-construction notification. 

After evaluating the large number of 

comments received in response to the 

proposed changes to this general 

condition, we have generally reverted 

back to the text that was in the 2007 

general condition, with a few minor 

changes. We have modified the last 

sentence of the 2007 general condition 

to make it clear that the general 

condition applies to both temporary and 

permanent crossings, and that those 

crossings should be designed and 

constructed to maintain low flows to 

sustain the movement of indigenous 

aquatic species. We have not adopted 

the provision that would have required 

bottomless culverts to be used where 

practicable. In addition, we have not 

incorporated the sentence that explains 

some of the circumstances where 

bottomless culverts may not be 

practicable. In response to a preconstruction notification, the district 

engineer may evaluate the proposed 

crossing to determine whether it 

complies with this general condition. 

The district engineer may add 

conditions to the NWP authorization to 

require measures to sustain aquatic life 

movements, including bottomless 

culverts, if appropriate. 

Many commenters said that 

bottomless culverts require complex 

designs that require pile supported 

footings and many local and county 

governments do not have the resources 

available to design, construct, and 

maintain bottomless culverts in a 

manner that ensures roadway safety. 

Many commenters stated that 

bottomless culverts need more longterm maintenance and will increase 

costs and delays. One commenter noted 

that construction techniques required to 

install bottomless culverts may result in 

unsuitable conditions for aquatic life 

movement. Several commenters 

expressed concern that footings may 

deteriorate and undermine the integrity 

of the structure and increase the 

possibility of collapse during high flow 

conditions. Several commenters said 

bottomless culverts cannot be installed 

in areas with highly erodible or weak 

soils. One commenter asserted that 

bottomless culverts generally cannot 

support load conditions created by rail 

traffic. 

Because of the various factors that 

determine appropriate culvert designs 

for a particular waterbody, we are not 

adopting the proposed language 

concerning bottomless culverts. The 

general condition requires permanent 

and temporary crossings to be suitably 

culverted, bridged, or otherwise 

designed and constructed to fulfill the 

objective of the general condition, 

which is to sustain the movements of 

aquatic species indigenous to the 

waterbody, both during and after 

completion of the activity. 

Several commenters stated that 

requiring bottomless culverts or bottoms 

of culverts to be below the grade of the 

stream bed restricts design flexibility 

that reflects site specific conditions. 

One commenter said it is not practicable 

to install the bottoms of culverts below 

grade in all circumstances. One 

commenter said that the appropriate 

structure to allow aquatic life 

movements to continue should be 

determined by considering the land 

cover within the watershed, the 

variability of stream flow, and the 

presence or absence of aquatic life. One 

commenter indicated that it is not 

possible to bury pre-cast culverts 

because the bed material would be 

difficult to place. This commenter also 

said that below grade structures collect 

more debris and increase erosion on the 

downstream side of the culvert. This 

commenter expressed concern that 

culvert bottoms installed below grade 

would cause water to pool and provide 

habitat for pests such as mosquitoes. 

One commenter said that below grade 

culverts direct high velocity flows and 

create scour holes at the outlet and 

destabilize the banks. Another 

commenter stated that sinking a culvert 

below grade drains land used for row 

crops and accumulates silt that blocks 

aquatic life movements. 

We have also removed the provision 

requiring the bottoms of culverts to be 

installed below the grade of the stream 

bed unless the stream bed consists of 

bedrock or boulders. The modified 

general condition merely states that 

permanent and temporary crossings of 

waterbodies must be suitably culverted, 

bridged, or otherwise designed or 

constructed, to provide flexibility for 

using a crossing that is appropriate for 

the site conditions, while sustaining the 

movements of aquatic species 

indigenous to the waterbody. 

Many commenters said that the use of 

bottomless culverts should be limited to 

perennial streams. A number of 

commenters stated that many ephemeral 

and intermittent streams are not capable 

of supporting aquatic life or do not have 

sufficient aquatic life movement to 

justify the expense and technical design 

requirements for bottomless culverts. 

Several commenters said this general 

condition should not apply to 

ephemeral streams. One commenter 

stated that bottomless culverts should 

only be used in waters that support 

special status aquatic life species. One 

commenter said the bottomless culvert 

requirement should be limited to 

streams and not required for ditches or 

other waters. Another commenter 

expressed concern that installing the 

bottom of the culvert below grade will 

tend to dewater wetlands. 

The general condition has been 

reworded to provide flexibility to 

determine appropriate culvert design 

based on site-specific characteristics. 

Crossings of perennial, intermittent, and 

ephemeral streams must be 

appropriately designed and constructed 

to sustain the movement of indigenous 

aquatic species. 

Many commenters requested a 

definition of the term ‘‘practicable’’ as 

used in the context of the proposed 

general condition. One commenter said 

that regional variability should be 

considered when determining if it is 

practicable to use a bottomless culvert. 

Several commenters asked for more 

examples of when it would be 

impractical to use a bottomless culvert. 

One commenter requested clarification 

as to who would determine if use of a 

bottomless culvert is practicable. Many 

commenters said cost should be a 

primary factor used to determine if it is 

practicable to use a bottomless culvert. 

One commenter stated that there would 

be additional paperwork requirements 

necessary to evaluate the practicability 

of using bottomless culverts. 

The proposed provision requiring the 

use of bottomless culverts where 

practicable has not been adopted into 

the final general condition. The term 

‘‘practicable’’ is defined in the 404(b)(1) 

Guidelines at 40 CFR 230.3(q) as 

‘‘available and capable of being done 

after taking into consideration cost, 

existing technology, and logistics in 

light of overall project purposes.’’ 

However, it is no longer used in this 

general condition. 

One commenter said the general 

condition should include criteria to be 

used to determine whether there is a 

substantial disruption to aquatic life 

movement. Two commenters asked 

what threshold would be used to 

identify a substantial disruption. 

Another commenter stated that the 

general condition should list the species 

that would be covered. One commenter 

said this general condition would not 

sustain aquatic life movements during 

future high flows that are expected as a 

result of global climate change. 

Determining compliance with this 

general condition is at the discretion of 

the district engineer. It is not possible to 

define, on a national basis, what 

constitutes a substantial disruption of 

the necessary life cycle movements of 

aquatic species indigenous to the 

waterbody. It is not appropriate to 


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provide a national list of such species, 

but this condition generally applies to 

all indigenous species in the waterbody 

whose life-cycle movement may be 

affected by the project. How global 

climate change might affect the flow 

patterns and volumes of particular 

streams, rivers, or other waterbodies 

cannot be predicted with a reasonable 

degree of certainty. Crossing designs 

should be based on present conditions, 

and the crossing may be modified at a 

later time to accommodate changes in 

flow patterns and volumes that occur as 

environmental conditions change. 

One commenter stated that additional 

requirements for proper culvert sizing 

should be added to this general 

condition to ensure fish passage and 

reduce failure. This commenter said that 

natural bankfull capacity of the stream 

channel should be maintained. One 

commenter also recommended that 

culverts have a width of 1.2 times the 

bankfull width of the stream, and be 

embedded a minimum of two feet to 

maintain connected habitat and a stable 

stream bed. Another commenter stated 

that stream crossings should maintain 

natural flows, substrate, and stream 

grade from upstream to downstream of 

the culvert. This commenter suggested 

adding a provision that states that 

bridges or bottomless culverts are to be 

used when practicable. 

The proper sizing of culverts is more 

appropriately addressed through an 

evaluation of the site for the proposed 

NWP activity and the surrounding area. 

The general condition focuses on 

maintaining the necessary life cycle 

movements of aquatic species 

indigenous to the waterbody, not the 

geomorphic characteristics of the 

waterbody. Maintenance of water flows, 

including the proper width and height 

of culverts, bridges, and other crossings, 

is more appropriately addressed by 

general condition 9, management of 

water flows. We have modified this 

general condition to require permanent 

and temporary crossings to be suitably 

culverted, bridged, or otherwise 

designed and constructed to maintain 

low flows to sustain the movement of 

indigenous aquatic species. 

Two commenters requested that, if the 

proposed changes to this general 

condition are adopted, sufficient time 

should be provided for state, county, 

and local governments to update their 

design requirements to include 

bottomless culverts. One commenter 

stated it would take approximately two 

years to develop standards for 

bottomless and buried culvert 

installation. Another commenter 

expressed concern about the expense 

and time required to revise the plans 

and specifications for projects nearly 

ready for construction. 

We do not believe it is necessary to 

provide a grandfathering provision for 

the implementation of this general 

condition. The general condition 

provides substantial flexibility to design 

permanent and temporary crossings, 

and uses a results-driven approach to 

help ensure that NWP activities have 

only minimal adverse effects on the 

movement of indigenous species of 

aquatic organisms. Existing construction 

and design standards can be used to 

satisfy the objective of this general 

condition. 

The general condition is adopted with 

the modifications discussed above. 

GC 3. Spawning Areas. We did not 

propose any changes to this general 

condition. One commenter said this 

general condition should be removed, 

and replaced with regional conditions 

that require buffers for spawning areas. 

This commenter reasoned that local 

buffer requirements would be more 

appropriate for satisfying the 

requirements of the Endangered Species 

Act. Two commenters stated that only 

requiring avoidance of spawning areas 

to the maximum extent practicable is 

not sufficient, and one of those 

commenters said that the destruction of 

spawning areas should not be allowed 

under any circumstances. One 

commenter recommended modifying 

this general condition to prohibit 

activities that adversely affected all 

spawning areas. One commenter 

suggested explicitly including forage 

fish habitat and submerged aquatic 

vegetation as protected resources in this 

general condition. 

We are retaining this general 

condition because spawning areas are 

important components of the aquatic 

environment and should be addressed at 

the national level to ensure that NWP 

activities result in minimal adverse 

effects on the aquatic environment. 

Division engineers may impose regional 

conditions on this NWP to establish 

buffers to protect spawning areas for 

particular species. Activities authorized 

by NWPs must also comply with general 

condition 18, endangered species. The 

intent of this general condition is to 

minimize adverse effects to spawning 

areas caused by NWP activities, and it 

is not feasible to completely prohibit 

activities that may affect spawning 

areas. In areas where there are 

documented concerns for fish forage 

habitat or submerged aquatic vegetation, 

division engineers can add regional 

conditions to the NWPs to restrict or 

prohibit activities in those areas. 

This general condition is adopted as 

proposed. 

GC 4. Migratory Bird Breeding Areas. 

We did not propose any changes to this 

general condition. One commenter said 

this general condition should be 

removed and regional conditions should 

be used instead to establish buffers for 

migratory bird breeding areas. This 

commenter also stated that the 

requirement that NWP activities avoid 

breeding areas for migratory birds to the 

maximum extent practicable is not 

sufficient to protect those areas. One 

commenter said buffers established 

through regional conditions would 

satisfy Endangered Species Act 

requirements more effectively. 

This general condition addresses a 

national concern for breeding areas for 

migratory birds, and establishes a 

consistent, national requirement for 

regulated activities to avoid these areas 

to the maximum extent practicable. 

Nationwide permit activities that may 

affect migratory birds that are listed as 

endangered or threatened under the 

Endangered Species Act, or that may 

affect designated critical habitat, must 

comply with general condition 18, 

endangered species. 

This general condition is adopted as 

proposed. 

GC 5. Shellfish Beds. We did not 

propose any changes to this general 

condition. One commenter said the term 

‘‘concentrated shellfish populations’’ 

should be defined to specify a method 

to be used to identify such areas, 

because in some states shellfish beds are 

prominent features in waterways. 

Another commenter suggested changing 

the text of the general condition to state 

that shellfish beds created as habitat 

cannot be used for harvesting, and 

NWPs 4 and 48 could not authorize 

activities in those areas. One commenter 

recommended adding restoration 

projects authorized by NWP 27 to this 

general condition. 

The identification of concentrated 

shellfish populations for the purposes of 

determining compliance with this 

general condition is more appropriately 

conducted by district engineers using 

local criteria and methods. Shellfish 

beds established through habitat 

restoration projects may be used for 

growing shellfish for consumption and 

other uses, and the decision on whether 

harvesting in those areas should be 

allowed is at the discretion of Federal, 

state, and/or local authorities. We have 

added shellfish seeding or habitat 

restoration activities authorized by NWP 

27 to the list of NWP activities that may 

occur in areas of concentrated shellfish 

populations, since NWP 27 activities 

may improve habitat quality and further 

increase shellfish populations. 


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This general condition is adopted 

with the modification discussed above. 

GC 6. Suitable Material. We did not 

propose any changes to this general 

condition. One commenter 

recommended that this general 

condition should explicitly prohibit the 

use of tires as fill material, because tires 

can leach toxic amounts of chemicals 

that are harmful to aquatic species. One 

commenter said the general condition 

should be changed so that only 

environmentally suitable or stable 

material may be used as fill, because 

many plastics are unstable when 

exposed to ultraviolet light or 

temperature changes. One commenter 

stated that contaminated sediments 

should not be used as fill material. One 

commenter recommended modifying 

this general condition to minimize 

impacts to habitat and species caused by 

the leaching of heavy metals, pesticides, 

and polycyclic aromatic hydrocarbons. 

We do not believe it is necessary to 

add tires or plastics to the list of 

examples of unsuitable materials. 

Prohibiting the use of unsuitable 

materials is more effective and 

enforceable than stating that only 

environmental suitable or stable 

materials may be used. It is impractical, 

for the purposes of the NWP program, 

to establish what would constitute an 

environmentally suitable material since 

we are not aware of any Federal 

standards that could be applied, other 

than those covered under Section 307 of 

the Clean Water Act. A similar problem 

exists for identifying stable materials, 

because the timeframe that might be 

used to determine whether a particular 

material is ‘‘stable’’ would vary by the 

material. The district engineer will 

make a case-by-case determination of 

what constitutes unsuitable material. 

The current text of the general condition 

prohibits the use of contaminated 

sediment as fill material, if it contains 

toxic pollutants in toxic amounts. The 

general condition also prohibits the use 

of materials that contain heavy metals, 

pesticides, and polycyclic aromatic 

hydrocarbons in toxic amounts, in 

accordance with Section 307 of the 

Clean Water Act. 

This general condition is adopted as 

proposed. 

GC 7. Water Supply Intakes. We did 

not propose any changes to this general 

condition and no comments were 

received. The general condition is 

adopted as proposed. 

GC 8. Adverse Effects from 

Impoundments. We did not propose any 

changes to this general condition. One 

commenter said the general condition 

should include specific examples of 

how to reduce impacts associated with 

accelerating passage of water and how 

to prevent the restriction of normal 

water flows. Another commenter asked 

for a definition for the term ‘‘maximum 

extent practicable.’’ Two commenters 

stated that impoundments that cause 

adverse effects to the aquatic 

environment by changing water flows 

should not be authorized by NWPs and 

should instead require individual 

permits with agency coordination. 

Specific measures for reducing 

impacts caused by accelerated water 

flows or restricted water flows have to 

be determined on a case-by-case basis 

after considering the environmental 

characteristics of the site of the NWP 

activity. It would not be appropriate to 

establish such measures at a national 

level. An activity-specific evaluation 

would also have to be done to determine 

whether the minimization of these 

adverse effects has been accomplished 

to the maximum extent practicable. 

District engineers will use their 

discretion to determine compliance 

with this general condition. The term 

‘‘practicable’’ is defined in the 404(b)(1) 

Guidelines at 40 CFR 230.3(q) as 

‘‘available and capable of being done 

after taking into consideration cost, 

existing technology, and logistics in 

light of overall project purposes.’’ We do 

not agree that all impoundments should 

require individual permits; 

impoundments may be authorized by 

general permits, including NWPs, as 

long as they have minimal individual 

and cumulative adverse effects on the 

aquatic environment and comply with 

the applicable terms and conditions, 

including any general conditions, 

regional conditions, and activityspecific conditions, of an NWP 

authorization. 

This general condition is adopted as 

proposed. 

GC 9. Management of Water Flows. 

We did not propose any changes to this 

general condition. One commenter 

asked for a definition of the term 

‘‘expected high flows’’ and said the 

possibility of high flow events should be 

anticipated during project 

implementation. One commenter stated 

that this general condition should be 

modified to prohibit changes to stream 

channels in intertidal areas. One 

commenter stated that shoreline 

structures and fills, such as seawalls, 

bulkheads, and revetments, reflect wave 

energy that causes deep scouring of the 

shore, and over-steepened local shore 

faces. These induced hydraulic effects 

substantially alter the flow patterns in 

intertidal features such as ocean and 

estuarine beaches, wetlands and 

mudflats. 

It would be inappropriate to attempt 

to define the term ‘‘expected high 

flows’’ since it would depend on the 

environmental setting of the NWP 

activity. To comply with this general 

condition, the activity should not be 

substantially damaged by an expected 

high flow. Activities in stream channels 

located in intertidal areas are subject to 

this general condition and if a proposed 

NWP activity involves the alteration of 

intertidal stream channels and requires 

pre-construction notification, the 

district engineer will evaluate the 

proposed activity and determine 

whether it will result in minimal 

adverse effects on the aquatic 

environment. Bank stabilization 

activities should be designed and 

constructed to withstand expected high 

flows. Adverse effects to littoral or 

fluvial processes, or adverse effects 

caused by deflections of wave energy, 

should be considered by district 

engineers when evaluating preconstruction notifications for proposed 

bank stabilization activities. 

This general condition is adopted 

without change. 

GC 10. Fills Within 100-Year 

Floodplains. We did not propose any 

changes to this general condition. 

Several commenters explained the 

benefits of fully functional natural 

floodplains. Most of the commenters 

seemed to indicate that the Corps has 

regulatory jurisdiction over non-wetland 

floodplains. Several commenters 

objected to the general condition simply 

requiring compliance with Federal 

Emergency Management Agency 

(FEMA) approved state or local 

floodplain management requirements. 

Several commenters said that fills in 

floodplains identified by state or local 

FEMA-approved floodplain maps 

should only be authorized by individual 

permits, to ensure that state or local 

floodplain managers are aware of these 

activities. Two commenters stated that 

FEMA-approved standards are designed 

to ensure the public is reasonably safe 

from flooding, but these standards 

provide insufficient protection to 

waterways, floodplains, and other 

aquatic resources. One commenter said 

the Corps has an independent obligation 

to protect waters of the United States 

and this obligation extends to protection 

of floodplain resources. 

We acknowledge that floodplains 

provide important ecological functions 

and services, but it must also be 

understood that most areas within 100- 

year floodplains are not subject to Clean 

Water Act jurisdiction, because a large 

proportion of the area within 100-year 

floodplains consists of uplands. The 

Corps regulatory authority in 100-year 


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floodplains is usually limited to 

discharges of dredged or fill material 

into waters of the United States, 

including jurisdictional wetlands. The 

protection of floodplains is more 

appropriately addressed through land 

use planning and zoning, which is 

primarily the responsibility of state and 

local governments, as well as tribal 

governments. Land use planning and 

zoning can provide the holistic 

approach needed to protect floodplain 

functions and services, reduce economic 

losses through flood damage reduction, 

and protect human health and welfare. 

If state, local, or tribal governments have 

zoned areas of 100-year floodplains for 

residential developments or other uses, 

and if those activities involve discharges 

of dredged or fill material into waters of 

the United States and meet the terms 

and conditions of an applicable NWP, 

and the NWP activity results in minimal 

adverse effects on the aquatic 

environment or other relevant public 

interest review factors, then 

authorization by NWP is appropriate. 

This general condition also recognizes 

that FEMA, in partnership with state 

and local governments, is the more 

appropriate authority for floodplain 

management. It is not the responsibility 

of the Corps to ensure that project 

proponents seek any required 

authorizations from state or local 

floodplain managers. Such a 

requirement would not constitute a 

condition that could be enforced by the 

Corps. We are not relying on FEMAapproved state or local floodplain 

management requirements to protect 

waters of the United States located in 

100-year floodplains. The NWP program 

utilizes other tools, such as regional 

conditions, the district engineer’s ability 

to exercise discretionary authority to 

revoke, suspend, or modify an NWP 

authorization, and add activity-specific 

conditions to ensure that activities 

authorized by the NWP results in 

minimal individual and cumulative 

adverse effects on the aquatic 

environment and other public interest 

review factors. 

Two commenters stated that fills in 

100-year floodplains result in more than 

minimal adverse environmental effects 

and should not be authorized by NWP. 

One commenter suggested that the 

Corps evaluate NWP activities in 

floodplains and riparian areas in a more 

holistic manner than it did in previous 

NWP rulemaking efforts. One 

commenter said that authorizing 

discharges of fill material in waters of 

the United States in floodplains affects 

the ability to manage floodplains so that 

there are no adverse impacts. One 

commenter stated that coordination 

with the resource agencies should be 

required to protect habitat and 

biodiversity in floodplains. 

Discharges of dredged or fill material 

into waters of the United States located 

in 100-year floodplains often have 

minimal adverse effects on the aquatic 

environment, individually and 

cumulatively. Division engineers can 

impose regional conditions on one or 

more NWPs to restrict or prohibit their 

use in waters of the United States 

within 100-year floodplains if those 

NWP activities would result in more 

that minimal adverse effects on the 

aquatic environment. In response to a 

pre-construction notification, district 

engineers may exercise discretionary 

authority and require an individual 

permit if the adverse effects on the 

aquatic environment would be more 

than minimal. District engineers may 

also add activity-specific conditions to 

an NWP authorization to require 

measures to minimize adverse effects on 

the aquatic environment caused by 

NWP activities. Since the Corps 

Regulatory Program only regulates 

discharges of dredged or fill material 

into waters of the United States and 

structures or work in navigable waters 

of the United States, and most areas of 

100-year floodplains are not wetlands as 

defined at 33 CFR 328.3(b) or otherwise 

waters of the United States under 33 

CFR 328.3(a) and associated guidance, 

the Corps does not have the authority to 

take a holistic approach to floodplain 

management. In areas of the country 

where 100-year floodplains consist 

mostly of uplands, construction 

activities in these uplands may have a 

substantial adverse impact on these 100- 

year floodplains. We do not agree that 

agency coordination should be required 

for fills in 100-year floodplains, because 

district engineers have the necessary 

expertise to evaluate pre-construction 

notifications for potential adverse 

effects to habitat and biodiversity in 

these areas. 

Two commenters said the general 

condition should inform permittees of 

their responsibility to apply for a 

Conditional Letter of Map Revision from 

FEMA if they are discharging dredged or 

fill material into waters of the United 

States within 100-year floodplains. One 

commenter recognized that although 

proposed development projects must 

comply with all applicable Federal, 

state, regional and local regulatory 

requirements, many project proponents 

do not apply for all required permits. 

One commenter said that this general 

condition should be modified to require 

documentation of compliance with 

applicable FEMA-approved state or 

local floodplain management 

requirements. One commenter stated 

that FEMA-approved state or local 

floodplain management requirements do 

not adequately protect communities and 

resources from flood risks. 

We do not believe it is the Corps 

responsibility to notify a prospective 

permittee of his or her responsibility to 

apply for a Conditional Letter of Map 

Revision from FEMA if the overall 

project would modify the existing 

regulatory floodway, the effective base 

flood elevations, or a special flood 

hazard area. The discharge of dredged or 

fill material authorized by NWP is likely 

to be only a small proportion of the 

overall construction project within the 

100-year floodplain. Section E, Further 

Information, states that obtaining an 

NWP authorization does not obviate the 

need to obtain other Federal, state, or 

local permits, approvals, or 

authorizations required by law. Building 

permits to authorize the construction of 

the overall project are the responsibility 

of the state or local government, and 

should be based on compliance with the 

applicable FEMA-approved state or 

local floodplain management 

requirements. It is not the Corps 

responsibility to ensure that project 

proponents have complied with the 

applicable FEMA-approved state or 

local floodplain management 

requirements; the state or local 

governments responsible for floodplain 

management should enforce the 

requirements they established to qualify 

the community for the National Flood 

Insurance Program. If the floodplain 

management requirements developed by 

state or local governments are not 

adequately protecting communities from 

flood risks, then the agency that 

approved those requirements is the 

appropriate entity to reexamine those 

requirements. 

One commenter requested that the 

Corps report the extent to which NWPs 

are being used in floodplains, 

particularly in areas that have 

experienced repeated flood damages. 

Two commenters stated that this general 

condition ignores the Corps own public 

interest review processes and does not 

comply with Executive Order 11988. 

The Corps does not track the number 

of NWP activities that have occurred in 

floodplains, since our statutory 

authorities are focused on activities 

involving discharges of dredged or fill 

material into waters of the United States 

and/or structures or work in navigable 

waters of the United States. As stated 

above, many areas of 100-year 

floodplains are uplands and not waters 

of the United States. In addition, there 

is no consistent national coverage in 

floodplain maps, since such maps are 


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either not available for some areas of the 

country or the existing maps are 

outdated. This general condition is 

consistent with our regulations on the 

public interest review, specifically 33 

CFR 320.4(g), consideration of property 

ownership, 33 CFR 320.4(j), other 

Federal, state, or local requirements, 

and 33 CFR 320.4(l), floodplain 

management. Section 320.4(g)(1) states 

that an ‘‘inherent aspect of property 

ownership is the right to reasonable 

private use.’’ Section 320.4(j)(2) states 

that the primary responsibility for land 

use planning and zoning is with state 

and local governments. Section 320.4(l) 

requires consideration of whether 

practicable alternatives to floodplain 

development are available, and if there 

are no practicable alternatives, then 

impacts to human health, safety, and 

welfare, risks of flood losses, and 

impacts to natural and beneficial 

aspects of floodplains should be 

minimized to the maximum extent 

practicable. This NWP general 

condition, as well as the other terms and 

conditions of the NWPs, such as the 

acreage and linear foot limits for losses 

of waters of the United States, are 

consistent with the principles in these 

regulations because they require 

avoidance and minimization of adverse 

effects on the aquatic environment. 

Executive Order 11988 states that 

Federal agencies are to consider 

alternatives to ‘‘avoid adverse effects’’ to 

floodplains, and ‘‘minimize potential 

harm to or within the floodplain’’. The 

Executive Order also says that agencies 

should also consider flood hazards in 

the permit programs they administer. 

The adoption of general condition 10 

into the NWP program is consistent 

with Executive Order 11988. It is also 

consistent with Executive Order 13132, 

Federalism, because it recognizes the 

cooperative approach the Federal 

government has taken with state and 

local governments for floodplain 

management (i.e., federal review, by 

FEMA, of state or local floodplain 

management requirements). 

Two commenters suggested 

reinstating the provisions in the 2002 

NWPs that prohibited discharges of 

dredged or fill material into waters of 

the United States within mapped 100- 

year floodplains that would result in 

above-grade fills for residential, 

commercial and institutional 

developments, agriculture activities, 

recreational facilities, stormwater 

management facilities, and mining 

activities. 

We do not agree that the approach 

taken in the 2002 NWPs for fills in 100- 

year floodplains should be reinstated. 

There are sufficient safeguards in the 

NWPs, including the terms and 

conditions, pre-construction notification 

requirements, and the authority for 

district engineers to exercise 

discretionary authority and either 

require individual permits or add 

conditions to NWP authorizations, to 

ensure that NWP activities have 

minimal adverse effects on the aquatic 

environment, including public interest 

review factors such as floodplain values 

and flood hazards. 

Three commenters said that using 

NWPs to authorize discharges of 

dredged of fill material into waters of 

the United States will result in 

increased flood damages in coastal and 

riparian areas by reducing the amount of 

aquatic area available to absorb future 

floods that will likely be larger and 

more frequent due to climate change. 

They suggested increasing the 

application fee for NWPs to cover the 

estimated cost of permit processing and 

to offset future economic impacts of 

authorizing floodplain development. 

The flood storage capacity of a coastal 

or inland floodplain is dependent 

primarily on its topographic 

characteristics, including the amount of 

land area available for storing flood 

waters. Uplands also provide important 

ecological services such as flood storage. 

Flood damage reduction is more 

effectively accomplished through land 

use planning and zoning, which as 

discussed above, is primarily the 

responsibility of state, local, and tribal 

governments. Charging application fees 

for NWP pre-construction notifications 

or verification requests is not being 

considered at this time. 

This general condition is adopted as 

proposed. 

GC 11. Equipment. We did not 

propose any changes to this general 

condition. One commenter stated that 

the condition should be changed to 

include streams, and not be limited to 

wetlands or mudflats. 

The intent of this general condition is 

to ensure that heavy equipment used in 

special aquatic sites such as wetlands 

and mudflats does not cause more than 

minimal disturbances to their soils. The 

substrate of stream beds is generally not 

considered to be soil, and other general 

conditions such as general condition 12, 

soil and sediment controls, are more 

appropriate to control the movement 

and disturbance of stream bed 

sediments. District engineers may also 

add activity-specific conditions to NWP 

authorizations, such as requirements to 

use best management practices, to 

minimize disturbances to stream beds. 

This general condition is adopted as 

proposed. 

GC 12. Soil Erosion and Sediment 

Controls. We did not propose any 

changes to this general condition. One 

commenter said the general condition 

should provide specific steps that will 

ensure protection of downstream water 

quality during the construction of 

permitted activities. Two commenters 

suggested adding requirements to 

prevent the erosion of sediments 

resulting from harvesting shellfish. One 

commenter stated that disturbed areas 

should be stabilized and vegetated areas 

should be restored to pre-construction 

conditions or improved conditions. 

Specific best management practices 

and other measures to protect 

downstream water quality are more 

appropriately addressed by considering 

the activity-specific environmental 

setting and adopting practices and 

measures that will control soil erosion 

and sediment loads on the site of the 

authorized activity. District engineers 

may add conditions to the NWP 

authorizations to require permittees to 

use specific best management practices 

or other techniques to minimize soil 

erosion and reduce transport of 

sediment to waters and wetlands. We do 

not believe it is necessary to modify this 

general condition to address sediment 

movement that may occur during 

shellfish harvesting activities, because 

such movements are usually minor and 

temporary and have minimal adverse 

effects on the aquatic environment. The 

restoration of areas where temporary 

fills have been placed, including 

revegetating those areas, is more 

appropriately addressed by general 

condition 13, removal of temporary fills. 

This general condition is adopted 

without change. 

GC 13. Removal of Temporary Fills. 

We did not propose any changes to this 

general condition. One commenter said 

the general condition should require the 

removal of temporary fills during 

periods of low-flow or no-flow so that 

there will be little or no downstream 

transport of the fill material. 

It would be inappropriate to require 

that temporary fills be removed only 

during periods of low-flow or no-flow 

because it is not always practicable to 

wait until water flows are low or absent. 

In addition, more adverse effects to the 

aquatic environment may occur if the 

permittee is required to wait until low 

flow or no flow conditions exist. It is 

usually best to remove temporary fills as 

soon as possible to minimize sediment 

loads to downstream waters or to nearby 

wetlands. However, general condition 

12, soil erosion and sediment controls, 

encourages permittees to work in waters 

of the United States during periods of 

low or no flow, when possible. 


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This general condition is adopted as 

proposed. 

GC 14. Proper Maintenance. We did 

not propose any changes to this general 

condition. One commenter 

recommended changing the general 

condition to ensure that maintenance 

activities minimize impacts to waters 

and maintain downstream water quality. 

Another commenter suggested adding a 

provision that would require proper 

maintenance to ensure compliance with 

applicable NWP general conditions as 

well as conditions added to an NWP 

verification. 

The original intent of this general 

condition was to ensure that NWP 

activities are maintained so that they do 

not endanger public safety. There are 

other general conditions that more 

directly address minimization (e.g., 

general condition 23, mitigation) and 

water quality (e.g., general condition 12, 

soil erosion and sediment controls, and 

general condition 25, water quality). We 

agree that proper maintenance should 

also be required to comply with the 

terms and conditions of an NWP 

authorization, including any activityspecific conditions added to an NWP 

authorization by the district engineer. 

For example, road crossings should be 

properly maintained to continue 

complying with general condition 2, 

aquatic life movements. 

This general condition is adopted 

with the change discussed above. 

GC 15. Single and Complete Project. 

We did not propose any changes to this 

general condition. Two commenters 

recommend removing the term single 

and complete project. Two commenters 

said the definition of ‘‘single and 

complete project’’ is flawed and that the 

acreage limit of an NWP should apply 

to the entire project, not just each single 

and complete project. One commenter 

suggested changing the general 

condition to state that an NWP activity 

cannot be expanded or modified at a 

later date. Two commenters said the 

general condition may allow 

piecemealing under the NWPs. 

It has been a long-standing principle 

in the NWP program that the NWPs 

authorize single and complete projects. 

This general condition was added to the 

NWPs in 2007 to make that clear to 

users of the NWPs. The general 

condition is consistent with the NWP 

regulations at 33 CFR part 330 that were 

last revised in 1991, especially the 

definition at 33 CFR 330.2(i). Some of 

the NWPs issued in the past included 

terms and conditions stating the NWP 

authorized single and complete projects. 

In 2007, we added a general condition 

to make it clear that all NWPs authorize 

single and complete projects. As long as 

any proposed expansions or 

modifications of a previously authorized 

NWP activity comply with the terms of 

the NWPs, they can be authorized by 

NWP. Expansions or modifications that 

are not separate single and complete 

projects from the previously authorized 

activity have to comply with the terms 

and conditions of the NWP, including 

any acreage or linear foot limits that 

would apply to both the previously 

authorized activity and the NWP 

activity included in the expansion or 

modification. If the expansion or 

modification is determined by the 

district engineer to be a separate single 

and complete project, then that 

expansion or modification activity may 

qualify for separate NWP authorization. 

We do not agree that this general 

condition results in piecemealing, 

because the NWP authorization applies 

to each single and complete project. 

District engineers will exercise 

discretionary authority and require 

other forms of Department of the Army 

authorization if the use of the NWP to 

authorize activities in a watershed or 

other geographic area will result in more 

than minimal cumulative adverse effects 

on the aquatic environment. 

This general condition is adopted 

without change. 

GC 16. Wild and Scenic Rivers. We 

proposed to modify this general 

condition to clarify that information on 

these rivers should be obtained from the 

specific Federal land management 

agency responsible for the designated 

Wild and Scenic River or study river. 

One commenter supported reissuing the 

general condition. 

The general condition is adopted as 

proposed. 

GC 17. Tribal Rights. We did not 

propose any changes to this general 

condition. One commenter stated that 

the use of the NWPs will be in violation 

of tribal treaty rights, tribal water 

quality standards, and the Clean Water 

Act, and threaten salmon recovery 

efforts in the Pacific Northwest. 

Division engineers may impose 

regional conditions on the NWPs to 

restrict or prohibit their use in waters 

where NWP activities may result in 

more than minimal adverse effects on 

the aquatic environment or any other 

public interest review factor, including 

fish and wildlife values. We have 

directed our districts to initiate 

government-to-government consultation 

with Tribes to develop and propose 

regional conditions to protect tribal 

treaty resources and other resources of 

importance to Tribes. Under this general 

condition, no activity may be authorized 

by NWP if it impairs reserved tribal 

rights, such as reserved water rights or 

treaty fishing and hunting rights. The 

regional conditioning process helps 

identify those rights on a geographic 

basis, so that prospective users of the 

NWPs and Corps districts are aware of 

those tribal rights. Nationwide permit 

activities must also comply with Tribal 

water quality standards, if those 

activities involve discharges into waters 

covered by Tribal water quality 

standards. Activities authorized by 

NWPs must also comply with general 

condition 18, endangered species, 

which will help support the recovery of 

listed salmon species. 

The general condition is adopted as 

proposed. 

GC 18. Endangered Species. We 

proposed to modify paragraph (a) of this 

general condition to clarify that both 

direct and indirect effects are to be 

taken into account when assessing 

whether an activity may jeopardize the 

continued existence of a threatened or 

endangered species or a species 

proposed for such designation, or 

destroy or adversely modify the critical 

habitat of such species. In addition, we 

proposed to modify paragraph (e) to 

include definitions of ‘‘take’’ and 

‘‘harm.’’ Another proposed change was 

to add a new paragraph (f) to provide 

prospective permittees with guidance 

on where they can obtain information 

on the locations of listed species and 

their critical habitat. One commenter 

expressed support for the proposed 

modifications. 

Several commenters requested 

clarification and definitions for the 

terms ‘‘directly’’ and ‘‘indirectly’’ as 

used in paragraph (a). In addition, 

several commenters objected to the 

addition of ‘‘indirectly’’ into the general 

condition, because they believe only 

direct effects should be considered. 

Several commenters expressed concern 

that this will result in the Corps 

evaluating direct and indirect effects 

that are far from the NWP activity. 

To provide clarification on the use of 

the terms ‘‘direct’’ and ‘‘indirect’’ in the 

context of general condition 18 and the 

NWPs in general, we are adding 

definitions of ‘‘direct effects’’ and 

‘‘indirect effects.’’ The definitions were 

adapted from the definitions provided 

in the Council of Environmental 

Quality’s National Environmental Policy 

Act regulations at 40 CFR 1508.8. The 

definition of ‘‘indirect effect’’ is also 

generally consistent with the Services’ 

definition within the definition of 

‘‘effects of the action’’ at 50 CFR 402.02. 

The addition of indirect effects to 

paragraph (a) of the general condition is 

consistent with the U.S. Fish and 

Wildlife Service’s and National Marine 

Fisheries Service’s Endangered Species 


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Act Section 7 regulations for 

considering whether a proposed activity 

may jeopardize the continued existence 

of a listed species or may result in the 

destruction or adverse modification of 

critical habitat (see the definitions of 

‘‘destruction or adverse modification’’ 

and ‘‘jeopardize the continued existence 

of’’ at 50 CFR 402.02). The Corps is 

obligated by the section 7 consultation 

regulations to consider indirect effects 

caused by proposed NWP activities, and 

appropriate distances for such indirect 

effects will have to be determined on a 

case-by-case basis by district engineers. 

One commenter stated that the district 

engineer should evaluate the 

Endangered Species Act (ESA) 

compliance documentation provided by 

the Federal agency, and determine 

whether or not it is sufficient to address 

ESA compliance for the NWP activity, 

or whether additional ESA consultation 

is necessary. Two commenters 

recommended modifying paragraph (b) 

to clarify that documentation of 

compliance with the Endangered 

Species Act provided by a Federal 

agency will be sufficient and that Corps 

review and concurrence with that 

section 7 consultation is not required. 

One commenter said that paragraph (b) 

should make it clear that a state agency 

operating under federal funding can also 

provide the section 7 compliance 

documentation obtained by the Federal 

agency that oversees its activities, and 

not have to reinitiate consultation. 

Another commenter stated that when a 

non-Federal permittee is operating on 

behalf of a Federal agency, they should 

follow paragraph (b) of this general 

condition instead of paragraph (c). 

We have added a sentence to 

paragraph (b) to state that the district 

engineer will review the other Federal 

agencies’ documentation of compliance 

with the Endangered Species Act and 

determine whether that compliance is 

sufficient for the NWP activity, or 

whether additional ESA consultation is 

necessary before the activity can be 

authorized by NWP. We believe this 

provision is necessary to address 

situations where the consultation 

conducted by the other Federal agency 

does not adequately cover the direct and 

indirect effects on listed species or 

designated critical habitat caused by the 

NWP activity. For similar reasons, we 

do not agree that it would be 

appropriate to modify paragraph (b) to 

explicitly state that state agencies may 

rely on ESA compliance documentation 

obtained by the Federal agency that 

provides them with funding for an 

activity. District engineers will generally 

accept another Federal agency’s 

compliance with section 7, but there 

may be situations where that agency’s 

section 7 compliance does not 

adequately address the activities 

authorized by an NWP and their effects 

on listed species or designated critical 

habitat. In those situations, the district 

engineer may conduct additional 

section 7 consultation to satisfy the 

requirements of the Endangered Species 

Act. If it is not sufficient, then the nonFederal permittee has to follow 

paragraph (c) of this general condition 

instead. 

One commenter said that this general 

condition places the responsibility for 

determining whether a proposed 

activity may affect listed species in the 

hands of the permittee. One commenter 

requested clarification on how the 

‘‘might be affected’’ threshold in the 

first sentence is to be determined by an 

applicant, because it is unclear and 

leaves room for broad interpretation. 

One commenter stated that the word 

‘‘might’’ in the second sentence of 

paragraph (c) should be changed to 

‘‘may.’’ 

It is the Corps’ responsibility to make 

‘‘may affect’’ determinations for the 

purposes of the ESA, and the ‘‘might be 

affected’’ threshold is intended to be a 

cautionary threshold to give district 

engineers the opportunity to evaluate 

proposed activities and make their effect 

determinations. Prospective permittees 

are required to submit pre-construction 

notifications if the proposed NWP 

activity has the potential to affect a 

listed species, is in the vicinity of a 

listed species, or is located in 

designated critical habitat. If the Corps 

determines there will be no effect on 

listed species or designated critical 

habitat, then ESA section 7 consultation 

is not necessary. If the district engineer 

determines there will be an effect that 

requires ESA section 7 consultation, 

then he or she will initiate either formal 

or informal consultation with the U.S. 

Fish and Wildlife Service and/or the 

National Marine Fisheries Service, as 

appropriate. 

One commenter said paragraph (c) 

should clearly state that a preconstruction notification is to be 

submitted if any listed species or 

designated critical habitat might be 

affected or is in the vicinity of the 

project, to ensure that another form of 

notification is not used. Two 

commenters stated that 30 days is 

sufficient for the Corps to notify the 

applicant of its ‘‘may affect’’ 

determination and asked why the 

general condition allows 45 days. Two 

commenters suggested modifying this 

general condition to state that if the 

prospective permittee does not receive a 

response from the Corps within 45 days, 

then he or she can assume that the 

Corps has determined that there is ‘‘no 

effect’’ on a listed species. In addition, 

one of these commenters said that for 

projects that ‘‘may affect’’ a listed 

species, if the section 7 consultation is 

not concluded within 135 calendar days 

of initiation, the activity would be 

authorized to proceed as if a ‘‘no effect’’ 

determination has been made. 

We have modified the first sentence of 

paragraph (c) to state that non-Federal 

permittees must submit a preconstruction notification if the 

notification requirement is triggered. 

The 45-day period in paragraph (c) of 

this general condition is intended to be 

consistent with the 45-day review 

period for pre-construction notifications 

provided in paragraph (a) of general 

condition 31, pre-construction 

notification. Under paragraph (a) of 

general condition 31, a prospective 

permittee may not begin an NWP 

activity that requires pre-construction 

notification until he or she has been 

notified in writing that the activity may 

proceed under the NWP, or 45 calendar 

days have passed since the district 

engineer received a complete preconstruction notification and no written 

notice has been provided to the 

applicant by the district or division 

engineer. However, if pre-construction 

notification was required by paragraph 

(c) of general condition 18, the 

prospective permittee may not proceed 

with the NWP activity until notified by 

the Corps, even if the 45 calendar days 

have passed, because the Corps 

regulations at 33 CFR 330.4(f)(2) state 

that NWP activities cannot commence 

until the requirements of the ESA have 

been satisfied and the district engineer 

has notified the applicant that the 

activity is authorized by NWP. It may 

take more than 135 days to complete 

section 7 consultation, and the NWP 

activity may not proceed until after 

consultation has been completed. 

Two commenters requested 

clarification on what work the 

prospective permittee is prohibited from 

conducting prior to the Corps making a 

determination of ‘‘no effect’’ or until 

section 7 consultation is completed. 

Two commenters requested clarification 

of the term ‘‘vicinity’’ in this general 

condition. 

The work covered by the general 

condition and the Corps regulations at 

33 CFR 330.2(f) depends on the scope of 

analysis for the ESA section 7 

consultation. The Corps follows the U.S. 

Fish and Wildlife Service’s and National 

Marine Fisheries Service’s regulations at 

50 CFR part 402 and Endangered 

Species Consultation Handbook to 

determine the section 7 scope of 


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analysis. The scope of analysis includes 

the direct and indirect effects of the 

NWP activity, as well as the effects of 

other activities that are interrelated and 

interdependent with that activity (see 50 

CFR 402.02). The section 7 scope of 

analysis will be determined by district 

engineers on a case-by-case basis. 

Generally, the applicant cannot begin 

any work for which a Department of the 

Army permit is required until the 

applicable ESA provisions have been 

satisfied. The term ‘‘vicinity’’ cannot be 

defined at a national level, since the 

extent of the vicinity depends on a 

variety of factors, including the species 

that might be affected, the proposed 

activity, and the environmental setting. 

One commenter said pre-construction 

notification should not be required for 

NWP activities that require section 7 

compliance, if they would not otherwise 

require a pre-construction notification. 

This commenter stated that the 

prospective permittee should only be 

required to submit the appropriate 

documentation for section 7 

consultation. One commenter stated that 

this general condition should also apply 

to state-listed threatened and 

endangered species. 

This general condition is consistent 

with the NWP regulations at 33 CFR 

330.4(f)(2), which requires the 

prospective permittee to notify the 

district engineer if any Federally-listed 

endangered or threatened species, or 

critical habitat, might be affected or is 

in the vicinity of the project. The 

prospective permittee must submit the 

information required for a preconstruction notification, so that the 

district engineer will have sufficient 

information to commence evaluation of 

the proposed activity and its effects on 

listed species or critical habitat. It 

would be inappropriate to expand the 

scope of this general condition to cover 

state-listed endangered and threatened 

species, since that is a regional issue 

that is best addressed through state laws 

and regulations. If a state is concerned 

about the potential impacts of one or 

more NWPs on state-listed species, the 

state may ask the Corps district to 

consider adding regional conditions to 

help protect state-listed endangered or 

threatened species. 

Two commenters recommended 

removal of the definitions of ‘‘take’’ and 

‘‘harm’’ from this general condition and 

replacing those definitions with a 

reference to the Endangered Species 

Act, to reduce the potential for 

inconsistencies. One commenter said 

the Corps should instead use the U.S. 

Fish and Wildlife Service’s regulations 

to determine what constitutes an effect 

or jeopardizes any threatened or 

endangered species or their critical 

habitat. 

The definition of ‘‘take’’ is identical to 

the definition in the Endangered 

Species Act (see 16 U.S.C. 1532(19)). 

The definition of ‘‘harm’’ is the same as 

the definition in the U.S. Fish and 

Wildlife Service’s regulations (50 CFR 

17.3) and the National Marine Fisheries 

Service’s regulations (50 CFR 222.102). 

The definitions of ‘‘take’’ and ‘‘harm’’ 

were added to this condition to provide 

clarification for users of the NWPs, and 

facilitate compliance with the 

Endangered Species Act. 

One commenter stated that paragraph 

(f) should provide web links to the 

Services’ ESA Section 7 regulations and 

other documents. Another commenter 

said the Corps should defer to the U.S. 

Fish and Wildlife Service on effects 

determinations. 

Paragraph (f) provides links to web 

sites for the U.S. Fish and Wildlife 

Service and the National Marine 

Fisheries Service to assist prospective 

permittees with obtaining information 

on listed species and other ESA 

documents. We do not believe it is 

necessary to provide a link to the 

Services’ section 7 consultation 

regulations at 50 CFR part 402 since it 

is the Corps responsibility to conduct 

section 7 consultation. It is also the 

Corps responsibility to make ‘‘may 

effect’’ determinations for the purposes 

of the ESA and district engineers have 

the option of soliciting advice from the 

U.S. Fish and Wildlife and/or the 

National Marine Fisheries Service prior 

to making their determinations. 

One commenter recommended that 

surveys be conducted for state- and 

Federally-listed species prior to the start 

of construction. Another commenter 

said the lack of a requirement for 

surveys makes the pre-construction 

notification requirement in this general 

condition ineffective. One commenter 

said that ‘‘objective science’’ is needed 

to identify habitats and species that may 

be affected by activities authorized by 

NWPs. One commenter stated that the 

Corps must consider the effects of 

climate change during the consultation 

process. 

The need for surveys for Federally 

listed species is to be determined by the 

district engineer on a case-by-case basis. 

It is not possible to require surveys for 

the tens of thousands of activities 

authorized by NWP each year. Project 

proponents are encouraged, but not 

required to contact the U.S. Fish and 

Wildlife Service or the National Marine 

Fisheries Service for assistance in 

determining whether listed species or 

critical habitat might be affected by the 

proposed activity. The effects of climate 

change on endangered and threatened 

species and their critical habitat is more 

appropriately addressed through the 

section 7 consultation process, since 

those effects are likely to be sitespecific. 

The general condition is adopted with 

the modifications discussed above. 

GC 19. Migratory Bird and Bald and 

Golden Eagle Permits. We are adding 

this new general condition to clarify 

that permittees are responsible for 

complying with the Migratory Bird 

Treaty Act and the Bald and Golden 

Eagle Protection Act, and obtaining any 

‘‘take’’ permits that may be required 

under the U.S. Fish and Wildlife 

Service’s regulations issued under those 

two statutes. The Migratory Bird Treaty 

Act and the Bald and Golden Eagle 

Protection Act differ from the 

Endangered Species Act in that those 

two statutes and their implementing 

regulations establish the project 

proponent as the responsible party who 

has to apply to the U.S. Fish and 

Wildlife Service for take permits, if such 

permits are required. 

The U.S. Fish and Wildlife Service’s 

implementing regulations that establish 

general permit requirements for 

migratory birds permits at 50 CFR part 

21 state that ‘‘[n]o person may take, 

possess, import, export, transport, sell, 

purchase, barter, or offer for sale, 

purchase, or barter, any migratory bird, 

or the parts, nests, or eggs of such bird 

except as may be permitted under the 

terms of a valid permit issued pursuant 

to the provisions of this part and part 13 

of this chapter, or as permitted by 

regulations in this part, or part 20 of this 

subchapter (the hunting regulations), or 

part 92 of subchapter G of this chapter 

(the Alaska subsistence harvest 

regulations).’’ The term ‘‘person’’ is 

defined at 50 CFR 10.12 as ‘‘any 

individual, firm, corporation, 

association, partnership, club, or private 

body, any one or all, as the context 

requires.’’ These regulations do not 

identify a federal permitting agency as 

a ‘‘person’’ responsible for obtaining a 

take permit, where that federal agency is 

not actually carrying out the activity 

that may result in the ‘‘take’’ of a 

migratory bird. Likewise, the U.S. Fish 

and Wildlife Service’s implementing 

regulations for the Bald and Golden 

Eagle Protection Act at 50 CFR part 22 

do not include any provisions stating 

that Federal permitting agencies are 

responsible for assisting project 

proponents in obtaining permits to 

authorize the taking, possession, and 

transportation within the United States 

of bald eagles and golden eagles and 

their parts, nests, and eggs. 


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Executive Order 13186 discusses the 

responsibilities of Federal agencies to 

protect migratory bird for the purposes 

of the Migratory Bird Treaty Act. The 

Executive Order applies only to those 

actions that are directly carried out by 

Federal agencies (see Section 2, 

paragraph (h)). Actions carried out by 

non-Federal entities with Federal 

assistance are not subject to the 

Executive Order. Department of the 

Army permits can be considered a form 

of Federal assistance since they provide 

authorization to non-Federal entities to 

comply with Federal laws such as 

Section 404 of the Clean Water Act and 

Section 10 of the Rivers and Harbors Act 

of 1899. 

This general condition is adopted. 

GC 20. Historic Properties. We 

proposed to modify paragraph (c) of this 

general condition to make a more 

general reference to the Corps 

Regulatory Program’s current 

procedures for compliance with Section 

106 of the National Historic 

Preservation Act, since we are using 

Appendix C to 33 CFR part 325, as well 

as various guidance documents to 

address the Advisory Council on 

Historic Preservation’s revised 

regulations at 36 CFR part 800. 

In response to the February 16, 2011, 

proposal to reissue the NWPs, including 

the proposed modification of this 

general condition, we received 

comments on the Corps use of 

Appendix C and the current guidance. 

Concerns regarding the use of Appendix 

C and the current guidance are outside 

the scope of the NWP rule, and are not 

addressed in this rule. 

Several commenters asked whether an 

NWP authorization or verification 

would be issued before a State Historic 

Preservation Officer concurs to an effect 

determination or formalizes an 

agreement regarding historic properties. 

One commenter stated that although the 

NWP regulations provide that the Corps 

may issue an NWP before a 

memorandum of agreement is executed, 

district engineers have, in some cases, 

not issued NWP verifications without 

State Historic Preservation Officer 

concurrence. 

This general condition requires nonFederal permittees to submit preconstruction notifications if the NWP 

activity may have the potential to cause 

effects to historic properties. In such 

cases, the district engineer will initiate 

section 106 consultation with the 

appropriate State Historic Preservation 

Officer or Tribal Historic Preservation 

Officer. Further consultation may be 

conducted with the Advisory Council 

on Historic Preservation, if necessary. 

The prospective permittee may not 

begin the NWP activity until the district 

engineer notifies him or her that the 

section 106 consultation has been 

completed (which may include 

execution of a memorandum of 

agreement to address adverse effects or 

the concurrence of the State or Tribal 

Historic Preservation Officer), or the 

activity has no potential to cause effects 

to historic properties. 

One commenter said the Corps should 

more closely follow paragraph (b) of the 

general condition and not require 

redundant section 106 review on 

projects that are being undertaken by 

another Federal agency. Three 

commenters suggested that the Corps 

section 106 responsibilities should be 

satisfied if another Federal agency 

formally accepts responsibility for 

conducting section 106 consultation and 

is the lead for this responsibility 

through either a programmatic 

agreement or on a project-by-project 

basis. One commenter said that 

duplicate regulatory efforts are 

unnecessary, particularly when another 

Federal agency has a lead role. 

District engineers will generally 

accept another Federal agency’s 

compliance with section 106, but there 

may be situations where that agency’s 

section 106 compliance does not 

adequately address the activities 

authorized by an NWP and their effects 

on historic properties. In those 

situations, the district engineer may 

conduct additional section 106 

consultation to satisfy the requirements 

of the National Historic Preservation 

Act. We have added a sentence to 

paragraph (b) to address these 

situations. 

One commenter said the general 

condition does not clearly specify who 

is responsible for the identification and 

evaluation of historic properties and 

determination of effects. Another 

commenter stated that the general 

condition does not adequately ensure 

section 106 compliance because the 

Corps may not receive enough 

information from permittees to fully 

take into account the effect a project 

may have on a historic property. This 

commenter also said that while 

paragraph (c) states that prospective 

permittees may seek assistance from the 

State or Tribal Historic Preservation 

Officer and from the National Register of 

Historic Places, there is no requirement 

that an applicant consult with these 

parties or that an applicant coordinate 

an effect determination with a qualified 

professional with relevant historic 

properties experience. 

The Corps is ultimately responsible 

for determining compliance with the 

requirements of Section 106 of the 

National Historic Preservation Act. NonFederal permittees are required to 

submit pre-construction notifications if 

an NWP activity may have the potential 

to cause effects to historic properties, 

and the district engineer will evaluate 

those pre-construction notifications to 

determine if section 106 consultation is 

necessary. The general condition also 

states that district engineers will make 

reasonable and good faith efforts to 

identify historic properties and effects 

on those properties. The district 

engineer may request additional 

information from the applicant where 

necessary to evaluate potential effects of 

the activity on historic properties or to 

initiate section 106 consultation. We 

cannot require prospective permittees to 

seek assistance from a State Historic 

Preservation Officer or a Tribal Historic 

Preservation Officer, search the National 

Register of Historic Preservation, or 

consult with qualified historic property 

professionals. However, this general 

condition requires prospective 

permittees to provide a list of ‘‘ * * * 

any historic properties listed, 

determined to be eligible for listing on, 

or potentially eligible for listing on the 

National Register of Historic Places, 

including previously unidentified 

properties,’’ if these properties may be 

affected. The permittee may obtain such 

information from the State Historic 

Preservation Officer or Tribal Historic 

Preservation Officer, the National 

Register of Historic Places, or other 

sources of information on historic 

properties. 

One commenter recommended 

providing language to clearly state when 

a pre-construction notification is or is 

not required based on the presence or 

absence of known historic properties. 

This commenter suggested that if a 

prospective permittee independently 

determines that no historic properties 

exist within the boundaries of the 

project area, then pre-construction 

notification is not necessary. The 

commenter also said that if the district 

engineer has to be notified because of 

potential effects to historic properties, 

the notification should not be in the 

form of a pre-construction notification. 

We do not agree that the general 

condition should be modified to 

explicitly state that prospective 

permittees do not have to submit preconstruction notifications if they 

determine there are no known historic 

properties within the boundaries of the 

project area. Such a provision would be 

inappropriate, because there could be 

visual or noise effects to historic 

properties outside of the project area 

that have to be evaluated through the 

section 106 consultation process. The 


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current general condition is the proper 

approach, in which the prospective 

permittee seeking NWP authorization is 

required to submit a pre-construction 

notification if the proposed activity 

might have the potential to cause effects 

to any historic property listed in, or 

eligible for listing in, the National 

Register of Historic Places, including 

previously unidentified properties. A 

pre-construction notification is the 

appropriate mechanism to notify the 

district engineer, because it contains 

information necessary to begin the 

evaluation process, to determine 

whether the proposed activity qualifies 

for NWP authorization. 

One commenter requested 

clarification of what constitutes the 

permit area for the purposes of 

consultation under Section 106 of the 

National Historic Preservation Act. One 

commenter asked if a permittee is 

obligated to have the Corps review an 

archaeologist’s determination that an 

activity will not impact an historic site. 

One commenter stated that the general 

condition is unreasonable and violates 

federalism. 

The criteria for identifying the permit 

area for the purposes of section 106 are 

provided in paragraph 1(g) of Appendix 

C to 33 CFR part 325, in addition to 

paragraph 6(d) of the April 25, 2005, 

interim guidance. The permit area will 

be determined on a case-by-case basis 

by the district engineer. When a 

professional cultural resource manager 

or archaeologist performs an 

investigation or makes an effect 

determination, the Corps will generally 

consider the qualifications of the 

professional and will review any 

documentation provided for the 

purposes of section 106 compliance. 

This general condition is required 

because the NWP program must comply 

with the National Historic Preservation 

Act, a Federal law. Even though most 

NWP activities occur on private land, 

compliance with applicable Federal 

laws is necessary. This general 

condition would not interfere with any 

state or local authorities. 

This general condition is adopted 

with the modifications discussed above. 

GC 21. Discovery of Previously 

Unknown Remains and Artifacts. We 

proposed this new general condition to 

address circumstances where previously 

unknown or unidentified historical or 

archaeological remains are discovered 

while conducting the NWP activity. 

Several commenters expressed 

support for adding this general 

condition to the NWPs. Two 

commenters said the condition should 

refer to the district engineer instead of 

‘‘this office’’ or ‘‘we.’’ We have made 

these changes to be consistent with the 

language found in other general 

conditions. 

One commenter stated that the 

proposed condition relies on the 

permittee, who is generally not qualified 

to make determinations concerning 

remains and artifacts discovered during 

construction activities. This commenter 

said that this general condition should 

require all work to cease immediately 

and a qualified Corps archaeologist 

should initiate required consultation. 

We believe the revised language in the 

condition clearly indicates that the 

Corps will initiate consultation in such 

instances where a previously unknown 

historic or archaeological remain is 

discovered during construction 

activities. The Corps does not have the 

authority to prohibit all construction 

activities on the site in these cases. 

Several commenters expressed 

concern with the use of the term 

‘‘artifact’’ in this general condition, and 

some of them stated that it can have too 

broad of a definition. One commenter 

requested clarification as to what 

constitutes an ‘‘artifact.’’ Another 

commenter said that this general 

condition should have thresholds to 

protect significant artifact deposits 

while allowing work to continue when 

only minor artifacts are discovered. One 

commenter suggested that we qualify 

‘‘artifacts’’ by adding ‘‘artifacts that are 

potentially eligible for the National 

Register of Historic Places.’’ 

The use of the term artifact is 

consistent with the definition of 

‘‘historic property’’ at 36 CFR 800.16, 

which states that historic properties 

include ‘‘ * * * artifacts, records, and 

remains that are related to and located 

within [historic] properties.’’ Procedures 

for the protection of historic properties 

address all properties that may be 

eligible for inclusion in the National 

Register of Historic Places, and do not 

establish quantitative thresholds for 

when section 106 consultation must 

occur. The consultation threshold is an 

effects-based threshold. We do not 

believe it is necessary to add text 

clarifying that artifacts are those ‘‘that 

are potentially eligible for the National 

Register of Historic Places.’’ Eligibility 

determinations will be made after the 

discovery of artifacts and remains. 

Three commenters stated that the 

proposed general condition is more 

restrictive than general condition 3 

provided in Appendix A to 33 CFR part 

325, the permit form for individual 

permits. These commenters said the 

NWP general condition should not be 

more restrictive than the standard 

permit condition. Two commenters 

suggested deleting this general 

condition because provisions for the 

discovery of unknown historic or 

archaeological remains are already 

codified in the NWP regulations and in 

the Corps Regulatory Program’s 

implementing regulations for Section 

106 of the National Historic 

Preservation Act. 

The proposed general condition is 

similar to general condition 3 in 

Appendix A of 33 CFR part 325. For this 

new NWP general condition, we have 

taken the text of general condition 3 in 

Appendix A and modified it to include 

Tribes. We have also modified it by 

adding a provision requiring, to the 

maximum extent practicable, avoidance 

of construction activities that could 

affect the remains and artifacts. We 

believe the latter provision is necessary 

to protect those artifacts and remains as 

much as possible. The addition of 

Tribes to the condition reflects current 

section 106 procedures. This general 

condition can be more restrictive than 

the standard permit condition in 

Appendix A because the NWPs may 

only be used to authorize activities with 

minimal adverse effects on the aquatic 

environment and other applicable 

public interest review factors. While 33 

CFR 330.4(g)(3) contains a similar 

provision, we believe the general 

condition is needed to comply with 

applicable cultural resource laws. 

Several commenters expressed 

concern with requiring the permittee to 

stop work once previously unknown 

historic or archaeological remains are 

found. One commenter said this 

provision is too unpredictable and may 

result in significant delays. One 

commenter suggested adding time 

frames to this general condition to 

provide predictability and assure 

permittees that the Corps will 

proactively seek to resolve any 

outstanding historic property issues. 

One commenter recommended 

clarifying this general condition to state 

that if a discovery occurs, work should 

cease only in the area containing 

remains or artifacts. One commenter 

objected to the work stoppage provision, 

stating that once construction begins, 

substantial investment has been made 

and the requirement to stop 

construction indefinitely upon the 

discovery of a potentially insignificant 

archaeological resource represents an 

unacceptable financial risk. This 

commenter recommended that if we 

keep this provision as proposed, we 

impose time frames on identification 

and consultation in order to provide 

some predictability to the process. 

We believe it is necessary to include 

a provision in this general condition to 

require the permittee, once any 


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previously unknown historic, cultural, 

or archeological remains or artifacts are 

found while conducting the NWP 

activity, to avoid construction activities 

that could affect those remains and 

artifacts, to the maximum extent 

practicable. We recognize that in some 

circumstances it may not be possible to 

avoid further construction activities that 

might affect the remains and artifacts, 

because those construction activities 

may have to be completed for safety or 

minimizing erosion and sedimentation. 

In addition, the Corps does not have the 

legal authority to stop construction 

activities. We have replaced the phrase 

‘‘stop activities that would adversely 

affect those’’ with ‘‘avoid construction 

activities that could affect the’’ to 

protect those remains and artifacts as 

much as possible while preventing other 

adverse environmental effects from 

occurring, such as the installation of 

sediment and erosion control devices to 

reduce or eliminate sediment inputs to 

wetlands, streams, and other waters 

while the necessary Federal, Tribal, and 

state coordination is conducted. It 

would not be appropriate to impose 

timeframes in this general condition, 

because the amount of time to complete 

coordination will vary across the 

country and from case to case. We 

cannot remove the provision for 

avoiding construction activities that 

could affect the remains and artifacts, 

because Section 106 of the National 

Historic Preservation Act and other 

cultural resource laws impose binding 

requirements on the Corps and other 

federal agencies. 

A few commenters said this general 

condition should not apply to other 

Federal agencies with section 106 

responsibilities if they are the 

permittees, since their implementing 

regulations already contain provisions 

for the discovery of previously 

unknown historic or archaeological 

remains during construction. 

We agree that in cases where another 

federal agency is the lead Federal 

agency for purposes of compliance with 

Section 106 of the National Historic 

Preservation Act, that Federal agency 

should follow its procedures for 

addressing post-review discoveries. 

However, the Corps also has section 106 

responsibilities if the NWP activity has 

the potential to cause effects to an 

historic property. As long as the lead 

Federal agency is in compliance with 

section 106 requirements and this 

compliance satisfies section 106 

requirements for the NWP 

authorization, the Corps can rely on the 

lead Federal agency’s compliance 

efforts. Upon notification, the district 

engineer will let the other Federal 

agency know if any further action by the 

Corps is necessary. 

This general condition is adopted 

with the modifications discussed above. 

GC 22. Designated Critical Resource 

Waters. We proposed to modify this 

general condition to clarify the types of 

waters subject to the general condition 

by changing how NOAA’s marine 

sanctuaries are described, which 

categories of critical resource waters are 

always subject to this general condition, 

and how additional critical resource 

waters can be designated by a district 

engineer after a public notice and 

comment process. We also proposed to 

add proposed new NWPs A and B, now 

designated NWPs 51 and 52, 

respectively, to the list of NWPs in 

paragraph (a). 

Several commenters objected to 

allowing state-designated outstanding 

national resource waters to be 

automatically included as designated 

critical resource waters because of 

varying designations and criteria across 

the states. These commenters also said 

that a state’s process to designate such 

waters may not include the opportunity 

for public comment and that the 

designations carry no legal basis. In 

addition, commenters indicated there 

are inconsistent approaches by different 

agencies within the same state for 

designating outstanding national 

resource waters. Some commenters said 

that other state programs, such as those 

that are responsible for Clean Water Act 

Section 401 water quality certifications, 

are capable of adequately addressing the 

effects of the activity to these state 

designated waters. One commenter 

requested a definition of outstanding 

national resource waters. Two 

commenters said such waters should 

have a particular environmental or 

ecological significance. Two 

commenters objected to including 

outstanding national resource waters 

automatically because that designation 

may be based only on recreational 

characteristics. Three commenters 

suggested that the general condition 

should be changed to require the district 

engineer to designate such waters only 

after issuing a public notice and 

soliciting comment, and then obtaining 

concurrence from the state. 

This general condition was first 

adopted in the NWPs issued on March 

9, 2000 (see 65 FR 12872). In the 

preamble to the 2000 NWPs, we stated 

that ‘‘ * * * outstanding national 

resource waters must be identified and 

approved by the district engineer after 

public notice and opportunity for 

comment’’ (65 FR 12873, third column). 

In that notice, we also said that state or 

local officials should not be able to 

designate additional waters as critical 

resource waters without the district 

engineer providing an opportunity for 

public notice and comment. We are 

modifying this general condition to 

return to our original approach, since 

there is much disparity across the 

country in how outstanding national 

resource waters are identified and 

designated. Because of the 

inconsistency in how outstanding 

national resource waters are designated, 

we believe it is necessary to provide the 

public with the opportunity to review 

and comment on those waters before 

they become adopted as designated 

critical resource waters for the purposes 

of this general condition. Outstanding 

national resource waters should have 

environmental and ecological 

significance, and their designation 

should not be based solely on 

recreational uses or characteristics. 

Three commenters expressed concern 

that providing district engineers the 

ability to designate, after notice and 

opportunity to comment, additional 

waters officially designated by a state as 

having particular environmental or 

ecological significance would lead large 

areas of state-designated waters of all 

types to be removed from being eligible 

for the NWPs. One commenter said this 

general condition should be removed 

because it violates the principles of 

federalism in Executive Order 13132. 

This commenter said a district engineer 

could use state stream designations to 

identify critical resource waters and 

override the rights of states to interpret 

and enforce their own laws. 

We are retaining the provision that 

allows district engineers to designate 

additional critical resource waters after 

notice and opportunity for public 

comment. That process is not 

substantially different from using the 

regional conditioning process to restrict 

or prohibit the use of NWPs in specific 

waters or geographic areas, which can 

be delegated by division engineers to 

district engineers. This general 

condition is not contrary to Executive 

Order 13132. The general condition 

helps support the objective of the Clean 

Water Act, which is to restore and 

maintain the physical, chemical, and 

biological integrity of the Nation’s 

waters. In addition, this general 

condition helps ensure that the NWPs 

authorize only those activities that have 

minimal individual and cumulative 

adverse effects on the aquatic 

environment. This general condition 

only applies to waters and wetlands that 

are both waters of the United States and 

designated critical resource waters. 

One commenter objected to removing 

state natural heritage sites from 


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automatic inclusion in the general 

condition due to their interest in 

maintaining the existing protection the 

general condition provides to areas of 

unique ecological significance. Another 

commenter supported the proposed 

change. One commenter said state 

natural heritage sites should not be 

automatically considered critical 

resource waters because the term is 

undefined. Another commenter 

suggested that state natural heritage 

sites should be limited to those sites 

that are identified through state 

legislation. One commenter opposed 

including state natural heritage sites as 

potentially being classified as critical 

resource waters and suggested that the 

Corps continue to defer to State 

Historical Preservation Officers to 

determine effects on historic sites. 

While we understand the perspective 

that state natural heritage sites should 

be automatically subject to this general 

condition, we also understand the need 

for transparency and clarity for the 

regulated public. Given the variability 

in waters and wetlands that may be 

designated as state natural heritage sites, 

and the different processes that may be 

used by states to designate their natural 

heritage sites, we believe it is necessary 

to provide a public notice and comment 

process before including state natural 

heritage sites as designated critical 

resource waters under this general 

condition. This approach will help 

improve compliance with the NWP 

conditions, because it will make project 

proponents aware of certain restrictions 

for the use of specific NWPs. The 

protection of historic properties is more 

appropriately addressed through general 

condition 20, historic properties. 

One commenter said the use of an 

NWP should not be prohibited in 

critical resource waters when the agency 

responsible for managing those critical 

resource waters is conducting the 

activity. This commenter also suggested 

that the general condition should not 

prohibit the use of NWPs, but instead 

the NWPs listed in paragraph (a) should 

be moved to the notification provision 

of paragraph (b) and also require the 

approval of the agency that manages the 

designated critical resource water, 

similar to the approach taking in general 

condition 16, wild and scenic rivers. 

One commenter supported protecting 

critical resource waters but suggested 

that protection can be provided instead 

by requiring prior written approval 

through a state’s water quality agency. 

Another recommended requiring water 

quality certifications for the NWPs 

listed in paragraph (b) instead of preconstruction notifications, to ensure that 

the activities authorized by those NWPs 

result in minimal adverse effects on 

designated critical resource waters and 

adjacent wetlands. 

The purpose of the prohibition in 

paragraph (a) of this general condition is 

to exclude the use of those NWPs in 

critical resource waters that have the 

potential to result in more than minimal 

adverse effects on the aquatic 

environment. The status of the entity 

who would be conducting the proposed 

discharge of dredged or fill material is 

not relevant to the minimal adverse 

effects determination; instead, it is the 

environmental effects of the discharge 

that have to be considered. Discharges 

of dredged or fill material into waters of 

the United States that are designated 

critical resource waters, as well as their 

adjacent wetlands, may be authorized 

by other forms of Department of the 

Army permits, such as individual 

permits or regional general permits. 

Wild and Scenic Rivers referenced in 

general condition 16 are those waters 

that have been designated as such in 

accordance with the Wild and Scenic 

Rivers Act of 1968, a federal law. 

Similar to state-listed threatened and 

endangered species, the NWP program 

cannot be used to ensure compliance 

with other state or local laws. However, 

an NWP authorization does not obviate 

the need for the permittee to obtain 

other federal, state, or local 

authorizations, including specific 

authorizations related to state-protected 

critical resource waters. The water 

quality certification process would not 

be an appropriate alternative to the preconstruction notification requirement in 

paragraph (b) of this general condition 

because the evaluation of an NWP preconstruction notification involves 

consideration of more than water 

quality issues. 

One commenter suggested that preconstruction notifications for NWP 

activities listed in paragraph (b) 

proposed in waters identified as critical 

resources through state processes, 

should only be coordinated with state 

authorities. This commenter said the 

pre-construction notification for simple 

maintenance and improvement projects 

creates unnecessary work for the project 

proponent and the Corps. One 

commenter recommended adding a list 

of conservation areas to the general 

condition, with a requirement that 

permittees must be in compliance with 

the site specific management plan of the 

conservation area. 

The district engineer will evaluate the 

pre-construction notification for an 

NWP listed in paragraph (b) of this 

general condition, to determine if the 

proposed activity will result in minimal 

adverse effects on the aquatic 

environment, including the critical 

resource water and its adjacent 

wetlands. Agency coordination is only 

required for NWP activities that result 

in the loss of greater than 1⁄2-acre of 

waters of the United States. None of the 

NWPs listed in paragraph (b) have the 

300 linear foot limit for the loss of 

stream beds, so the agency coordination 

threshold for requests for written 

waivers for the loss of greater than 300 

linear feet of intermittent or ephemeral 

stream bed would not be triggered. We 

do not agree that conservation areas 

should be added to the general 

condition at the national level, because 

what constitutes a ‘‘conservation area’’ 

is likely to vary across the country. 

District engineers may add specific 

aquatic conservation areas that meet the 

definition of critical resource waters to 

this general condition after a public 

notice and comment process. 

The general condition is adopted as 

proposed. 

GC 23. Mitigation. We proposed to 

modify paragraph (g) to be more 

consistent with the compensatory 

mitigation regulations at 33 CFR part 

332, by replacing the word 

‘‘arrangements’’ with ‘‘programs’’ in 

describing in-lieu fee programs and 

replacing the phrase ‘‘activity-specific’’ 

with ‘‘permittee-responsible’’ when 

referring to compensatory mitigation 

implemented by the permittee. In 

addition, we proposed to add a 

provision stating that for activities 

resulting in the loss of marine or 

estuarine resources, permitteeresponsible compensatory mitigation 

may be environmentally preferable if 

there are no mitigation banks or in-lieu 

fee programs in the area that have 

marine or estuarine credits available for 

sale or transfer to the permittee. Finally, 

we proposed to revise the last sentence 

of paragraph (g) to state that the party 

responsible for providing the required 

permittee-responsible mitigation, 

including any required long-term 

management, is to be identified in 

conditions added to the NWP 

authorization. Several commenters 

supported these proposed changes. One 

commenter commended the Corps for 

the flexibility in determining 

compensatory mitigation requirements. 

One commenter stated that paragraph 

(a) should indicate that when another 

Federal agency has determined that the 

activity has been designed to avoid and 

minimize impacts the district engineer 

will defer to that agency’s 

determination. Several commenters said 

this general condition does not 

adequately stress avoidance of aquatic 

resources before compensatory 

mitigation is considered. One 


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commenter also said the general 

condition should refer to the measures 

provided in the 404(b)(1) Guidelines for 

details on avoiding and minimizing 

impacts. This commenter also suggested 

that the prospective permittee should be 

required to document the steps taken to 

avoid and minimize impacts, and 

describe them in the pre-construction 

notification. In addition, the commenter 

said that the NWPs should only 

authorize discharges of dredged or fill 

material into special aquatic sites when 

the activity is water dependent or in 

cases where the prospective permittee 

clearly demonstrates there are no 

practicable alternatives available. One 

commenter stated that the practicable 

alternative test in the Section 404(b)(1) 

Guidelines should be used for NWP 

activities. 

The district engineer determines 

compliance with the terms and 

conditions of the NWPs, including 

whether the permittee has avoided and 

minimized adverse effects to waters of 

the United States to the maximum 

extent practicable on the project site. 

The general condition imposes 

substantive requirements to avoid and 

minimize adverse effects to waters of 

the United States, and district engineers 

will review pre-construction 

notifications and determine whether 

project proponents have satisfied the 

avoidance and minimization 

requirement, as well as other applicable 

provisions of this general condition. 

District engineers will also determine if 

proposed activities result in minimal 

adverse effects on the aquatic 

environment and qualify for NWP 

authorization. General permits only 

need to comply with section 230.7 of 

the 404(b)(1) Guidelines, which 

provides the evaluation process for the 

issuance of Clean Water Act Section 404 

general permits, including NWPs. 

Individual activities that qualify for 

NWP authorization do not have to 

implement the avoidance and 

minimization measures provided 

elsewhere in the 404(b)(1) Guidelines, 

although they must still comply with 

the avoidance and minimization 

provisions of this general condition, 

which are designed to ensure that the 

NWPs collectively comply with the 

404(b)(1) Guidelines. Requiring the 

permittee to provide documentation of 

avoidance and minimization measures 

taken would result in unnecessary 

paperwork requirements, and the 

current information requirements for 

complete pre-construction notifications 

are sufficient. Section 230.7(b)(1) of the 

404(b)(1) Guidelines states that the 

alternatives analyses required by section 

230.10(a) are not directly applicable to 

general permits. 

One commenter stated the general 

condition should address other aspects 

of mitigation, such as performance 

standards, monitoring, and contingency 

actions. One commenter said the general 

condition does not comply with 33 CFR 

part 332 because it does not provide any 

criteria or performance standards for 

compensatory mitigation. One 

commenter indicated that monitoring 

must be required for all mitigation. 

We have made several changes to this 

general condition to make it consistent 

with the applicable provisions in 33 

CFR part 332. We have also added a 

sentence to paragraph (c)(1) of this 

general condition to state that 

compensatory mitigation projects to 

offset losses of aquatic resources must 

comply with the applicable provisions 

of 33 CFR part 332. The general 

condition provides basic requirements, 

since the specific details for 

compensatory mitigation projects (e.g., 

objectives, ecological performance 

standards, monitoring requirements, 

and site protection) are determined on 

a case-by-case basis by district 

engineers. We acknowledge that 

monitoring is required for all 

compensatory mitigation projects, in 

accordance with 33 CFR 332.6. 

Two commenters stated that the 

district engineer should have discretion 

to determine what, if any, compensatory 

mitigation is required for projects 

impacting more than 1⁄10-acre of 

wetlands, as in some cases, 

compensatory mitigation may not be 

necessary, and mitigation ratios of less 

than one-for-one may be adequate. One 

commenter said that the Corps cannot 

require mitigation for NWP activities 

that result in minimal adverse 

environmental effects, even if there are 

wetland losses greater than 1⁄10-acre, and 

requested that the Corps change the first 

sentence of paragraph (c) to state that 

the mitigation requirement can be 

waived if the district engineer 

determines that the impacts of the 

proposed activity are minimal or some 

other form of mitigation would be more 

environmentally appropriate. Several 

commenters stated that compensatory 

mitigation should be required for all 

NWP activities, and all resource types, 

regardless of the amount of impact. 

The 2008 compensatory mitigation 

rule (33 CFR part 332, as published in 

the April 10, 2008, edition of the 

Federal Register (73 FR 19594)) 

established standards and criteria for all 

compensatory mitigation projects 

required to offset losses of aquatic 

resources. The standards and criteria 

apply to all sources of compensatory 

mitigation, including permitteeresponsible mitigation, mitigation 

banks, and in-lieu fee programs. As 

stated in 33 CFR 332.1(b), the 2008 rule 

does not change the circumstances 

under which compensatory mitigation is 

required. The NWP regulations at 33 

CFR 330.1(e)(3) stipulate when 

compensatory mitigation is to be 

required for NWP activities—that is, 

when the district engineer determines 

the individual and cumulative adverse 

environmental effects are more than 

minimal. The requirements at 33 CFR 

part 332 may affect the practicability of 

providing compensatory mitigation for 

all NWP activities that result in the loss 

of 1⁄10-acre to 1⁄2-acre and require preconstruction notification, especially if 

the NWP activity is not in the service 

area of an approved mitigation bank or 

in-lieu fee program with released or 

advance credits available at the time the 

NWP pre-construction notification is 

being evaluated by the district engineer. 

In the 2008 mitigation rule, we also 

discussed our concerns about the failure 

rates of on-site compensatory 

mitigation, which are often not 

ecologically successful because of 

nearby changes in land use (see 73 FR 

19601). We believe it would be 

inappropriate to require users of the 

NWP to provide small on-site 

compensatory mitigation projects to 

offset losses caused by NWP activities if 

they are likely to fail. If the district 

engineer determines that on-site 

mitigation is likely to be ecologically 

successful, he or she may require that 

compensatory mitigation. It may not be 

practicable to provide off-site 

compensatory mitigation if the activity 

is not in the service area of an approved 

mitigation bank or in-lieu fee program 

with available credits. It is also 

important to recognize that not all areas 

of the country have approved mitigation 

banks or in-lieu fee programs. If the 

district engineer determines that 

compensatory mitigation is necessary to 

ensure than an NWP activity results in 

minimal individual and cumulative 

adverse effects on the aquatic 

environment, and there are no 

practicable and ecologically successful 

compensatory mitigation options 

available, then he or she will exercise 

discretionary authority and notify the 

project proponent that another form of 

Department of the Army authorization is 

required, such as an individual permit. 

To be consistent with 33 CFR 

330.1(e)(3), and to take into account 

how the requirements of 33 CFR part 

332 affect the practicability for 

providing compensatory mitigation for 

small wetland losses, we have modified 

paragraph (c) of this general condition 


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to state that the district engineer will 

evaluate the pre-construction 

notification and may not require 

compensatory mitigation for losses of 

greater than 1⁄10-acre of wetlands if he or 

she determines that either alternative 

mitigation (such as additional avoidance 

and minimization of impacts to waters 

of the United States on the project site) 

would ensure that the NWP activity 

results in minimal individual and 

cumulative adverse effects on the 

aquatic environment, or the impacts of 

the proposed activity are minimal 

without compensatory mitigation and 

determines the compensatory mitigation 

would not be required. We do not agree 

that compensatory mitigation should be 

required for all activities authorized by 

NWPs. For example, compensatory 

mitigation may not be needed to ensure 

that the authorized activity results in 

minimal adverse effects on the aquatic 

environment. In addition, not all NWP 

activities require pre-construction 

notification, and the pre-construction 

notification thresholds are established 

so that those NWP activities that 

generally do not result in more than 

minimal adverse effects on the aquatic 

environment can proceed without 

review by the district engineer. To 

address exceptions in specific waters or 

geographic areas, division engineers 

may add regional conditions to an NWP 

to lower its pre-construction notification 

threshold or require pre-construction 

notification for all activities authorized 

by that NWP. 

One commenter stated that greater 

than one-for-one mitigation ratios must 

be required, stream mitigation ratios 

should address both areal and linear 

extent, and waivers of the mitigation 

ratio should not be allowed. One 

commenter stated that stream or open 

water mitigation should have a 

mandatory mitigation ratio of one-forone for in-kind replacement and twofor-one riparian habitat improvement for 

any impacts exceeding 50 feet of any 

stream or waterbody. One commenter 

stated that mitigation should be 

required for all stream impacts that 

exceed 100 feet. One commenter stated 

that appropriate in-kind mitigation 

should be provided for any wetland or 

stream impacts. One commenter also 

stated that out-of-kind mitigation 

contradicts the no-net-loss policy. 

The amount of compensatory 

mitigation necessary to ensure that the 

NWP activity results in minimal adverse 

effects on the aquatic environment is 

determined by the district engineer on 

a case-by-case basis by applying the 

provisions at 33 CFR 332.3(f). The 

district engineer will determine whether 

compensatory mitigation for losses of 

stream bed should be required for a 

particular NWP activity. We do not 

agree that losses of stream bed should 

have a threshold for determining when 

compensatory mitigation should be 

required for those losses. We have 

modified paragraph (d) of this general 

condition by replacing the word 

‘‘restoration’’ with ‘‘rehabilitation, 

enhancement, or preservation’’ to be 

consistent with 33 CFR 332.3(e)(3), 

which recognizes streams as ‘‘difficultto-replace’’ resources. 

Out-of-kind mitigation does not 

contradict the ‘‘no overall net loss’’ goal 

for wetlands, since out-of-kind wetlands 

mitigation may be environmentally 

preferable if another wetland type 

provided as compensatory mitigation 

would benefit the watershed more than 

simply providing in-kind replacement 

of the wetland being lost as a result of 

the NWP activity. 

One commenter also requested that 

consideration be given to the 

cumulative impacts of wetland and 

stream disturbance. Several commenters 

said that mitigation cannot be used to 

bring the adverse effects of the NWPs to 

a minimal level. Some of these 

commenters stated that mitigation is not 

predictable and in many cases is not 

successful. Two commenters stated that 

if an NWP activity requires mitigation, 

then by definition it has more than 

minimal adverse environmental effects. 

Cumulative effects to wetlands and 

streams are evaluated in the decision 

documents that are prepared for each 

NWP by Corps Headquarters, as well as 

the supplemental decision documents 

approved by division engineers. 

Wetland restoration, enhancement, 

establishment, and preservation 

activities, and stream rehabilitation, 

enhancement, and preservation 

activities (including and riparian area 

restoration, enhancement, and 

preservation) can offset losses of aquatic 

resource functions provided by waters 

of the United States that are impacted 

by activities authorized by NWPs. 

District engineers evaluate 

compensatory mitigation proposals 

provided by prospective permittees, to 

determine whether the compensatory 

mitigation project will be ecologically 

successful and be sufficient to offset 

losses of waters of the United States to 

ensure that the net adverse effects on 

the aquatic environment are minimal. 

The approved mitigation plan must 

include the applicable components 

listed in 33 CFR 332.4(c)(2)–(14), 

including ecological performance 

standards used to determine if the 

compensatory mitigation project is 

achieving its objectives. 

The party responsible for providing 

the compensatory mitigation must 

implement the approved mitigation 

plan, and if it is determined that 

changes are needed to improve 

ecological success, request approval of 

those modifications. After the approved 

compensatory mitigation project is 

implemented, monitoring is required on 

a regular basis and monitoring reports 

must be submitted to the district 

engineer. The monitoring reports are 

reviewed by the district engineer and if 

there are deficiencies in the 

compensatory mitigation project, the 

district engineer will work with the 

responsible party to determine what 

actions are necessary to fix the 

compensatory mitigation project so that 

it will meet its original objectives or 

comparable objectives that are 

acceptable to the district engineer. If it 

is not possible to take adaptive 

management measures to remediate the 

compensatory mitigation project, then 

the district engineer may require 

alternative compensatory mitigation. 

Several commenters said that 

applicants should be required to submit 

detailed mitigation plans with their preconstruction notifications and 

conceptual mitigation proposals are not 

sufficient. Several commenters also 

stated that the public should be 

provided the opportunity to review 

mitigation plans and provide comments 

on whether the impacts will be 

minimal. 

We have added a new paragraph (c)(1) 

to state that the prospective permittee is 

responsible for proposing an 

appropriate compensatory mitigation 

option, if the district engineer 

determines that compensatory 

mitigation is needed to ensure that the 

activity results in minimal adverse 

effects on the aquatic environment. 

Another new provision, paragraph (c)(3) 

of this general condition, states that the 

mitigation plan may be conceptual or 

detailed, which is consistent with the 

Corps regulations at 33 CFR 

332.4(c)(1)(ii). We do not believe that 

public review of compensatory 

mitigation proposals is necessary. 

District engineers have the expertise to 

review compensatory mitigation plans, 

evaluate their potential for ecological 

success, and determine whether they 

will offset losses of aquatic resource 

functions so that the NWP activity, after 

considering the required compensatory 

mitigation, will result in minimal 

individual and cumulative adverse 

effects on the aquatic environment. 

One commenter asked whether 

functional assessments used to assess 

aquatic resources must be approved by 

the Corps. One commenter said the 


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general condition should provide 

clearer requirements to reduce the 

amount of discretion to be exercised by 

district engineers. One commenter 

stated that compensatory mitigation 

should be linked to the impacts of the 

project, and both the compensatory 

mitigation project and the monitoring 

requirements should last as long as the 

authorized impacts. 

Functional assessments do not have to 

be formally approved by the Corps, 

although district engineers may 

determine that a functional assessment 

method proposed to be used for a 

particular aquatic resource or activity is 

not appropriate. This general condition 

provides basic principles for addressing 

mitigation requirements for NWP 

activities, because it is not possible to 

cover all possible mitigation options 

and requirements at the national level. 

Most activities authorized by NWPs 

result in the permanent loss of waters of 

the United States, and it is not practical 

or necessary to require permanent 

monitoring of compensatory mitigation 

projects. The Corps regulations require 

long-term protection of compensatory 

mitigation project sites (see 33 CFR 

332.7(a)(1), and compensatory 

mitigation projects should be selfsustaining. Some compensatory 

mitigation projects may require longterm management, if the district 

engineer determines that long-term 

management is appropriate and 

practicable. 

One commenter said that paragraph 

(f) should be revised to include the 

option of restoring riparian areas next to 

open waters. In addition, the commenter 

stated that the restoration or 

establishment of riparian areas should 

not be required on both banks of a 

stream, because in some cases the 

permittee may not have authority or 

legal interest in the land to restore or 

establish riparian areas on both sides of 

the stream. This commenter noted that 

there may be conflicting easements, 

roads, levees, or other structures in the 

proposed riparian area, or the area may 

not support riparian vegetation. One 

commenter stated that the Corps is 

inconsistent with use of the term buffer 

and riparian areas and that buffer is 

more inclusive and should be used in 

the general condition instead of riparian 

areas. 

We have added the term ‘‘restoration’’ 

to the first sentence of paragraph (f) to 

make it clear that the riparian area may 

either be restored or established next to 

open waters. The general condition does 

not require riparian areas to be 

established on both sides of a stream. 

The fifth sentence of this paragraph 

provides a recommended width for 

riparian areas, based on a presumption 

that the project proponent can restore or 

establish riparian areas on both sides of 

the stream. If it is not possible to 

establish a riparian area on both sides of 

a stream, or if the waterbody is a lake 

or coastal waters, then restoring or 

establishing a riparian area along a 

single bank or shoreline may be 

sufficient, and we have added language 

to paragraph (f) of general condition 23 

to clarify that this can be acceptable 

compensatory mitigation. The proposal 

did not use the term ‘‘buffer’’ and 

paragraph (f) focuses on providing 

mitigation next to open waters through 

the restoration or establishment, 

maintenance, and legal protection of 

riparian areas. 

One commenter requested that we 

include the phrase ‘‘for resource losses’’ 

at the end of the parenthetical in 

paragraph (b) to be consistent with 33 

CFR part 320.4(r)(1). Two commenters 

stated that it is difficult to provide longterm maintenance of mitigation sites for 

weed control and invasive species. One 

commenter asked that definitions for 

rectifying and reducing be added to the 

general condition. 

We have added ‘‘for resource losses’’ 

after the word ‘‘compensating’’ in 

paragraph (b). Before requiring longterm management for compensatory 

mitigation sites, district engineers will 

evaluate whether such a requirement 

would be practicable, as well as 

appropriate and necessary. We 

recognize that it may not be appropriate 

and practical to require long-term 

management for small permitteeresponsible compensatory mitigation 

project sites, so we have modified 

paragraph (g) to make it clear that longterm management is necessary only 

when the district engineer adds 

conditions to an NWP authorization to 

require long-term management for the 

compensatory mitigation project. We do 

not believe it is necessary to provide 

definitions of the terms ‘‘rectifying’’ and 

‘‘reducing’’ since the commonly 

understood definitions of these terms 

are sufficient. 

One commenter requested the 

removal of paragraph (h), stating that it 

creates confusion and sometimes results 

in mitigation being required for nonjurisdictional activities, such as nonmechanized, above-ground landclearing 

for overhead electric transmission lines. 

Another commenter said that paragraph 

(h) implies that the Corps has authority 

over activities it does not regulate, such 

as the removal of woody vegetation from 

a wetland when there is no discharge of 

dredged or fill material into waters of 

the United States. One commenter 

requested clarification of the 

circumstances under which the Corps 

would require compensatory mitigation 

for the conversion of forested and scrub 

shrub wetlands, and said the phase 

‘‘may be required’’ should be changed to 

‘‘shall be required.’’ This commenter 

also said that no waivers should be 

allowed for mitigation for projects 

within a utility right of way for forested 

and scrub shrub wetlands that are 

permanently converted to emergent 

wetlands. 

Paragraph (h) is being retained, to 

make it clear that district engineers may 

require compensatory mitigation for 

permanent losses of specific aquatic 

resource functions that are caused by 

discharges of dredged or fill material 

into waters of the United States or other 

regulated activities. Paragraph (h) is part 

of a general condition that applies only 

to activities authorized by NWPs. We do 

not agree that the phrase ‘‘may be 

required’’ should be replaced with 

‘‘shall be required’’ because it is the 

district engineer’s discretion whether to 

require compensatory mitigation for 

losses of specific aquatic resource 

functions. 

One commenter recommended adding 

a new paragraph to this general 

condition to clarify that any mitigation 

requirements must be limited to a single 

and complete linear project. This 

commenter said that compensatory 

mitigation should only be required if a 

specific crossing of a waterbody triggers 

paragraph (c), (d), or (f) of this general 

condition, not for other crossings that 

do not trigger pre-construction 

notification requirements or mitigation 

requirements. 

We do not believe such an addition to 

this general condition would be 

appropriate or necessary. As discussed 

elsewhere in this notice, district 

engineers evaluate the entire linear 

project, even though each separate and 

distant crossing of waters of the United 

States may qualify for a separate NWP 

authorization. District engineers may 

require compensatory mitigation for all 

temporary and permanent losses of 

waters of the United States. District 

engineers are required to consider 

cumulative adverse effects in reviewing 

NWP pre-construction notifications, not 

just adverse effects from the specific 

single and complete project to which 

the notification applies. 

One commenter stated that this 

general condition does not adequately 

convey the hierarchy of mitigation 

preference established by 33 CFR part 

332. One commenter stated that in-lieu 

fee arrangements must not be used 

unless the arrangements comply with 

the requirements of the in-lieu fee 

guidance. One commenter stated that 


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remining of lands results in a net benefit 

to the aquatic resources, and the Corps 

should consider this remining as 

adequate compensatory mitigation and 

should consider if it is appropriate to 

create an in-lieu fee program for 

remining of previously mined areas. 

We do not believe it is necessary to 

include the mitigation options 

evaluation framework provided in 33 

CFR 332.3(b), since that regulation 

applies to all forms of Department of the 

Army permits, and the general 

condition explicitly states that 

mitigation must comply with part 332. 

In-lieu fee programs used to provide 

compensatory mitigation for NWP 

activities must comply with the 

applicable provisions in 33 CFR 332.8, 

unless the district engineer determined 

that they qualified for the extension of 

the grandfathering provision provided at 

33 CFR 332.8(v)(2). District engineers 

will determine on a case-by-case basis 

whether compensatory mitigation 

should be required for remining 

activities authorized by NWP. 

This general condition is adopted 

with the modifications discussed above. 

GC 24. Safety of Impoundment 

Structures. We proposed to add this 

new general condition to the NWPs. We 

received no comments on the proposed 

general condition. The general 

condition is adopted as proposed. 

GC 25. Water Quality. We did not 

propose any changes to the general 

condition. Two commenters 

recommended modifying this general 

condition to state that activities are not 

authorized by NWP if the state denies 

water quality certification, unless the 

project proponent obtains an individual 

water quality certification or water 

quality certification is waived. One 

commenter suggested adding a 

provision to state that the district 

engineer will determine, after a 

reasonable amount of time (generally 60 

days) from the date an application for an 

individual water quality certification 

was submitted by the project proponent, 

that water quality certification is waived 

unless the Corps and the water quality 

certification agency agree that 

additional time is needed. A few 

commenters said that individual 

permits should be required for activities 

in any waters identified as 303(d) listed 

streams. 

We believe that the current wording 

of this general condition is sufficient to 

make it clear that an individual water 

quality certification or waiver must be 

obtained if the state, Tribe, or EPA had 

not previously issued water quality 

certification for an NWP. We also do not 

believe it is necessary to provide a 

specific timeframe in the general 

condition to reflect the language in 33 

CFR 330.4(c)(6), since those timeframes 

may vary by Corps district because of 

local agreements with water quality 

certification agencies. There are a 

variety of causes of stream impairment 

for 303(d) listings other than discharges 

of dredged or fill material (e.g., 

nutrients, metals, sedimentation, 

temperature, bacteria, pH, toxics). 

Reversing those causes of impairment is 

more appropriately addressed through 

other Clean Water Act programs. 

This general condition is adopted as 

proposed. 

GC 26. Coastal Zone Management. We 

received no comments on the proposed 

general condition. The general 

condition is adopted as proposed. 

GC 27. Regional and Case-by-Case 

Conditions. We received no comments 

on the proposed general condition. The 

general condition is adopted as 

proposed. 

GC 28. Use of Multiple Nationwide 

Permits. We received no comments on 

the proposed general condition. The 

general condition is adopted as 

proposed. 

GC 29. Transfer of Nationwide Permit 

Verifications. We received no comments 

on the proposed general condition. The 

general condition is adopted as 

proposed. 

GC 30. Compliance Certification. We 

proposed a minor change to this general 

condition to clarify that we will provide 

the permittee with the necessary 

documentation to complete and return 

to the Corps as the signed certification. 

One commenter expressed support for 

the proposed change. 

Two commenters recommended 

including regional conditions to the list 

of conditions under paragraph (a). One 

commenter suggested that a separate 

compliance certification be required for 

mitigation projects, because permittees 

submit the compliance certification 

when the work is completed, not when 

the compensatory mitigation project is 

completed. Two commenters said the 

general condition should be modified to 

clarify that the success of the required 

compensatory mitigation would be 

addressed separately, after evaluation of 

monitoring reports demonstrates 

achievement of the performance 

standards for the compensatory 

mitigation project. 

We have modified paragraph (a) to 

require the statement to read that the 

authorized work has been done in 

accordance with any general, regional 

and activity-specific conditions to cover 

all of the conditions that may be 

applicable to an NWP authorization. We 

have also changed the first paragraph of 

this general condition by adding a 

sentence to state that the success of any 

required permittee-responsible 

mitigation, including the achievement 

of ecological performance standards, 

will be addressed separately by the 

district engineer. Paragraph (b) has also 

been revised by adding a sentence to 

address the use of mitigation bank and 

in-lieu fee program credits to fulfill 

compensatory mitigation requirements 

in NWP authorizations. This new 

sentence states that if mitigation bank 

credits or in-lieu fee program credits are 

used, the permittee must submit the 

documentation required by 33 CFR 

332.3(l)(3) to confirm that he or she has 

secured the appropriate number and 

resource type of credits from the 

mitigation bank or in-lieu fee program. 

One commenter suggested adding 

language similar to that provided in 

NWP 32, to state that it is necessary to 

comply with all terms and conditions of 

the NWP, and that the NWP 

authorization is automatically revoked if 

the permittee does not comply with all 

terms and conditions. One commenter 

suggested that additional funding be 

allocated to do more on-site compliance 

inspections. One commenter said there 

are insufficient monitoring and 

compliance procedures in the NWPs. 

One commenter stated that it should be 

the permittee’s responsibility to provide 

the required proof that the authorized 

activity was conducted to comply with 

the terms and conditions of the NWP. 

The Note at the beginning of Section 

C, Nationwide Permit General 

Conditions, adequately addresses the 

requirement to comply with all 

applicable terms and conditions of the 

NWPs. Funding for compliance 

inspections is outside of the scope of 

this rule. Corps districts are required, 

through our performance measures, to 

conduct initial compliance inspections 

for a minimum percentage of the total 

number of all general permit (including 

NWP) verifications issued during the 

preceding fiscal year where authorized 

work is underway. The purposes of this 

general condition is for the permittee to 

submit documentation to the district 

engineer demonstrating that the 

authorized activity has been 

implemented in accordance with the 

conditions of the NWP authorization. 

Each permittee who receives an NWP 

verification letter from the Corps must 

provide a signed certification 

documenting completion of the 

authorized activity and any required 

compensatory mitigation. 

This general condition is adopted 

with the modification listed above. 

GC 31. Pre-Construction Notification. 

We proposed to modify paragraph (d)(2) 

to clarify that all NWP activities 


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resulting in the loss of greater than 1⁄2- 

acre of waters of the United States 

require agency coordination. We also 

proposed to require agency coordination 

for certain NWPs when the proposed 

activity would result in the loss of 

greater than 1,000 linear feet of 

intermittent and ephemeral stream bed, 

in cases where the district engineer is 

considering waiving the 300 linear foot 

limit. Another proposed change was to 

clarify that the district engineer will 

consider direct and indirect effects 

caused by the NWP activity when 

making a minimal adverse effects 

determination. We also proposed to 

provide a list of factors to be considered 

when making minimal effects 

determinations for the purposes of the 

NWPs. One commenter supported the 

proposed list of factors. 

One commenter objected to adding 

more pre-construction notification 

requirements, stating that it takes 

several days to weeks for an applicant 

to prepare pre-construction notification 

at the high level of detail required by 

district offices. Several commenters 

stated that they did not have the time 

and resources to prepare a preconstruction notifications for all 

activities. One commenter said the 

proposed changes that require preconstruction notifications for additional 

activities would add to the workload of 

the Corps for projects that are minor in 

nature. 

We have not substantially increased 

the number of activities that require preconstruction notification. We have 

issued two new NWPs, and although 

both of those NWPs require preconstruction notification for all 

activities, some of the activities 

authorized by those NWPs may also be 

authorized by other NWPs that do not 

require pre-construction notification. A 

prospective permittee may request 

authorization under a specific NWP, if 

the proposed activity qualifies for 

authorization under that NWP. District 

engineers have been instructed, through 

Regulatory Program Standard Operating 

Procedures, to use the most efficient 

permit process wherever possible, to 

make timely permit decisions while 

protecting the aquatic environment. The 

two new NWPs issued today will 

provide a more efficient means of 

authorizing renewable energy 

generation facilities and pilot projects, 

in cases where those activities did not 

previously qualify for NWP 

authorization and required individual 

permits instead. 

One commenter expressed concern 

with delays associated with the preconstruction notification process. 

Several commenters said some districts 

make requests for additional 

information after the 30-day preconstruction notification completeness 

determination period ends, and 

suggested adding a provision to 

paragraph (a) to state that all requests 

for additional information must be made 

within 30 days of receipt of a complete 

pre-construction notification and that 

districts are limited to one request for 

additional information. One commenter 

said the phrase ‘‘as a general rule’’ 

should be deleted from paragraph (a). 

Several commenters said that in many 

cases, the district engineer fails to 

describe the specific information that is 

needed for a pre-construction 

notification to be deemed complete. 

Two commenters requested clarification 

as to whether the activity is authorized 

by an NWP 30 or 45 days after 

submitting a complete pre-construction 

notification. 

We have added text to the second 

sentence of paragraph (a) to state that 

district engineers must notify 

prospective permittees within the 30- 

day completeness review period if the 

pre-construction notification is 

incomplete and additional information 

has to be provided to the district 

engineer to make the pre-construction 

notification complete. We have also 

added a sentence that directs the district 

engineer to specify, in his or her request 

for additional information, what 

information is needed to make the preconstruction notification complete. We 

have retained the phrase ‘‘as a general 

rule’’ in the new fourth sentence, which 

states that district engineers will request 

additional information only once, 

because there may be occasions where 

it is necessary to make an additional 

request for information. It should be 

noted that the 30-day period only 

applies to information necessary to 

make the PCN complete, which is listed 

in paragraph (c) of this general 

condition. Other types of information 

may also be needed to make a decision 

on whether the proposed activity 

qualifies for NWP authorization, such as 

a conceptual or detailed compensatory 

mitigation plan, if the applicant only 

provided a mitigation statement to 

satisfy the requirement in paragraph 

(b)(5). A conceptual or detailed 

mitigation plan is needed to determine 

whether the proposed compensatory 

mitigation will be suitable for ensuring 

compliance with general condition 23, 

and may be requested after the 30-day 

completeness review period, but before 

the 45-day pre-construction notification 

review period ends. Another example is 

request for additional information 

necessary to complete either 

Endangered Species Act Section 7 

consultation under general condition 18 

or National Historic Preservation Act 

Section 106 consultation under general 

condition 20. Past rulemaking activities 

for the NWPs have established a 45-day 

pre-construction notification review 

period for the NWPs, and today’s final 

rule retains that time period. Exceptions 

are for compliance with general 

condition 18, endangered species, and 

general condition 20, historic 

properties. Under those two general 

conditions, activities that may affect 

endangered or threatened species or 

critical habitat, or have the potential to 

cause effects to historic properties, are 

not authorized until the required 

consultations are completed. Another 

exception is NWP 21, for which 

activities are not authorized until the 

applicant receives written verification 

from the Corps. 

One commenter said that ‘‘he or she’’ 

be removed from paragraph (a)(1) as it 

is the only location in which personal 

pronouns are used. Another commenter 

recommended changing paragraph (a)(2) 

to state that if the permittee does not 

receive any written notification from the 

district engineer within 45 days of 

submitting a complete pre-construction 

notification, then the permittee can 

assume that the district engineer has 

made a ‘‘no effect’’ determination for 

endangered species or historic 

properties. 

The use of ‘‘he or she’’ is appropriate 

in paragraph (a)(1) because it refers to 

the prospective permittee, who may be 

an individual, corporation, or other 

entity. The NWP regulations (see 33 

CFR 330.4(f)(2) for Endangered Species 

Act compliance and 33 CFR 330.4(g)(2) 

for National Historic Preservation Act 

compliance), as well as general 

conditions 18 and 20, state that the 

activity is not authorized by NWP until 

the requirements of the Endangered 

Species Act and/or the National Historic 

Preservation Act have been satisfied. 

Those two provisions in the Corps NWP 

regulations do not allow a prospective 

permittee to conclude that there is a ‘‘no 

effect’’ finding for the purposes of 

compliance with the Endangered 

Species Act or a ‘‘no potential to cause 

effect’’ finding for the purposes of 

compliance with Section 106 of the 

National Historic Preservation Act if the 

district engineer does not respond to the 

pre-construction notification within 45- 

days in which the applicant stated there 

might be effects to listed species or 

designated critical habitat or there may 

be potential to cause effects to historic 

properties. 

One commenter requested 

clarification whether the seven items 


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identified in paragraph (b) of this 

general condition are a complete list 

and should not be supplemented. One 

commenter said that if additional 

requirements are added to the NWP 

authorization by the district engineer 

after the evaluation of the preconstruction notification, those 

requirements should be subject to 

public notice and comment. 

The seven items listed in paragraphs 

(b)(1) through (7) of this general 

condition are required for a preconstruction notification. Additional 

information may be needed by the 

district engineer to make a decision on 

the NWP pre-construction notification, 

such as a compensatory mitigation 

proposal if the district engineer 

disagrees with the prospective 

permittee’s statement that compensatory 

mitigation is not necessary to ensure the 

activity results in minimal adverse 

environmental effects, or information 

needed to conduct Endangered Species 

Act Section 7 or National Historic 

Preservation Act Section 106 

consultation. Permit conditions added 

to an NWP authorization by a district 

engineer do not need to go through a 

public notice and comment process 

because they are incorporated into the 

authorization to ensure compliance with 

regulatory and statutory requirements 

that general permits only authorize 

activities that have minimal adverse 

effects on the aquatic environment and 

other applicable public interest review 

factors. The Corps regulations do not 

require public notice and comment for 

any conditions added to Department of 

the Army permits, including standard 

permits, letters of permission, and all 

categories of general permits. 

Two commenters stated that 

applicants should be required to submit 

detailed mitigation plans with their preconstruction notifications and 

conceptual mitigation proposals are not 

sufficient. One commenter said 

paragraph (e)(2) should be revised to 

require the prospective permittee to 

submit a compensatory mitigation 

proposal if the activity will result in the 

loss of greater than 1⁄10-acre of wetlands. 

Paragraph (b)(5) requires the 

prospective permittee to submit a 

statement explaining how the mitigation 

requirement will be satisfied or why the 

adverse effects of the proposed activity 

on the aquatic environment are minimal 

without mitigation. A detailed or 

conceptual mitigation plan may be 

submitted with the pre-construction 

notification, and a conceptual 

mitigation plan is usually sufficient for 

making the minimal adverse effects 

determination. If the proposed 

mitigation shown in the conceptual 

mitigation plan is acceptable, a detailed 

mitigation plan that complies with the 

requirements of 33 CFR 332.4(c)(2)–(14) 

will be required and must be approved 

by the district engineer before work 

begins in waters of the United States 

unless the district engineer determines 

such prior approval is not practicable or 

necessary (see paragraph (c)(3) of 

general condition 23, mitigation). 

One commenter said that state 

agencies operating under Federal 

funding should be added to paragraphs 

(b)(6) and (b)(7), for the submittal of 

documentation demonstrating 

compliance with Section 7 of the 

Endangered Species Act or Section 106 

of the National Historic Preservation 

Act. This commenter also stated that 

pre-construction notifications should be 

provided electronically as well. One 

commenter said that a pre-construction 

notification should include information 

demonstrating that a project complies 

with applicable federal and state 

requirements. 

A state agency operating under 

Federal funding, where the Federal 

agency has conducted Endangered 

Species Act Section 7 consultation or 

National Historic Preservation Act 

Section 106 consultation for the activity 

that is being provided Federal funds, 

may provide that documentation to the 

district engineer as part of its preconstruction notification, but the 

district engineer will determine whether 

that consultation is sufficient for the 

NWP activity. The NWP regulations at 

33 CFR 330.1(e)(1) state that preconstruction notifications must be in 

writing. We have modified paragraph 

(d)(4) to state that prospective 

permittees may also provide electronic 

files of pre-construction notifications to 

expedite agency coordination. 

Compliance with other Federal, state, or 

local requirements is the responsibility 

of the permittee, and the Corps does not 

have the authority to enforce the 

regulatory requirements of programs 

administered by other agencies. 

Several commenters objected to the 

requirement for a delineation of special 

aquatic sites and other waters of the 

United States under paragraph (b)(4) of 

this general condition, because 

requiring a full delineation has become 

a significant cause of delays and 

increased costs due to uncertainties 

regarding the extent of Federal 

jurisdictional waters under U.S. 

Supreme Court decisions in 2001 and 

2006. One commenter said that in the 

second sentence of paragraph (b)(4) the 

term ‘‘wetland delineation’’ should be 

replaced with ‘‘delineation of waters of 

the United States,’’ because the 

requirement is for not only a delineation 

of wetlands but also of other waters of 

the United States. One commenter 

suggested modifying paragraph (b)(4) to 

clarify that a jurisdictional 

determination is not required with the 

submittal of a complete pre-construction 

notification, just a delineation of waters 

of the United States, which would be 

completed by either the prospective 

permittee or the Corps. 

We have modified paragraph (b)(4) to 

state that a pre-construction notification 

must include a delineation of wetlands, 

other special aquatic sites, and other 

aquatic habitats (e.g., perennial, 

intermittent, and ephemeral streams, 

and lakes and ponds) on the project site, 

instead of a delineation of special 

aquatic sites and other waters of the 

United States. Use of the term ‘‘waters 

of the United States’’ in this paragraph 

implies that an approved jurisdictional 

determination would have to be done 

for a NWP pre-construction notification. 

An approved jurisdictional 

determination is an official Corps 

determination that jurisdictional 

‘‘waters of the United States’’ or 

‘‘navigable waters of the United States,’’ 

or both, are either present or absent on 

a particular site, and precisely identifies 

the limits of those waters on the project 

site that are determined to be 

jurisdictional under the Clean Water Act 

or Sections 9 and 10 of the Rivers and 

Harbors Act of 1899 (see Regulatory 

Guidance Letter 08–02). We understand 

that many users of the NWPs do not 

want to obtain an approved 

jurisdictional determination, and that 

preliminary jurisdictional 

determinations may be appropriate for 

the purposes of NWP authorizations. 

Under a preliminary jurisdictional 

determination, the wetlands, other 

special aquatic sites, and other aquatic 

habitats on the project site are presumed 

to be waters of the United States for the 

purposes of the NWP authorization, and 

any compensatory mitigation that may 

be required. A project proponent has the 

option of requesting an approved 

jurisdictional determination if he or she 

believes that some or all of the 

wetlands, special aquatic sites, or other 

aquatic habitats are not waters of the 

United States, and wants an official 

jurisdictional determination from the 

Corps. A request for an approved 

jurisdictional determination should be 

submitted to the Corps in advance of 

submitting a pre-construction 

notification, because the Corps may not 

be able to make an approved 

jurisdictional determination within the 

45-day pre-construction notification 

review period, and this NWP rule does 

not contain a provision stating that 

approved jurisdictional determinations 


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are necessary to make a decision on an 

NWP pre-construction notification. 

Several commenters suggested 

modifying the general condition to 

allow the applicant to satisfy the preconstruction notification requirement by 

demonstrating that consultation under 

the National Historic Preservation Act 

(NHPA) and/or Endangered Species Act 

(ESA) has been completed and has 

resulted in a finding that the project 

would not adversely affect resources 

protected under those statutes. One of 

the commenters also stated that 

paragraph (e)(1) is incorrect, because the 

condition refers to a limit of 300 feet, 

but NWP 13 has a limit of 500 feet that 

can be waived. One commenter stated 

that submittal of a pre-construction 

notification should be required for any 

NWPs within 303(d) impaired waters 

and that the applicant should prepare a 

statement identifying how the project 

avoids contributing to existing water 

quality impairments and maintains 

consistency with any existing Total 

Daily Maximum Loads (TMDLs). 

Pre-construction notification is 

required for NWP activities that might 

affect endangered or threatened species 

listed, or proposed for listing, under the 

Endangered Species Act (see 33 CFR 

330.4(f)(2)). Likewise, pre-construction 

notification is required for NWP 

activities that may affect historic 

properties (see 33 CFR 330.4(g)(2)). It is 

the Corps responsibility to make effect 

determinations for the purposes of the 

NWP authorizations. Information 

provided by the project proponent for 

Endangered Species Act or National 

Historic Preservation Act compliance 

will be fully considered by the district 

engineer, but it is the district engineer’s 

decision as to whether the requirements 

of those acts have been complied with 

for the NWP authorizations. We have 

determined that modification of 

paragraph (e)(1) (which has been moved 

to paragraph 1 of Section D, District 

Engineer’s Decision) is not necessary, as 

the 500 linear foot limit for the request 

for a waiver of NWP 13 is ‘‘an otherwise 

applicable limit’’ as specified in this 

text. The state agency that makes water 

quality certifications for the NWPs has 

the authority to determine whether an 

NWP should authorize discharges into 

303(d) impaired waters, so we do not 

believe pre-construction notification 

should be categorically required for all 

such discharges. As noted previously, 

many waters are impaired for pollutants 

not related to discharges of dredge or fill 

material. 

Two commenters said that under 

paragraph (c) of this general condition, 

there are problems with using ENG 4345 

for pre-construction notifications, 

because the standard permit form 

requires information that is not listed in 

paragraphs (b)(2) through (b)(7), and 

those paragraphs also cite information 

that is not required by ENG 4345. 

The standard permit form, ENG 4345, 

may be used for pre-construction 

notifications, and it is not necessary to 

fill out those fields in ENG 4345 that are 

not relevant to paragraphs (b)(2) through 

(b)(7). The prospective permittee must 

supplement ENG 4345 if the NWP preconstruction notification must include 

information that is not specifically 

required by ENG 4345. A permittee is 

not required to use ENG 4345 for preconstruction notification as long as all 

required information is included. 

Several commenters said that the 

threshold for agency coordination 

should be increased, or that interagency 

coordination is not necessary. In 

contrast, several commenters stated that 

the thresholds for agency coordination 

should be decreased. One commenter 

said agency coordination should be 

required for any activity potentially 

impacting approved mitigation banks, 

other mitigation areas, or local, state, or 

Federal public properties. One 

commenter suggested requiring agency 

coordination for NWP 12 activities, 

because they could result in the loss of 

greater than 1⁄2-acre of waters of the 

United States. 

We believe the agency coordination 

thresholds established in paragraph 

(d)(2) of this general condition are 

appropriate, and focus on those 

activities where it would be helpful to 

solicit the views of the listed agencies 

prior to making a decision on an NWP 

pre-construction notification. Potential 

impacts to mitigation banks, other 

compensatory mitigation project sites, 

or other public properties are more 

appropriately addressed through the 

district engineer’s review, and do not 

require additional agency coordination 

under the NWP program. However, 

agency coordination may be required 

under other regulations, such as 33 CFR 

332.8, which has an interagency review 

process for the establishment and 

operation of mitigation banks and inlieu fee programs. A proposed activity 

that may directly affect an approved 

mitigation bank or in-lieu fee project 

site may require the district engineer to 

consult with an interagency review team 

before making a decision on that 

activity. The limits for NWP 12 apply to 

single and complete projects, and for 

each single and complete project the 

NWP 12 activity may not result in the 

loss of greater than 1⁄2-acre of waters of 

the United States. As discussed 

elsewhere in this final rule, in response 

to pre-construction notifications for 

NWP 12 activities that are linear 

projects, district engineers will evaluate 

the cumulative effects of those linear 

projects on the aquatic environment 

when determining whether 

authorization by NWP is appropriate. 

We do not believe it is necessary to 

require agency coordination for those 

linear projects. 

This general condition is adopted 

with the modifications discussed above. 

District Engineer’s Decision 

We have established a new Section D, 

District Engineer’s Decision, by moving 

paragraph (e) of the proposed general 

condition 30 (now designated as general 

condition 31) to a separate section of the 

NWPs. We believe this is appropriate 

because the proposed paragraph (e) does 

not require compliance on the part of 

the permittee. Therefore, the criteria 

that district engineers use to determine 

whether a particular activity is 

authorized by NWP should not be in the 

general conditions. The comments 

received in response to the proposed 

paragraph (e) of the pre-construction 

notification general condition have been 

moved to this new section. 

Two commenters objected to the 

language which states that the district 

engineer must determine that the 

proposed NWP activity is not contrary 

to the public interest. One of these 

commenters said that Section 404(e) of 

the Clean Water Act does not require 

such a public interest review for NWP 

activities, and this provision should be 

deleted because it conflicts with other 

Corps regulations. 

The NWP regulations clearly state that 

the district engineer may exercise 

discretionary authority if he or she 

identifies concerns for the aquatic 

environment under the 404(b)(1) 

Guidelines or for any factor of the 

public interest (see 33 CFR 330.1(d)). In 

addition, the NWP regulations also 

require the district engineer to review 

pre-construction notifications and add 

conditions to the NWP authorization if 

necessary to ensure that the activity 

results in minimal individual and 

cumulative adverse effects on the 

aquatic environment and the public 

interest (see 33 CFR 330.1(e)(2)). The 

Corps issued those regulations under its 

authority under Section 404 of the Clean 

Water Act and Section 10 of the Rivers 

and Harbors Act of 1899. 

One commenter suggested adding 

definitions of the terms ‘‘direct’’ and 

‘‘indirect’’ to the NWPs. Two 

commenters requested clarification on 

when a district engineer can exercise 

discretionary authority for the purposes 

of the NWP authorization, particularly 

for those circumstances where preVerDate Mar<15>2010 18:29 Feb 17, 2012 Jkt 226001 PO 00000 Frm 00078 Fmt 4701 Sfmt 4703 E:\FR\FM\21FEN2.SGM 21FEN2

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construction notification is not required 

by the NWP. Several commenters said 

that the district engineer should also 

evaluate the environmental benefits of a 

project. 

We have added definitions for the 

terms ‘‘direct effects’’ and ‘‘indirect 

effects’’ to the ‘‘Definitions’’ section of 

the NWPs. District engineers have the 

authority to modify, suspend, or revoke 

any NWP authorization (see 33 CFR 

330.1(d) and 33 CFR 330.4(e)(2)) when 

he or she has identified sufficient 

concerns for the environment or other 

factors of the public interest. District 

engineers may also consider 

environmental benefits that may result 

when making a decision as to whether 

an NWP activity results in minimal 

individual and cumulative adverse 

effects to the aquatic environment. 

One commenter stated that the factors 

required for a district engineer to make 

a minimal effects determination on a 

request for a waiver of the limits of any 

NWP suggests a level of analysis that is 

more comparable to the individual 

permit process, which threatens the 

availability of the NWPs for prospective 

permittees. 

The evaluation of a request for a 

waiver of the 300 linear foot limit for 

the loss of intermittent or ephemeral 

stream bed, or any other limit that can 

be waived by the district engineer, is an 

important tool for maintaining 

flexibility in the NWP, and authorizing 

activities that result in minimal 

individual and cumulative adverse 

effects on the aquatic environment. The 

waiver review process is not comparable 

to the individual permit review process, 

because it does not require a public 

notice, National Environmental Policy 

Act documentation, and a projectspecific 404(b)(1) Guidelines analysis. 

In response to the proposed 

considerations for making minimal 

effects determination, one commenter 

suggested adding the type of resource 

that will be affected by the NWP. This 

commenter also recommended defining 

the term ‘‘minimal effects’’ as those 

effects that constitute relatively small 

changes in the affected environment and 

insignificant changes in ecological 

function or hydrology. This commenter 

said the minimal effects decision may 

also depend on whether the proposed 

activity will occur in a special aquatic 

site, its proximity to nesting or 

spawning areas, the presence of state- or 

federally-listed species of concern other 

than endangered or threatened species, 

and the amount of permitted or 

unpermitted aquatic resource loss in the 

same watershed, stream reach, and/or 

bay or estuary. 

We agree that adding the resource 

type is appropriate, because the 

minimal effects threshold may be 

different for a difficult-to-replace 

resource such as a stream, bog, fen, or 

spring. We do not agree that a finding 

of minimal effects should be based on 

small changes to the affected 

environment, ecological function, or 

hydrology. While the NWPs have 

acreage or linear foot limits, or inherent 

limits based on the type of activity 

authorized, at a small scale those 

activities result in complete losses of 

ecological function or hydrology 

because most discharges of dredged or 

fill material into waters of the United 

States replace aquatic areas with dry 

land. These complete losses of waters of 

the United States often have minimal 

individual and cumulative adverse 

effects on the aquatic environment. It is 

the environmental setting and other 

factors listed in the proposed paragraph 

(e)(1) (which has been changed to 

paragraph (1) of Section D) that are more 

appropriate for making the minimal 

effects determination. It is also the 

broader watershed or landscape context 

that is important for determining 

whether minimal adverse effects on the 

aquatic environment will result. 

Proximity to nesting or spawning areas 

is more appropriately addressed through 

compliance with general condition 4, 

migratory bird breeding areas, and 

general condition 3, spawning areas. 

Division engineers may impose regional 

conditions to restrict or prohibit the use 

of NWPs to authorize activities that may 

affect state- or federally-listed species of 

concern if they determine, after the 

public notice and comment process, it is 

in the public interest to add such 

regional conditions to ensure minimal 

adverse effects. The Corps is required to 

consider effects within a wetland, 

stream reach, or coastal waterbody that 

are caused either by an individual 

activity, or cumulatively by many such 

activities authorized by the same NWP, 

and to determine that such effects are 

minimal before use of an NWP can be 

authorized. 

We have made additional 

modifications to the text of this 

provision of the NWPs. In the first 

paragraph, we have added a sentence 

stating that for linear projects, the 

district engineer will evaluate the 

individual crossings to determine if they 

satisfy the terms and conditions of the 

applicable NWP(s), as well as the 

cumulative effects of all the crossings 

authorized by NWPs. This sentence is 

consistent with the preamble for the 

NWP final regulation published in the 

November 22, 1991, issue of the Federal 

Register, in which the definition of 

‘‘single and complete project’’ at 33 CFR 

330.2(i) was promulgated (see 56 FR 

59114). 

In paragraphs (2) and (3) of Section D, 

we have added text to be consistent 

with the mitigation rule at 33 CFR part 

332, with a focus on adding activityspecific conditions to the NWP 

authorization for compensatory 

mitigation requirements. We have also 

added a provision to the end of 

paragraph (3) stating that the district 

engineer may determine that prior 

approval of a mitigation plan is not 

practicable or not necessary to ensure 

timely completion of the required 

compensatory mitigation. This 

provision is consistent with 33 CFR 

332.3(k)(3). 

Definitions 

Best management practices (BMPs). 

We did not receive any comments on 

the proposed definition. The definition 

is adopted as proposed. 

Compensatory mitigation. We 

proposed to modify this definition to 

make it consistent with the definition of 

this term found in 33 CFR 332.2. We did 

not receive any comments on the 

proposed definition and the definition 

is adopted as proposed. 

Currently serviceable. We did not 

proposed any changes for this 

definition. We did not receive any 

comments on the proposed definition. 

The definition is adopted as proposed. 

Direct effects. In response to several 

comments, we are adding a definition of 

‘‘direct effects’’ to provide clarification 

to be used with paragraph (1) of Section 

D, District Engineer’s Decision. We have 

adapted this definition from the Council 

of Environmental Quality’s definition in 

their National Environmental Policy Act 

regulations at 40 CFR 1508.8(a). 

Discharge. The proposed definition 

included the phrase ‘‘and any activity 

that causes or results in such a 

discharge.’’ 

One commenter said that that phrase 

should be removed because it is 

inconsistent with court decisions on the 

definition of ‘‘discharge of dredged 

material.’’ We inadvertently included 

the language in the proposal, and are 

removing it from the definition. 

This definition is adopted with the 

modification discussed above. 

Enhancement. We did not receive any 

comments on the proposed definition. 

The definition is adopted as proposed. 

Ephemeral stream. We did not 

propose any changes to the definition. 

One commenter said the definition 

should be modified to state that for 

ephemeral streams, flow is also derived 

from snow melt as well as rainfall. One 


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commenter requested clarification that 

the definition of ephemeral stream did 

not include roadside ditches. 

While snow melt may contribute to 

the flow of ephemeral streams, snow 

melt also contributes to the flow of 

intermittent and perennial streams, 

especially in areas with deep snow 

packs. The proposed definition 

appropriately focuses on the duration of 

flow, and melting snow should not be 

considered a precipitation event since 

the development of snow pack occurs 

over the course of a winter season. 

Therefore, we are not making the 

suggested change. Ephemeral streams 

may, in some circumstances, be 

channelized or relocated to become 

roadside ditches, so we do not agree that 

recommended change should be made. 

The definition is adopted as 

proposed. 

Establishment (creation). We did not 

receive any comments on the proposed 

definition. The definition is adopted as 

proposed. 

High Tide Line. We proposed to add 

this as a new definition, based on the 

definition at 33 CFR 328.3(d). One 

commenter suggested expanding the 

definition of storm surges to include 

build up of water against a coast or a 

bay by flood waters which cause water 

levels to exceed spring high tide levels. 

We do not agree that the suggested 

change should be made to this 

definition, because it would make the 

definition inconsistent with 33 CFR 

328.3(d), which states that storm surges 

are not to be used to identify the high 

tide line. 

The definition is adopted as 

proposed. 

Historic property. We did not receive 

any comments on the proposed 

definition. The definition is adopted as 

proposed. 

Independent utility. We proposed to 

add ‘‘non-linear’’ in the first sentence 

after ‘‘complete’’ and before project to 

reflect the independent utility test only 

applies to single and complete nonlinear projects. 

One commenter requested that the 

term ‘‘independent utility’’ be 

eliminated from the nationwide permit 

program because it discourages 

assessment of a project’s total impacts. 

Another commenter asked whether the 

term independent utility applied to both 

single and complete non-linear projects 

and single and complete linear projects. 

The concept of ‘‘independent utility’’ 

is important for the implementation of 

the NWP program because it provides a 

useful test to help determine whether 

proposed activities requiring 

Department of the Army authorization 

should be evaluated together for one 

permit authorization, or may be 

evaluated separately to determine if 

each activity qualifies for its own permit 

authorization. Despite the independent 

utility test, the cumulative effects of 

NWP activities must still be evaluated 

by district engineers when they review 

pre-construction notifications or other 

NWP verification requests. The 

modified definition makes it clear that 

the independent utility test only applies 

to single and complete non-linear 

projects; however, separate linear 

projects may have independent utility. 

This definition is adopted as 

proposed. 

Indirect effects. In response to several 

comments, we are adding a definition of 

‘‘indirect effects’’ to provide 

clarification to be used with paragraph 

(1) of Section D, District Engineer’s 

Decision. We have adapted this 

definition from the Council on 

Environmental Quality’s definition in 

their National Environmental Policy Act 

regulations at 40 CFR 1508.8(b). 

Intermittent stream. We did not 

receive any comments on the proposed 

definition. The definition is adopted as 

proposed. 

Loss of waters of the United States. 

We did not propose any changes to the 

definition. One commenter said the loss 

of stream bed should be defined. One 

commenter suggested revising this 

definition to state that waters of United 

States temporarily filled, flooded, 

excavated, or drained, but restored to 

pre-construction contours and 

elevations after construction, are not 

included in the measurement of loss of 

waters of the United States, especially 

as it relates to utility line construction. 

Another commenter said that 

clarification should be provided to state 

that for the purposes of the NWPs, the 

loss of waters of the United States 

generally does not include the cleared 

area along the utility line right-of-way 

between two poles or towers supporting 

overhead power transmission lines. One 

commenter requested clarification of 

application of this definition to 

activities in the ocean, bays, and Great 

Lakes, especially in the context of NWP 

52 activities. This commenter 

recommended stating, for the purposes 

of NWP 52, that the loss only applies to 

the area of the ocean, bay, or Great 

Lakes occupied by wind towers and 

associated structures such as 

meteorological towers and transformers. 

The proposed definition stated that 

the loss of stream bed results from 

filling or excavating the stream bed, and 

we do not believe it is necessary to 

change that definition. The proposed 

definition also stated that waters of the 

United States temporarily filled, 

flooded, excavated, or drained, but 

restored to pre-construction contours 

and elevations after construction, are 

not included in the measurement of loss 

of waters of the United States. That 

provision may apply to temporary 

impacts to waters of the United States 

caused by utility lines activities, or to 

any other activity involving temporary 

filling, flooding, excavation, or drainage. 

While the presence of an overhead 

utility line above waters of the United 

States does not constitute a ‘‘loss of 

waters of the United States,’’ the 

construction of a utility line right-ofway for overhead transmission lines 

may result in losses of waters of the 

United States if it involves discharges of 

dredged or fill material into waters of 

the United States that cause permanent 

conversions of aquatic areas to dry land 

or permanent increases to the bottom 

elevation of a waterbody. 

The application of this definition to 

renewable energy generation facilities in 

coastal waters and the Great Lakes 

depends on the type of activity. A 

structure installed in these waters is 

generally not considered to result in a 

loss of waters of the United States, 

unless it is a pile supported structure 

that is constructed by placing a series of 

piles so closely together that they have 

the effect of fill (see 33 CFR 323.3(c)). 

If the construction of these facilities and 

associated structures involves the 

placement of materials that meet either 

the definition of ‘‘discharge of dredged 

material’’ at 33 CFR 323.2(d) or 

‘‘discharge of fill material’’ at 33 CFR 

323.2(f), such as the placement of riprap 

at the base of a pile supported structure, 

then the area of sea bed or lake bed 

covered by that dredged or fill material 

would be counted towards the ‘‘loss of 

waters of the United States’’ for that 

activity. 

The definition is adopted as 

proposed. 

Non-tidal wetland. We did not receive 

any comments on the proposed 

definition. The definition is adopted as 

proposed. 

Open water. We did not receive any 

comments on the proposed definition. 

The definition is adopted as proposed. 

Ordinary high water mark. We did not 

propose any changes to the definition. 

One commenter said the definition 

should state that, for flowing waters, the 

term ordinary high water mark includes 

the bankfull stage or elevation, since 

this indicator can be readily delineated 

at most locations. 

The bankfull elevation is not a useful 

tool for identifying the ordinary high 

water marks of streams or rivers in some 

parts of the country, especially the arid 

west. In the arid west, the Corps 


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examines stream geomorphology and 

vegetation that is responsive to the 

dominant stream discharge to identify 

the ordinary high water mark for 

intermittent and ephemeral streams (see 

‘‘A Field Guide to the Identification of 

the Ordinary High Water Mark (OHWM) 

in the Arid West Region of the Western 

United States: A Delineation Manual’’ 

published by the Corps Engineer 

Research and Development Center, 

report number ERDC/CRREL TR–08–12, 

dated August 2008). 

The definition is adopted as 

proposed. 

Perennial stream. We did not receive 

any comments on the proposed 

definition. The definition is adopted as 

proposed. 

Practicable. We did not receive any 

comments on the proposed definition. 

The definition is adopted as proposed. 

Pre-construction notification. We did 

not receive any comments on the 

proposed definition. The definition is 

adopted as proposed. 

Preservation. We did not receive any 

comments on the proposed definition. 

The definition is adopted as proposed. 

Re-establishment. We proposed to 

modify this definition by adding ‘‘and 

functions’’ to the end of the last 

sentence in order to be consistent with 

the definition of this term found in 33 

CFR 332.2. 

Two commenters objected to the 

proposed change. The addition of the 

phrase ‘‘and functions’’ makes this 

definition consistent with the definition 

at 33 CFR 332.2, which was 

promulgated in 2008. The objective of 

re-establishing aquatic resources is to 

provide aquatic resource functions. 

The definition is adopted as 

proposed. 

Rehabilitation. We did not propose 

any changes to this definition. One 

commenter expressed support of this 

definition. The definition is adopted as 

proposed. 

Restoration. We did not propose any 

changes to this definition. One 

commenter expressed support of this 

definition. The definition is adopted as 

proposed. 

Riffle and pool complex. We did not 

receive any comments on the proposed 

definition. The definition is adopted as 

proposed. 

Riparian areas. We did not propose 

any changes to this definition, and we 

did not receive any comments on the 

proposed definition. We have changed 

this definition to more accurately 

describe where riparian areas occur, and 

what types of features may be found in 

riparian areas. We have replaced the 

word ‘‘waterbody’’ with the phrase 

‘‘riverine, lacustrine, estuarine, and 

marine waters,’’ since the definition of 

‘‘waterbody’’ includes wetlands and 

wetlands by themselves do not have 

riparian areas. We have also added 

‘‘wetlands, non-wetland waters, or’’ 

between the words ‘‘adjacent’’ and 

‘‘uplands’’ since riparian areas are not 

limited to uplands. There may be 

wetlands and non-wetland (open) 

waters such as oxbow lakes and ponds 

within a riparian area. The definition is 

adopted with the modifications 

discussed above. 

Shellfish seeding. We did not receive 

any comments on the proposed 

definition. The definition is adopted as 

proposed. 

Single and complete linear project 

and single and complete non-linear 

project. We proposed to take the 

definition of ‘‘single and complete 

project’’ and split it into two definitions 

to clarify the use the term ‘‘single and 

complete project’’ for linear and nonlinear projects. Our proposal was based 

on the definition for ‘‘single and 

complete project’’ at 33 CFR 330.2(i) 

that was provided in the November 22, 

1991, final rule (56 FR 59113). 

Many commenters expressed support 

for the proposal. Most of these 

commenters also agreed that the 

independent utility test does not apply 

to single and complete linear projects. 

They said the proposed definitions will 

remove some of the uncertainty and 

inconsistencies that currently exist with 

respect to how multiple stream and 

wetland crossings are evaluated for 

linear projects as opposed to non-linear 

projects. One commenter asked for 

assurance that these new definitions 

would not materially affect how the 

Corps evaluates separate crossings of 

tributaries for the purposes the NWP 

program. 

These two definitions are consistent 

with the NWP regulations and are not 

expected to have an effect on the Corps 

current practices for implementing the 

NWP program for both linear and nonlinear projects. 

One commenter opposed 

differentiating between linear and nonlinear projects for the purposes of the 

definition of single and complete 

project. One commenter said that 

references to single and complete linear 

projects and single and complete nonlinear projects should be removed from 

the NWPs. One commenter stated that 

these two definitions would complicate 

the water quality certification process. 

The separate definitions established 

in today’s rule will help provide 

consistent implementation of the NWP 

program by clarifying how the term 

‘‘single and complete project’’ should be 

applied for different types of activities 

authorized by NWP. These definitions 

are important for efficient 

implementation of the Corps Regulatory 

Program and determining whether a 

particular regulated activity and any 

related regulated activities qualify for 

NWP authorization. Therefore, we do 

not agree that these terms should be 

removed from the NWP program. The 

definition of ‘‘single and complete 

project’’ for the NWPs has been in place 

since 1991 and the separate definitions 

provided in today’s final rule are 

consistent with the 1991 definition. 

Therefore, the use of these definitions 

should not complicate the water quality 

certification process. 

One commenter requested the 

addition of examples, such as utility 

lines, to the definition of single and 

complete linear project. One commenter 

asked for clarification on whether the 

term independent utility only applies to 

non-linear single and complete projects. 

Several commenters said the definition 

of single and complete linear project 

should preclude district engineers from 

evaluating separate crossings 

cumulatively. 

The new definitions distinguish 

between linear and non-linear projects 

and reflect the fact that while each 

single and complete non-linear project 

must have independent utility, each 

single and complete linear project need 

not have independent utility within the 

overall linear project. However, separate 

linear projects may have independent 

utility. To clarify what a linear project 

is, we have added a sentence to the 

definition of single and complete linear 

project to state that a linear project is a 

project constructed for the purpose of 

getting people, goods, or services from 

a point of origin to a terminal point. A 

linear project may involve multiple 

crossings of streams, wetlands, or other 

types of waters from the point of origin 

to the terminal point. Roads and 

pipelines are examples of linear 

projects. While each separate and 

distant crossing of a waterbody 

associated with a linear project would 

be considered a separate single and 

complete project for the purposes of the 

NWPs, district engineers will also 

evaluate the cumulative effects of those 

crossings to determine whether they 

qualify for NWP authorization. 

One commenter said that for an 

overall linear project the sum total of 

the losses of waters of the United States 

associated with that linear project 

cannot exceed the acreage or linear foot 

limits for an NWP. Several commenters 

stated that it was inappropriate to use 

multiple NWPs to authorize multiple 

crossings associated with one overall 

linear project, because it would be 


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impossible for the district engineer to 

determine if the overall project had 

minimal adverse effects on the 

environment or prevent the Corps from 

assessing the cumulative effects caused 

by the overall project. One commenter 

said these two proposed definitions may 

conflict with the NWP general 

conditions. 

For single and complete linear 

projects, each separate and distant 

crossing of a waterbody, as well as each 

crossing of other waterbodies along the 

corridor for the linear project may be 

permitted by separate NWP 

authorizations. The acreage and other 

applicable limits for an NWP would be 

applied to each crossing, as long as 

those crossings are far enough apart to 

be considered separate and distant. 

District engineers will evaluate the 

cumulative effects of those linear 

projects when determining whether 

authorization by NWP is appropriate. 

The approach to cumulative effects 

analysis for linear projects is little 

different than the cumulative effects 

analysis for other types of NWP 

activities, including those 

circumstances in which more than one 

NWP is used to authorize a single and 

complete non-linear project, because 

cumulative effects are evaluated on a 

regional basis. Cumulative effects 

analysis may be done on a watershed 

basis, or by using a different type of 

geographic area, such as an ecoregion. 

One commenter asked how offshore 

wind energy projects would be 

evaluated in accordance with these 

definitions, especially how the turbines, 

substations, cables, and associated 

infrastructure would be considered as 

either single and complete linear 

projects or single and complete nonlinear projects. 

Deciding which definition to apply to 

a particular project depends on the 

configuration of the project relative to 

the locations of waters of the United 

States within the project boundaries. 

For offshore wind energy projects, the 

turbines would be located on structures 

in a single waterbody as would the 

transmission cables that transfer the 

energy from the turbines to a land-based 

substation, while land-based attendant 

features might be constructed in 

separate waterbodies located within a 

tract of land. The off-shore turbine 

structures and land-based attendant 

features may be considered as a single 

and complete non-linear project, while 

as discussed above for NWPs 51 and 52, 

the utility lines that transfer the energy 

from the renewable energy generation 

facilities to a distribution system, 

regional grid, or other facility may be 

considered to be separate single and 

complete linear projects and may be 

authorized under a separate NWP, such 

as NWP 12. The district engineer will 

have to consider the activity-specific 

circumstances when determining which 

definition to apply and which NWPs are 

appropriate to use. 

One commenter asked whether 

district engineers have the authority to 

change the definitions of single and 

complete project or independent utility. 

Two commenters said the term 

‘‘distant’’ should be defined in ‘‘single 

and complete linear project.’’ 

The definitions provided in today’s 

final rule cannot be changed by district 

engineers, but those definitions will be 

subject to interpretation after these 

NWPs go into effect and they are 

implemented. It is not practical to 

provide specific definition of ‘‘distant’’ 

since that must be a judgment call by 

the district engineer because of the 

substantial variability in landscapes and 

environmental conditions across the 

country. 

The definition for ‘‘single and 

complete linear project’’ is adopted with 

the modification discussed above. The 

definition for ‘‘single and complete nonlinear project’’ is adopted as proposed. 

Stormwater management. We did not 

receive any comments on the proposed 

definition. The definition is adopted as 

proposed. 

Stormwater management facilities. 

We did not receive any comments on 

the proposed definition. The definition 

is adopted as proposed. 

Stream bed. We did not receive any 

comments on the proposed definition. 

The definition is adopted as proposed. 

Stream channelization. We did not 

receive any comments on the proposed 

definition. The definition is adopted as 

proposed. 

Structure. We did not propose any 

changes to the definition. One 

commenter requested that we include 

bridges and culverts in the definition of 

structures. 

Depending on how a bridge or culvert 

is constructed, and its effects on the 

aquatic environment, it may be 

considered a structure or fill. The bridge 

supports (i.e., bents) may be considered 

to be a structure for the purposes of this 

definition. However, placement of a 

culvert in a water of the United States 

can have the effect of raising the bottom 

elevation and thus should be regulated 

as fill. Accordingly, we are retaining the 

definition of structure as is presently 

proposed. 

Tidal wetland. We did not receive any 

comments on the proposed definition. 

The definition is adopted as proposed. 

Vegetated shallows. We did not 

receive any comments on the proposed 

definition. The definition is adopted as 

proposed. 

Waterbody. We did not receive any 

comments on the proposed definition, 

but we believe some modification of the 

definition is necessary to make it 

simpler and clearer. The revised 

definition simply says that, for the 

purposes of the NWPs, a waterbody is 

a jurisdictional water of the United 

States. We have removed the text 

referring to the presence of standing or 

flowing water above ground and the 

statement that an ordinary high water 

mark is an indicator of jurisdiction. The 

ordinary high water mark indicates the 

lateral extent of jurisdiction for a nonwetland waterbody in the absence of 

adjacent wetlands (see 33 CFR 

328.4(c)(1)); the jurisdictional status of 

the waterbody is determined by 

applying the appropriate regulatory or 

legal criteria. In cases where the 

waterbody is a wetland, the lateral 

extent of the waterbody is the wetland 

boundary. Likewise, we have revised 

the last sentence of this definition by 

removing the phrase ‘‘a jurisdictional 

waterbody displaying an OHWM or 

other indicators of jurisdiction’’ and 

replacing it with ‘‘a waterbody 

determined to be a water of the United 

States under 33 CFR 328.3(a)(1)–(6)’’. 

The definition is adopted with the 

modifications discussed above. 

In addition to the comments 

submitted on definitions provided in 

the proposed rule, we received a 

number of comments suggesting the 

addition of more definitions to the 

‘‘Definitions’’ section of the NWPs. 

One commenter requested that we 

define ‘‘discrete event’’ as it pertains to 

NWP 3 and NWP 45. One commenter 

asked for a definition of mechanized 

land clearing as it relates to the first preconstruction notification threshold in 

NWP 12, to make it clear whether 

activities that only involve the cutting 

or removal of vegetation above the 

ground are, or are not, regulated 

activities. One commenter said that the 

definition of fill should be provided in 

the NWPs to clarify the types of 

materials allowed or prohibited by the 

NWPs. 

What constitutes a ‘‘discrete event’’ 

for the purposes of NWPs 3 and 45 is 

at the discretion of the district engineer, 

and in both NWPs we provide examples 

that give context to the term ‘‘discrete 

event.’’ In NWP 3, storms, floods, and 

fire are examples of discrete events. For 

NWP 45, storms and floods provide 

examples of discrete events. The 

definition of ‘‘discharge of dredged 

material’’ at 33 CFR 323.2(d) is used to 

determine whether mechanized 

landclearing involves a discharge of 


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dredged material that is regulated under 

Section 404 of the Clean Water Act. 

Project proponents are encouraged to 

contact the district engineer to 

determine whether a particular activity 

involving mechanized clearing of a 

utility line right-of-way in a forested 

wetland constitutes a regulated activity, 

because the equipment and techniques 

used are important considerations. The 

definition of the term ‘‘fill material’’ is 

provided in the Corps regulations at 33 

CFR 323.2(e). Nationwide permit 

activities must comply with general 

condition 6, suitable material, and it is 

not feasible to provide a comprehensive 

list of the types of materials that may be 

used as fill material for NWP activities. 

One commenter suggested adding a 

definition of ‘‘special aquatic sites’’ in 

the NWPs. One commenter said the 

definition of special aquatic sites should 

include glides, side channels, 

floodplains, and other types of habitats 

that create and maintain habitat for 

salmon and other fish species. 

The NWPs have a definition for one 

of the special aquatic sites listed in the 

404(b)(1) Guidelines, specifically riffle 

and pool complexes and vegetated 

shallows. Definitions for the other 

special aquatic sites, that is, sanctuaries 

and refuges, wetlands, mud flats, and 

coral reefs, are found at sections 230.40, 

230.41, 230.42, and 230.44 of 40 CFR 

part 230, respectively. Glides, side 

channels, floodplains, and salmon and 

fish habitat are not considered special 

aquatic sites unless they satisfy the 

criteria at 40 CFR 230.40 through 

230.45. 

Regional Conditioning of the 

Nationwide Permits 

Concurrent with this Federal Register 

notice, district engineers are issuing 

local public notices. In addition to the 

changes to some NWPs and NWP 

conditions required by the Chief of 

Engineers, division and district 

engineers may propose regional 

conditions or propose revocation of 

NWP authorization for all, some, or 

portions of the NWPs. Regional 

conditions may also be required by state 

or Tribal water quality certification or 

for state Coastal Zone Management Act 

consistency. District engineers will 

announce regional conditions or 

revocations by issuing local public 

notices. Information on regional 

conditions and revocation can be 

obtained from the appropriate district 

engineer, as indicated below. 

Furthermore, this and additional 

information can be obtained on the 

Internet at http:// 

www.saj.usace.army.mil/Divisions/ 

Regulatory/HQAvatar.htm which will 

help the public find the home page of 

the appropriate Corps district office. 

Contact Information for Corps District 

Engineers 

Alabama 

Mobile District Engineer, ATTN: 

CESAM–RD, 109 St. Joseph Street, 

Mobile, AL 36602–3630 

Alaska 

Alaska District Engineer, ATTN: 

CEPOA–RD, P.O. Box 6898, 

Elmendorf AFB, AK 99506–6898 

Arizona 

Los Angeles District Engineer, ATTN: 

CESPL–RG–R, P.O. Box 532711, Los 

Angeles, CA 90053–2325 

Arkansas 

Little Rock District Engineer, ATTN: 

CESWL–RD, P.O. Box 867, Little 

Rock, AR 72203–0867 

California 

Sacramento District Engineer, ATTN: 

CESPK–RD, 1325 J Street, 

Sacramento, CA 95814–2922 

Colorado 

Albuquerque District Engineer, ATTN: 

CESPA–OD–R, 4101 Jefferson Plaza 

NE., Albuquerque, NM 87109–3435 

Connecticut 

New England District Engineer, ATTN: 

CENAE–R, 696 Virginia Road, 

Concord, MA 01742–2751 

Delaware 

Philadelphia District Engineer, ATTN: 

CENAP–OP–R, Wannamaker 

Building, 100 Penn Square East 

Philadelphia, PA 19107–3390 

Florida 

Jacksonville District Engineer, ATTN: 

CESAJ–RD, P. O. Box 4970, 

Jacksonville, FL 32232–0019 

Georgia 

Savannah District Engineer, ATTN: 

CESAS–RD, 100 West Oglethorpe 

Avenue, Savannah, GA 31401–3640 

Hawaii 

Honolulu District Engineer, ATTN: 

CEPOH–EC–R, Building 230, Fort 

Shafter, Honolulu, HI 96858–5440 

Idaho 

Walla Walla District Engineer, ATTN: 

CENWW–RD, 201 North Third 

Avenue, Walla Walla, WA 99362– 

1876 

Illinois 

Rock Island District Engineer, ATTN: 

CEMVR–OD–P, P.O. Box 2004, Rock 

Island, IL 61204–2004 

Indiana 

Louisville District Engineer, ATTN: 

CELRL–OP–F, P.O. Box 59, Louisville, 

KY 40201–0059 

Iowa 

Rock Island District Engineer, ATTN: 

CEMVR–OD–P, P.O. Box 2004, Rock 

Island, IL 61204–2004 

Kansas 

Kansas City District Engineer, ATTN: 

CENWK–OD–R, 635 Federal Building, 

601 E. 12th Street, Kansas City, MO 

64106–2896 

Kentucky 

Louisville District Engineer, ATTN: 

CELRL–OP–F, P.O. Box 59, Louisville, 

KY 40201–0059 

Louisiana 

New Orleans District Engineer, ATTN: 

CEMVN–OD–S, P.O. Box 60267, New 

Orleans, LA 70160–0267 

Maine 

New England District Engineer, ATTN: 

CENAE–R, 696 Virginia Road, 

Concord, MA 01742–2751 

Maryland 

Baltimore District Engineer, ATTN: 

CENAB–OP–R, P.O. Box 1715, 

Baltimore, MD 21203–1715 

Massachusetts 

New England District Engineer, ATTN: 

CENAE–R, 696 Virginia Road, 

Concord, MA 01742–2751 

Michigan 

Detroit District Engineer, ATTN: 

CELRE–RG, 477 Michigan Avenue, 

Detroit, MI 48226–2550 

Minnesota 

St. Paul District Engineer, ATTN: 

CEMVP–OP–R, 180 Fifth Street East, 

Suite 700, St. Paul, MN 55101–1678 

Mississippi 

Vicksburg District Engineer, ATTN: 

CEMVK–OD–F, 4155 Clay Street, 

Vicksburg, MS 39183–3435 

Missouri 

Kansas City District Engineer, ATTN: 

CENWK–OD–R, 635 Federal Building, 

601 E. 12th Street, Kansas City, MO 

64106–2896 


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Montana 

Omaha District Engineer, ATTN: 

CENWO–OD–R, 1616 Capitol Avenue, 

Omaha, NE 68102–4901 

Nebraska 

Omaha District Engineer, ATTN: 

CENWO–OD–R, 1616 Capitol Avenue, 

Omaha, NE 68102–4901 

Nevada 

Sacramento District Engineer, ATTN: 

CESPK–CO–R, 1325 J Street, 

Sacramento, CA 95814–2922 

New Hampshire 

New England District Engineer, ATTN: 

CENAE–R, 696 Virginia Road, 

Concord, MA 01742–2751 

New Jersey 

Philadelphia District Engineer, ATTN: 

CENAP–OP–R, Wannamaker 

Building, 100 Penn Square East, 

Philadelphia, PA 19107–3390 

New Mexico 

Albuquerque District Engineer, ATTN: 

CESPA–OD–R, 4101 Jefferson Plaza 

NE., Albuquerque, NM 87109–3435 

New York 

New York District Engineer, ATTN: 

CENAN–OP–R, 26 Federal Plaza, New 

York, NY 10278–0090 

North Carolina 

Wilmington District Engineer, ATTN: 

CESAW–RG, P.O. Box 1890, 

Wilmington, NC 28402–1890 

North Dakota 

Omaha District Engineer, ATTN: 

CENWO–OD–R, 1616 Capitol Avenue, 

Omaha, NE 68102–4901 

Ohio 

Huntington District Engineer, ATTN: 

CELRH–OR–F, 502 8th Street, 

Huntington, WV 25701–2070 

Oklahoma 

Tulsa District Engineer, ATTN: CESWT– 

RO, 1645 S. 101st East Ave., Tulsa, 

OK 74128–4609 

Oregon 

Portland District Engineer, ATTN: 

CENWP–OD–G, P.O. Box 2946, 

Portland, OR 97208–2946 

Pennsylvania 

Baltimore District Engineer, ATTN: 

CENAB–OP–R, P.O. Box 1715, 

Baltimore, MD 21203–1715 

Rhode Island 

New England District Engineer, ATTN: 

CENAE–R, 696 Virginia Road, 

Concord, MA 01742–2751 

South Carolina 

Charleston District Engineer, ATTN: 

CESAC–CO–P, P.O. Box 919, 

Charleston, SC 29402–0919 

South Dakota 

Omaha District Engineer, ATTN: 

CENWO–OD–R, 1616 Capitol Avenue, 

Omaha, NE 68102–4901 

Tennessee 

Nashville District Engineer, ATTN: 

CELRN–OP–F, 3701 Bell Road, 

Nashville, TN 37214 

Texas 

Galveston District Engineer, ATTN: 

CESWG–PE–R, P.O. Box 1229, 

Galveston, TX 77553–1229 

Utah 

Sacramento District Engineer, ATTN: 

CESPK–RD, 1325 J Street, CA 95814– 

2922 

Vermont 

New England District Engineer, ATTN: 

CENAE–R, 696 Virginia Road, 

Concord, MA 01742–2751 

Virginia 

Norfolk District Engineer, ATTN: 

CENAO–WR–R, 803 Front Street, 

Norfolk, VA 23510–1096 

Washington 

Seattle District Engineer, ATTN: 

CENWS–OP–RG, P.O. Box 3755, 

Seattle, WA 98124–3755 

West Virginia 

Huntington District Engineer, ATTN: 

CELRH–OR–F, 502 8th Street, 

Huntington, WV 25701–2070 

Wisconsin 

St. Paul District Engineer, ATTN: 

CEMVP–OP–R, 180 Fifth Street East, 

Suite 700, St. Paul, MN 55101–1678 

Wyoming 

Omaha District Engineer, ATTN: 

CENWO–OD–R, 1616 Capitol Avenue, 

Omaha, NE 68102–4901 

District of Columbia 

Baltimore District Engineer, ATTN: 

CENAB–OP–R, P.O. Box 1715, 

Baltimore, MD 21203–1715 

Pacific Territories (American Samoa, 

Guam, & Commonwealth of the 

Northern Mariana Islands) 

Honolulu District Engineer, ATTN: 

CEPOH–EC–R, Building 230, Fort 

Shafter, Honolulu, HI 96858–5440 

Puerto Rico and Virgin Islands 

Jacksonville District Engineer, ATTN: 

CESAJ–RD, P.O. Box 4970, 

Jacksonville, FL 32232–0019 

Administrative Requirements 

Plain Language 

In compliance with the principles in 

the President’s Memorandum of June 1, 

1998, (63 FR 31855) regarding plain 

language, this preamble is written using 

plain language. The use of ‘‘we’’ in this 

notice refers to the Corps. We have also 

used the active voice, short sentences, 

and common everyday terms except for 

necessary technical terms. 

Paperwork Reduction Act 

These NWPs will result in a net 

decrease in the number of permittees 

who are required to submit a preconstruction notification, especially 

because of the changes to NWP 48. The 

content of the pre-construction 

notification is not changed from the 

current NWPs, and the paperwork 

burden will decrease because of the 

reduced number of pre-construction 

notifications submitted. The Corps 

estimates the decreased paperwork 

burden to be 4,005 hours per year. This 

is based on an average burden to 

complete and submit a pre-construction 

notification of 11 hours, and an 

estimated 45 NWP 48 activities that will 

still require pre-construction 

notifications, rather than 3,150 NWP 48 

activities that were previously estimated 

to require either reporting or preconstruction notification. Prospective 

permittees who are required to submit a 

pre-construction notification for a 

particular NWP, or who are requesting 

verification that a particular activity 

qualifies for NWP authorization, may 

use the current standard Department of 

the Army permit application form or 

submit the required information in a 

letter. The total burden for filing preconstruction notifications is estimated 

at 330,000 hours per year (11 hours 

times 30,000 activities per year 

requiring pre-construction notification). 

An agency may not conduct or 

sponsor, and a person is not required to 

respond to, a collection of information 

unless it displays a currently valid 

Office of Management and Budget 

(OMB) control number. For the Corps 

Regulatory Program under Section 10 of 

the Rivers and Harbors Act of 1899, 

Section 404 of the Clean Water Act, and 

Section 103 of the Marine Protection, 

Research and Sanctuaries Act of 1972, 

the current OMB approval number for 

information collection requirements is 

maintained by the Corps of Engineers 

(OMB approval number 0710–0003, 

which expires on August 31, 2012). 

Executive Orders 12866 and 13563 

Under Executive Order 12866 (58 FR 

51735, October 4, 1993) and 13563 (76 


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FR 3821), we must determine whether 

the regulatory action is ‘‘significant’’ 

and therefore subject to review by OMB 

and the requirements of the Executive 

Orders. The Executive Orders define 

‘‘significant regulatory action’’ as one 

that is likely to result in a rule that may: 

(1) Have an annual effect on the 

economy of $100 million or more or 

adversely affect in a material way the 

economy, a sector of the economy, 

productivity, competition, jobs, the 

environment, public health or safety, or 

State, local, or tribal governments or 

communities; 

(2) Create a serious inconsistency or 

otherwise interfere with an action taken 

or planned by another agency; 

(3) Materially alter the budgetary 

impact of entitlements, grants, user fees, 

or loan programs or the rights and 

obligations of recipients thereof; or 

(4) Raise novel legal or policy issues 

arising out of legal mandates, the 

President’s priorities, or the principles 

set forth in the Executive Order. 

Pursuant to the terms of Executive 

Orders 12866 and 13563, we determined 

that this action is a ‘‘significant 

regulatory action’’ and it was submitted 

to OMB for review. It is a significant 

regulatory action because it meets the 

fourth criterion in the Executive Order. 

The most substantive changes to these 

NWPs are the additional limits imposed 

on NWP 21, which authorizes 

discharges of dredged or fill material 

into waters of the United States 

associated with surface coal mining 

activities, the issuance of NWPs 51 and 

52, which authorize activities associated 

with renewable energy generation 

facilities, and the modifications to NWP 

48 which authorize existing and new 

commercial shellfish aquaculture 

activities. 

The changes to the NWPs that are 

most likely to result in additional 

economic costs are the changes to NWP 

21, especially the 1⁄2-acre and 300 linear 

foot limits and the prohibition against 

discharges of dredged or fill material to 

construct valley fills. We have prepared 

a brief economic analysis to estimate the 

additional costs that will be imposed on 

the regulated public as a result of the 

change to the NWPs. It is available in 

the docket for this action at 

www.regulations.gov, docket number 

COE–2010–0035. 

The issuance of NWPs 51 and 52 will 

reduce the number of renewable energy 

generation facilities involving activities 

regulated under section 404 and/or 

section 10 requiring individual permits. 

While some components of land-based 

renewable energy generation facilities, 

such as road crossings, utility lines, and 

building pads involving discharges of 

dredged or fill material into waters of 

the United States, have been authorized 

by NWPs such as NWPs 14, 12, and 39 

in the past, the new NWP 51 will 

provide DA authorization for all 

components of land-based renewable 

energy generation facilities that involve 

discharges of dredged or fill material 

into waters of the United States. There 

was no NWP authorization available for 

water-based renewable energy 

generation pilot projects, so the new 

NWP 52 will reduce the number of 

those activities that require individual 

permits. 

The NWPs support the goals of 

Executive Order 13563, ‘‘Improving 

Regulation and Regulatory Review’’ by 

reducing burdens on the regulated 

public through a streamlined process for 

obtaining Department of the Army 

authorization for activities that will 

result in minimal individual and 

cumulative adverse effects on the 

aquatic environment. The NWPs 

reissued today, when considered as an 

overall package of NWPs, will authorize 

more activities than were previously 

authorized by NWP, such as waterbased renewable energy pilot projects 

and new commercial shellfish 

aquaculture activities. 

Executive Order 13132 

Executive Order 13132, entitled 

‘‘Federalism’’ (64 FR 43255, August 10, 

1999), requires the Corps to develop an 

accountable process to ensure 

‘‘meaningful and timely input by State 

and local officials in the development of 

regulatory policies that have federalism 

implications.’’ The issuance of NWPs 

does not have federalism implications. 

We do not believe that the NWPs will 

have substantial direct effects on the 

States, on the relationship between the 

Federal government and the States, or 

on the distribution of power and 

responsibilities among the various 

levels of government. The NWPs will 

not impose any additional substantive 

obligations on State or local 

governments. Therefore, Executive 

Order 13132 does not apply to these 

final NWPs. 

Regulatory Flexibility Act, as Amended 

by the Small Business Regulatory 

Enforcement Fairness Act of 1996, 5 

U.S.C. 601 et seq. 

The Regulatory Flexibility Act 

generally requires an agency to prepare 

a regulatory flexibility analysis of any 

rule subject to notice-and-comment 

rulemaking requirements under the 

Administrative Procedure Act or any 

other statute unless the agency certifies 

that the rule will not have a significant 

economic impact on a substantial 

number of small entities. Small entities 

include small businesses, small 

organizations, and small governmental 

jurisdictions. 

For purposes of assessing the impacts 

of the proposed issuance and 

modification of NWPs on small entities, 

a small entity is defined as: (1) A small 

business based on Small Business 

Administration size standards; (2) a 

small governmental jurisdiction that is a 

government of a city, county, town, 

school district, or special district with a 

population of less than 50,000; or (3) a 

small organization that is any not-forprofit enterprise which is independently 

owned and operated and is not 

dominant in its field. 

The statutes under which the Corps 

issues, reissues, or modifies NWPs are 

Section 404(e) of the Clean Water Act 

(33 U.S.C. 1344(e)) and Section 10 of the 

Rivers and Harbors Act of 1899 (33 

U.S.C. 403). Under section 404, 

Department of the Army (DA) permits 

are required for discharges of dredged or 

fill material into waters of the United 

States. Under section 10, DA permits are 

required for any structures or other 

work that affect the course, location, or 

condition of navigable waters of the 

United States. Small entities proposing 

to discharge dredged or fill material into 

waters of the United States and/or 

conduct work in navigable waters of the 

United States must obtain DA permits to 

conduct those activities, unless a 

particular activity is exempt from those 

permit requirements. Individual permits 

and general permits can be issued by the 

Corps to satisfy the permit requirements 

of these two statutes. Nationwide 

permits are a form of general permit 

issued by the Chief of Engineers. 

Nationwide permits automatically 

expire and become null and void if they 

are not modified or reissued within five 

years of their effective date (see 33 CFR 

330.6(b)). Furthermore, Section 404(e) of 

the Clean Water Act states that general 

permits, including NWPs, can be issued 

for no more than five years. If the 

current NWPs are not reissued small 

entities and other project proponents 

would be required to obtain alternative 

forms of DA permits (i.e., standard 

permits, letters of permission, or 

regional general permits) for activities 

involving discharges of dredged or fill 

material into waters of the United States 

or structures or work in navigable 

waters of the United States. Regional 

general permits that authorize similar 

activities as the NWPs may be available 

in some geographic areas, so small 

entities conducting regulated activities 

outside those geographic areas would 

have to obtain individual permits for 

activities that require DA permits. 


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Nationwide permits help relieve 

regulatory burdens on small entities 

who need to obtain DA permits. They 

provide an expedited form of 

authorization, as long as the project 

proponent meets all terms and 

conditions of the NWPs. In FY 2010, the 

Corps issued 32,029 NWP verifications, 

with an average processing time of 32 

days. Those numbers do not include 

activities that are authorized by NWP, 

where the project proponent was not 

required to submit a pre-construction 

notification or did not voluntarily seek 

verification that an activity qualified for 

NWP authorization. The average 

processing time for the 2,085 standard 

permits issued during FY 2010 was 221 

days. The NWPs issued and reissued 

today are expected to result in a slight 

increase in the numbers of activities 

potentially qualifying for NWP 

authorization. The estimated numbers of 

activities qualifying for NWP 

authorization are provided in the 

decision documents that were prepared 

for each NWP. The NWPs issued and 

reissued today are not expected to 

significantly increase cost or paperwork 

burden for authorized activities (relative 

to the NWPs issued in 2007), including 

those conducted by small businesses. 

The costs for obtaining coverage 

under an NWP are low. We estimate the 

average time to prepare and file a preconstruction notification, for those 

activities where a pre-construction 

notification is required, is 11 hours. We 

do not believe this constitutes a 

‘‘significant economic impact’’ on 

project proponents, including small 

businesses. 

Another requirement of Section 404(e) 

of the Clean Water Act is that general 

permits, including NWPs, authorize 

only those activities that result in 

minimal adverse environmental effects, 

individually and cumulatively. The 

terms and conditions of the NWPs, such 

as acreage or linear foot limits, are 

imposed to ensure that the NWPs 

authorize only those activities that 

result in minimal adverse effects on the 

aquatic environment and other public 

interest review factors. In addition to 

the paperwork burden of filing a preconstruction notification, many NWPs 

require that low-cost, commonsense 

practices be used to minimize adverse 

effects. These requirements also do not 

constitute ‘‘significant economic 

impacts.’’ 

After considering the economic 

impacts of these NWPs on small 

entities, I certify that this action will not 

have a significant impact on a 

substantial number of small entities. 

Small entities may obtain required DA 

authorizations through the NWPs, in 

cases where there are applicable NWPs 

authorizing those activities and the 

proposed work will result in minimal 

adverse effects on the aquatic 

environment and other public interest 

review factors. The terms and 

conditions of these NWPs will not 

generally impose significant economic 

costs on small entities, and do not 

generally impose higher costs on small 

entities than those of the previous 

NWPs. If an NWP is not available to 

authorize a particular activity, then 

another form of DA authorization, such 

as an individual permit or regional 

general permit, must be secured. 

However, as noted above, we expect a 

slight increase in the number of 

activities that can be authorized through 

these NWPs, because we are issuing two 

new NWPs and making substantial 

changes to NWP 48. The changes to 

NWP 48, commercial shellfish 

aquaculture activities, will result in 

fewer project proponents having to 

submit pre-construction notifications or 

reports to Corps districts. We have also 

modified NWP 48 to authorize new 

commercial shellfish aquaculture 

activities, which were not previously 

authorized by NWP. While we are 

making substantial changes to NWP 21, 

we are also providing NWP 21 

authorization without the new limits for 

surface coal mining activities previously 

authorized under the 2007 NWP 21, to 

have an equitable transition for those 

surface coal mining activities that 

cannot complete the authorized work by 

March 18, 2013. For new NWP 21 

activities subject to the new limits and 

prohibition against valley fills, where 

the project proponent is considered a 

small entity, the changes to that NWP 

will not result in a significant economic 

impact because the costs for obtaining 

an NWP 21 authorization is generally 

higher when compared to other NWPs, 

and approach the costs for obtaining an 

individual permit. 

Unfunded Mandates Reform Act 

Title II of the Unfunded Mandates 

Reform Act of 1995 (UMRA), Public 

Law 104–4, establishes requirements for 

Federal agencies to assess the effects of 

their regulatory actions on State, local, 

and tribal governments and the private 

sector. Under Section 202 of the UMRA, 

the agencies generally must prepare a 

written statement, including a costbenefit analysis, for proposed and final 

rules with ‘‘federal mandates’’ that may 

result in expenditures to State, local, 

and tribal governments, in the aggregate, 

or to the private sector, of $100 million 

or more in any one year. Before 

promulgating a rule for which a written 

statement is needed, Section 205 of the 

UMRA generally requires the agencies 

to identify and consider a reasonable 

number of regulatory alternatives and 

adopt the least costly, most costeffective, or least burdensome 

alternative that achieves the objectives 

of the rule. The provisions of section 

205 do not apply when they are 

inconsistent with applicable law. 

Moreover, section 205 allows an agency 

to adopt an alternative other than the 

least costly, most cost-effective, or least 

burdensome alternative if the agency 

publishes with the final rule an 

explanation why that alternative was 

not adopted. Before an agency 

establishes any regulatory requirements 

that may significantly or uniquely affect 

small governments, including tribal 

governments, it must have developed, 

under Section 203 of the UMRA, a small 

government agency plan. The plan must 

provide for notifying potentially 

affected small governments, enabling 

officials of affected small governments 

to have meaningful and timely input in 

the development of regulatory proposals 

with significant federal 

intergovernmental mandates, and 

informing, educating, and advising 

small governments on compliance with 

the regulatory requirements. 

We have determined that the NWPs 

issued today do not contain a Federal 

mandate that may result in expenditures 

of $100 million or more for State, local, 

and Tribal governments, in the 

aggregate, or the private sector in any 

one year. The NWPs are generally 

consistent with current agency practice, 

do not impose new substantive 

requirements and therefore do not 

contain a Federal mandate that may 

result in expenditures of $100 million or 

more for State, local, and Tribal 

governments, in the aggregate, or the 

private sector in any one year. 

Therefore, the NWPs issued today are 

not subject to the requirements of 

Sections 202 and 205 of the UMRA. For 

the same reasons, we have determined 

that the NWPs contains no regulatory 

requirements that might significantly or 

uniquely affect small governments. 

Therefore, the issuance of NWPs is not 

subject to the requirements of Section 

203 of UMRA. 

Executive Order 13045 

Executive Order 13045, ‘‘Protection of 

Children from Environmental Health 

Risks and Safety Risks’’ (62 FR 19885, 

April 23, 1997), applies to any rule that: 

(1) Is determined to be ‘‘economically 

significant’’ as defined under Executive 

Order 12866, and (2) concerns an 

environmental health or safety risk that 

we have reason to believe may have a 

disproportionate effect on children. If 


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the regulatory action meets both criteria, 

we must evaluate the environmental 

health or safety effects of the proposed 

rule on children, and explain why the 

regulation is preferable to other 

potentially effective and reasonably 

feasible alternatives. 

The NWPs issued today are not 

subject to this Executive Order because 

they are not economically significant as 

defined in Executive Order 12866. In 

addition, these NWPs do not concern an 

environmental or safety risk that we 

have reason to believe may have a 

disproportionate effect on children. 

Executive Order 13175 

Executive Order 13175, entitled 

‘‘Consultation and Coordination with 

Indian Tribal Governments’’ (65 FR 

67249, November 6, 2000), requires 

agencies to develop an accountable 

process to ensure ‘‘meaningful and 

timely input by tribal officials in the 

development of regulatory policies that 

have tribal implications.’’ The phrase 

‘‘policies that have tribal implications’’ 

is defined in the Executive Order to 

include regulations that have 

‘‘substantial direct effects on one or 

more Indian tribes, on the relationship 

between the Federal government and 

the Indian tribes, or on the distribution 

of power and responsibilities between 

the Federal government and Indian 

tribes.’’ 

The NWPs issued today do not have 

tribal implications. They are generally 

consistent with current agency practice 

and will not have substantial direct 

effects on tribal governments, on the 

relationship between the Federal 

government and the Indian tribes, or on 

the distribution of power and 

responsibilities between the Federal 

government and Indian tribes. 

Therefore, Executive Order 13175 does 

not apply to this proposal. Corps 

districts are conducting government-togovernment consultation with Indian 

tribes to develop regional conditions 

that help protect tribal rights and trust 

resources, and to facilitate compliance 

with general condition 17, Tribal Rights. 

Environmental Documentation 

A decision document, which includes 

an environmental assessment and 

Finding of No Significant Impact 

(FONSI), has been prepared for each 

NWP. These decision documents are 

available at: http://www.regulations.gov 

(docket ID number COE–2010–0035). 

They are also available by contacting 

Headquarters, U.S. Army Corps of 

Engineers, Operations and Regulatory 

Community of Practice, 441 G Street 

NW., Washington, DC 20314–1000. 

Congressional Review Act 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. We will submit a 

report containing the final NWPs and 

other required information to the U.S. 

Senate, the U.S. House of 

Representatives, and the Comptroller 

General of the United States. A major 

rule cannot take effect until 60 days 

after it is published in the Federal 

Register. The proposed NWPs are not a 

‘‘major rule’’ as defined by 5 U.S.C. 

804(2). 

Executive Order 12898 

Executive Order 12898 requires that, 

to the greatest extent practicable and 

permitted by law, each Federal agency 

must make achieving environmental 

justice part of its mission. Executive 

Order 12898 provides that each federal 

agency conduct its programs, policies, 

and activities that substantially affect 

human health or the environment in a 

manner that ensures that such programs, 

policies, and activities do not have the 

effect of excluding persons (including 

populations) from participation in, 

denying persons (including 

populations) the benefits of, or 

subjecting persons (including 

populations) to discrimination under 

such programs, policies, and activities 

because of their race, color, or national 

origin. 

The NWPs issued today are not 

expected to negatively impact any 

community, and therefore are not 

expected to cause any 

disproportionately high and adverse 

impacts to minority or low-income 

communities. 

Executive Order 13211 

The NWPs are not a ‘‘significant 

energy action’’ as defined in Executive 

Order 13211, ‘‘Actions Concerning 

Regulations That Significantly Affect 

Energy Supply, Distribution, or Use’’ (66 

FR 28355, May 22, 2001) because it is 

not likely to have a significant adverse 

effect on the supply, distribution, or use 

of energy. Some of the NWPs authorize 

activities that support the supply and 

distribution of energy. 

Authority 

We are issuing new NWPs and 

reissuing existing NWPs under the 

authority of Section 404(e) of the Clean 

Water Act (33 U.S.C. 1344) and Section 

10 of the Rivers and Harbors Act of 1899 

(33 U.S.C. 401 et seq.). 

Dated: February 13, 2012. 

Michael J. Walsh, 

Major General, US Army, Deputy 

Commanding General for Civil and 

Emergency Operations. 

Nationwide Permits, Conditions, 

Further Information, and Definitions 

A. Index of Nationwide Permits, 

Conditions, District Engineer’s Decision, 

Further Information, and Definitions 

Nationwide Permits 

1. Aids to Navigation 

2. Structures in Artificial Canals 

3. Maintenance 

4. Fish and Wildlife Harvesting, 

Enhancement, and Attraction Devices 

and Activities 

5. Scientific Measurement Devices 

6. Survey Activities 

7. Outfall Structures and Associated 

Intake Structures 

8. Oil and Gas Structures on the Outer 

Continental Shelf 

9. Structures in Fleeting and Anchorage 

Areas 

10. Mooring Buoys 

11. Temporary Recreational Structures 

12. Utility Line Activities 

13. Bank Stabilization 

14. Linear Transportation Projects 

15. U.S. Coast Guard Approved Bridges 

16. Return Water From Upland 

Contained Disposal Areas 

17. Hydropower Projects 

18. Minor Discharges 

19. Minor Dredging 

20. Response Operations for Oil and 

Hazardous Substances 

21. Surface Coal Mining Activities 

22. Removal of Vessels 

23. Approved Categorical Exclusions 

24. Indian Tribe or State Administered 

Section 404 Programs 

25. Structural Discharges 

26. [Reserved] 

27. Aquatic Habitat Restoration, 

Establishment, and Enhancement 

Activities 

28. Modifications of Existing Marinas 

29. Residential Developments 

30. Moist Soil Management for Wildlife 

31. Maintenance of Existing Flood 

Control Facilities 

32. Completed Enforcement Actions 

33. Temporary Construction, Access, 

and Dewatering 

34. Cranberry Production Activities 

35. Maintenance Dredging of Existing 

Basins 

36. Boat Ramps 

37. Emergency Watershed Protection 

and Rehabilitation 

38. Cleanup of Hazardous and Toxic 

Waste 


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39. Commercial and Institutional 

Developments 

40. Agricultural Activities 

41. Reshaping Existing Drainage Ditches 

42. Recreational Facilities 

43. Stormwater Management Facilities 

44. Mining Activities 

45. Repair of Uplands Damaged by 

Discrete Events 

46. Discharges in Ditches 

47. [Reserved] 

48. Commercial Shellfish Aquaculture 

Activities 

49. Coal Remining Activities 

50. Underground Coal Mining Activities 

51. Land-Based Renewable Energy 

Generation Facilities 

52. Water-Based Renewable Energy 

Generation Pilot Projects 

Nationwide Permit General Conditions 

1. Navigation 

2. Aquatic Life Movements 

3. Spawning Areas 

4. Migratory Bird Breeding Areas 

5. Shellfish Beds 

6. Suitable Material 

7. Water Supply Intakes 

8. Adverse Effects From Impoundments 

9. Management of Water Flows 

10. Fills Within 100–Year Floodplains 

11. Equipment 

12. Soil Erosion and Sediment Controls 

13. Removal of Temporary Fills 

14. Proper Maintenance 

15. Single and Complete Project 

16. Wild and Scenic Rivers 

17. Tribal Rights 

18. Endangered Species 

19. Migratory Bird and Bald and Golden 

Eagle Permits 

20. Historic Properties 

21. Discovery of Previously Unknown 

Remains and Artifacts 

22. Designated Critical Resource Waters 

23. Mitigation 

24. Safety of Impoundment Structures 

25. Water Quality 

26. Coastal Zone Management 

27. Regional and Case-by-Case 

Conditions 

28. Use of Multiple Nationwide Permits 

29. Transfer of Nationwide Permit 

Verifications 

30. Compliance Certification 

31. Pre-Construction Notification 

District Engineer’s Decision 

Further Information 

Definitions 

Best management practices (BMPs) 

Compensatory mitigation 

Currently serviceable 

Direct effects 

Discharge 

Enhancement 

Ephemeral stream 

Establishment (creation) 

High Tide Line 

Historic property 

Independent utility 

Indirect effects 

Intermittent stream 

Loss of waters of the United States 

Non-tidal wetland 

Open water 

Ordinary high water mark 

Perennial stream 

Practicable 

Pre-construction notification 

Preservation 

Re-establishment 

Rehabilitation 

Restoration 

Riffle and pool complex 

Riparian areas 

Shellfish seeding 

Single and complete linear project 

Single and complete non-linear project 

Stormwater management 

Stormwater management facilities 

Stream bed 

Stream channelization 

Structure 

Tidal wetland 

Vegetated shallows 

Waterbody 

B. Nationwide Permits 

1. Aids to Navigation. The placement 

of aids to navigation and regulatory 

markers which are approved by and 

installed in accordance with the 

requirements of the U.S. Coast Guard 

(see 33 CFR, chapter I, subchapter C, 

part 66). (Section 10) 

2. Structures in Artificial Canals. 

Structures constructed in artificial 

canals within principally residential 

developments where the connection of 

the canal to a navigable water of the 

United States has been previously 

authorized (see 33 CFR 322.5(g)). 

(Section 10) 

3. Maintenance. (a) The repair, 

rehabilitation, or replacement of any 

previously authorized, currently 

serviceable structure, or fill, or of any 

currently serviceable structure or fill 

authorized by 33 CFR 330.3, provided 

that the structure or fill is not to be put 

to uses differing from those uses 

specified or contemplated for it in the 

original permit or the most recently 

authorized modification. Minor 

deviations in the structure’s 

configuration or filled area, including 

those due to changes in materials, 

construction techniques, requirements 

of other regulatory agencies, or current 

construction codes or safety standards 

that are necessary to make the repair, 

rehabilitation, or replacement are 

authorized. Any stream channel 

modification is limited to the minimum 

necessary for the repair, rehabilitation, 

or replacement of the structure or fill; 

such modifications, including the 

removal of material from the stream 

channel, must be immediately adjacent 

to the project or within the boundaries 

of the structure or fill. This NWP also 

authorizes the repair, rehabilitation, or 

replacement of those structures or fills 

destroyed or damaged by storms, floods, 

fire or other discrete events, provided 

the repair, rehabilitation, or replacement 

is commenced, or is under contract to 

commence, within two years of the date 

of their destruction or damage. In cases 

of catastrophic events, such as 

hurricanes or tornadoes, this two-year 

limit may be waived by the district 

engineer, provided the permittee can 

demonstrate funding, contract, or other 

similar delays. 

(b) This NWP also authorizes the 

removal of accumulated sediments and 

debris in the vicinity of existing 

structures (e.g., bridges, culverted road 

crossings, water intake structures, etc.) 

and/or the placement of new or 

additional riprap to protect the 

structure. The removal of sediment is 

limited to the minimum necessary to 

restore the waterway in the vicinity of 

the structure to the approximate 

dimensions that existed when the 

structure was built, but cannot extend 

farther than 200 feet in any direction 

from the structure. This 200 foot limit 

does not apply to maintenance dredging 

to remove accumulated sediments 

blocking or restricting outfall and intake 

structures or to maintenance dredging to 

remove accumulated sediments from 

canals associated with outfall and intake 

structures. All dredged or excavated 

materials must be deposited and 

retained in an area that has no waters of 

the United States unless otherwise 

specifically approved by the district 

engineer under separate authorization. 

The placement of new or additional 

riprap must be the minimum necessary 

to protect the structure or to ensure the 

safety of the structure. Any bank 

stabilization measures not directly 

associated with the structure will 

require a separate authorization from 

the district engineer. 

(c) This NWP also authorizes 

temporary structures, fills, and work 

necessary to conduct the maintenance 

activity. Appropriate measures must be 

taken to maintain normal downstream 

flows and minimize flooding to the 

maximum extent practicable, when 

temporary structures, work, and 

discharges, including cofferdams, are 

necessary for construction activities, 

access fills, or dewatering of 

construction sites. Temporary fills must 

consist of materials, and be placed in a 

manner, that will not be eroded by 

expected high flows. Temporary fills 


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must be removed in their entirety and 

the affected areas returned to preconstruction elevations. The areas 

affected by temporary fills must be 

revegetated, as appropriate. 

(d) This NWP does not authorize 

maintenance dredging for the primary 

purpose of navigation. This NWP does 

not authorize beach restoration. This 

NWP does not authorize new stream 

channelization or stream relocation 

projects. 

Notification: For activities authorized 

by paragraph (b) of this NWP, the 

permittee must submit a preconstruction notification to the district 

engineer prior to commencing the 

activity (see general condition 31). The 

pre-construction notification must 

include information regarding the 

original design capacities and 

configurations of the outfalls, intakes, 

small impoundments, and canals. 

(Sections 10 and 404) 

Note: This NWP authorizes the repair, 

rehabilitation, or replacement of any 

previously authorized structure or fill that 

does not qualify for the Clean Water Act 

Section 404(f) exemption for maintenance. 

4. Fish and Wildlife Harvesting, 

Enhancement, and Attraction Devices 

and Activities. Fish and wildlife 

harvesting devices and activities such as 

pound nets, crab traps, crab dredging, 

eel pots, lobster traps, duck blinds, and 

clam and oyster digging, fish aggregating 

devices, and small fish attraction 

devices such as open water fish 

concentrators (sea kites, etc.). This NWP 

does not authorize artificial reefs or 

impoundments and semiimpoundments of waters of the United 

States for the culture or holding of 

motile species such as lobster, or the use 

of covered oyster trays or clam racks. 

(Sections 10 and 404) 

5. Scientific Measurement Devices. 

Devices, whose purpose is to measure 

and record scientific data, such as staff 

gages, tide and current gages, 

meteorological stations, water recording 

and biological observation devices, 

water quality testing and improvement 

devices, and similar structures. Small 

weirs and flumes constructed primarily 

to record water quantity and velocity are 

also authorized provided the discharge 

is limited to 25 cubic yards. Upon 

completion of the use of the device to 

measure and record scientific data, the 

measuring device and any other 

structures or fills associated with that 

device (e.g., foundations, anchors, 

buoys, lines, etc.) must be removed to 

the maximum extent practicable and the 

site restored to pre-construction 

elevations. (Sections 10 and 404) 

6. Survey Activities. Survey activities, 

such as core sampling, seismic 

exploratory operations, plugging of 

seismic shot holes and other 

exploratory-type bore holes, exploratory 

trenching, soil surveys, sampling, 

sample plots or transects for wetland 

delineations, and historic resources 

surveys. For the purposes of this NWP, 

the term ‘‘exploratory trenching’’ means 

mechanical land clearing of the upper 

soil profile to expose bedrock or 

substrate, for the purpose of mapping or 

sampling the exposed material. The area 

in which the exploratory trench is dug 

must be restored to its pre-construction 

elevation upon completion of the work 

and must not drain a water of the 

United States. In wetlands, the top 6 to 

12 inches of the trench should normally 

be backfilled with topsoil from the 

trench. This NWP authorizes the 

construction of temporary pads, 

provided the discharge does not exceed 

1⁄10-acre in waters of the U.S. Discharges 

and structures associated with the 

recovery of historic resources are not 

authorized by this NWP. Drilling and 

the discharge of excavated material from 

test wells for oil and gas exploration are 

not authorized by this NWP; the 

plugging of such wells is authorized. 

Fill placed for roads and other similar 

activities is not authorized by this NWP. 

The NWP does not authorize any 

permanent structures. The discharge of 

drilling mud and cuttings may require a 

permit under Section 402 of the Clean 

Water Act. (Sections 10 and 404) 

7. Outfall Structures and Associated 

Intake Structures. Activities related to 

the construction or modification of 

outfall structures and associated intake 

structures, where the effluent from the 

outfall is authorized, conditionally 

authorized, or specifically exempted by, 

or otherwise in compliance with 

regulations issued under the National 

Pollutant Discharge Elimination System 

Program (Section 402 of the Clean Water 

Act). The construction of intake 

structures is not authorized by this 

NWP, unless they are directly associated 

with an authorized outfall structure. 

Notification: The permittee must 

submit a pre-construction notification to 

the district engineer prior to 

commencing the activity. (See general 

condition 31.) (Sections 10 and 404) 

8. Oil and Gas Structures on the Outer 

Continental Shelf. Structures for the 

exploration, production, and 

transportation of oil, gas, and minerals 

on the outer continental shelf within 

areas leased for such purposes by the 

Department of Interior, Bureau of Ocean 

Energy Management. Such structures 

shall not be placed within the limits of 

any designated shipping safety fairway 

or traffic separation scheme, except 

temporary anchors that comply with the 

fairway regulations in 33 CFR 322.5(l). 

The district engineer will review such 

proposals to ensure compliance with the 

provisions of the fairway regulations in 

33 CFR 322.5(l). Any Corps review 

under this NWP will be limited to the 

effects on navigation and national 

security in accordance with 33 CFR 

322.5(f), as well as 33 CFR 322.5(l) and 

33 CFR part 334. Such structures will 

not be placed in established danger 

zones or restricted areas as designated 

in 33 CFR part 334, nor will such 

structures be permitted in EPA or Corps 

designated dredged material disposal 

areas. 

Notification: The permittee must 

submit a pre-construction notification to 

the district engineer prior to 

commencing the activity. (See general 

condition 31.) (Section 10) 

9. Structures in Fleeting and 

Anchorage Areas. Structures, buoys, 

floats and other devices placed within 

anchorage or fleeting areas to facilitate 

moorage of vessels where the U.S. Coast 

Guard has established such areas for 

that purpose. (Section 10) 

10. Mooring Buoys. Non-commercial, 

single-boat, mooring buoys. (Section 10) 

11. Temporary Recreational 

Structures. Temporary buoys, markers, 

small floating docks, and similar 

structures placed for recreational use 

during specific events such as water 

skiing competitions and boat races or 

seasonal use, provided that such 

structures are removed within 30 days 

after use has been discontinued. At 

Corps of Engineers reservoirs, the 

reservoir manager must approve each 

buoy or marker individually. (Section 

10) 

12. Utility Line Activities. Activities 

required for the construction, 

maintenance, repair, and removal of 

utility lines and associated facilities in 

waters of the United States, provided 

the activity does not result in the loss 

of greater than 1⁄2-acre of waters of the 

United States for each single and 

complete project. 

Utility lines: This NWP authorizes the 

construction, maintenance, or repair of 

utility lines, including outfall and 

intake structures, and the associated 

excavation, backfill, or bedding for the 

utility lines, in all waters of the United 

States, provided there is no change in 

pre-construction contours. A ‘‘utility 

line’’ is defined as any pipe or pipeline 

for the transportation of any gaseous, 

liquid, liquescent, or slurry substance, 

for any purpose, and any cable, line, or 

wire for the transmission for any 

purpose of electrical energy, telephone, 

and telegraph messages, and radio and 


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television communication. The term 

‘‘utility line’’ does not include activities 

that drain a water of the United States, 

such as drainage tile or french drains, 

but it does apply to pipes conveying 

drainage from another area. Material resulting from trench 

excavation may be temporarily sidecast 

into waters of the United States for no 

more than three months, provided the 

material is not placed in such a manner 

that it is dispersed by currents or other 

forces. The district engineer may extend 

the period of temporary side casting for 

no more than a total of 180 days, where 

appropriate. In wetlands, the top 6 to 12 

inches of the trench should normally be 

backfilled with topsoil from the trench. 

The trench cannot be constructed or 

backfilled in such a manner as to drain 

waters of the United States (e.g., 

backfilling with extensive gravel layers, 

creating a french drain effect). Any 

exposed slopes and stream banks must 

be stabilized immediately upon 

completion of the utility line crossing of 

each waterbody. Utility line substations: This NWP 

authorizes the construction, 

maintenance, or expansion of substation 

facilities associated with a power line or 

utility line in non-tidal waters of the 

United States, provided the activity, in 

combination with all other activities 

included in one single and complete 

project, does not result in the loss of 

greater than 1⁄2-acre of waters of the 

United States. This NWP does not 

authorize discharges into non-tidal 

wetlands adjacent to tidal waters of the 

United States to construct, maintain, or 

expand substation facilities. Foundations for overhead utility line 

towers, poles, and anchors: This NWP 

authorizes the construction or 

maintenance of foundations for 

overhead utility line towers, poles, and 

anchors in all waters of the United 

States, provided the foundations are the 

minimum size necessary and separate 

footings for each tower leg (rather than 

a larger single pad) are used where 

feasible. 

Access roads: This NWP authorizes 

the construction of access roads for the 

construction and maintenance of utility 

lines, including overhead power lines 

and utility line substations, in non-tidal 

waters of the United States, provided 

the activity, in combination with all 

other activities included in one single 

and complete project, does not cause the 

loss of greater than 1⁄2-acre of non-tidal 

waters of the United States. This NWP 

does not authorize discharges into nontidal wetlands adjacent to tidal waters 

for access roads. Access roads must be 

the minimum width necessary (see Note 

2, below). Access roads must be 

constructed so that the length of the 

road minimizes any adverse effects on 

waters of the United States and must be 

as near as possible to pre-construction 

contours and elevations (e.g., at grade 

corduroy roads or geotextile/gravel 

roads). Access roads constructed above 

pre-construction contours and 

elevations in waters of the United States 

must be properly bridged or culverted to 

maintain surface flows. 

This NWP may authorize utility lines 

in or affecting navigable waters of the 

United States even if there is no 

associated discharge of dredged or fill 

material (See 33 CFR Part 322). 

Overhead utility lines constructed over 

section 10 waters and utility lines that 

are routed in or under section 10 waters 

without a discharge of dredged or fill 

material require a section 10 permit. This NWP also authorizes temporary 

structures, fills, and work necessary to 

conduct the utility line activity. 

Appropriate measures must be taken to 

maintain normal downstream flows and 

minimize flooding to the maximum 

extent practicable, when temporary 

structures, work, and discharges, 

including cofferdams, are necessary for 

construction activities, access fills, or 

dewatering of construction sites. 

Temporary fills must consist of 

materials, and be placed in a manner, 

that will not be eroded by expected high 

flows. Temporary fills must be removed 

in their entirety and the affected areas 

returned to pre-construction elevations. 

The areas affected by temporary fills 

must be revegetated, as appropriate. Notification: The permittee must 

submit a pre-construction notification to 

the district engineer prior to 

commencing the activity if any of the 

following criteria are met: (1) The 

activity involves mechanized land 

clearing in a forested wetland for the 

utility line right-of-way; (2) a section 10 

permit is required; (3) the utility line in 

waters of the United States, excluding 

overhead lines, exceeds 500 feet; (4) the 

utility line is placed within a 

jurisdictional area (i.e., water of the 

United States), and it runs parallel to or 

along a stream bed that is within that 

jurisdictional area; (5) discharges that 

result in the loss of greater than 1⁄10-acre 

of waters of the United States; (6) 

permanent access roads are constructed 

above grade in waters of the United 

States for a distance of more than 500 

feet; or (7) permanent access roads are 

constructed in waters of the United 

States with impervious materials. (See 

general condition 31.) (Sections 10 and 

404) 

Note 1: Where the proposed utility line is 

constructed or installed in navigable waters 

of the United States (i.e., section 10 waters) 

within the coastal United States, the Great 

Lakes, and United States territories, copies of 

the pre-construction notification and NWP 

verification will be sent by the Corps to the 

National Oceanic and Atmospheric 

Administration (NOAA), National Ocean 

Service (NOS), for charting the utility line to 

protect navigation. 

Note 2: Access roads used for both 

construction and maintenance may be 

authorized, provided they meet the terms and 

conditions of this NWP. Access roads used 

solely for construction of the utility line must 

be removed upon completion of the work, in 

accordance with the requirements for 

temporary fills. 

Note 3: Pipes or pipelines used to transport 

gaseous, liquid, liquescent, or slurry 

substances over navigable waters of the 

United States are considered to be bridges, 

not utility lines, and may require a permit 

from the U.S. Coast Guard pursuant to 

Section 9 of the Rivers and Harbors Act of 

1899. However, any discharges of dredged or 

fill material into waters of the United States 

associated with such pipelines will require a 

section 404 permit (see NWP 15). 

Note 4: For overhead utility lines 

authorized by this NWP, a copy of the PCN 

and NWP verification will be provided to the 

Department of Defense Siting Clearinghouse, 

which will evaluate potential effects on 

military activities. 

13. Bank Stabilization. Bank 

stabilization activities necessary for 

erosion prevention, provided the 

activity meets all of the following 

criteria: 

(a) No material is placed in excess of 

the minimum needed for erosion 

protection; 

(b) The activity is no more than 500 

feet in length along the bank, unless the 

district engineer waives this criterion by 

making a written determination 

concluding that the discharge will result 

in minimal adverse effects; 

(c) The activity will not exceed an 

average of one cubic yard per running 

foot placed along the bank below the 

plane of the ordinary high water mark 

or the high tide line, unless the district 

engineer waives this criterion by making 

a written determination concluding that 

the discharge will result in minimal 

adverse effects; 

(d) The activity does not involve 

discharges of dredged or fill material 

into special aquatic sites, unless the 

district engineer waives this criterion by 

making a written determination 

concluding that the discharge will result 

in minimal adverse effects; 

(e) No material is of a type, or is 

placed in any location, or in any 

manner, that will impair surface water 

flow into or out of any waters of the 

United States; 

(f) No material is placed in a manner 

that will be eroded by normal or 


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expected high flows (properly anchored 

trees and treetops may be used in low 

energy areas); and, 

(g) The activity is not a stream 

channelization activity. 

This NWP also authorizes temporary 

structures, fills, and work necessary to 

construct the bank stabilization activity. 

Appropriate measures must be taken to 

maintain normal downstream flows and 

minimize flooding to the maximum 

extent practicable, when temporary 

structures, work, and discharges, 

including cofferdams, are necessary for 

construction activities, access fills, or 

dewatering of construction sites. 

Temporary fills must consist of 

materials, and be placed in a manner, 

that will not be eroded by expected high 

flows. Temporary fills must be removed 

in their entirety and the affected areas 

returned to pre-construction elevations. 

The areas affected by temporary fills 

must be revegetated, as appropriate. 

Invasive plant species shall not be 

used for bioengineering or vegetative 

bank stabilization. 

Notification: The permittee must 

submit a pre-construction notification to 

the district engineer prior to 

commencing the activity if the bank 

stabilization activity: (1) Involves 

discharges into special aquatic sites; or 

(2) is in excess of 500 feet in length; or 

(3) will involve the discharge of greater 

than an average of one cubic yard per 

running foot along the bank below the 

plane of the ordinary high water mark 

or the high tide line. (See general 

condition 31.) (Sections 10 and 404) 

14. Linear Transportation Projects. 

Activities required for the construction, 

expansion, modification, or 

improvement of linear transportation 

projects (e.g., roads, highways, railways, 

trails, airport runways, and taxiways) in 

waters of the United States. For linear 

transportation projects in non-tidal 

waters, the discharge cannot cause the 

loss of greater than 1⁄2-acre of waters of 

the United States. For linear 

transportation projects in tidal waters, 

the discharge cannot cause the loss of 

greater than 1/3-acre of waters of the 

United States. Any stream channel 

modification, including bank 

stabilization, is limited to the minimum 

necessary to construct or protect the 

linear transportation project; such 

modifications must be in the immediate 

vicinity of the project. 

This NWP also authorizes temporary 

structures, fills, and work necessary to 

construct the linear transportation 

project. Appropriate measures must be 

taken to maintain normal downstream 

flows and minimize flooding to the 

maximum extent practicable, when 

temporary structures, work, and 

discharges, including cofferdams, are 

necessary for construction activities, 

access fills, or dewatering of 

construction sites. Temporary fills must 

consist of materials, and be placed in a 

manner, that will not be eroded by 

expected high flows. Temporary fills 

must be removed in their entirety and 

the affected areas returned to preconstruction elevations. The areas 

affected by temporary fills must be 

revegetated, as appropriate. 

This NWP cannot be used to authorize 

non-linear features commonly 

associated with transportation projects, 

such as vehicle maintenance or storage 

buildings, parking lots, train stations, or 

aircraft hangars. 

Notification: The permittee must 

submit a pre-construction notification to 

the district engineer prior to 

commencing the activity if: (1) The loss 

of waters of the United States exceeds 

1⁄10-acre; or (2) there is a discharge in a 

special aquatic site, including wetlands. 

(See general condition 31.) (Sections 10 

and 404) 

Note: Some discharges for the construction 

of farm roads or forest roads, or temporary 

roads for moving mining equipment, may 

qualify for an exemption under Section 404(f) 

of the Clean Water Act (see 33 CFR 323.4). 

15. U.S. Coast Guard Approved 

Bridges. Discharges of dredged or fill 

material incidental to the construction 

of a bridge across navigable waters of 

the United States, including cofferdams, 

abutments, foundation seals, piers, and 

temporary construction and access fills, 

provided the construction of the bridge 

structure has been authorized by the 

U.S. Coast Guard under Section 9 of the 

Rivers and Harbors Act of 1899 and 

other applicable laws. Causeways and 

approach fills are not included in this 

NWP and will require a separate section 

404 permit. (Section 404) 

16. Return Water From Upland 

Contained Disposal Areas. Return water 

from an upland contained dredged 

material disposal area. The return water 

from a contained disposal area is 

administratively defined as a discharge 

of dredged material by 33 CFR 323.2(d), 

even though the disposal itself occurs in 

an area that has no waters of the United 

States and does not require a section 

404 permit. This NWP satisfies the 

technical requirement for a section 404 

permit for the return water where the 

quality of the return water is controlled 

by the state through the section 401 

certification procedures. The dredging 

activity may require a section 404 

permit (33 CFR 323.2(d)), and will 

require a section 10 permit if located in 

navigable waters of the United States. 

(Section 404) 

17. Hydropower Projects. Discharges 

of dredged or fill material associated 

with hydropower projects having: (a) 

Less than 5000 kW of total generating 

capacity at existing reservoirs, where 

the project, including the fill, is licensed 

by the Federal Energy Regulatory 

Commission (FERC) under the Federal 

Power Act of 1920, as amended; or (b) 

a licensing exemption granted by the 

FERC pursuant to Section 408 of the 

Energy Security Act of 1980 (16 U.S.C. 

2705 and 2708) and Section 30 of the 

Federal Power Act, as amended. 

Notification: The permittee must 

submit a pre-construction notification to 

the district engineer prior to 

commencing the activity. (See general 

condition 31.) (Section 404) 

18. Minor Discharges. Minor 

discharges of dredged or fill material 

into all waters of the United States, 

provided the activity meets all of the 

following criteria: 

(a) The quantity of discharged 

material and the volume of area 

excavated do not exceed 25 cubic yards 

below the plane of the ordinary high 

water mark or the high tide line; 

(b) The discharge will not cause the 

loss of more than 1⁄10-acre of waters of 

the United States; and 

(c) The discharge is not placed for the 

purpose of a stream diversion. 

Notification: The permittee must 

submit a pre-construction notification to 

the district engineer prior to 

commencing the activity if: (1) The 

discharge or the volume of area 

excavated exceeds 10 cubic yards below 

the plane of the ordinary high water 

mark or the high tide line, or (2) the 

discharge is in a special aquatic site, 

including wetlands. (See general 

condition 31.) (Sections 10 and 404) 

19. Minor Dredging. Dredging of no 

more than 25 cubic yards below the 

plane of the ordinary high water mark 

or the mean high water mark from 

navigable waters of the United States 

(i.e., section 10 waters). This NWP does 

not authorize the dredging or 

degradation through siltation of coral 

reefs, sites that support submerged 

aquatic vegetation (including sites 

where submerged aquatic vegetation is 

documented to exist but may not be 

present in a given year), anadromous 

fish spawning areas, or wetlands, or the 

connection of canals or other artificial 

waterways to navigable waters of the 

United States (see 33 CFR 322.5(g)). 

(Sections 10 and 404) 

20. Response Operations for Oil and 

Hazardous Substances. Activities 

conducted in response to a discharge or 

release of oil and hazardous substances 

that are subject to the National Oil and 

Hazardous Substances Pollution 


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Contingency Plan (40 CFR part 300) 

including containment, cleanup, and 

mitigation efforts, provided that the 

activities are done under either: (1) The 

Spill Control and Countermeasure Plan 

required by 40 CFR 112.3; (2) the 

direction or oversight of the federal onscene coordinator designated by 40 CFR 

part 300; or (3) any approved existing 

state, regional or local contingency plan 

provided that the Regional Response 

Team (if one exists in the area) concurs 

with the proposed response efforts. This 

NWP also authorizes activities required 

for the cleanup of oil releases in waters 

of the United States from electrical 

equipment that are governed by EPA’s 

polychlorinated biphenyl spill response 

regulations at 40 CFR part 761. This 

NWP also authorizes the use of 

temporary structures and fills in waters 

of the U.S. for spill response training 

exercises. (Sections 10 and 404) 

21. Surface Coal Mining Activities. 

Discharges of dredged or fill material 

into waters of the United States 

associated with surface coal mining and 

reclamation operations. 

(a) Previously Authorized Surface 

Coal Mining Activities. Surface coal 

mining activities that were previously 

authorized by the NWP 21 issued on 

March 12, 2007 (see 72 FR 11092), are 

authorized by this NWP, provided the 

following criteria are met: 

(1) The activities are already 

authorized, or are currently being 

processed by states with approved 

programs under Title V of the Surface 

Mining Control and Reclamation Act of 

1977 or as part of an integrated permit 

processing procedure by the Department 

of Interior, Office of Surface Mining 

Reclamation and Enforcement; 

(2) The permittee must submit a letter 

to the district engineer requesting reverification of the NWP 21 

authorization. The letter must describe 

any changes from the previous NWP 21 

verification. The letter must be 

submitted to the district engineer by 

February 1, 2013; 

(3) The loss of waters of the United 

States is not greater than the loss of 

waters of the United States previously 

verified by the district engineer under 

the NWP 21 issued on March 12, 2007 

(i.e., there are no proposed expansions 

of surface coal mining activities in 

waters of the United States); 

(4) The district engineer provides 

written verification that those activities 

will result in minimal individual and 

cumulative adverse effects and are 

authorized by NWP 21, including 

currently applicable regional conditions 

and any activity-specific conditions 

added to the NWP authorization by the 

district engineer, such as compensatory 

mitigation requirements; and 

(5) If the permittee does not receive a 

written verification from the district 

engineer prior to March 18, 2013, the 

permittee must cease all activities until 

such verification is received. The 

district engineer may extend the 

February 1, 2013, deadline by so 

notifying the permittee in writing, but 

the permittee must still cease all 

activities if he or she has not received 

written verification from the Corps by 

March 18, 2013, until such verification 

is received. 

(b) Other Surface Coal Mining 

Activities. Surface coal mining activities 

that were not previously authorized by 

the NWP 21 issued on March 12, 2007, 

are authorized by this NWP, provided 

the following criteria are met: 

(1) The activities are already 

authorized, or are currently being 

processed by states with approved 

programs under Title V of the Surface 

Mining Control and Reclamation Act of 

1977 or as part of an integrated permit 

processing procedure by the Department 

of Interior, Office of Surface Mining 

Reclamation and Enforcement; 

(2) The discharge must not cause the 

loss of greater than 1⁄2-acre of non-tidal 

waters of the United States, including 

the loss of no more than 300 linear feet 

of stream bed, unless for intermittent 

and ephemeral stream beds the district 

engineer waives the 300 linear foot limit 

by making a written determination 

concluding that the discharge will result 

in minimal individual and cumulative 

adverse effects. This NWP does not 

authorize discharges into tidal waters or 

non-tidal wetlands adjacent to tidal 

waters; and 

(3) The discharge is not associated 

with the construction of valley fills. A 

‘‘valley fill’’ is a fill structure that is 

typically constructed within valleys 

associated with steep, mountainous 

terrain, associated with surface coal 

mining activities. 

Notification: For activities under 

paragraph (b) of this NWP, the permittee 

must submit a pre-construction 

notification to the district engineer and 

receive written authorization prior to 

commencing the activity. (See general 

condition 31.) (Sections 10 and 404) 

22. Removal of Vessels. Temporary 

structures or minor discharges of 

dredged or fill material required for the 

removal of wrecked, abandoned, or 

disabled vessels, or the removal of manmade obstructions to navigation. This 

NWP does not authorize maintenance 

dredging, shoal removal, or riverbank 

snagging. 

Notification: The permittee must 

submit a pre-construction notification to 

the district engineer prior to 

commencing the activity if: (1) The 

vessel is listed or eligible for listing in 

the National Register of Historic Places; 

or (2) the activity is conducted in a 

special aquatic site, including coral 

reefs and wetlands. (See general 

condition 31.) If condition 1 above is 

triggered, the permittee cannot 

commence the activity until informed 

by the district engineer that compliance 

with the ‘‘Historic Properties’’ general 

condition is completed. (Sections 10 

and 404) 

Note 1: If a removed vessel is disposed of 

in waters of the United States, a permit from 

the U.S. EPA may be required (see 40 CFR 

229.3). If a Department of the Army permit 

is required for vessel disposal in waters of 

the United States, separate authorization will 

be required. 

Note 2: Compliance with general condition 

18, Endangered Species, and general 

condition 20, Historic Properties, is required 

for all NWPs. The concern with historic 

properties is emphasized in the notification 

requirements for this NWP because of the 

likelihood that submerged vessels may be 

historic properties. 

23. Approved Categorical Exclusions. 

Activities undertaken, assisted, 

authorized, regulated, funded, or 

financed, in whole or in part, by another 

Federal agency or department where: 

(a) That agency or department has 

determined, pursuant to the Council on 

Environmental Quality’s implementing 

regulations for the National 

Environmental Policy Act (40 CFR part 

1500 et seq.), that the activity is 

categorically excluded from 

environmental documentation, because 

it is included within a category of 

actions which neither individually nor 

cumulatively have a significant effect on 

the human environment; and 

(b) The Office of the Chief of 

Engineers (Attn: CECW–CO) has 

concurred with that agency’s or 

department’s determination that the 

activity is categorically excluded and 

approved the activity for authorization 

under NWP 23. 

The Office of the Chief of Engineers 

may require additional conditions, 

including pre-construction notification, 

for authorization of an agency’s 

categorical exclusions under this NWP. 

Notification: Certain categorical 

exclusions approved for authorization 

under this NWP require the permittee to 

submit a pre-construction notification to 

the district engineer prior to 

commencing the activity (see general 

condition 31). The activities that require 

pre-construction notification are listed 

in the appropriate Regulatory Guidance 

Letters. (Sections 10 and 404) 


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Note: The agency or department may 

submit an application for an activity believed 

to be categorically excluded to the Office of 

the Chief of Engineers (Attn: CECW–CO). 

Prior to approval for authorization under this 

NWP of any agency’s activity, the Office of 

the Chief of Engineers will solicit public 

comment. As of the date of issuance of this 

NWP, agencies with approved categorical 

exclusions are the: Bureau of Reclamation, 

Federal Highway Administration, and U.S. 

Coast Guard. Activities approved for 

authorization under this NWP as of the date 

of this notice are found in Corps Regulatory 

Guidance Letter 05–07, which is available at: 

http://www.usace.army.mil/Missions/ 

CivilWorks/RegulatoryProgramandPermits/ 

GuidanceLetters.aspx. Any future approved 

categorical exclusions will be announced in 

Regulatory Guidance Letters and posted on 

this same Web site. 

24. Indian Tribe or State 

Administered Section 404 Programs. 

Any activity permitted by a state or 

Indian Tribe administering its own 

section 404 permit program pursuant to 

33 U.S.C. 1344(g)–(l) is permitted 

pursuant to Section 10 of the Rivers and 

Harbors Act of 1899. (Section 10) 

Note 1: As of the date of the promulgation 

of this NWP, only New Jersey and Michigan 

administer their own section 404 permit 

programs. 

Note 2: Those activities that do not involve 

an Indian Tribe or State section 404 permit 

are not included in this NWP, but certain 

structures will be exempted by Section 154 

of Public Law 94–587, 90 Stat. 2917 (33 

U.S.C. 591) (see 33 CFR 322.4(b)). 

25. Structural Discharges. Discharges 

of material such as concrete, sand, rock, 

etc., into tightly sealed forms or cells 

where the material will be used as a 

structural member for standard pile 

supported structures, such as bridges, 

transmission line footings, and 

walkways, or for general navigation, 

such as mooring cells, including the 

excavation of bottom material from 

within the form prior to the discharge of 

concrete, sand, rock, etc. This NWP 

does not authorize filled structural 

members that would support buildings, 

building pads, homes, house pads, 

parking areas, storage areas and other 

such structures. The structure itself may 

require a separate section 10 permit if 

located in navigable waters of the 

United States. (Section 404) 

26. [Reserved] 

27. Aquatic Habitat Restoration, 

Establishment, and Enhancement 

Activities. Activities in waters of the 

United States associated with the 

restoration, enhancement, and 

establishment of tidal and non-tidal 

wetlands and riparian areas, the 

restoration and enhancement of nontidal streams and other non-tidal open 

waters, and the rehabilitation or 

enhancement of tidal streams, tidal 

wetlands, and tidal open waters, 

provided those activities result in net 

increases in aquatic resource functions 

and services. 

To the extent that a Corps permit is 

required, activities authorized by this 

NWP include, but are not limited to: 

The removal of accumulated sediments; 

the installation, removal, and 

maintenance of small water control 

structures, dikes, and berms, as well as 

discharges of dredged or fill material to 

restore appropriate stream channel 

configurations after small water control 

structures, dikes, and berms, are 

removed; the installation of current 

deflectors; the enhancement, 

restoration, or establishment of riffle 

and pool stream structure; the 

placement of in-stream habitat 

structures; modifications of the stream 

bed and/or banks to restore or establish 

stream meanders; the backfilling of 

artificial channels; the removal of 

existing drainage structures, such as 

drain tiles, and the filling, blocking, or 

reshaping of drainage ditches to restore 

wetland hydrology; the installation of 

structures or fills necessary to establish 

or re-establish wetland or stream 

hydrology; the construction of small 

nesting islands; the construction of open 

water areas; the construction of oyster 

habitat over unvegetated bottom in tidal 

waters; shellfish seeding; activities 

needed to reestablish vegetation, 

including plowing or discing for seed 

bed preparation and the planting of 

appropriate wetland species; reestablishment of submerged aquatic 

vegetation in areas where those plant 

communities previously existed; reestablishment of tidal wetlands in tidal 

waters where those wetlands previously 

existed; mechanized land clearing to 

remove non-native invasive, exotic, or 

nuisance vegetation; and other related 

activities. Only native plant species 

should be planted at the site. 

This NWP authorizes the relocation of 

non-tidal waters, including non-tidal 

wetlands and streams, on the project 

site provided there are net increases in 

aquatic resource functions and services. 

Except for the relocation of non-tidal 

waters on the project site, this NWP 

does not authorize the conversion of a 

stream or natural wetlands to another 

aquatic habitat type (e.g., stream to 

wetland or vice versa) or uplands. 

Changes in wetland plant communities 

that occur when wetland hydrology is 

more fully restored during wetland 

rehabilitation activities are not 

considered a conversion to another 

aquatic habitat type. This NWP does not 

authorize stream channelization. This 

NWP does not authorize the relocation 

of tidal waters or the conversion of tidal 

waters, including tidal wetlands, to 

other aquatic uses, such as the 

conversion of tidal wetlands into open 

water impoundments. 

Compensatory mitigation is not 

required for activities authorized by this 

NWP since these activities must result 

in net increases in aquatic resource 

functions and services. 

Reversion. For enhancement, 

restoration, and establishment activities 

conducted: (1) In accordance with the 

terms and conditions of a binding 

stream or wetland enhancement or 

restoration agreement, or a wetland 

establishment agreement, between the 

landowner and the U.S. Fish and 

Wildlife Service (FWS), the Natural 

Resources Conservation Service (NRCS), 

the Farm Service Agency (FSA), the 

National Marine Fisheries Service 

(NMFS), the National Ocean Service 

(NOS), U.S. Forest Service (USFS), or 

their designated state cooperating 

agencies; (2) as voluntary wetland 

restoration, enhancement, and 

establishment actions documented by 

the NRCS or USDA Technical Service 

Provider pursuant to NRCS Field Office 

Technical Guide standards; or (3) on 

reclaimed surface coal mine lands, in 

accordance with a Surface Mining 

Control and Reclamation Act permit 

issued by the Office of Surface Mining 

Reclamation and Enforcement (OSMRE) 

or the applicable state agency, this NWP 

also authorizes any future discharge of 

dredged or fill material associated with 

the reversion of the area to its 

documented prior condition and use 

(i.e., prior to the restoration, 

enhancement, or establishment 

activities). The reversion must occur 

within five years after expiration of a 

limited term wetland restoration or 

establishment agreement or permit, and 

is authorized in these circumstances 

even if the discharge occurs after this 

NWP expires. The five-year reversion 

limit does not apply to agreements 

without time limits reached between the 

landowner and the FWS, NRCS, FSA, 

NMFS, NOS, USFS, or an appropriate 

state cooperating agency. This NWP also 

authorizes discharges of dredged or fill 

material in waters of the United States 

for the reversion of wetlands that were 

restored, enhanced, or established on 

prior-converted cropland or on uplands, 

in accordance with a binding agreement 

between the landowner and NRCS, FSA, 

FWS, or their designated state 

cooperating agencies (even though the 

restoration, enhancement, or 

establishment activity did not require a 

section 404 permit). The prior condition 

will be documented in the original 

agreement or permit, and the 


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determination of return to prior 

conditions will be made by the Federal 

agency or appropriate state agency 

executing the agreement or permit. 

Before conducting any reversion activity 

the permittee or the appropriate Federal 

or state agency must notify the district 

engineer and include the documentation 

of the prior condition. Once an area has 

reverted to its prior physical condition, 

it will be subject to whatever the Corps 

Regulatory requirements are applicable 

to that type of land at the time. The 

requirement that the activity results in 

a net increase in aquatic resource 

functions and services does not apply to 

reversion activities meeting the above 

conditions. Except for the activities 

described above, this NWP does not 

authorize any future discharge of 

dredged or fill material associated with 

the reversion of the area to its prior 

condition. In such cases a separate 

permit would be required for any 

reversion. 

Reporting. For those activities that do 

not require pre-construction 

notification, the permittee must submit 

to the district engineer a copy of: (1) The 

binding stream enhancement or 

restoration agreement or wetland 

enhancement, restoration, or 

establishment agreement, or a project 

description, including project plans and 

location map; (2) the NRCS or USDA 

Technical Service Provider 

documentation for the voluntary stream 

enhancement or restoration action or 

wetland restoration, enhancement, or 

establishment action; or (3) the SMCRA 

permit issued by OSMRE or the 

applicable state agency. The report must 

also include information on baseline 

ecological conditions on the project site, 

such as a delineation of wetlands, 

streams, and/or other aquatic habitats. 

These documents must be submitted to 

the district engineer at least 30 days 

prior to commencing activities in waters 

of the United States authorized by this 

NWP. 

Notification: The permittee must 

submit a pre-construction notification to 

the district engineer prior to 

commencing any activity (see general 

condition 31), except for the following 

activities: 

(1) Activities conducted on nonFederal public lands and private lands, 

in accordance with the terms and 

conditions of a binding stream 

enhancement or restoration agreement 

or wetland enhancement, restoration, or 

establishment agreement between the 

landowner and the U.S. FWS, NRCS, 

FSA, NMFS, NOS, USFS or their 

designated state cooperating agencies; 

(2) Voluntary stream or wetland 

restoration or enhancement action, or 

wetland establishment action, 

documented by the NRCS or USDA 

Technical Service Provider pursuant to 

NRCS Field Office Technical Guide 

standards; or 

(3) The reclamation of surface coal 

mine lands, in accordance with an 

SMCRA permit issued by the OSMRE or 

the applicable state agency. 

However, the permittee must submit a 

copy of the appropriate documentation 

to the district engineer to fulfill the 

reporting requirement. (Sections 10 and 

404) 

Note: This NWP can be used to authorize 

compensatory mitigation projects, including 

mitigation banks and in-lieu fee projects. 

However, this NWP does not authorize the 

reversion of an area used for a compensatory 

mitigation project to its prior condition, since 

compensatory mitigation is generally 

intended to be permanent. 

28. Modifications of Existing Marinas. 

Reconfiguration of existing docking 

facilities within an authorized marina 

area. No dredging, additional slips, dock 

spaces, or expansion of any kind within 

waters of the United States is authorized 

by this NWP. (Section 10) 

29. Residential Developments. 

Discharges of dredged or fill material 

into non-tidal waters of the United 

States for the construction or expansion 

of a single residence, a multiple unit 

residential development, or a residential 

subdivision. This NWP authorizes the 

construction of building foundations 

and building pads and attendant 

features that are necessary for the use of 

the residence or residential 

development. Attendant features may 

include but are not limited to roads, 

parking lots, garages, yards, utility lines, 

storm water management facilities, 

septic fields, and recreation facilities 

such as playgrounds, playing fields, and 

golf courses (provided the golf course is 

an integral part of the residential 

development). 

The discharge must not cause the loss 

of greater than 1⁄2-acre of non-tidal 

waters of the United States, including 

the loss of no more than 300 linear feet 

of stream bed, unless for intermittent 

and ephemeral stream beds the district 

engineer waives the 300 linear foot limit 

by making a written determination 

concluding that the discharge will result 

in minimal adverse effects. This NWP 

does not authorize discharges into nontidal wetlands adjacent to tidal waters. 

Subdivisions: For residential 

subdivisions, the aggregate total loss of 

waters of United States authorized by 

this NWP cannot exceed 1⁄2-acre. This 

includes any loss of waters of the 

United States associated with 

development of individual subdivision 

lots. 

Notification: The permittee must 

submit a pre-construction notification to 

the district engineer prior to 

commencing the activity. (See general 

condition 31.) (Sections 10 and 404) 

30. Moist Soil Management for 

Wildlife. Discharges of dredged or fill 

material into non-tidal waters of the 

United States and maintenance 

activities that are associated with moist 

soil management for wildlife for the 

purpose of continuing ongoing, sitespecific, wildlife management activities 

where soil manipulation is used to 

manage habitat and feeding areas for 

wildlife. Such activities include, but are 

not limited to, plowing or discing to 

impede succession, preparing seed beds, 

or establishing fire breaks. Sufficient 

riparian areas must be maintained 

adjacent to all open water bodies, 

including streams, to preclude water 

quality degradation due to erosion and 

sedimentation. This NWP does not 

authorize the construction of new dikes, 

roads, water control structures, or 

similar features associated with the 

management areas. The activity must 

not result in a net loss of aquatic 

resource functions and services. This 

NWP does not authorize the conversion 

of wetlands to uplands, impoundments, 

or other open water bodies. (Section 

404) 

Note: The repair, maintenance, or 

replacement of existing water control 

structures or the repair or maintenance of 

dikes may be authorized by NWP 3. Some 

such activities may qualify for an exemption 

under Section 404(f) of the Clean Water Act 

(see 33 CFR 323.4). 

31. Maintenance of Existing Flood 

Control Facilities. Discharges of dredged 

or fill material resulting from activities 

associated with the maintenance of 

existing flood control facilities, 

including debris basins, retention/ 

detention basins, levees, and channels 

that: (i) Were previously authorized by 

the Corps by individual permit, general 

permit, or 33 CFR 330.3, or did not 

require a permit at the time they were 

constructed, or (ii) were constructed by 

the Corps and transferred to a nonFederal sponsor for operation and 

maintenance. Activities authorized by 

this NWP are limited to those resulting 

from maintenance activities that are 

conducted within the ‘‘maintenance 

baseline,’’ as described in the definition 

below. Discharges of dredged or fill 

materials associated with maintenance 

activities in flood control facilities in 

any watercourse that have previously 

been determined to be within the 

maintenance baseline are authorized 

under this NWP. To the extent that a 

Corps permit is required, this NWP 


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authorizes the removal of vegetation 

from levees associated with the flood 

control project. This NWP does not 

authorize the removal of sediment and 

associated vegetation from natural water 

courses except when these activities 

have been included in the maintenance 

baseline. All dredged material must be 

placed in an area that has no waters of 

the United States or a separately 

authorized disposal site in waters of the 

United States, and proper siltation 

controls must be used. 

Maintenance Baseline: The 

maintenance baseline is a description of 

the physical characteristics (e.g., depth, 

width, length, location, configuration, or 

design flood capacity, etc.) of a flood 

control project within which 

maintenance activities are normally 

authorized by NWP 31, subject to any 

case-specific conditions required by the 

district engineer. The district engineer 

will approve the maintenance baseline 

based on the approved or constructed 

capacity of the flood control facility, 

whichever is smaller, including any 

areas where there are no constructed 

channels but which are part of the 

facility. The prospective permittee will 

provide documentation of the physical 

characteristics of the flood control 

facility (which will normally consist of 

as-built or approved drawings) and 

documentation of the approved and 

constructed design capacities of the 

flood control facility. If no evidence of 

the constructed capacity exists, the 

approved capacity will be used. The 

documentation will also include best 

management practices to ensure that the 

impacts to the aquatic environment are 

minimal, especially in maintenance 

areas where there are no constructed 

channels. (The Corps may request 

maintenance records in areas where 

there has not been recent maintenance.) 

Revocation or modification of the final 

determination of the maintenance 

baseline can only be done in accordance 

with 33 CFR 330.5. Except in 

emergencies as described below, this 

NWP cannot be used until the district 

engineer approves the maintenance 

baseline and determines the need for 

mitigation and any regional or activityspecific conditions. Once determined, 

the maintenance baseline will remain 

valid for any subsequent reissuance of 

this NWP. This NWP does not authorize 

maintenance of a flood control facility 

that has been abandoned. A flood 

control facility will be considered 

abandoned if it has operated at a 

significantly reduced capacity without 

needed maintenance being 

accomplished in a timely manner. 

Mitigation: The district engineer will 

determine any required mitigation onetime only for impacts associated with 

maintenance work at the same time that 

the maintenance baseline is approved. 

Such one-time mitigation will be 

required when necessary to ensure that 

adverse environmental impacts are no 

more than minimal, both individually 

and cumulatively. Such mitigation will 

only be required once for any specific 

reach of a flood control project. 

However, if one-time mitigation is 

required for impacts associated with 

maintenance activities, the district 

engineer will not delay needed 

maintenance, provided the district 

engineer and the permittee establish a 

schedule for identification, approval, 

development, construction and 

completion of any such required 

mitigation. Once the one-time 

mitigation described above has been 

completed, or a determination made 

that mitigation is not required, no 

further mitigation will be required for 

maintenance activities within the 

maintenance baseline. In determining 

appropriate mitigation, the district 

engineer will give special consideration 

to natural water courses that have been 

included in the maintenance baseline 

and require compensatory mitigation 

and/or best management practices as 

appropriate. 

Emergency Situations: In emergency 

situations, this NWP may be used to 

authorize maintenance activities in 

flood control facilities for which no 

maintenance baseline has been 

approved. Emergency situations are 

those which would result in an 

unacceptable hazard to life, a significant 

loss of property, or an immediate, 

unforeseen, and significant economic 

hardship if action is not taken before a 

maintenance baseline can be approved. 

In such situations, the determination of 

mitigation requirements, if any, may be 

deferred until the emergency has been 

resolved. Once the emergency has 

ended, a maintenance baseline must be 

established expeditiously, and 

mitigation, including mitigation for 

maintenance conducted during the 

emergency, must be required as 

appropriate. 

Notification: The permittee must 

submit a pre-construction notification to 

the district engineer before any 

maintenance work is conducted (see 

general condition 31). The preconstruction notification may be for 

activity-specific maintenance or for 

maintenance of the entire flood control 

facility by submitting a five-year (or 

less) maintenance plan. The preconstruction notification must include a 

description of the maintenance baseline 

and the dredged material disposal site. 

(Sections 10 and 404) 

32. Completed Enforcement Actions. 

Any structure, work, or discharge of 

dredged or fill material remaining in 

place or undertaken for mitigation, 

restoration, or environmental benefit in 

compliance with either: 

(i) The terms of a final written Corps 

non-judicial settlement agreement 

resolving a violation of Section 404 of 

the Clean Water Act and/or Section 10 

of the Rivers and Harbors Act of 1899; 

or the terms of an EPA 309(a) order on 

consent resolving a violation of Section 

404 of the Clean Water Act, provided 

that: 

(a) The unauthorized activity affected 

no more than 5 acres of non-tidal waters 

or 1 acre of tidal waters; 

(b) The settlement agreement provides 

for environmental benefits, to an equal 

or greater degree, than the 

environmental detriments caused by the 

unauthorized activity that is authorized 

by this NWP; and 

(c) The district engineer issues a 

verification letter authorizing the 

activity subject to the terms and 

conditions of this NWP and the 

settlement agreement, including a 

specified completion date; or 

(ii) The terms of a final Federal court 

decision, consent decree, or settlement 

agreement resulting from an 

enforcement action brought by the 

United States under Section 404 of the 

Clean Water Act and/or Section 10 of 

the Rivers and Harbors Act of 1899; or 

(iii) The terms of a final court 

decision, consent decree, settlement 

agreement, or non-judicial settlement 

agreement resulting from a natural 

resource damage claim brought by a 

trustee or trustees for natural resources 

(as defined by the National Contingency 

Plan at 40 CFR subpart G) under Section 

311 of the Clean Water Act, Section 107 

of the Comprehensive Environmental 

Response, Compensation and Liability 

Act, Section 312 of the National Marine 

Sanctuaries Act, Section 1002 of the Oil 

Pollution Act of 1990, or the Park 

System Resource Protection Act at 16 

U.S.C. 19jj, to the extent that a Corps 

permit is required. 

Compliance is a condition of the NWP 

itself. Any authorization under this 

NWP is automatically revoked if the 

permittee does not comply with the 

terms of this NWP or the terms of the 

court decision, consent decree, or 

judicial/non-judicial settlement 

agreement. This NWP does not apply to 

any activities occurring after the date of 

the decision, decree, or agreement that 

are not for the purpose of mitigation, 

restoration, or environmental benefit. 

Before reaching any settlement 

agreement, the Corps will ensure 

compliance with the provisions of 33 


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CFR part 326 and 33 CFR 330.6(d)(2) 

and (e). (Sections 10 and 404) 

33. Temporary Construction, Access, 

and Dewatering. Temporary structures, 

work, and discharges, including 

cofferdams, necessary for construction 

activities or access fills or dewatering of 

construction sites, provided that the 

associated primary activity is authorized 

by the Corps of Engineers or the U.S. 

Coast Guard. This NWP also authorizes 

temporary structures, work, and 

discharges, including cofferdams, 

necessary for construction activities not 

otherwise subject to the Corps or U.S. 

Coast Guard permit requirements. 

Appropriate measures must be taken to 

maintain near normal downstream flows 

and to minimize flooding. Fill must 

consist of materials, and be placed in a 

manner, that will not be eroded by 

expected high flows. The use of dredged 

material may be allowed if the district 

engineer determines that it will not 

cause more than minimal adverse effects 

on aquatic resources. Following 

completion of construction, temporary 

fill must be entirely removed to an area 

that has no waters of the United States, 

dredged material must be returned to its 

original location, and the affected areas 

must be restored to pre-construction 

elevations. The affected areas must also 

be revegetated, as appropriate. This 

permit does not authorize the use of 

cofferdams to dewater wetlands or other 

aquatic areas to change their use. 

Structures left in place after 

construction is completed require a 

separate section 10 permit if located in 

navigable waters of the United States. 

(See 33 CFR part 322.) 

Notification: The permittee must 

submit a pre-construction notification to 

the district engineer prior to 

commencing the activity (see general 

condition 31). The pre-construction 

notification must include a restoration 

plan showing how all temporary fills 

and structures will be removed and the 

area restored to pre-project conditions. 

(Sections 10 and 404) 

34. Cranberry Production Activities. 

Discharges of dredged or fill material for 

dikes, berms, pumps, water control 

structures or leveling of cranberry beds 

associated with expansion, 

enhancement, or modification activities 

at existing cranberry production 

operations. The cumulative total acreage 

of disturbance per cranberry production 

operation, including but not limited to, 

filling, flooding, ditching, or clearing, 

must not exceed 10 acres of waters of 

the United States, including wetlands. 

The activity must not result in a net loss 

of wetland acreage. This NWP does not 

authorize any discharge of dredged or 

fill material related to other cranberry 

production activities such as 

warehouses, processing facilities, or 

parking areas. For the purposes of this 

NWP, the cumulative total of 10 acres 

will be measured over the period that 

this NWP is valid. 

Notification: The permittee must 

submit a pre-construction notification to 

the district engineer once during the 

period that this NWP is valid, and the 

NWP will then authorize discharges of 

dredge or fill material at an existing 

operation for the permit term, provided 

the 10-acre limit is not exceeded. (See 

general condition 31.) (Section 404) 

35. Maintenance Dredging of Existing 

Basins. Excavation and removal of 

accumulated sediment for maintenance 

of existing marina basins, access 

channels to marinas or boat slips, and 

boat slips to previously authorized 

depths or controlling depths for ingress/ 

egress, whichever is less, provided the 

dredged material is deposited at an area 

that has no waters of the United States 

site and proper siltation controls are 

used. (Section 10) 

36. Boat Ramps. Activities required 

for the construction of boat ramps, 

provided the activity meets all of the 

following criteria: 

(a) The discharge into waters of the 

United States does not exceed 50 cubic 

yards of concrete, rock, crushed stone or 

gravel into forms, or in the form of precast concrete planks or slabs, unless the 

district engineer waives the 50 cubic 

yard limit by making a written 

determination concluding that the 

discharge will result in minimal adverse 

effects; 

(b) The boat ramp does not exceed 20 

feet in width, unless the district 

engineer waives this criterion by making 

a written determination concluding that 

the discharge will result in minimal 

adverse effects; 

(c) The base material is crushed stone, 

gravel or other suitable material; 

(d) The excavation is limited to the 

area necessary for site preparation and 

all excavated material is removed to an 

area that has no waters of the United 

States; and, 

(e) No material is placed in special 

aquatic sites, including wetlands. 

The use of unsuitable material that is 

structurally unstable is not authorized. 

If dredging in navigable waters of the 

United States is necessary to provide 

access to the boat ramp, the dredging 

must be authorized by another NWP, a 

regional general permit, or an individual 

permit. 

Notification: The permittee must 

submit a pre-construction notification to 

the district engineer prior to 

commencing the activity if: (1) The 

discharge into waters of the United 

States exceeds 50 cubic yards, or (2) the 

boat ramp exceeds 20 feet in width. (See 

general condition 31.) (Sections 10 and 

404) 

37. Emergency Watershed Protection 

and Rehabilitation. Work done by or 

funded by: 

(a) The Natural Resources 

Conservation Service for a situation 

requiring immediate action under its 

emergency Watershed Protection 

Program (7 CFR part 624); 

(b) The U.S. Forest Service under its 

Burned-Area Emergency Rehabilitation 

Handbook (FSH 2509.13); 

(c) The Department of the Interior for 

wildland fire management burned area 

emergency stabilization and 

rehabilitation (DOI Manual part 620, Ch. 

3); 

(d) The Office of Surface Mining, or 

states with approved programs, for 

abandoned mine land reclamation 

activities under Title IV of the Surface 

Mining Control and Reclamation Act (30 

CFR Subchapter R), where the activity 

does not involve coal extraction; or 

(e) The Farm Service Agency under its 

Emergency Conservation Program (7 

CFR part 701). 

In general, the prospective permittee 

should wait until the district engineer 

issues an NWP verification or 45 

calendar days have passed before 

proceeding with the watershed 

protection and rehabilitation activity. 

However, in cases where there is an 

unacceptable hazard to life or a 

significant loss of property or economic 

hardship will occur, the emergency 

watershed protection and rehabilitation 

activity may proceed immediately and 

the district engineer will consider the 

information in the pre-construction 

notification and any comments received 

as a result of agency coordination to 

decide whether the NWP 37 

authorization should be modified, 

suspended, or revoked in accordance 

with the procedures at 33 CFR 330.5. 

Notification: Except in cases where 

there is an unacceptable hazard to life 

or a significant loss of property or 

economic hardship will occur, the 

permittee must submit a preconstruction notification to the district 

engineer prior to commencing the 

activity (see general condition 31). 

(Sections 10 and 404) 

38. Cleanup of Hazardous and Toxic 

Waste. Specific activities required to 

effect the containment, stabilization, or 

removal of hazardous or toxic waste 

materials that are performed, ordered, or 

sponsored by a government agency with 

established legal or regulatory authority. 

Court ordered remedial action plans or 

related settlements are also authorized 

by this NWP. This NWP does not 


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authorize the establishment of new 

disposal sites or the expansion of 

existing sites used for the disposal of 

hazardous or toxic waste. 

Notification: The permittee must 

submit a pre-construction notification to 

the district engineer prior to 

commencing the activity. (See general 

condition 31.) (Sections 10 and 404) 

Note: Activities undertaken entirely on a 

Comprehensive Environmental Response, 

Compensation, and Liability Act (CERCLA) 

site by authority of CERCLA as approved or 

required by EPA, are not required to obtain 

permits under Section 404 of the Clean Water 

Act or Section 10 of the Rivers and Harbors 

Act. 

39. Commercial and Institutional 

Developments. Discharges of dredged or 

fill material into non-tidal waters of the 

United States for the construction or 

expansion of commercial and 

institutional building foundations and 

building pads and attendant features 

that are necessary for the use and 

maintenance of the structures. 

Attendant features may include, but are 

not limited to, roads, parking lots, 

garages, yards, utility lines, storm water 

management facilities, and recreation 

facilities such as playgrounds and 

playing fields. Examples of commercial 

developments include retail stores, 

industrial facilities, restaurants, 

business parks, and shopping centers. 

Examples of institutional developments 

include schools, fire stations, 

government office buildings, judicial 

buildings, public works buildings, 

libraries, hospitals, and places of 

worship. The construction of new golf 

courses and new ski areas is not 

authorized by this NWP. 

The discharge must not cause the loss 

of greater than 1⁄2-acre of non-tidal 

waters of the United States, including 

the loss of no more than 300 linear feet 

of stream bed, unless for intermittent 

and ephemeral stream beds the district 

engineer waives the 300 linear foot limit 

by making a written determination 

concluding that the discharge will result 

in minimal adverse effects. This NWP 

does not authorize discharges into nontidal wetlands adjacent to tidal waters. 

Notification: The permittee must 

submit a pre-construction notification to 

the district engineer prior to 

commencing the activity. (See general 

condition 31.) (Sections 10 and 404) 

Note: For any activity that involves the 

construction of a wind energy generating 

structure, solar tower, or overhead 

transmission line, a copy of the PCN and 

NWP verification will be provided to the 

Department of Defense Siting Clearinghouse, 

which will evaluate potential effects on 

military activities. 

40. Agricultural Activities. Discharges 

of dredged or fill material into non-tidal 

waters of the United States for 

agricultural activities, including the 

construction of building pads for farm 

buildings. Authorized activities include 

the installation, placement, or 

construction of drainage tiles, ditches, 

or levees; mechanized land clearing; 

land leveling; the relocation of existing 

serviceable drainage ditches constructed 

in waters of the United States; and 

similar activities. 

This NWP also authorizes the 

construction of farm ponds in non-tidal 

waters of the United States, excluding 

perennial streams, provided the farm 

pond is used solely for agricultural 

purposes. This NWP does not authorize 

the construction of aquaculture ponds. 

This NWP also authorizes discharges 

of dredged or fill material into non-tidal 

waters of the United States to relocate 

existing serviceable drainage ditches 

constructed in non-tidal streams. 

The discharge must not cause the loss 

of greater than 1⁄2-acre of non-tidal 

waters of the United States, including 

the loss of no more than 300 linear feet 

of stream bed, unless for intermittent 

and ephemeral stream beds the district 

engineer waives the 300 linear foot limit 

by making a written determination 

concluding that the discharge will result 

in minimal adverse effects. This NWP 

does not authorize discharges into nontidal wetlands adjacent to tidal waters. 

Notification: The permittee must 

submit a pre-construction notification to 

the district engineer prior to 

commencing the activity. (See general 

condition 31.) (Section 404) 

Note: Some discharges for agricultural 

activities may qualify for an exemption under 

Section 404(f) of the Clean Water Act (see 33 

CFR 323.4). This NWP authorizes the 

construction of farm ponds that do not 

qualify for the Clean Water Act Section 

404(f)(1)(C) exemption because of the 

recapture provision at Section 404(f)(2). 

41. Reshaping Existing Drainage 

Ditches. Discharges of dredged or fill 

material into non-tidal waters of the 

United States, excluding non-tidal 

wetlands adjacent to tidal waters, to 

modify the cross-sectional configuration 

of currently serviceable drainage ditches 

constructed in waters of the United 

States, for the purpose of improving 

water quality by regrading the drainage 

ditch with gentler slopes, which can 

reduce erosion, increase growth of 

vegetation, and increase uptake of 

nutrients and other substances by 

vegetation. The reshaping of the ditch 

cannot increase drainage capacity 

beyond the original as-built capacity nor 

can it expand the area drained by the 

ditch as originally constructed (i.e., the 

capacity of the ditch must be the same 

as originally constructed and it cannot 

drain additional wetlands or other 

waters of the United States). 

Compensatory mitigation is not required 

because the work is designed to improve 

water quality. 

This NWP does not authorize the 

relocation of drainage ditches 

constructed in waters of the United 

States; the location of the centerline of 

the reshaped drainage ditch must be 

approximately the same as the location 

of the centerline of the original drainage 

ditch. This NWP does not authorize 

stream channelization or stream 

relocation projects. 

Notification: The permittee must 

submit a pre-construction notification to 

the district engineer prior to 

commencing the activity, if more than 

500 linear feet of drainage ditch will be 

reshaped. (See general condition 31.) 

(Section 404) 

42. Recreational Facilities. Discharges 

of dredged or fill material into non-tidal 

waters of the United States for the 

construction or expansion of 

recreational facilities. Examples of 

recreational facilities that may be 

authorized by this NWP include playing 

fields (e.g., football fields, baseball 

fields), basketball courts, tennis courts, 

hiking trails, bike paths, golf courses, 

ski areas, horse paths, nature centers, 

and campgrounds (excluding 

recreational vehicle parks). This NWP 

also authorizes the construction or 

expansion of small support facilities, 

such as maintenance and storage 

buildings and stables that are directly 

related to the recreational activity, but it 

does not authorize the construction of 

hotels, restaurants, racetracks, stadiums, 

arenas, or similar facilities. 

The discharge must not cause the loss 

of greater than 1⁄2-acre of non-tidal 

waters of the United States, including 

the loss of no more than 300 linear feet 

of stream bed, unless for intermittent 

and ephemeral stream beds the district 

engineer waives the 300 linear foot limit 

by making a written determination 

concluding that the discharge will result 

in minimal adverse effects. This NWP 

does not authorize discharges into nontidal wetlands adjacent to tidal waters. 

Notification: The permittee must 

submit a pre-construction notification to 

the district engineer prior to 

commencing the activity. (See general 

condition 31.) (Section 404) 

43. Stormwater Management 

Facilities. Discharges of dredged or fill 

material into non-tidal waters of the 

United States for the construction of 

stormwater management facilities, 

including stormwater detention basins 

and retention basins and other 


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stormwater management facilities; the 

construction of water control structures, 

outfall structures and emergency 

spillways; and the construction of low 

impact development integrated 

management features such as 

bioretention facilities (e.g., rain 

gardens), vegetated filter strips, grassed 

swales, and infiltration trenches. This 

NWP also authorizes, to the extent that 

a section 404 permit is required, 

discharges of dredged or fill material 

into non-tidal waters of the United 

States for the maintenance of 

stormwater management facilities. 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 United 

States, and maintenance of these waste 

treatment systems generally does not 

require a section 404 permit. 

The discharge must not cause the loss 

of greater than 1⁄2-acre of non-tidal 

waters of the United States, including 

the loss of no more than 300 linear feet 

of stream bed, unless for intermittent 

and ephemeral stream beds the district 

engineer waives the 300 linear foot limit 

by making a written determination 

concluding that the discharge will result 

in minimal adverse effects. This NWP 

does not authorize discharges into nontidal wetlands adjacent to tidal waters. 

This NWP does not authorize discharges 

of dredged or fill material for the 

construction of new stormwater 

management facilities in perennial 

streams. 

Notification: For the construction of 

new stormwater management facilities, 

or the expansion of existing stormwater 

management facilities, the permittee 

must submit a pre-construction 

notification to the district engineer prior 

to commencing the activity. (See general 

condition 31.) Maintenance activities do 

not require pre-construction notification 

if they are limited to restoring the 

original design capacities of the 

stormwater management facility. 

(Section 404) 

44. Mining Activities. Discharges of 

dredged or fill material into non-tidal 

waters of the United States for mining 

activities, except for coal mining 

activities. The discharge must not cause 

the loss of greater than 1⁄2-acre of nontidal waters of the United States, 

including the loss of no more than 300 

linear feet of stream bed, unless for 

intermittent and ephemeral stream beds 

the district engineer waives the 300 

linear foot limit by making a written 

determination concluding that the 

discharge will result in minimal adverse 

effects. This NWP does not authorize 

discharges into non-tidal wetlands 

adjacent to tidal waters. 

Notification: The permittee must 

submit a pre-construction notification to 

the district engineer prior to 

commencing the activity. (See general 

condition 31.) If reclamation is required 

by other statutes, then a copy of the 

reclamation plan must be submitted 

with the pre-construction notification. 

(Sections 10 and 404) 

45. Repair of Uplands Damaged by 

Discrete Events. This NWP authorizes 

discharges of dredged or fill material, 

including dredging or excavation, into 

all waters of the United States for 

activities associated with the restoration 

of upland areas damaged by storms, 

floods, or other discrete events. This 

NWP authorizes bank stabilization to 

protect the restored uplands. The 

restoration of the damaged areas, 

including any bank stabilization, must 

not exceed the contours, or ordinary 

high water mark, that existed before the 

damage occurred. The district engineer 

retains the right to determine the extent 

of the pre-existing conditions and the 

extent of any restoration work 

authorized by this NWP. The work must 

commence, or be under contract to 

commence, within two years of the date 

of damage, unless this condition is 

waived in writing by the district 

engineer. This NWP cannot be used to 

reclaim lands lost to normal erosion 

processes over an extended period. 

This NWP does not authorize beach 

restoration or nourishment. 

Minor dredging is limited to the 

amount necessary to restore the 

damaged upland area and should not 

significantly alter the pre-existing 

bottom contours of the waterbody. 

Notification: The permittee must 

submit a pre-construction notification to 

the district engineer (see general 

condition 31) within 12-months of the 

date of the damage. The preconstruction notification should include 

documentation, such as a recent 

topographic survey or photographs, to 

justify the extent of the proposed 

restoration. (Sections 10 and 404) 

Note: The uplands themselves that are lost 

as a result of a storm, flood, or other discrete 

event can be replaced without a section 404 

permit, if the uplands are restored to the 

ordinary high water mark (in non-tidal 

waters) or high tide line (in tidal waters). 

(See also 33 CFR 328.5.) This NWP 

authorizes discharges of dredged or fill 

material into waters of the United States 

associated with the restoration of uplands. 

46. Discharges in Ditches. Discharges 

of dredged or fill material into non-tidal 

ditches that are: (1) Constructed in 

uplands, (2) receive water from an area 

determined to be a water of the United 

States prior to the construction of the 

ditch, (3) divert water to an area 

determined to be a water of the United 

States prior to the construction of the 

ditch, and (4) are determined to be 

waters of the United States. The 

discharge must not cause the loss of 

greater than one acre of waters of the 

United States. This NWP does not 

authorize discharges of dredged or fill 

material into ditches constructed in 

streams or other waters of the United 

States, or in streams that have been 

relocated in uplands. This NWP does 

not authorize discharges of dredged or 

fill material that increase the capacity of 

the ditch and drain those areas 

determined to be waters of the United 

States prior to construction of the ditch. 

Notification: The permittee must 

submit a pre-construction notification to 

the district engineer prior to 

commencing the activity. (See general 

condition 31.) (Section 404) 

47. [Reserved] 

48. Commercial Shellfish Aquaculture 

Activities. Discharges of dredged or fill 

material in waters of the United States 

or structures or work in navigable 

waters of the United States necessary for 

commercial shellfish aquaculture 

operations in authorized project areas. 

For the purposes of this NWP, the 

project area is the area in which the 

operator is currently authorized to 

conduct commercial shellfish 

aquaculture activities, as identified 

through a lease or permit issued by an 

appropriate state or local government 

agency, a treaty, or any other easement, 

lease, deed, or contract which 

establishes an enforceable property 

interest for the operator. This NWP 

authorizes the installation of buoys, 

floats, racks, trays, nets, lines, tubes, 

containers, and other structures into 

navigable waters of the United States. 

This NWP also authorizes discharges of 

dredged or fill material into waters of 

the United States necessary for shellfish 

seeding, rearing, cultivating, 

transplanting, and harvesting activities. 

Rafts and other floating structures must 

be securely anchored and clearly 

marked. This NWP does not authorize: 

(a) The cultivation of a nonindigenous 

species unless that species has been 

previously cultivated in the waterbody; 

(b) The cultivation of an aquatic 

nuisance species as defined in the 

Nonindigenous Aquatic Nuisance 

Prevention and Control Act of 1990; or, 

(c) Attendant features such as docks, 

piers, boat ramps, stockpiles, or staging 

areas, or the deposition of shell material 

back into waters of the United States as 

waste. 

This NWP also authorizes commercial 

shellfish aquaculture activities in new 

project areas, provided the project 

proponent has obtained a valid 


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authorization, such as a lease or permit 

issued by an appropriate state or local 

government agency, and those activities 

do not directly affect more than 1⁄2-acre 

of submerged aquatic vegetation beds. 

Notification: The permittee must 

submit a pre-construction notification to 

the district engineer if: (1) Dredge 

harvesting, tilling, or harrowing is 

conducted in areas inhabited by 

submerged aquatic vegetation; (2) the 

activity will include a species not 

previously cultivated in the waterbody; 

(3) the activity involves a change from 

bottom culture to floating or suspended 

culture; or (4) the activity occurs in a 

new project area. (See general condition 

31.) 

In addition to the information 

required by paragraph (b) of general 

condition 31, the pre-construction 

notification must also include the 

following information: (1) A map 

showing the boundaries of the project 

area, with latitude and longitude 

coordinates for each corner of the 

project area; (2) the name(s) of the 

cultivated species; and (3) whether 

canopy predator nets are being used. 

(Sections 10 and 404) 

Note 1: The permittee should notify the 

applicable U.S. Coast Guard office regarding 

the project. 

Note 2: To prevent introduction of aquatic 

nuisance species, no material that has been 

taken from a different waterbody may be 

reused in the current project area, unless it 

has been treated in accordance with the 

applicable regional aquatic nuisance species 

management plan. 

Note 3: The Nonindigenous Aquatic 

Nuisance Prevention and Control Act of 1990 

defines ‘‘aquatic nuisance species’’ as ‘‘a 

nonindigenous species that threatens the 

diversity or abundance of native species or 

the ecological stability of infested waters, or 

commercial, agricultural, aquacultural, or 

recreational activities dependent on such 

waters.’’ 

49. Coal Remining Activities. 

Discharges of dredged or fill material 

into non-tidal waters of the United 

States associated with the remining and 

reclamation of lands that were 

previously mined for coal. The activities 

must already be authorized, or they 

must currently be in process as part of 

an integrated permit processing 

procedure, by the Department of Interior 

Office of Surface Mining Reclamation 

and Enforcement, or by states with 

approved programs under Title IV or 

Title V of the Surface Mining Control 

and Reclamation Act (SMCRA) of 1977. 

Areas previously mined include 

reclaimed mine sites, abandoned mine 

land areas, or lands under bond 

forfeiture contracts. 

As part of the project, the permittee 

may conduct new coal mining activities 

in conjunction with the remining 

activities when he or she clearly 

demonstrates to the district engineer 

that the overall mining plan will result 

in a net increase in aquatic resource 

functions. The Corps will consider the 

SMCRA agency’s decision regarding the 

amount of currently undisturbed 

adjacent lands needed to facilitate the 

remining and reclamation of the 

previously mined area. The total area 

disturbed by new mining must not 

exceed 40 percent of the total acreage 

covered by both the remined area and 

the additional area necessary to carry 

out the reclamation of the previously 

mined area. 

Notification: The permittee must 

submit a pre-construction notification 

and a document describing how the 

overall mining plan will result in a net 

increase in aquatic resource functions to 

the district engineer and receive written 

authorization prior to commencing the 

activity. (See general condition 31.) 

(Sections 10 and 404) 

50. Underground Coal Mining 

Activities. Discharges of dredged or fill 

material into non-tidal waters of the 

United States associated with 

underground coal mining and 

reclamation operations provided the 

activities are authorized, or are 

currently being processed as part of an 

integrated permit processing procedure, 

by the Department of Interior, Office of 

Surface Mining Reclamation and 

Enforcement, or by states with approved 

programs under Title V of the Surface 

Mining Control and Reclamation Act of 

1977. 

The discharge must not cause the loss 

of greater than 1⁄2-acre of non-tidal 

waters of the United States, including 

the loss of no more than 300 linear feet 

of stream bed, unless for intermittent 

and ephemeral stream beds the district 

engineer waives the 300 linear foot limit 

by making a written determination 

concluding that the discharge will result 

in minimal adverse effects. This NWP 

does not authorize discharges into nontidal wetlands adjacent to tidal waters. 

This NWP does not authorize coal 

preparation and processing activities 

outside of the mine site. 

Notification: The permittee must 

submit a pre-construction notification to 

the district engineer and receive written 

authorization prior to commencing the 

activity. (See general condition 31.) If 

reclamation is required by other 

statutes, then a copy of the reclamation 

plan must be submitted with the preconstruction notification. (Sections 10 

and 404) 

Note: Coal preparation and processing 

activities outside of the mine site may be 

authorized by NWP 21. 

51. Land-Based Renewable Energy 

Generation Facilities. Discharges of 

dredged or fill material into non-tidal 

waters of the United States for the 

construction, expansion, or 

modification of land-based renewable 

energy production facilities, including 

attendant features. Such facilities 

include infrastructure to collect solar 

(concentrating solar power and 

photovoltaic), wind, biomass, or 

geothermal energy. Attendant features 

may include, but are not limited to 

roads, parking lots, and stormwater 

management facilities within the landbased renewable energy generation 

facility. 

The discharge must not cause the loss 

of greater than1⁄2-acre of non-tidal 

waters of the United States, including 

the loss of no more than 300 linear feet 

of stream bed, unless for intermittent 

and ephemeral stream beds the district 

engineer waives the 300 linear foot limit 

by making a written determination 

concluding that the discharge will result 

in minimal adverse effects. This permit 

does not authorize discharges into nontidal wetlands adjacent to tidal waters. 

Notification: The permittee must 

submit a pre-construction notification to 

the district engineer prior to 

commencing the activity. (See general 

condition 31.) (Sections 10 and 404) 

Note 1: Utility lines constructed to transfer 

the energy from the land-based renewable 

generation facility to a distribution system, 

regional grid, or other facility are generally 

considered to be linear projects and each 

separate and distant crossing of a waterbody 

is eligible for treatment as a separate and 

complete linear project. Those utility lines 

may be authorized by NWP 12 or another 

Department of the Army authorization. If the 

only activities associated with the 

construction, expansion, or modification of a 

land-based renewable energy generation 

facility that require Department of the Army 

authorization are discharges of dredged or fill 

material into waters of the United States to 

construct, maintain, repair, and/or remove 

utility lines, then NWP 12 shall be used if 

those activities meet the terms and 

conditions of NWP 12, including any 

applicable regional conditions and any casespecific conditions imposed by the district 

engineer. 

Note 2: For any activity that involves the 

construction of a wind energy generating 

structure, solar tower, or overhead 

transmission line, a copy of the PCN and 

NWP verification will be provided to the 

Department of Defense Siting Clearinghouse, 

which will evaluate potential effects on 

military activities. 

52. Water-Based Renewable Energy 

Generation Pilot Projects. Structures and 


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work in navigable waters of the United 

States and discharges of dredged or fill 

material into waters of the United States 

for the construction, expansion, 

modification, or removal of water-based 

wind or hydrokinetic renewable energy 

generation pilot projects and their 

attendant features. Attendant features 

may include, but are not limited to, 

land-based collection and distribution 

facilities, control facilities, roads, 

parking lots, and stormwater 

management facilities. 

For the purposes of this NWP, the 

term ‘‘pilot project’’ means an 

experimental project where the 

renewable energy generation units will 

be monitored to collect information on 

their performance and environmental 

effects at the project site. 

The discharge must not cause the loss 

of greater than 1⁄2-acre of waters of the 

United States, including the loss of no 

more than 300 linear feet of stream bed, 

unless for intermittent and ephemeral 

stream beds the district engineer waives 

the 300 linear foot limit by making a 

written determination concluding that 

the discharge will result in minimal 

adverse effects. The placement of a 

transmission line on the bed of a 

navigable water of the United States 

from the renewable energy generation 

unit(s) to a land-based collection and 

distribution facility is considered a 

structure under Section 10 of the Rivers 

and Harbors Act of 1899 (see 33 CFR 

322.2(b)), and the placement of the 

transmission line on the bed of a 

navigable water of the United States is 

not a loss of waters of the United States 

for the purposes of applying the 1⁄2-acre 

or 300 linear foot limits. 

For each single and complete project, 

no more than 10 generation units (e.g., 

wind turbines or hydrokinetic devices) 

are authorized. 

This NWP does not authorize 

activities in coral reefs. Structures in an 

anchorage area established by the U.S. 

Coast Guard must comply with the 

requirements in 33 CFR 322.5(l)(2). 

Structures may not be placed in 

established danger zones or restricted 

areas as designated in 33 CFR part 334, 

Federal navigation channels, shipping 

safety fairways or traffic separation 

schemes established by the U.S. Coast 

Guard (see 33 CFR 322.5(l)(1)), or EPA 

or Corps designated open water dredged 

material disposal areas. 

Upon completion of the pilot project, 

the generation units, transmission lines, 

and other structures or fills associated 

with the pilot project must be removed 

to the maximum extent practicable 

unless they are authorized by a separate 

Department of the Army authorization, 

such as another NWP, an individual 

permit, or a regional general permit. 

Completion of the pilot project will be 

identified as the date of expiration of 

the Federal Energy Regulatory 

Commission (FERC) license, or the 

expiration date of the NWP 

authorization if no FERC license is 

issued. 

Notification: The permittee must 

submit a pre-construction notification to 

the district engineer prior to 

commencing the activity. (See general 

condition 31.) (Sections 10 and 404) 

Note 1: Utility lines constructed to transfer 

the energy from the land-based collection 

facility to a distribution system, regional grid, 

or other facility are generally considered to 

be linear projects and each separate and 

distant crossing of a waterbody is eligible for 

treatment as a separate and complete linear 

project. Those utility lines may be authorized 

by NWP 12 or another Department of the 

Army authorization. 

Note 2: An activity that is located on an 

existing locally or federally maintained U.S. 

Army Corps of Engineers project requires 

separate approval from the Chief of Engineers 

under 33 U.S.C. 408. 

Note 3: If the pilot project, including any 

transmission lines, is placed in navigable 

waters of the United States (i.e., section 10 

waters) within the coastal United States, the 

Great Lakes, and United States territories, 

copies of the pre-construction notification 

and NWP verification will be sent by the 

Corps to the National Oceanic and 

Atmospheric Administration, National Ocean 

Service, for charting the generation units and 

associated transmission line(s) to protect 

navigation. 

Note 4: For any activity that involves the 

construction of a wind energy generating 

structure, solar tower, or overhead 

transmission line, a copy of the PCN and 

NWP verification will be provided to the 

Department of Defense Siting Clearinghouse, 

which will evaluate potential effects on 

military activities. 

C. Nationwide Permit General 

Conditions 

Note: To qualify for NWP authorization, 

the prospective permittee must comply with 

the following general conditions, as 

applicable, in addition to any regional or 

case-specific conditions imposed by the 

division engineer or district engineer. 

Prospective permittees should contact the 

appropriate Corps district office to determine 

if regional conditions have been imposed on 

an NWP. Prospective permittees should also 

contact the appropriate Corps district office 

to determine the status of Clean Water Act 

Section 401 water quality certification and/ 

or Coastal Zone Management Act consistency 

for an NWP. Every person who may wish to 

obtain permit authorization under one or 

more NWPs, or who is currently relying on 

an existing or prior permit authorization 

under one or more NWPs, has been and is on 

notice that all of the provisions of 33 CFR 

330.1 through 330.6 apply to every NWP 

authorization. Note especially 33 CFR 330.5 

relating to the modification, suspension, or 

revocation of any NWP authorization. 

1. Navigation. (a) No activity may 

cause more than a minimal adverse 

effect on navigation. 

(b) Any safety lights and signals 

prescribed by the U.S. Coast Guard, 

through regulations or otherwise, must 

be installed and maintained at the 

permittee’s expense on authorized 

facilities in navigable waters of the 

United States. 

(c) The permittee understands and 

agrees that, if future operations by the 

United States require the removal, 

relocation, or other alteration, of the 

structure or work herein authorized, or 

if, in the opinion of the Secretary of the 

Army or his authorized representative, 

said structure or work shall cause 

unreasonable obstruction to the free 

navigation of the navigable waters, the 

permittee will be required, upon due 

notice from the Corps of Engineers, to 

remove, relocate, or alter the structural 

work or obstructions caused thereby, 

without expense to the United States. 

No claim shall be made against the 

United States on account of any such 

removal or alteration. 

2. Aquatic Life Movements. No 

activity may substantially disrupt the 

necessary life cycle movements of those 

species of aquatic life indigenous to the 

waterbody, including those species that 

normally migrate through the area, 

unless the activity’s primary purpose is 

to impound water. All permanent and 

temporary crossings of waterbodies 

shall be suitably culverted, bridged, or 

otherwise designed and constructed to 

maintain low flows to sustain the 

movement of those aquatic species. 

3. Spawning Areas. Activities in 

spawning areas during spawning 

seasons must be avoided to the 

maximum extent practicable. Activities 

that result in the physical destruction 

(e.g., through excavation, fill, or 

downstream smothering by substantial 

turbidity) of an important spawning area 

are not authorized. 

4. Migratory Bird Breeding Areas. 

Activities in waters of the United States 

that serve as breeding areas for 

migratory birds must be avoided to the 

maximum extent practicable. 

5. Shellfish Beds. No activity may 

occur in areas of concentrated shellfish 

populations, unless the activity is 

directly related to a shellfish harvesting 

activity authorized by NWPs 4 and 48, 

or is a shellfish seeding or habitat 

restoration activity authorized by NWP 

27. 


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6. Suitable Material. No activity may 

use unsuitable material (e.g., trash, 

debris, car bodies, asphalt, etc.). 

Material used for construction or 

discharged must be free from toxic 

pollutants in toxic amounts (see Section 

307 of the Clean Water Act). 

7. Water Supply Intakes. No activity 

may occur in the proximity of a public 

water supply intake, except where the 

activity is for the repair or improvement 

of public water supply intake structures 

or adjacent bank stabilization. 

8. Adverse Effects From 

Impoundments. If the activity creates an 

impoundment of water, adverse effects 

to the aquatic system due to accelerating 

the passage of water, and/or restricting 

its flow must be minimized to the 

maximum extent practicable. 

9. Management of Water Flows. To the 

maximum extent practicable, the preconstruction course, condition, 

capacity, and location of open waters 

must be maintained for each activity, 

including stream channelization and 

storm water management activities, 

except as provided below. The activity 

must be constructed to withstand 

expected high flows. The activity must 

not restrict or impede the passage of 

normal or high flows, unless the 

primary purpose of the activity is to 

impound water or manage high flows. 

The activity may alter the preconstruction course, condition, 

capacity, and location of open waters if 

it benefits the aquatic environment (e.g., 

stream restoration or relocation 

activities). 

10. Fills Within 100–Year 

Floodplains. The activity must comply 

with applicable FEMA-approved state or 

local floodplain management 

requirements. 

11. Equipment. Heavy equipment 

working in wetlands or mudflats must 

be placed on mats, or other measures 

must be taken to minimize soil 

disturbance. 

12. Soil Erosion and Sediment 

Controls. Appropriate soil erosion and 

sediment controls must be used and 

maintained in effective operating 

condition during construction, and all 

exposed soil and other fills, as well as 

any work below the ordinary high water 

mark or high tide line, must be 

permanently stabilized at the earliest 

practicable date. Permittees are 

encouraged to perform work within 

waters of the United States during 

periods of low-flow or no-flow. 

13. Removal of Temporary Fills. 

Temporary fills must be removed in 

their entirety and the affected areas 

returned to pre-construction elevations. 

The affected areas must be revegetated, 

as appropriate. 

14. Proper Maintenance. Any 

authorized structure or fill shall be 

properly maintained, including 

maintenance to ensure public safety and 

compliance with applicable NWP 

general conditions, as well as any 

activity-specific conditions added by 

the district engineer to an NWP 

authorization. 

15. Single and Complete Project. The 

activity must be a single and complete 

project. The same NWP cannot be used 

more than once for the same single and 

complete project. 

16. Wild and Scenic Rivers. No 

activity may occur in a component of 

the National Wild and Scenic River 

System, or in a river officially 

designated by Congress as a ‘‘study 

river’’ for possible inclusion in the 

system while the river is in an official 

study status, unless the appropriate 

Federal agency with direct management 

responsibility for such river, has 

determined in writing that the proposed 

activity will not adversely affect the 

Wild and Scenic River designation or 

study status. Information on Wild and 

Scenic Rivers may be obtained from the 

appropriate Federal land management 

agency responsible for the designated 

Wild and Scenic River or study river 

(e.g., National Park Service, U.S. Forest 

Service, Bureau of Land Management, 

U.S. Fish and Wildlife Service). 

17. Tribal Rights. No activity or its 

operation may impair reserved tribal 

rights, including, but not limited to, 

reserved water rights and treaty fishing 

and hunting rights. 

18. Endangered Species. (a) No 

activity is authorized under any NWP 

which is likely to directly or indirectly 

jeopardize the continued existence of a 

threatened or endangered species or a 

species proposed for such designation, 

as identified under the Federal 

Endangered Species Act (ESA), or 

which will directly or indirectly destroy 

or adversely modify the critical habitat 

of such species. No activity is 

authorized under any NWP which ‘‘may 

affect’’ a listed species or critical 

habitat, unless Section 7 consultation 

addressing the effects of the proposed 

activity has been completed. 

(b) Federal agencies should follow 

their own procedures for complying 

with the requirements of the ESA. 

Federal permittees must provide the 

district engineer with the appropriate 

documentation to demonstrate 

compliance with those requirements. 

The district engineer will review the 

documentation and determine whether 

it is sufficient to address ESA 

compliance for the NWP activity, or 

whether additional ESA consultation is 

necessary. 

(c) Non-federal permittees must 

submit a pre-construction notification to 

the district engineer if any listed species 

or designated critical habitat might be 

affected or is in the vicinity of the 

project, or if the project is located in 

designated critical habitat, and shall not 

begin work on the activity until notified 

by the district engineer that the 

requirements of the ESA have been 

satisfied and that the activity is 

authorized. For activities that might 

affect Federally listed endangered or 

threatened species or designated critical 

habitat, the pre-construction notification 

must include the name(s) of the 

endangered or threatened species that 

might be affected by the proposed work 

or that utilize the designated critical 

habitat that might be affected by the 

proposed work. The district engineer 

will determine whether the proposed 

activity ‘‘may affect’’ or will have ‘‘no 

effect’’ to listed species and designated 

critical habitat and will notify the nonFederal applicant of the Corps’ 

determination within 45 days of receipt 

of a complete pre-construction 

notification. In cases where the nonFederal applicant has identified listed 

species or critical habitat that might be 

affected or is in the vicinity of the 

project, and has so notified the Corps, 

the applicant shall not begin work until 

the Corps has provided notification the 

proposed activities will have ‘‘no effect’’ 

on listed species or critical habitat, or 

until Section 7 consultation has been 

completed. If the non-Federal applicant 

has not heard back from the Corps 

within 45 days, the applicant must still 

wait for notification from the Corps. 

(d) As a result of formal or informal 

consultation with the FWS or NMFS the 

district engineer may add speciesspecific regional endangered species 

conditions to the NWPs. 

(e) Authorization of an activity by a 

NWP does not authorize the ‘‘take’’ of a 

threatened or endangered species as 

defined under the ESA. In the absence 

of separate authorization (e.g., an ESA 

Section 10 Permit, a Biological Opinion 

with ‘‘incidental take’’ provisions, etc.) 

from the U.S. FWS or the NMFS, The 

Endangered Species Act prohibits any 

person subject to the jurisdiction of the 

United States to take a listed species, 

where ‘‘take’’ means to harass, harm, 

pursue, hunt, shoot, wound, kill, trap, 

capture, or collect, or to attempt to 

engage in any such conduct. The word 

‘‘harm’’ in the definition of ‘‘take’’ 

means an act which actually kills or 

injures wildlife. Such an act may 

include significant habitat modification 

or degradation where it actually kills or 

injures wildlife by significantly 

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including breeding, feeding or 

sheltering. 

(f) Information on the location of 

threatened and endangered species and 

their critical habitat can be obtained 

directly from the offices of the U.S. FWS 

and NMFS or their world wide web 

pages at http://www.fws.gov/ or http:// 

www.fws.gov/ipac and http:// 

www.noaa.gov/fisheries.html 

respectively. 

19. Migratory Birds and Bald and 

Golden Eagles. The permittee is 

responsible for obtaining any ‘‘take’’ 

permits required under the U.S. Fish 

and Wildlife Service’s regulations 

governing compliance with the 

Migratory Bird Treaty Act or the Bald 

and Golden Eagle Protection Act. The 

permittee should contact the 

appropriate local office of the U.S. Fish 

and Wildlife Service to determine if 

such ‘‘take’’ permits are required for a 

particular activity. 

20. Historic Properties. (a) In cases 

where the district engineer determines 

that the activity may affect properties 

listed, or eligible for listing, in the 

National Register of Historic Places, the 

activity is not authorized, until the 

requirements of Section 106 of the 

National Historic Preservation Act 

(NHPA) have been satisfied. 

(b) Federal permittees should follow 

their own procedures for complying 

with the requirements of Section 106 of 

the National Historic Preservation Act. 

Federal permittees must provide the 

district engineer with the appropriate 

documentation to demonstrate 

compliance with those requirements. 

The district engineer will review the 

documentation and determine whether 

it is sufficient to address section 106 

compliance for the NWP activity, or 

whether additional section 106 

consultation is necessary. 

(c) Non-federal permittees must 

submit a pre-construction notification to 

the district engineer if the authorized 

activity may have the potential to cause 

effects to any historic properties listed 

on, determined to be eligible for listing 

on, or potentially eligible for listing on 

the National Register of Historic Places, 

including previously unidentified 

properties. For such activities, the preconstruction notification must state 

which historic properties may be 

affected by the proposed work or 

include a vicinity map indicating the 

location of the historic properties or the 

potential for the presence of historic 

properties. Assistance regarding 

information on the location of or 

potential for the presence of historic 

resources can be sought from the State 

Historic Preservation Officer or Tribal 

Historic Preservation Officer, as 

appropriate, and the National Register of 

Historic Places (see 33 CFR 330.4(g)). 

When reviewing pre-construction 

notifications, district engineers will 

comply with the current procedures for 

addressing the requirements of Section 

106 of the National Historic 

Preservation Act. The district engineer 

shall make a reasonable and good faith 

effort to carry out appropriate 

identification efforts, which may 

include background research, 

consultation, oral history interviews, 

sample field investigation, and field 

survey. Based on the information 

submitted and these efforts, the district 

engineer shall determine whether the 

proposed activity has the potential to 

cause an effect on the historic 

properties. Where the non-Federal 

applicant has identified historic 

properties on which the activity may 

have the potential to cause effects and 

so notified the Corps, the non-Federal 

applicant shall not begin the activity 

until notified by the district engineer 

either that the activity has no potential 

to cause effects or that consultation 

under Section 106 of the NHPA has 

been completed. 

(d) The district engineer will notify 

the prospective permittee within 45 

days of receipt of a complete preconstruction notification whether NHPA 

Section 106 consultation is required. 

Section 106 consultation is not required 

when the Corps determines that the 

activity does not have the potential to 

cause effects on historic properties (see 

36 CFR 800.3(a)). If NHPA section 106 

consultation is required and will occur, 

the district engineer will notify the nonFederal applicant that he or she cannot 

begin work until Section 106 

consultation is completed. If the nonFederal applicant has not heard back 

from the Corps within 45 days, the 

applicant must still wait for notification 

from the Corps. 

(e) Prospective permittees should be 

aware that section 110k of the NHPA (16 

U.S.C. 470h–2(k)) prevents the Corps 

from granting a permit or other 

assistance to an applicant who, with 

intent to avoid the requirements of 

Section 106 of the NHPA, has 

intentionally significantly adversely 

affected a historic property to which the 

permit would relate, or having legal 

power to prevent it, allowed such 

significant adverse effect to occur, 

unless the Corps, after consultation with 

the Advisory Council on Historic 

Preservation (ACHP), determines that 

circumstances justify granting such 

assistance despite the adverse effect 

created or permitted by the applicant. If 

circumstances justify granting the 

assistance, the Corps is required to 

notify the ACHP and provide 

documentation specifying the 

circumstances, the degree of damage to 

the integrity of any historic properties 

affected, and proposed mitigation. This 

documentation must include any views 

obtained from the applicant, SHPO/ 

THPO, appropriate Indian tribes if the 

undertaking occurs on or affects historic 

properties on tribal lands or affects 

properties of interest to those tribes, and 

other parties known to have a legitimate 

interest in the impacts to the permitted 

activity on historic properties. 

21. Discovery of Previously Unknown 

Remains and Artifacts. If you discover 

any previously unknown historic, 

cultural or archeological remains and 

artifacts while accomplishing the 

activity authorized by this permit, you 

must immediately notify the district 

engineer of what you have found, and 

to the maximum extent practicable, 

avoid construction activities that may 

affect the remains and artifacts until the 

required coordination has been 

completed. The district engineer will 

initiate the Federal, Tribal and state 

coordination required to determine if 

the items or remains warrant a recovery 

effort or if the site is eligible for listing 

in the National Register of Historic 

Places. 

22. Designated Critical Resource 

Waters. Critical resource waters include, 

NOAA-managed marine sanctuaries and 

marine monuments, and National 

Estuarine Research Reserves. The 

district engineer may designate, after 

notice and opportunity for public 

comment, additional waters officially 

designated by a state as having 

particular environmental or ecological 

significance, such as outstanding 

national resource waters or state natural 

heritage sites. The district engineer may 

also designate additional critical 

resource waters after notice and 

opportunity for public comment. 

(a) Discharges of dredged or fill 

material into waters of the United States 

are not authorized by NWPs 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 affecting, critical 

resource waters, including wetlands 

adjacent to such waters. 

(b) For NWPs 3, 8, 10, 13, 15, 18, 19, 

22, 23, 25, 27, 28, 30, 33, 34, 36, 37, and 

38, notification is required in 

accordance with general condition 31, 

for any activity proposed in the 

designated critical resource waters 

including wetlands adjacent to those 

waters. The district engineer may 

authorize activities under these NWPs 

only after it is determined that the 

impacts to the critical resource waters 

will be no more than minimal. 


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23. Mitigation. The district engineer 

will consider the following factors when 

determining appropriate and practicable 

mitigation necessary to ensure that 

adverse effects on the aquatic 

environment are minimal: 

(a) The activity must be designed and 

constructed to avoid and minimize 

adverse effects, both temporary and 

permanent, to waters of the United 

States to the maximum extent 

practicable at the project site (i.e., on 

site). 

(b) Mitigation in all its forms 

(avoiding, minimizing, rectifying, 

reducing, or compensating for resource 

losses) will be required to the extent 

necessary to ensure that the adverse 

effects to the aquatic environment are 

minimal. 

(c) Compensatory mitigation at a 

minimum one-for-one ratio will be 

required for all wetland losses that 

exceed 1⁄10-acre and require preconstruction notification, unless the 

district engineer determines in writing 

that either some other form of mitigation 

would be more environmentally 

appropriate or the adverse effects of the 

proposed activity are minimal, and 

provides a project-specific waiver of this 

requirement. For wetland losses of 1⁄10- 

acre or less that require pre-construction 

notification, the district engineer may 

determine on a case-by-case basis that 

compensatory mitigation is required to 

ensure that the activity results in 

minimal adverse effects on the aquatic 

environment. Compensatory mitigation 

projects provided to offset losses of 

aquatic resources must comply with the 

applicable provisions of 33 CFR part 

332. 

(1) The prospective permittee is 

responsible for proposing an 

appropriate compensatory mitigation 

option if compensatory mitigation is 

necessary to ensure that the activity 

results in minimal adverse effects on the 

aquatic environment. 

(2) Since the likelihood of success is 

greater and the impacts to potentially 

valuable uplands are reduced, wetland 

restoration should be the first 

compensatory mitigation option 

considered. 

(3) If permittee-responsible mitigation 

is the proposed option, the prospective 

permittee is responsible for submitting a 

mitigation plan. A conceptual or 

detailed mitigation plan may be used by 

the district engineer to make the 

decision on the NWP verification 

request, but a final mitigation plan that 

addresses the applicable requirements 

of 33 CFR 332.4(c)(2)–(14) must be 

approved by the district engineer before 

the permittee begins work in waters of 

the United States, unless the district 

engineer determines that prior approval 

of the final mitigation plan is not 

practicable or not necessary to ensure 

timely completion of the required 

compensatory mitigation (see 33 CFR 

332.3(k)(3)). 

(4) If mitigation bank or in-lieu fee 

program credits are the proposed 

option, the mitigation plan only needs 

to address the baseline conditions at the 

impact site and the number of credits to 

be provided. 

(5) Compensatory mitigation 

requirements (e.g., resource type and 

amount to be provided as compensatory 

mitigation, site protection, ecological 

performance standards, monitoring 

requirements) may be addressed 

through conditions added to the NWP 

authorization, instead of components of 

a compensatory mitigation plan. 

(d) For losses of streams or other open 

waters that require pre-construction 

notification, the district engineer may 

require compensatory mitigation, such 

as stream rehabilitation, enhancement, 

or preservation, to ensure that the 

activity results in minimal adverse 

effects on the aquatic environment. 

(e) Compensatory mitigation will not 

be used to increase the acreage losses 

allowed by the acreage limits of the 

NWPs. For example, if an NWP has an 

acreage limit of 1⁄2-acre, it cannot be 

used to authorize any project resulting 

in the loss of greater than 1⁄2-acre of 

waters of the United States, even if 

compensatory mitigation is provided 

that replaces or restores some of the lost 

waters. However, compensatory 

mitigation can and should be used, as 

necessary, to ensure that a project 

already meeting the established acreage 

limits also satisfies the minimal impact 

requirement associated with the NWPs. 

(f) Compensatory mitigation plans for 

projects in or near streams or other open 

waters will normally include a 

requirement for the restoration or 

establishment, maintenance, and legal 

protection (e.g., conservation easements) 

of riparian areas next to open waters. In 

some cases, riparian areas may be the 

only compensatory mitigation required. 

Riparian areas should consist of native 

species. The width of the required 

riparian area will address documented 

water quality or aquatic habitat loss 

concerns. Normally, the riparian area 

will be 25 to 50 feet wide on each side 

of the stream, but the district engineer 

may require slightly wider riparian 

areas to address documented water 

quality or habitat loss concerns. If it is 

not possible to establish a riparian area 

on both sides of a stream, or if the 

waterbody is a lake or coastal waters, 

then restoring or establishing a riparian 

area along a single bank or shoreline 

may be sufficient. Where both wetlands 

and open waters exist on the project 

site, the district engineer will determine 

the appropriate compensatory 

mitigation (e.g., riparian areas and/or 

wetlands compensation) based on what 

is best for the aquatic environment on 

a watershed basis. In cases where 

riparian areas are determined to be the 

most appropriate form of compensatory 

mitigation, the district engineer may 

waive or reduce the requirement to 

provide wetland compensatory 

mitigation for wetland losses. 

(g) Permittees may propose the use of 

mitigation banks, in-lieu fee programs, 

or separate permittee-responsible 

mitigation. For activities resulting in the 

loss of marine or estuarine resources, 

permittee-responsible compensatory 

mitigation may be environmentally 

preferable if there are no mitigation 

banks or in-lieu fee programs in the area 

that have marine or estuarine credits 

available for sale or transfer to the 

permittee. For permittee-responsible 

mitigation, the special conditions of the 

NWP verification must clearly indicate 

the party or parties responsible for the 

implementation and performance of the 

compensatory mitigation project, and, if 

required, its long-term management. 

(h) Where certain functions and 

services of waters of the United States 

are permanently adversely affected, 

such as the conversion of a forested or 

scrub-shrub wetland to a herbaceous 

wetland in a permanently maintained 

utility line right-of-way, mitigation may 

be required to reduce the adverse effects 

of the project to the minimal level. 

24. Safety of Impoundment 

Structures. To ensure that all 

impoundment structures are safely 

designed, the district engineer may 

require non-Federal applicants to 

demonstrate that the structures comply 

with established state dam safety 

criteria or have been designed by 

qualified persons. The district engineer 

may also require documentation that the 

design has been independently 

reviewed by similarly qualified persons, 

and appropriate modifications made to 

ensure safety. 

25. Water Quality. Where States and 

authorized Tribes, or EPA where 

applicable, have not previously certified 

compliance of an NWP with CWA 

Section 401, individual 401 Water 

Quality Certification must be obtained 

or waived (see 33 CFR 330.4(c)). The 

district engineer or State or Tribe may 

require additional water quality 

management measures to ensure that the 

authorized activity does not result in 

more than minimal degradation of water 

quality. 


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26. Coastal Zone Management. In 

coastal states where an NWP has not 

previously received a state coastal zone 

management consistency concurrence, 

an individual state coastal zone 

management consistency concurrence 

must be obtained, or a presumption of 

concurrence must occur (see 33 CFR 

330.4(d)). The district engineer or a 

State may require additional measures 

to ensure that the authorized activity is 

consistent with state coastal zone 

management requirements. 

27. Regional and Case-By-Case 

Conditions. The activity must comply 

with any regional conditions that may 

have been added by the Division 

Engineer (see 33 CFR 330.4(e)) and with 

any case specific conditions added by 

the Corps or by the state, Indian Tribe, 

or U.S. EPA in its section 401 Water 

Quality Certification, or by the state in 

its Coastal Zone Management Act 

consistency determination. 

28. Use of Multiple Nationwide 

Permits. The use of more than one NWP 

for a single and complete project is 

prohibited, except when the acreage loss 

of waters of the United States 

authorized by the NWPs does not 

exceed the acreage limit of the NWP 

with the highest specified acreage limit. 

For example, if a road crossing over 

tidal waters is constructed under NWP 

14, with associated bank stabilization 

authorized by NWP 13, the maximum 

acreage loss of waters of the United 

States for the total project cannot exceed 

1⁄3-acre. 

29. Transfer of Nationwide Permit 

Verifications. If the permittee sells the 

property associated with a nationwide 

permit verification, the permittee may 

transfer the nationwide permit 

verification to the new owner by 

submitting a letter to the appropriate 

Corps district office to validate the 

transfer. A copy of the nationwide 

permit verification must be attached to 

the letter, and the letter must contain 

the following statement and signature: 

‘‘When the structures or work authorized 

by this nationwide permit are still in 

existence at the time the property is 

transferred, the terms and conditions of this 

nationwide permit, including any special 

conditions, will continue to be binding on 

the new owner(s) of the property. To validate 

the transfer of this nationwide permit and the 

associated liabilities associated with 

compliance with its terms and conditions, 

have the transferee sign and date below.’’ 

lllllllllllllllllllll

(Transferee) 

lllllllllllllllllllll

(Date) 

30. Compliance Certification. Each 

permittee who receives an NWP 

verification letter from the Corps must 

provide a signed certification 

documenting completion of the 

authorized activity and any required 

compensatory mitigation. The success of 

any required permittee-responsible 

mitigation, including the achievement 

of ecological performance standards, 

will be addressed separately by the 

district engineer. The Corps will 

provide the permittee the certification 

document with the NWP verification 

letter. The certification document will 

include: 

(a) A statement that the authorized 

work was done in accordance with the 

NWP authorization, including any 

general, regional, or activity-specific 

conditions; 

(b) A statement that the 

implementation of any required 

compensatory mitigation was completed 

in accordance with the permit 

conditions. If credits from a mitigation 

bank or in-lieu fee program are used to 

satisfy the compensatory mitigation 

requirements, the certification must 

include the documentation required by 

33 CFR 332.3(l)(3) to confirm that the 

permittee secured the appropriate 

number and resource type of credits; 

and 

(c) The signature of the permittee 

certifying the completion of the work 

and mitigation. 

31. Pre-Construction Notification—(a) 

Timing. Where required by the terms of 

the NWP, the prospective permittee 

must notify the district engineer by 

submitting a pre-construction 

notification (PCN) as early as possible. 

The district engineer must determine if 

the PCN is complete within 30 calendar 

days of the date of receipt and, if the 

PCN is determined to be incomplete, 

notify the prospective permittee within 

that 30 day period to request the 

additional information necessary to 

make the PCN complete. The request 

must specify the information needed to 

make the PCN complete. As a general 

rule, district engineers will request 

additional information necessary to 

make the PCN complete only once. 

However, if the prospective permittee 

does not provide all of the requested 

information, then the district engineer 

will notify the prospective permittee 

that the PCN is still incomplete and the 

PCN review process will not commence 

until all of the requested information 

has been received by the district 

engineer. The prospective permittee 

shall not begin the activity until either: 

(1) He or she is notified in writing by 

the district engineer that the activity 

may proceed under the NWP with any 

special conditions imposed by the 

district or division engineer; or 

(2) 45 calendar days have passed from 

the district engineer’s receipt of the 

complete PCN and the prospective 

permittee has not received written 

notice from the district or division 

engineer. However, if the permittee was 

required to notify the Corps pursuant to 

general condition 18 that listed species 

or critical habitat might be affected or in 

the vicinity of the project, or to notify 

the Corps pursuant to general condition 

20 that the activity may have the 

potential to cause effects to historic 

properties, the permittee cannot begin 

the activity until receiving written 

notification from the Corps that there is 

‘‘no effect’’ on listed species or ‘‘no 

potential to cause effects’’ on historic 

properties, or that any consultation 

required under Section 7 of the 

Endangered Species Act (see 33 CFR 

330.4(f)) and/or Section 106 of the 

National Historic Preservation (see 33 

CFR 330.4(g)) has been completed. Also, 

work cannot begin under NWPs 21, 49, 

or 50 until the permittee has received 

written approval from the Corps. If the 

proposed activity requires a written 

waiver to exceed specified limits of an 

NWP, the permittee may not begin the 

activity until the district engineer issues 

the waiver. If the district or division 

engineer notifies the permittee in 

writing that an individual permit is 

required within 45 calendar days of 

receipt of a complete PCN, the permittee 

cannot begin the activity until an 

individual permit has been obtained. 

Subsequently, the permittee’s right to 

proceed under the NWP may be 

modified, suspended, or revoked only in 

accordance with the procedure set forth 

in 33 CFR 330.5(d)(2). 

(b) Contents of Pre-Construction 

Notification: The PCN must be in 

writing and include the following 

information: 

(1) Name, address and telephone 

numbers of the prospective permittee; 

(2) Location of the proposed project; 

(3) A description of the proposed 

project; the project’s purpose; direct and 

indirect adverse environmental effects 

the project would cause, including the 

anticipated amount of loss of water of 

the United States expected to result 

from the NWP activity, in acres, linear 

feet, or other appropriate unit of 

measure; any other NWP(s), regional 

general permit(s), or individual 

permit(s) used or intended to be used to 

authorize any part of the proposed 

project or any related activity. The 

description should be sufficiently 

detailed to allow the district engineer to 

determine that the adverse effects of the 

project will be minimal and to 

determine the need for compensatory 

mitigation. Sketches should be provided 


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when necessary to show that the activity 

complies with the terms of the NWP. 

(Sketches usually clarify the project and 

when provided results in a quicker 

decision. Sketches should contain 

sufficient detail to provide an 

illustrative description of the proposed 

activity (e.g., a conceptual plan), but do 

not need to be detailed engineering 

plans); 

(4) The PCN must include a 

delineation of wetlands, other special 

aquatic sites, and other waters, such as 

lakes and ponds, and perennial, 

intermittent, and ephemeral streams, on 

the project site. Wetland delineations 

must be prepared in accordance with 

the current method required by the 

Corps. The permittee may ask the Corps 

to delineate the special aquatic sites and 

other waters on the project site, but 

there may be a delay if the Corps does 

the delineation, especially if the project 

site is large or contains many waters of 

the United States. Furthermore, the 45 

day period will not start until the 

delineation has been submitted to or 

completed by the Corps, as appropriate; 

(5) If the proposed activity will result 

in the loss of greater than 1⁄10-acre of 

wetlands and a PCN is required, the 

prospective permittee must submit a 

statement describing how the mitigation 

requirement will be satisfied, or 

explaining why the adverse effects are 

minimal and why compensatory 

mitigation should not be required. As an 

alternative, the prospective permittee 

may submit a conceptual or detailed 

mitigation plan. 

(6) If any listed species or designated 

critical habitat might be affected or is in 

the vicinity of the project, or if the 

project is located in designated critical 

habitat, for non-Federal applicants the 

PCN must include the name(s) of those 

endangered or threatened species that 

might be affected by the proposed work 

or utilize the designated critical habitat 

that may be affected by the proposed 

work. Federal applicants must provide 

documentation demonstrating 

compliance with the Endangered 

Species Act; and 

(7) For an activity that may affect a 

historic property listed on, determined 

to be eligible for listing on, or 

potentially eligible for listing on, the 

National Register of Historic Places, for 

non-Federal applicants the PCN must 

state which historic property may be 

affected by the proposed work or 

include a vicinity map indicating the 

location of the historic property. Federal 

applicants must provide documentation 

demonstrating compliance with Section 

106 of the National Historic 

Preservation Act. 

(c) Form of Pre-Construction 

Notification: The standard individual 

permit application form (Form ENG 

4345) may be used, but the completed 

application form must clearly indicate 

that it is a PCN and must include all of 

the information required in paragraphs 

(b)(1) through (7) of this general 

condition. A letter containing the 

required information may also be used. 

(d) Agency Coordination: (1) The 

district engineer will consider any 

comments from Federal and state 

agencies concerning the proposed 

activity’s compliance with the terms 

and conditions of the NWPs and the 

need for mitigation to reduce the 

project’s adverse environmental effects 

to a minimal level. 

(2) For all NWP activities that require 

pre-construction notification and result 

in the loss of greater than 1⁄2-acre of 

waters of the United States, for NWP 21, 

29, 39, 40, 42, 43, 44, 50, 51, and 52 

activities that require pre-construction 

notification and will result in the loss of 

greater than 300 linear feet of 

intermittent and ephemeral stream bed, 

and for all NWP 48 activities that 

require pre-construction notification, 

the district engineer will immediately 

provide (e.g., via email, facsimile 

transmission, overnight mail, or other 

expeditious manner) a copy of the 

complete PCN to the appropriate 

Federal or state offices (U.S. FWS, state 

natural resource or water quality 

agency, EPA, State Historic Preservation 

Officer (SHPO) or Tribal Historic 

Preservation Office (THPO), and, if 

appropriate, the NMFS). With the 

exception of NWP 37, these agencies 

will have 10 calendar days from the date 

the material is transmitted to telephone 

or fax the district engineer notice that 

they intend to provide substantive, sitespecific comments. The comments must 

explain why the agency believes the 

adverse effects will be more than 

minimal. If so contacted by an agency, 

the district engineer will wait an 

additional 15 calendar days before 

making a decision on the preconstruction notification. The district 

engineer will fully consider agency 

comments received within the specified 

time frame concerning the proposed 

activity’s compliance with the terms 

and conditions of the NWPs, including 

the need for mitigation to ensure the net 

adverse environmental effects to the 

aquatic environment of the proposed 

activity are minimal. The district 

engineer will provide no response to the 

resource agency, except as provided 

below. The district engineer will 

indicate in the administrative record 

associated with each pre-construction 

notification that the resource agencies’ 

concerns were considered. For NWP 37, 

the emergency watershed protection and 

rehabilitation activity may proceed 

immediately in cases where there is an 

unacceptable hazard to life or a 

significant loss of property or economic 

hardship will occur. The district 

engineer will consider any comments 

received to decide whether the NWP 37 

authorization should be modified, 

suspended, or revoked in accordance 

with the procedures at 33 CFR 330.5. 

(3) In cases of where the prospective 

permittee is not a Federal agency, the 

district engineer will provide a response 

to NMFS within 30 calendar days of 

receipt of any Essential Fish Habitat 

conservation recommendations, as 

required by Section 305(b)(4)(B) of the 

Magnuson-Stevens Fishery 

Conservation and Management Act. 

(4) Applicants are encouraged to 

provide the Corps with either electronic 

files or multiple copies of preconstruction notifications to expedite 

agency coordination. 

D. District Engineer’s Decision 

1. In reviewing the PCN for the 

proposed activity, the district engineer 

will determine whether the activity 

authorized by the NWP will result in 

more than minimal individual or 

cumulative adverse environmental 

effects or may be contrary to the public 

interest. For a linear project, this 

determination will include an 

evaluation of the individual crossings to 

determine whether they individually 

satisfy the terms and conditions of the 

NWP(s), as well as the cumulative 

effects caused by all of the crossings 

authorized by NWP. If an applicant 

requests a waiver of the 300 linear foot 

limit on impacts to intermittent or 

ephemeral streams or of an otherwise 

applicable limit, as provided for in 

NWPs 13, 21, 29, 36, 39, 40, 42, 43, 44, 

50, 51 or 52, the district engineer will 

only grant the waiver upon a written 

determination that the NWP activity 

will result in minimal adverse effects. 

When making minimal effects 

determinations the district engineer will 

consider the direct and indirect effects 

caused by the NWP activity. The district 

engineer will also consider site specific 

factors, such as the environmental 

setting in the vicinity of the NWP 

activity, the type of resource that will be 

affected by the NWP activity, the 

functions provided by the aquatic 

resources that will be affected by the 

NWP activity, the degree or magnitude 

to which the aquatic resources perform 

those functions, the extent that aquatic 

resource functions will be lost as a 

result of the NWP activity (e.g., partial 

or complete loss), the duration of the 


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adverse effects (temporary or 

permanent), the importance of the 

aquatic resource functions to the region 

(e.g., watershed or ecoregion), and 

mitigation required by the district 

engineer. If an appropriate functional 

assessment method is available and 

practicable to use, that assessment 

method may be used by the district 

engineer to assist in the minimal 

adverse effects determination. The 

district engineer may add case-specific 

special conditions to the NWP 

authorization to address site-specific 

environmental concerns. 

2. If the proposed activity requires a 

PCN and will result in a loss of greater 

than 1⁄10-acre of wetlands, the 

prospective permittee should submit a 

mitigation proposal with the PCN. 

Applicants may also propose 

compensatory mitigation for projects 

with smaller impacts. The district 

engineer will consider any proposed 

compensatory mitigation the applicant 

has included in the proposal in 

determining whether the net adverse 

environmental effects to the aquatic 

environment of the proposed activity 

are minimal. The compensatory 

mitigation proposal may be either 

conceptual or detailed. If the district 

engineer determines that the activity 

complies with the terms and conditions 

of the NWP and that the adverse effects 

on the aquatic environment are 

minimal, after considering mitigation, 

the district engineer will notify the 

permittee and include any activityspecific conditions in the NWP 

verification the district engineer deems 

necessary. Conditions for compensatory 

mitigation requirements must comply 

with the appropriate provisions at 33 

CFR 332.3(k). The district engineer must 

approve the final mitigation plan before 

the permittee commences work in 

waters of the United States, unless the 

district engineer determines that prior 

approval of the final mitigation plan is 

not practicable or not necessary to 

ensure timely completion of the 

required compensatory mitigation. If the 

prospective permittee elects to submit a 

compensatory mitigation plan with the 

PCN, the district engineer will 

expeditiously review the proposed 

compensatory mitigation plan. The 

district engineer must review the 

proposed compensatory mitigation plan 

within 45 calendar days of receiving a 

complete PCN and determine whether 

the proposed mitigation would ensure 

no more than minimal adverse effects 

on the aquatic environment. If the net 

adverse effects of the project on the 

aquatic environment (after 

consideration of the compensatory 

mitigation proposal) are determined by 

the district engineer to be minimal, the 

district engineer will provide a timely 

written response to the applicant. The 

response will state that the project can 

proceed under the terms and conditions 

of the NWP, including any activityspecific conditions added to the NWP 

authorization by the district engineer. 

3. If the district engineer determines 

that the adverse effects of the proposed 

work are more than minimal, then the 

district engineer will notify the 

applicant either: (a) That the project 

does not qualify for authorization under 

the NWP and instruct the applicant on 

the procedures to seek authorization 

under an individual permit; (b) that the 

project is authorized under the NWP 

subject to the applicant’s submission of 

a mitigation plan that would reduce the 

adverse effects on the aquatic 

environment to the minimal level; or (c) 

that the project is authorized under the 

NWP with specific modifications or 

conditions. Where the district engineer 

determines that mitigation is required to 

ensure no more than minimal adverse 

effects occur to the aquatic 

environment, the activity will be 

authorized within the 45-day PCN 

period, with activity-specific conditions 

that state the mitigation requirements. 

The authorization will include the 

necessary conceptual or detailed 

mitigation or a requirement that the 

applicant submit a mitigation plan that 

would reduce the adverse effects on the 

aquatic environment to the minimal 

level. When mitigation is required, no 

work in waters of the United States may 

occur until the district engineer has 

approved a specific mitigation plan or 

has determined that prior approval of a 

final mitigation plan is not practicable 

or not necessary to ensure timely 

completion of the required 

compensatory mitigation. 

E. Further Information 

1. District Engineers have authority to 

determine if an activity complies with 

the terms and conditions of an NWP. 

2. NWPs do not obviate the need to 

obtain other federal, state, or local 

permits, approvals, or authorizations 

required by law. 

3. NWPs do not grant any property 

rights or exclusive privileges. 

4. NWPs do not authorize any injury 

to the property or rights of others. 

5. NWPs do not authorize interference 

with any existing or proposed Federal 

project. 

F. Definitions 

Best management practices (BMPs): 

Policies, practices, procedures, or 

structures implemented to mitigate the 

adverse environmental effects on 

surface water quality resulting from 

development. BMPs are categorized as 

structural or non-structural. 

Compensatory mitigation: The 

restoration (re-establishment or 

rehabilitation), establishment (creation), 

enhancement, and/or in certain 

circumstances preservation of aquatic 

resources for the purposes of offsetting 

unavoidable adverse impacts which 

remain after all appropriate and 

practicable avoidance and minimization 

has been achieved. 

Currently serviceable: Useable as is or 

with some maintenance, but not so 

degraded as to essentially require 

reconstruction. 

Direct effects: Effects that are caused 

by the activity and occur at the same 

time and place. 

Discharge: The term ‘‘discharge’’ 

means any discharge of dredged or fill 

material. 

Enhancement: The manipulation of 

the physical, chemical, or biological 

characteristics of an aquatic resource to 

heighten, intensify, or improve a 

specific aquatic resource function(s). 

Enhancement results in the gain of 

selected aquatic resource function(s), 

but may also lead to a decline in other 

aquatic resource function(s). 

Enhancement does not result in a gain 

in aquatic resource area. 

Ephemeral stream: An ephemeral 

stream has flowing water only during, 

and for a short duration after, 

precipitation events in a typical year. 

Ephemeral stream beds are located 

above the water table year-round. 

Groundwater is not a source of water for 

the stream. Runoff from rainfall is the 

primary source of water for stream flow. 

Establishment (creation): The 

manipulation of the physical, chemical, 

or biological characteristics present to 

develop an aquatic resource that did not 

previously exist at an upland site. 

Establishment results in a gain in 

aquatic resource area. 

High Tide Line: The line of 

intersection of the land with the water’s 

surface at the maximum height reached 

by a rising tide. The high tide line may 

be determined, in the absence of actual 

data, by a line of oil or scum along shore 

objects, a more or less continuous 

deposit of fine shell or debris on the 

foreshore or berm, other physical 

markings or characteristics, vegetation 

lines, tidal gages, or other suitable 

means that delineate the general height 

reached by a rising tide. The line 

encompasses spring high tides and other 

high tides that occur with periodic 

frequency but does not include storm 

surges in which there is a departure 

from the normal or predicted reach of 


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the tide due to the piling up of water 

against a coast by strong winds such as 

those accompanying a hurricane or 

other intense storm. 

Historic Property: Any prehistoric or 

historic district, site (including 

archaeological site), building, structure, 

or other object included in, or eligible 

for inclusion in, the National Register of 

Historic Places maintained by the 

Secretary of the Interior. This term 

includes artifacts, records, and remains 

that are related to and located within 

such properties. The term includes 

properties of traditional religious and 

cultural importance to an Indian tribe or 

Native Hawaiian organization and that 

meet the National Register criteria (36 

CFR part 60). 

Independent utility: A test to 

determine what constitutes a single and 

complete non-linear project in the Corps 

regulatory program. A project is 

considered to have independent utility 

if it would be constructed absent the 

construction of other projects in the 

project area. Portions of a multi-phase 

project that depend upon other phases 

of the project do not have independent 

utility. Phases of a project that would be 

constructed even if the other phases 

were not built can be considered as 

separate single and complete projects 

with independent utility. 

Indirect effects: Effects that are caused 

by the activity and are later in time or 

farther removed in distance, but are still 

reasonably foreseeable. 

Intermittent stream: An intermittent 

stream has flowing water during certain 

times of the year, when groundwater 

provides water for stream flow. During 

dry periods, intermittent streams may 

not have flowing water. Runoff from 

rainfall is a supplemental source of 

water for stream flow. 

Loss of waters of the United States: 

Waters of the United States that are 

permanently adversely affected by 

filling, flooding, excavation, or drainage 

because of the regulated activity. 

Permanent adverse effects include 

permanent discharges of dredged or fill 

material that change an aquatic area to 

dry land, increase the bottom elevation 

of a waterbody, or change the use of a 

waterbody. The acreage of loss of waters 

of the United States is a threshold 

measurement of the impact to 

jurisdictional waters for determining 

whether a project may qualify for an 

NWP; it is not a net threshold that is 

calculated after considering 

compensatory mitigation that may be 

used to offset losses of aquatic functions 

and services. The loss of stream bed 

includes the linear feet of stream bed 

that is filled or excavated. Waters of the 

United States temporarily filled, 

flooded, excavated, or drained, but 

restored to pre-construction contours 

and elevations after construction, are 

not included in the measurement of loss 

of waters of the United States. Impacts 

resulting from activities eligible for 

exemptions under Section 404(f) of the 

Clean Water Act are not considered 

when calculating the loss of waters of 

the United States. 

Non-tidal wetland: A non-tidal 

wetland is a wetland that is not subject 

to the ebb and flow of tidal waters. The 

definition of a wetland can be found at 

33 CFR 328.3(b). Non-tidal wetlands 

contiguous to tidal waters are located 

landward of the high tide line (i.e., 

spring high tide line). 

Open water: For purposes of the 

NWPs, an open water is any area that in 

a year with normal patterns of 

precipitation has water flowing or 

standing above ground to the extent that 

an ordinary high water mark can be 

determined. Aquatic vegetation within 

the area of standing or flowing water is 

either non-emergent, sparse, or absent. 

Vegetated shallows are considered to be 

open waters. Examples of ‘‘open waters’’ 

include rivers, streams, lakes, and 

ponds. 

Ordinary High Water Mark: An 

ordinary high water mark is a line on 

the shore established by the fluctuations 

of water and indicated by physical 

characteristics, or by other appropriate 

means that consider the characteristics 

of the surrounding areas (see 33 CFR 

328.3(e)). 

Perennial stream: A perennial stream 

has flowing water year-round during a 

typical year. The water table is located 

above the stream bed for most of the 

year. Groundwater is the primary source 

of water for stream flow. Runoff from 

rainfall is a supplemental source of 

water for stream flow. 

Practicable: Available and capable of 

being done after taking into 

consideration cost, existing technology, 

and logistics in light of overall project 

purposes. 

Pre-construction notification: A 

request submitted by the project 

proponent to the Corps for confirmation 

that a particular activity is authorized 

by nationwide permit. The request may 

be a permit application, letter, or similar 

document that includes information 

about the proposed work and its 

anticipated environmental effects. Preconstruction notification may be 

required by the terms and conditions of 

a nationwide permit, or by regional 

conditions. A pre-construction 

notification may be voluntarily 

submitted in cases where preconstruction notification is not required 

and the project proponent wants 

confirmation that the activity is 

authorized by nationwide permit. 

Preservation: The removal of a threat 

to, or preventing the decline of, aquatic 

resources by an action in or near those 

aquatic resources. This term includes 

activities commonly associated with the 

protection and maintenance of aquatic 

resources through the implementation 

of appropriate legal and physical 

mechanisms. Preservation does not 

result in a gain of aquatic resource area 

or functions. 

Re-establishment: The manipulation 

of the physical, chemical, or biological 

characteristics of a site with the goal of 

returning natural/historic functions to a 

former aquatic resource. Reestablishment results in rebuilding a 

former aquatic resource and results in a 

gain in aquatic resource area and 

functions. 

Rehabilitation: The manipulation of 

the physical, chemical, or biological 

characteristics of a site with the goal of 

repairing natural/historic functions to a 

degraded aquatic resource. 

Rehabilitation results in a gain in 

aquatic resource function, but does not 

result in a gain in aquatic resource area. 

Restoration: The manipulation of the 

physical, chemical, or biological 

characteristics of a site with the goal of 

returning natural/historic functions to a 

former or degraded aquatic resource. For 

the purpose of tracking net gains in 

aquatic resource area, restoration is 

divided into two categories: reestablishment and rehabilitation. 

Riffle and pool complex: Riffle and 

pool complexes are special aquatic sites 

under the 404(b)(1) Guidelines. Riffle 

and pool complexes sometimes 

characterize steep gradient sections of 

streams. Such stream sections are 

recognizable by their hydraulic 

characteristics. The rapid movement of 

water over a course substrate in riffles 

results in a rough flow, a turbulent 

surface, and high dissolved oxygen 

levels in the water. Pools are deeper 

areas associated with riffles. A slower 

stream velocity, a streaming flow, a 

smooth surface, and a finer substrate 

characterize pools. 

Riparian areas: Riparian areas are 

lands adjacent to streams, lakes, and 

estuarine-marine shorelines. Riparian 

areas are transitional between terrestrial 

and aquatic ecosystems, through which 

surface and subsurface hydrology 

connects riverine, lacustrine, estuarine, 

and marine waters with their adjacent 

wetlands, non-wetland waters, or 

uplands. Riparian areas provide a 

variety of ecological functions and 

services and help improve or maintain 

local water quality. (See general 

condition 23.) 


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Shellfish seeding: The placement of 

shellfish seed and/or suitable substrate 

to increase shellfish production. 

Shellfish seed consists of immature 

individual shellfish or individual 

shellfish attached to shells or shell 

fragments (i.e., spat on shell). Suitable 

substrate may consist of shellfish shells, 

shell fragments, or other appropriate 

materials placed into waters for 

shellfish habitat. 

Single and complete linear project: A 

linear project is a project constructed for 

the purpose of getting people, goods, or 

services from a point of origin to a 

terminal point, which often involves 

multiple crossings of one or more 

waterbodies at separate and distant 

locations. The term ‘‘single and 

complete project’’ is defined as that 

portion of the total linear project 

proposed or accomplished by one 

owner/developer or partnership or other 

association of owners/developers that 

includes all crossings of a single water 

of the United States (i.e., a single 

waterbody) at a specific location. For 

linear projects crossing a single or 

multiple waterbodies several times at 

separate and distant locations, each 

crossing is considered a single and 

complete project for purposes of NWP 

authorization. However, individual 

channels in a braided stream or river, or 

individual arms of a large, irregularly 

shaped wetland or lake, etc., are not 

separate waterbodies, and crossings of 

such features cannot be considered 

separately. 

Single and complete non-linear 

project: For non-linear projects, the term 

‘‘single and complete project’’ is defined 

at 33 CFR 330.2(i) as the total project 

proposed or accomplished by one 

owner/developer or partnership or other 

association of owners/developers. A 

single and complete non-linear project 

must have independent utility (see 

definition of ‘‘independent utility’’). 

Single and complete non-linear projects 

may not be ‘‘piecemealed’’ to avoid the 

limits in an NWP authorization. 

Stormwater management: Stormwater 

management is the mechanism for 

controlling stormwater runoff for the 

purposes of reducing downstream 

erosion, water quality degradation, and 

flooding and mitigating the adverse 

effects of changes in land use on the 

aquatic environment. 

Stormwater management facilities: 

Stormwater management facilities are 

those facilities, including but not 

limited to, stormwater retention and 

detention ponds and best management 

practices, which retain water for a 

period of time to control runoff and/or 

improve the quality (i.e., by reducing 

the concentration of nutrients, 

sediments, hazardous substances and 

other pollutants) of stormwater runoff. 

Stream bed: The substrate of the 

stream channel between the ordinary 

high water marks. The substrate may be 

bedrock or inorganic particles that range 

in size from clay to boulders. Wetlands 

contiguous to the stream bed, but 

outside of the ordinary high water 

marks, are not considered part of the 

stream bed. 

Stream channelization: The 

manipulation of a stream’s course, 

condition, capacity, or location that 

causes more than minimal interruption 

of normal stream processes. A 

channelized stream remains a water of 

the United States. 

Structure: An object that is arranged 

in a definite pattern of organization. 

Examples of structures include, without 

limitation, any pier, boat dock, boat 

ramp, wharf, dolphin, weir, boom, 

breakwater, bulkhead, revetment, 

riprap, jetty, artificial island, artificial 

reef, permanent mooring structure, 

power transmission line, permanently 

moored floating vessel, piling, aid to 

navigation, or any other manmade 

obstacle or obstruction. 

Tidal wetland: A tidal wetland is a 

wetland (i.e., water of the United States) 

that is inundated by tidal waters. The 

definitions of a wetland and tidal waters 

can be found at 33 CFR 328.3(b) and 33 

CFR 328.3(f), respectively. Tidal waters 

rise and fall in a predictable and 

measurable rhythm or cycle due to the 

gravitational pulls of the moon and sun. 

Tidal waters end where the rise and fall 

of the water surface can no longer be 

practically measured in a predictable 

rhythm due to masking by other waters, 

wind, or other effects. Tidal wetlands 

are located channelward of the high tide 

line, which is defined at 33 CFR 

328.3(d). 

Vegetated shallows: Vegetated 

shallows are special aquatic sites under 

the 404(b)(1) Guidelines. They are areas 

that are permanently inundated and 

under normal circumstances have 

rooted aquatic vegetation, such as 

seagrasses in marine and estuarine 

systems and a variety of vascular rooted 

plants in freshwater systems. 

Waterbody: For purposes of the 

NWPs, a waterbody is a jurisdictional 

water of the United States. If a 

jurisdictional wetland is adjacent— 

meaning bordering, contiguous, or 

neighboring—to a waterbody 

determined to be a water of the United 

States under 33 CFR 328.3(a)(1)–(6), that 

waterbody and its adjacent wetlands are 

considered together as a single aquatic 

unit (see 33 CFR 328.4(c)(2)). Examples 

of ‘‘waterbodies’’ include streams, 

rivers, lakes, ponds, and wetlands. 

[FR Doc. 2012–3687 Filed 2–17–12; 8:45 am] 

BILLING CODE 3720–58–P 


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