56258 Federal Register / Vol. 71, No. 186 / Tuesday, September 26, 2006 / Notices 

DEPARTMENT OF DEFENSE 

Department of the Army, Corps of 

Engineers 

[ZRIN 0710–ZA02] 

Proposal To Reissue and Modify 

Nationwide Permits 

AGENCY: Army Corps of Engineers, DoD. 

ACTION: Notice. 

SUMMARY: The U.S. Army Corps of 

Engineers (Corps) is soliciting 

comments for the reissuance of the 

existing nationwide permits (NWPs), 

general conditions, and definitions, 

with some modifications. The Corps is 

also proposing to issue six new NWPs 

and one new general condition. The 

reissuance process starts with today’s 

publication of the proposed NWPs in 

the Federal Register for a 60-day 

comment period. The purpose of this 

Federal Register notice is to solicit 

comments on the proposed new and 

modified NWPs, as well as the NWP 

general conditions and definitions. 

Shortly after the publication of this 

Federal Register notice, each Corps 

district will publish a public notice to 

solicit comments on their proposed 

regional conditions for the new and 

modified NWPs. The comment period 

for these district public notices will be 

45 days. 

DATES: Submit comments on or before 

November 27, 2006. 

ADDRESSES: You may submit comments, 

identified by docket number COE– 

2006–0005 and/or ZRIN 0710–ZA02, by 

any of the following methods: 

Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

E-mail: 

david.b.olson@usace.army.mil. Include 

the docket number, COE–2006–0005, 

and/or the ZRIN number, 0710–ZA02, 

in the subject line of the message. 

Fax: 202–761–0140. 

Mail: U.S. Army Corps of Engineers, 

Attn: CECW–OR/MVD (David B. Olson), 

441 G Street NW., Washington, DC 

20314–1000. 

Hand Delivery/Courier: Due to 

security requirements, we cannot 

receive comments by hand delivery or 

courier. 

Instructions: Direct your comments to 

docket number COE–2006–0005 and/or 

ZRIN 0710–ZA02. All comments 

received will be included in the public 

docket without change and may be 

made available on-line at http:// 

www.regulations.gov, including any 

personal information provided, unless 

the commenter indicates that the 

comment includes information claimed 

to be Confidential Business Information 

(CBI) or other information whose 

disclosure is restricted by statute. Do 

not submit information that you 

consider to be CBI, or otherwise 

protected, through regulations.gov or 

e-mail. The regulations.gov Web site is 

an anonymous access system, which 

means we will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an e-mail directly to the 

Corps without going through 

regulations.gov, your e-mail address 

will be automatically captured and 

included as part of the comment that is 

placed in the public docket and made 

available on the Internet. If you submit 

an electronic comment, we recommend 

that you include your name and other 

contact information in the body of your 

comment and with any disk or CD–ROM 

you submit. If we cannot read your 

comment because of technical 

difficulties and cannot contact you for 

clarification, we may not be able to 

consider your comment. Electronic 

comments should avoid the use of any 

special characters, any form of 

encryption, and be free of any defects or 

viruses. 

Docket: For access to the docket to 

read background documents or 

comments received, go to 

regulations.gov. All documents in the 

docket are listed. Although listed in the 

index, some information is not publicly 

available, such as CBI or other 

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

is not placed on the Internet and will be 

publicly available only in hard copy 

form. 

Consideration will be given to all 

comments received within 60 days of 

the date of publication of this notice. 

FOR FURTHER INFORMATION CONTACT: Mr. 

David Olson at 202–761–4922 or by 

e-mail 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/inet/ 

functions/cw/cecwo/reg/. 

SUPPLEMENTARY INFORMATION: 

Background 

The current nationwide permits 

(NWPs), which were published in the 

January 15, 2002, issue of the Federal 

Register (67 FR 2020) expire on March 

18, 2007. With this Federal Register 

notice, we are beginning the process for 

reissuing the NWPs so that the reissued 

NWPs will be in effect as the current 

NWPs expire. 

Section 404(e) of the Clean Water Act 

provides the statutory authority for the 

Secretary of the Army, after notice and 

opportunity for public hearing, to issue 

general permits on a nationwide basis 

for any category of activities involving 

discharges of dredged or fill material 

into waters of the United States. 

Activities authorized by NWPs must be 

similar in nature, cause only minimal 

adverse environmental effects when 

performed separately, and cause only 

minimal cumulative adverse effect on 

the aquatic environment. Nationwide 

permits can also be issued to authorize 

activities pursuant to Section 10 of the 

Rivers and Harbors Act of 1899. The 

NWP program is designed to provide 

timely authorizations for the regulated 

public while protecting the Nation’s 

aquatic resources. 

One goal of today’s notice is to 

simplify the text of the reissued NWPs. 

Since NWPs were first issued in 1977, 

the NWP program has become 

increasingly complex. With each 

issuance or reissuance of NWPs, the text 

of the permits and the general 

conditions has become lengthier, and in 

some cases, redundant language was 

added that may make them more 

difficult to comprehend. Compliance 

with the NWPs and their general 

conditions is more difficult if users of 

those permits cannot easily understand 

the requirements of the NWPs and what 

they authorize. Simplifying the text will 

facilitate compliance with the NWPs 

and thus help protect the aquatic 

environment. 

Federal agencies are required by 

Executive Order 12866, Regulatory 

Planning and Review, to draft 

regulations that are simple and easy to 

understand, to minimize uncertainty. 

This principle is also applicable to the 

NWPs, which are now considered to be 

rules under the Administrative 

Procedures Act (APA). In addition, a 

Presidential Memorandum issued on 

June 1, 1998, requires Federal agencies 

to use plain language in government 

writing, so that rules and other 

documents are clear to the public and 

others. 

We are proposing to revise the text of 

the NWPs, general conditions, and 

definitions so that they are clearer, more 

concise, and can be more easily 

understood by the regulated public, 

government personnel, and interested 

parties, while retaining terms and 

conditions that protect the aquatic 

environment. Making the text of the 

NWPs clearer and easier to understand 

will also facilitate compliance with 

these permits, which will benefit the 

aquatic environment. This proposal also 

reflects the Corps support of the 

administration’s goal of improving 

regulatory efficiency, by making the 


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NWPs easier to read and understand. 

The text of the proposed NWPs has been 

streamlined by removing redundant 

language and applying a standard 

format to most NWPs. We are proposing 

to arrange the NWP general conditions 

in a different order, so that the 

conditions that provide environmental 

protection are first, followed by 

administrative and procedural general 

conditions. 

Today’s proposal to reissue the 

existing NWPs with some modifications 

and to issue six new NWPs reflects the 

Corps commitment to its environmental 

protection mission and to aquatic 

resource protection. The NWP program 

allows the Corps to authorize activities 

with minimal adverse environmental 

impacts in a timely manner and protect 

the aquatic environment. The NWP 

program also allows the Corps to focus 

its limited resources on more extensive 

evaluation of projects that have the 

potential for causing environmentally 

damaging adverse effects. 

Through the NWPs, impacts to the 

aquatic environment may also receive 

additional protection through regional 

conditions, case-specific special 

conditions, and case-specific 

discretionary authority to require 

individual permits. Nationwide permits 

and other general permits help protect 

the aquatic environment because permit 

applicants often reduce project impacts 

to meet the restrictive requirements of 

general permits and receive 

authorization more quickly than they 

would through the individual permit 

process. 

Twenty-six of the NWPs proposed for 

reissuance require pre-construction 

notification (PCN) for certain activities. 

Fifteen of those NWPs require PCNs for 

all activities. Four of the six proposed 

new NWPs require PCNs. Three of those 

four new NWPs require PCNs for all 

activities. Altogether, PCN requirements 

have been added or expanded for seven 

permits, relative to the requirements in 

the current permits. Existing PCN 

requirements have been dropped in one 

permit (NWP 5), and reduced in another 

(NWP 12), because the conditions for 

authorization under these permits are 

adequate to ensure minimal individual 

and cumulative effects without the 

previously required PCNs. PCN 

requirements give the Corps the 

opportunity to evaluate certain 

proposed NWP activities on a case-bycase basis to ensure that they will have 

no more than minimal adverse effects 

on the aquatic environment, 

individually and cumulatively. This 

case-by-case review often results in 

adding case-specific conditions to the 

NWP authorization to ensure that 

impacts to the aquatic environment are 

minimal. Review of PCNs may also 

result in the Corps asserting 

discretionary authority to require an 

individual permit if the district engineer 

determines, based on the information 

provided in the notification, that 

adverse impacts will be more than 

minimal, either individually or 

cumulatively, or there are sufficient 

concerns for any of the Corps public 

interest review factors. 

Regional conditions may be imposed 

by division engineers to take into 

account regional differences in aquatic 

resource functions and services across 

the country and to restrict the use of 

NWPs to protect those resources. 

Through regional conditions, a division 

engineer can modify an NWP to require 

submission of PCNs for certain 

activities. Regional conditions may also 

restrict or prohibit the use of an NWP 

in certain waters or geographic areas, if 

the use of that NWP in those waters or 

areas might result in more than minimal 

individual or cumulative adverse effects 

to the aquatic environment. 

District engineers may impose special 

conditions on NWP authorizations to 

ensure that the NWP authorizes only 

activities that result in minimal 

individual and cumulative effects on the 

aquatic environment and are in the 

public interest. In addition, special 

conditions will often include 

compensatory mitigation requirements 

to reduce the project impacts to the 

minimal level. Compensatory mitigation 

may include the restoration, 

establishment, enhancement, and/or 

preservation of aquatic habitats, as well 

as the establishment and maintenance of 

riparian areas next to streams and other 

open waters. Compensatory mitigation 

can be provided through permitteeresponsible mitigation, mitigation 

banks, or in-lieu fee programs. 

Process for Reissuing the NWPs 

The NWPs reissued on January 15, 

2002, became effective on March 18, 

2002, and expire on March 18, 2007. 

The reissuance process starts with 

today’s publication of the proposed 

NWPs in the Federal Register for a 60- 

day comment period. Requests for a 

public hearing must be submitted in 

writing to the address in the ADDRESSES

section of this notice. These requests 

must state the reason(s) for holding a 

public hearing. If we determine that a 

public hearing or hearings would assist 

in making a decision on the issuance of 

the proposed new NWPs, reissuance of 

existing NWPs, or the NWP general 

conditions or definitions, a 30-day 

advance notice will be published in the 

Federal Register to advise interested 

parties of the date(s) and location(s) for 

the public hearing(s). Any 

announcement of public hearings would 

also be posted as a supporting material 

in the docket at www.regulations.gov as 

well as the Corps regulatory home page 

at http://www.usace.army.mil/inet/ 

functions/cw/cecwo/reg/citizen.htm 

Concurrent with this Federal Register 

notice, Corps district offices will issue 

public notices to solicit comments on 

proposed regional conditions. In their 

district public notices, district engineers 

may also propose to suspend or revoke 

some or all of these NWPs if they have 

issued, or are proposing to issue, 

regional general permits, programmatic 

general permits, or section 404 letters of 

permission for use in lieu of NWPs. The 

comment period for these district public 

notices will be 45 days. 

After the comment period has ended, 

we will review the comments received 

in response to this Federal Register 

notice. Then we will draft the final 

NWPs, and those final draft NWPs will 

be subjected to another review by 

interested Federal agencies. The final 

issued NWPs will be published in the 

Federal Register by January 2007. These 

final NWPs will become effective 60 

days after their publication. This 

schedule provides a 60-day period for 

state and tribal Clean Water Act Section 

401 water quality certifications (WQCs), 

as well as state Coastal Zone 

Management Act (CZMA) consistency 

decisions. Within this 60-day period, 

division engineers will also approve 

regional conditions and issue 

supplemental decision documents. 

Supplemental decision documents 

address the environmental 

considerations related to the use of 

NWPs in a Corps district. The 

supplemental decision documents will 

certify that the NWPs, with any regional 

conditions or geographic revocations, 

will only authorize activities within that 

Corps district that result in minimal 

individual and cumulative adverse 

effects on the aquatic environment. The 

regional conditioning and WQC/CZMA 

processes are discussed below. 

Compliance With Section 404(e) of the 

Clean Water Act 

The proposed NWPs are issued in 

accordance with Section 404(e) of the 

Clean Water Act. These NWPs authorize 

categories of activities that are similar in 

nature. The ‘‘similar in nature’’

requirement does not mean that 

activities authorized by an NWP must 

be identical to each other. We believe 

that the ‘‘categories of activities that are 

similar in nature’’ requirement of 

section 404(e) is to be interpreted 

broadly, for practical implementation of 


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this general permit program. 

Nationwide permits, as well as other 

general permits, are intended to reduce 

administrative burdens on the Corps 

and the regulated public, by efficiently 

authorizing activities that have minimal 

adverse environmental effects. 

As for the minimal adverse effects 

provision of section 404(e), the various 

terms and conditions of these NWPs, 

including the provisions in the NWP 

regulations at 33 CFR 330.1(d) and 33 

CFR 330.4(d) that allow district 

engineers to exercise discretionary 

authority, ensure compliance with this 

requirement. A decision document will 

be prepared for each NWP to address 

the requirements of the National 

Environmental Policy Act and generally 

discuss the anticipated impacts the 

NWP will have on the Corps public 

interest review factors. For those NWPs 

that may authorize discharges of 

dredged or fill material into waters of 

the United States, a 404(b)(1) Guidelines 

analysis will be provided in the 

decision document. The 404(b)(1) 

Guidelines analysis will be conducted 

in accordance with the procedures at 40 

CFR 230.7. The preliminary decision 

documents for the proposed NWPs are 

available on the internet at: 

www.regulations.gov (docket ID number 

COE–2006–0005). We are soliciting 

comments on these preliminary 

decision documents, and any comments 

received will be considered when 

preparing the final decision documents 

for the NWPs. 

Decision of U.S. Court of Appeals for 

the District of Columbia Circuit 

In its July 29, 2005, decision in 

National Association of Homebuilders 

v. U.S. Army Corps of Engineers (Nos. 

04–5009, 04–5010, and 04–5011), the 

U.S. Court of Appeals for the District of 

Columbia Circuit determined that NWPs 

are rules under the APA, and are subject 

to the Regulatory Flexibility Act (RFA). 

In the ‘‘Administrative Requirements’’

section of this preamble, we have 

addressed the requirements of the RFA. 

We have also performed other 

rulemaking analyses that are required by 

other statutes and executive orders. 

Those analyses are also provided in the 

‘‘Administrative Requirements’’ section 

of this preamble. 

National Environmental Policy Act 

Compliance 

We have prepared preliminary 

decision documents for each proposed 

NWP. Each decision document contains 

an environmental assessment (EA) and 

a Finding of No Significant Impact 

(FONSI). If the proposed NWP 

authorizes discharges of dredged or fill 

material into waters of the United 

States, the decision document will 

include a 404(b)(1) Guidelines analysis 

in accordance with 40 CFR 230.7. These 

decision documents will consider the 

environmental effects of each NWP from 

a national perspective. Division 

engineers will issue supplemental 

decision documents to evaluate regional 

effects on the aquatic environment and 

other public interest review factors. 

Those supplemental decision 

documents will discuss regional 

conditions imposed by division 

engineers to protect the aquatic 

environment and ensure that any 

adverse effects resulting from NWP 

activities will be no more than minimal. 

The assessment of cumulative effects 

occurs at two levels: national and 

regional (district). However, 

modifications at the district level are 

issued by the appropriate division 

engineer. There are eight Corps division 

offices in the United States, with 38 

district offices. A division office may 

oversee as many as seven districts 

(Lakes and Rivers Division) or as few as 

two district offices (Pacific Ocean 

Division). 

At the national level, the decision 

documents issued by Corps 

Headquarters include the cumulative 

effects assessments required by NEPA 

and, if the NWP authorizes discharges of 

dredged or fill material into waters of 

the United States, the 404(b)(1) 

Guidelines. The 404(b)(1) Guidelines at 

40 CFR 230.7(b) require an evaluation of 

the potential individual and cumulative 

impacts of the category of activities 

authorized under the NWP. 

The supplemental decision 

documents issued by division engineers 

include cumulative effects assessments 

at the regional (district) level, for each 

district within the division. For those 

NWPs that authorize section 404 

activities, the supplemental decision 

documents will also discuss local 

concerns relating to the Section 

404(b)(1) Guidelines, if the national 

decision documents do not adequately 

address those issues. If the NWP is not 

revoked in a district, the supplemental 

decision document includes a 

certification that the use of the NWP in 

that district, with any applicable 

regional conditions (i.e., applicable in a 

specific district), will result in minimal 

cumulative adverse environmental 

effects. The supplemental decision 

documents are prepared by Corps 

districts, but must be approved and 

formally issued by the appropriate 

division engineer, since the NWP 

regulations at 33 CFR 330.5(c) state that 

the division engineer has the authority 

to modify, suspend, or revoke NWP 

authorizations for any specific 

geographic area within his division. 

Regional conditions are considered 

NWP modifications. Therefore, when 

the process is completed, each district 

will have approved supplemental 

decision documents for each NWP, and 

those supplemental decision documents 

will assess cumulative effects within 

that district. 

District engineers may also 

recommend that the division engineer 

exercise discretionary authority to 

modify, suspend, or revoke case-specific 

NWP authorizations within a district to 

ensure that only minimal cumulative 

adverse effects on the aquatic 

environment result from activities 

authorized by that NWP. Evaluations by 

a district engineer may result in the 

division engineer modifying, 

suspending, or revoking NWP 

authorizations in a particular geographic 

region or watershed at a later time, if the 

use of an NWP in a particular area will 

result in more than minimal cumulative 

or individual adverse effects on the 

aquatic environment. Special conditions 

added to NWP authorizations on a caseby-case basis by district engineers, such 

as compensatory mitigation 

requirements, help ensure that the 

NWPs authorize only activities that 

result in minimal individual and 

cumulative adverse effects on the 

aquatic environment. 

Acreage Limits and Pre-Construction 

Notification Thresholds 

We are proposing to retain the current 

acreage limits for the NWPs, although 

we are seeking comment on adding an 

acreage limit for NWP 21, which 

currently has no acreage limit. We are 

also proposing to move the provisions of 

NWP 39 that authorize residential 

developments to NWP 29 and place a 1⁄2

acre limit on the proposed NWP 29. 

Currently NWP 29 has a 1⁄4 acre limit for 

single unit residences, but this NWP can 

be used in all non-tidal waters, 

including non-tidal wetlands that are 

adjacent to tidal waters. Single unit 

residential projects are also permitted to 

use NWP 39, with a 1⁄2 acre limit, if they 

affect only non-tidal waters, but NWP 

39 cannot be used to authorize these 

activities in non-tidal wetlands adjacent 

to tidal waters. The revised NWP 29 will 

have a 1⁄2 acre limit, but will only 

authorize discharges into non-tidal 

waters, and this NWP could not be used 

to authorize discharges in non-tidal 

wetlands that are adjacent to tidal 

waters. All residential projects 

impacting non-tidal wetlands adjacent 

to tidal waters, including single unit 

residences, will now require 

authorization by individual permit or 


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regional general permit. The Corps 

believes this additional level of 

environmental protection is warranted 

for non-tidal wetlands adjacent to tidal 

waters because of concerns regarding 

environmental impacts of residential 

development in coastal areas. 

Proposed NWP A, Emergency Repair 

Activities, has no explicit acreage limit 

but will be limited to restoring damaged 

structures, fills, or uplands to the preevent ordinary high water mark, in cases 

where regulated activities in waters of 

the United States are necessary to 

conduct the restoration. Proposed NWP 

B, which would authorize discharges in 

certain types of ditches and canals, has 

a one acre limit, and proposed NWP C 

has no acreage limit for conducting 

time-sensitive repairs of pipelines. 

Proposed NWP D, Commercial Shellfish 

Aquaculture Activities, is limited to 

existing aquaculture activities. The 

Corps is seeking comment on whether 

an acreage limit or some other type of 

limit (e.g., on the total volume of fill 

material that may be discharged) is 

needed to ensure that these existing 

activities have no more than minimal 

adverse effects. As proposed, this NWP 

will require a PCN if the activity covers 

more than 25 acres, or if more than 10 

acres is covered with submerged aquatic 

vegetation. The proposed NWP 

authorizing coal remining activities 

(NWP E) is limited to sites where more 

than 60 percent of the site was 

previously mined. Proposed NWP F, 

which authorizes underground coal 

mining activities, has a 1⁄2 acre limit. We 

are seeking comments on the proposed 

limits for these NWPs. 

We are proposing to simplify the PCN 

thresholds for NWP 12 by reducing the 

number of criteria triggering the 

requirement to submit PCNs from seven 

to two, since the 1⁄10 acre PCN threshold 

will normally capture the activities 

addressed by the PCN thresholds we are 

proposing to remove. For NWP 13, PCNs 

will be required for proposed activities 

that involve discharges of dredged or fill 

material into special aquatic sites. We 

are also proposing to eliminate the PCN 

thresholds for NWPs 39, 40, 42, and 43. 

All activities authorized by these 

permits will now require PCNs. 

We are proposing to remove the PCN 

requirement for NWP 5, which 

authorizes scientific measuring devices, 

and rely on the current 25 cubic yard 

limit for discharges of dredged or fill 

material to ensure that the NWP 

authorizes only activities with minimal 

individual and cumulative adverse 

effects on the aquatic environment. We 

are also proposing to drop some of the 

PCN requirements for special situations 

under NWP 12. Specifically, PCNs 

would no longer be required for: (1) 

Mechanized landclearing of forested 

wetlands in the utility line right-of-way; 

(2) utility lines constructed in waters of 

the United States that are greater than 

500 linear feet in length; (3) utility lines 

constructed in waters of the United 

States where the utility line is parallel 

to a stream; (4) permanent access roads 

constructed in waters of the United 

States for a distance of greater than 500 

feet; and (5) permanent access roads 

constructed in waters of the United 

States with impervious materials, 

provided the total losses of waters of the 

United States are less than 1⁄10 acre. For 

those NWP activities that do not require 

submission of PCNs to district 

engineers, division engineers can 

impose regional conditions to require 

PCNs. We are soliciting comments on 

the proposed PCN thresholds for the 

NWPs. 

Ephemeral Streams 

On June 19, 2006, the Supreme Court 

issued its decision in the case of 

Rapanos et ux, et al, v. United States. 

This decision raises questions about the 

jurisdiction of the Clean Water Act, 

including Section 404, over some 

intermittent and ephemeral streams and 

their adjacent wetlands. The Corps will 

assess jurisdiction regarding such 

waters on a case-by-case basis in 

accordance with evolving case law and 

any future guidance that may be issued 

by appropriate Executive Branch 

agencies (e.g., the Department of 

Justice). The discussion that follows 

applies to all ephemeral and 

intermittent streams and adjacent 

wetlands that remain jurisdictional 

following Rapanos. 

We are proposing to provide greater 

protection for ephemeral streams. For 

those NWPs that have a 300 linear foot 

limit for the loss of stream bed, we are 

proposing to apply that linear foot limit 

to perennial, intermittent, and 

ephemeral streams. The 300 linear foot 

limit is found in the terms of NWPs 29, 

39, 40, and 42. For proposed activities 

resulting in the loss of more than 300 

linear feet of intermittent and/or 

ephemeral stream bed, the district 

engineer can waive the linear foot limit, 

if he determines that the proposed 

activity will result in minimal 

individual and cumulative adverse 

effects on the aquatic environment. 

Waivers of the 300 linear foot limit for 

the loss of intermittent and ephemeral 

streams must be in writing. 

In the 2002 NWPs, the 300 linear foot 

limit applied only to perennial and 

intermittent stream beds, and the 300 

linear foot limit could be waived for 

losses of intermittent stream bed. A 

waiver could not be issued for impacts 

resulting in the loss of greater than 300 

linear feet of perennial streams (and we 

are not proposing to change this 

provision). For ephemeral streams, no 

waiver process was necessary because 

impacts to ephemeral streams were not 

counted towards the 300 linear foot 

limit for determining compliance with 

the NWPs. 

Applying the linear foot limit to 

losses of ephemeral stream bed will also 

simplify administration of the NWP 

program. It is often difficult to 

distinguish between intermittent and 

ephemeral streams in the field. By 

applying the same thresholds and limits 

to impacts resulting in the loss of 

intermittent and ephemeral streams, it 

will not be necessary to identify which 

stream reaches are intermittent and 

which are ephemeral. Many topographic 

maps do not show the locations of 

intermittent and ephemeral streams, 

which results in greater reliance on site 

visits or information from permit 

applicants to implement permit 

conditions related to the 300 linear foot 

limit. 

For those NWPs that have both an 

acreage limit and a linear foot limit for 

stream bed impacts, the acreage of 

stream impacts (i.e., the length of the 

stream bed filled or excavated times the 

average width of the stream, from 

OHWM to OHWM) applies towards that 

acreage limit. For example, if a 

proposed NWP 39 activity involves 

filling 1⁄10 acre of non-tidal wetlands 

and 100 linear feet of a stream bed with 

an average width of 10 feet, the acreage 

loss of waters of the United States for 

that activity is 0.123 acre. 

As discussed below, we are also 

proposing to modify the definition of 

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

include filling or excavating of 

ephemeral stream beds when 

determining whether proposed activities 

exceed the threshold limits of the 

NWPs. 

Compliance With the Endangered 

Species Act 

In its April 6, 2005, decision in 

National Wildlife Federation et al. v. Les 

Brownlee (No. 03–1392), the U.S. 

District Court for the District of 

Columbia determined that the Corps is 

obligated to consult with the U.S. Fish 

and Wildlife Service on the effects of 

the NWPs. In response to that decision, 

the Corps will conduct Endangered 

Species Act Section 7(a)(2) consultation. 

Corps districts will consult with the 

U.S. Fish and Wildlife Service (FWS) 

and the National Marine Fisheries 

Service (NMFS) for the species that 

occur in their districts. 


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Essential Fish Habitat 

The NWP Program’s compliance with 

the essential fish habitat (EFH) 

consultation requirements of the 

Magnuson-Stevens Fishery 

Conservation and Management Act will 

be achieved through EFH consultations 

between Corps districts and NMFS 

regional offices. Corps districts will 

request EFH consultations with the 

NMFS regional office in cases where 

activities authorized by NWP may 

adversely affect EFH. The purpose of 

these regional consultations is to 

determine if implementation of the 

proposed NWPs and regional conditions 

within a particular region may have an 

adverse effect on EFH. These 

consultations will be conducted 

according to the EFH consultation 

regulations at 50 CFR 600.920. 

Regional Conditioning of Nationwide 

Permits 

Under Section 404(e), NWPs can only 

be issued that result in no more than 

minimal individual and cumulative 

adverse effects on the aquatic 

environment. An important mechanism 

for ensuring compliance with this 

requirement is an effective regional 

conditioning process. Coordination with 

Federal and State agencies and Indian 

Tribes, and the solicitation of public 

comments, assist division and district 

engineers in identifying and developing 

appropriate regional conditions for the 

NWPs. Effective regional conditions 

protect local aquatic ecosystems and 

helps ensure that the NWPs authorize 

only those activities that result in 

minimal individual and cumulative 

adverse effects on the aquatic 

environment, and are in the public 

interest. 

There are two types of regional 

conditions: (1) Corps regional 

conditions and (2) water quality 

certification/Coastal Zone Management 

Act consistency determination regional 

conditions. 

Corps regional conditions may be 

added to NWPs by division engineers 

after a public notice and comment 

process and coordination with other 

Federal, State, and local agencies. 

Examples of Corps regional 

conditions include: 

• Restricting the types of waters of 

the United States where the NWPs may 

be used (e.g., fens, bogs, bottomland 

hardwoods, etc.) or prohibiting the use 

of some or all of the NWPs in those 

types of waters or in specific 

watersheds. 

• Restricting or prohibiting the use of 

NWPs in an area covered by a Special 

Area Management Plan, or an Advanced 

Identification study with associated 

regional general permits. 

• Adding pre-construction 

notification (PCN) requirements to 

NWPs to require notification for all 

work in certain watersheds or certain 

types of waters of the United States, or 

lowering the PCN threshold. 

• Reducing NWP acreage limits in 

certain types of waters of the United 

States, or specific waterbodies; 

• Revoking certain NWPs on a 

geographic or watershed basis; 

• Restricting activities authorized by 

NWPs to certain times of the year in a 

particular waterbody, to minimize the 

adverse effects of those activities on fish 

or shellfish spawning, wildlife nesting, 

or other ecologically cyclical events. 

• Conditions necessary to ensure 

compliance with the Endangered 

Species Act and essential fish habitat 

provisions of the Magnuson-Stevens 

Fishery Conservation and Management 

Act. 

Corps regional conditions approved 

by division engineers cannot remove or 

weaken any of the terms and conditions 

of the NWPs, including general 

conditions and pre-construction 

notification requirements. In other 

words, Corps regional conditions can 

only be more restrictive than the 

original NWP terms and conditions. 

Regional conditions may also be 

added to the NWPs as a result of water 

quality certifications (WQCs) issued by 

states, Indian Tribes, or the U.S. EPA, as 

well as state Coastal Zone Management 

Act (CZMA) consistency 

determinations. 

At approximately the same time as the 

publication of this Federal Register 

notice, each Corps district will issue an 

initial public notice. Those initial 

public notices will include Corps 

regional conditions proposed by our 

district offices, and will also request 

comments or suggestions for additional 

Corps regional conditions. The initial 

public notice may also include, for 

informational purposes only, any 

proposed state or tribal WQC/CZMA 

regional conditions. However, public 

comment on the state or tribal WQC/ 

CZMA regional conditions is handled 

through a separate state or tribal 

administrative procedures process. The 

public should not address such 

comments to the Corps. 

In response to the district’s initial 

public notice, interested parties may 

suggest additional Corps regional 

conditions, or suggest suspension or 

revocation of NWPs in certain 

geographic areas, such as specific 

watersheds or waterbodies. Such 

comments should include data to 

support the need for any suggested 

modifications, suspensions, or 

revocations of NWPs. 

Before the effective date of NWPs, the 

division engineer will issue 

supplemental decision documents for 

each NWP. These supplemental 

decision documents will address the 

NWP regional conditions. Each 

supplemental decision document will 

also include a statement by the division 

engineer, which will certify that the 

NWP, with approved regional 

conditions, will authorize only activities 

with minimal individual and 

cumulative adverse effects on the 

aquatic environment. 

After the division engineer approves 

the Corps regional conditions, each 

Corps district will issue a final public 

notice for the NWPs. The final public 

notice will announce both the final 

Corps regional conditions and any final 

WQC/CZMA regional conditions. The 

final public notices will also announce 

the final status of water quality 

certifications and CZMA consistency 

determinations for the NWPs. Corps 

districts may adopt additional regional 

conditions in future public notices 

(following public notice and comment), 

if they identify a need for such 

conditions. 

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.usace.army.mil/inet/functions/cw/ 

cecwo/reg/district.htm by clicking on 

the appropriate link for the Corps 

district office. 

In cases where a Corps district has 

issued a regional general permit that 

authorizes similar activities as one or 

more NWPs, the district will clarify the 

use of the regional general permit versus 

the NWP(s) during the regional 

conditioning process. For example, the 

division engineer may revoke the 

applicable NWP(s) so that only the 

regional general permit may be used to 

authorize those activities. 

Water Quality Certification/Coastal 

Zone Management Act Consistency 

Determination for Nationwide Permits 

State or Tribal water quality 

certification, or waiver thereof, is 

required by Section 401 of the Clean 

Water Act, for activities authorized by 

NWPs which result in a discharge into 

waters of the United States. In addition, 

any state with a federally-approved 

CZMA plan must agree with the Corps 

determination that activities authorized 

by NWPs which are within, or will 

affect any land or water uses or natural 

resources of the state’s coastal zone, are 


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consistent with the CZMA plan to the 

maximum extent practicable. Water 

quality certifications and/or CZMA 

consistency determinations may be 

issued without conditions, issued with 

conditions, or denied for specific NWPs. 

We believe that, in general, the 

activities authorized by the NWPs will 

not violate State or Tribal water quality 

standards and will be consistent with 

state CZMA plans. The NWPs are 

conditioned to ensure that adverse 

environmental effects will be minimal 

and address the types of activities that 

would be routinely authorized if 

evaluated under the individual permit 

process. We recognize that in some 

states or Tribal lands there will be a 

need to add regional conditions, or 

individual state or Tribal review for 

some activities, to ensure compliance 

with water quality standards and/or 

consistency with CZMA plans. As a 

practical matter, we intend to work with 

states and Tribes to ensure that NWPs 

include the necessary conditions so that 

they can issue water quality 

certifications or CZMA consistency 

concurrences. Therefore, each Corps 

district will initiate discussions with 

their respective state(s) and Tribe(s), as 

appropriate, to discuss issues of concern 

and identify regional modification and 

other approaches to address the scope of 

waters, activities, discharges, and PCNs, 

as appropriate, to resolve these issues. 

Note that in some states the Corps has 

issued state programmatic general 

permits (SPGPs), and within those states 

some or all of the NWPs may be 

suspended or revoked by division 

engineers. Concurrent with today’s 

proposal, district engineers may be 

proposing modification or revocation of 

the NWPs in states where SPGPs will be 

used in place of some or all of the 

NWPs. 

Section 401 of the Clean Water Act 

This Federal Register notice serves as 

the Corps application to the Tribes, 

States, or EPA, where appropriate, for 

water quality certification of the 

activities authorized by these NWPs. 

The Tribes, States, and EPA, where 

appropriate, are requested to issue, 

deny, or waive water quality 

certification pursuant to 33 CFR 330.4(c) 

for these NWPs. 

If a state denies a water quality 

certification for an NWP within that 

state, then the Corps will deny NWP 

authorization for the affected activities 

within that state without prejudice. 

However, when applicants request 

approval of such activities, and the 

Corps determines that those activities 

meet the terms and conditions of the 

NWP, the Corps will issue provisional 

NWP verification letters. The 

provisional verification letter will 

contain general and regional conditions 

as well as any project specific 

conditions the Corps determines are 

necessary for NWP authorization. The 

Corps will notify the applicant that they 

must obtain a project specific water 

quality certification, or waiver thereof, 

before they are authorized to start work 

in waters of the United States. That is, 

NWP authorization will be contingent 

upon obtaining the necessary water 

quality certification or waiver thereof 

from the State, Tribe, or EPA where 

appropriate. Anyone wanting to perform 

such activities where pre-construction 

notification to the Corps is not required 

has an affirmative responsibility to first 

obtain a project-specific water quality 

certification or waiver thereof from the 

Tribe, State, or EPA before proceeding 

under the NWP. This requirement is 

provided at 33 CFR 330.4(c). 

Section 307 of the Coastal Zone 

Management Act (CZMA) 

This Federal Register notice serves as 

the Corps determination that the 

activities authorized by these NWPs are, 

to the maximum extent practicable, 

consistent with state CZMA programs. 

This determination is contingent upon 

the addition of state CZMA conditions 

and/or regional conditions, or the 

issuance by the state of an individual 

consistency concurrence, where 

necessary. States are requested to agree 

or disagree with the consistency 

determination following 33 CFR 

330.4(d) for these NWPs. 

The Corps’ CZMA consistency 

determination only applies to NWP 

authorizations for activities that are 

within, or affect, any land, water uses or 

natural resources of a State’s coastal 

zone. NWP authorizations for activities 

that are not within or would not affect 

a State’s coastal zone do not require a 

Corps CZMA consistency determination 

and thus are not contingent on a State’s 

agreement with the Corps’ consistency 

determinations. 

If a State disagrees with the Corps 

consistency determination for an NWP, 

then the Corps will deny authorization 

for the activities within or that would 

affect the coastal zone without 

prejudice. However, when applicants 

request approval of such activities, and 

the Corps determines that those 

activities meet the terms and conditions 

of the NWP, the Corps will issue 

provisional NWP verification letters. 

The provisional verification letter will 

contain general and regional conditions 

as well as any project specific 

conditions the Corps determines are 

necessary for NWP authorization. The 

Corps will notify the applicant that they 

must obtain a project specific CZMA 

consistency determination before they 

are authorized to start work in waters of 

the United States. That is, NWP 

authorization will be contingent upon 

obtaining the necessary CZMA 

consistency concurrence from the State. 

Anyone wanting to perform such 

activities where pre-construction 

notification to the Corps is not required 

has an affirmative responsibility to 

present a consistency certification to the 

appropriate State agency for 

concurrence. Upon concurrence with 

such consistency certifications by the 

state, the activity would be authorized 

by the NWP. This requirement is 

provided at 33 CFR 330.4(d). 

Nationwide Permit Verifications 

Certain NWPs require the permittee to 

submit a PCN, and thus request 

confirmation from the district engineer 

that an activity complies with the terms 

and conditions of an NWP, prior to 

commencing the proposed work. The 

requirement to submit a PCN is 

identified in the NWP text. Preconstruction notification requirements 

may added to NWPs by division 

engineers through regional conditions. 

In cases where pre-construction 

notification is not required, a project 

proponent may submit a PCN 

voluntarily, if he or she wants assurance 

that the activity is authorized by an 

NWP. An NWP verification is a 

response to a PCN that confirms that a 

particular activity is authorized by an 

NWP. 

In response to an NWP verification 

request (PCN), the district engineer 

reviews the information submitted by 

the prospective permittee. If the district 

engineer determines that the activity 

complies with the terms and conditions 

of the NWP, he will notify the 

permittee. Special conditions, such as 

compensatory mitigation requirements, 

may be added to the NWP authorization 

to ensure that the activity results in 

minimal individual and cumulative 

adverse effects on the aquatic 

environment and other public interest 

factors. The special conditions are 

incorporated into the NWP verification, 

along with the NWP text and the NWP 

general conditions. 

If the district engineer reviews the 

NWP verification request and 

determines that the proposed activity 

does not comply with the terms and 

conditions of an NWP, he will notify the 

project proponent and provide 

instructions for applying for 

authorization under a regional general 

permit or an individual permit. District 

engineers will respond to NWP 


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verification requests within 45 days of 

receiving a complete PCN. Except for 

NWP 21, if the project sponsor has not 

received a reply from the Corps within 

45 days, she may assume that the 

project is authorized, consistent with 

the information in the PCN. For NWP 21 

(Surface Coal Mining), the project 

sponsor may not begin work before 

receiving an NWP verification. 

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–CO–R, P.O. Box 6898, 

Elmendorf AFB, AK 99506–6898. 

Arizona 

Los Angeles District Engineer, ATTN: 

CESPL–CO–R, P.O. Box 532711, Los 

Angeles, CA 90053–2325. 

Arkansas 

Little Rock District Engineer, ATTN: 

CESWL–RO, P.O. Box 867, Little Rock, 

AR 72203–0867. 

California 

Sacramento District Engineer, ATTN: 

CESPK–CO–R, 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–OP–F, P.O. Box 889, Savannah, 

GA 31402–0889. 

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, 700 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, P.O. Box 1027, Detroit, MI 

48231–1027. 

Minnesota 

St. Paul District Engineer, ATTN: 

CEMVP–OP–R, 190 Fifth Street East, St. 

Paul, MN 55101–1638. 

Mississippi 

Vicksburg District Engineer, ATTN: 

CEMVK–OD–F, 4155 Clay Street, 

Vicksburg, MS 39183–3435. 

Missouri 

Kansas City District Engineer, ATTN: 

CENWK–OD–R, 700 Federal Building, 

601 E. 12th Street, Kansas City, MO 

64106–2896. 

Montana 

Omaha District Engineer, ATTN: 

CENWO–OD–R, 106 South 15th Street, 

Omaha, NE 68102–1618. 

Nebraska 

Omaha District Engineer, ATTN: 

CENWO–OD–R, 106 South 15th Street, 

Omaha, NE 68102–1618. 

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, 106 South 15th Street, 

Omaha, NE 68102–1618. 

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. 


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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, 106 South 15th Street, 

Omaha, NE 68102–1618. 

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–CO–R, 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–OP–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, 190 Fifth Street East, St. 

Paul, MN 55101–1638. 

Wyoming 

Omaha District Engineer, ATTN: 

CENWO–OD–R, 106 South 15th Street, 

Omaha, NE 68102–1618. 

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. 

Request for Comment 

We are proposing to reissue all 

nationwide permits, general conditions, 

and definitions. Substantive changes to 

the nationwide permits, general 

conditions, and definitions are 

discussed below, but we are soliciting 

comments on all the nationwide 

permits, general conditions, and 

definitions. Minor grammatical changes, 

the removal of redundant language, and 

other small changes are not discussed in 

the preamble below. Therefore, 

commenters should carefully read each 

proposed NWP, general condition, and 

definition in this notice. 

Discussion of Proposed Modifications to 

Existing Nationwide Permits 

The proposed changes to the existing 

NWPs fall into two categories: 

Category 1 (Cat 1)—Proposed 

clarification of an existing NWP by 

making minor changes to the text of the 

NWP. It does not change the scope of 

activities authorized by the existing 

NWP. 

Category 2 (Cat 2)—Proposed 

modification of an existing NWP that 

changes the scope of activities 

authorized by that NWP, or its 

substantive requirements. 

If an existing NWP is not listed in this 

section of the preamble, we are 

proposing to reissue the NWP without 

changing it. 

We are proposing to modify many of 

the NWPs so that they follow a standard 

format: A description of activities the 

NWP authorizes, followed by a 

description of activities the NWP does 

not authorized (if applicable). Any preconstruction notification requirements 

are provided in a separate paragraph. 

Any ‘‘notes’’ for the NWP are provided 

at the end of the NWP. In many NWPs 

we are proposing to remove explicit 

references to the NWP regulations or 

general conditions, to simplify the text 

of those NWPs since the regulations and 

general conditions apply to all NWPs 

that authorize activities addressed by a 

particular provision. For example, 

general condition 3 requires that 

activities in spawning areas during 

spawning season be avoided to the 

maximum extent practicable. This 

requirement applies to all NWPs that 

may authorize activities in spawning 

areas. In cases where specific 

requirements or actions are necessary to 

ensure that a particular activity 

complies with NWP general conditions, 

district engineers should add special 

conditions to the NWP authorization for 

that activity. For example, for an NWP 

activity that will occur in a stream or 

other waterbody with spawning areas, 

special conditions may need to be 

added to the NWP authorization that 

impose time-of-year restrictions for 

conducting that activity, to minimize 

adverse effects to those spawning areas. 

If the area in the vicinity of the project 

site does not contain spawning areas, 

then this general condition would not 

apply to that NWP activity. 

NWP 3. Maintenance. (Cat 2) We are 

proposing to restructure and simplify 

this NWP by shifting some of the 

activities currently authorized by NWP 

3 to the proposed new NWP A, 

Emergency Repair Activities. 

Specifically we are proposing to remove 

the last two sentences of paragraph (i) 

and the entire paragraph (iii) that are in 

the current NWP 3 to the proposed new 

NWP A. We are also proposing to 

remove the definition of ‘‘currently 

serviceable’’ from the first paragraph of 

this NWP and place that definition in 

the ‘‘Definitions’’ section, because that 

term is also used in NWP 41, 

‘‘Reshaping Existing Drainage Ditches’’

and proposed NWP C, ‘‘Pipeline Safety 

Program Designated Time Sensitive 

Inspections and Repairs.’’ The term 

‘‘currently serviceable’’ means useable 

as is or with some maintenance, but not 

so degraded as to essentially require 

reconstruction. 

We are proposing to move the 

provisions regarding the removal of 

accumulated sediments from outfall and 

intake structures and associated canals 

from the current NWP 7 (which 

authorizes construction of outfall and 

associated intake structures) to 

paragraph (b) of the proposed NWP 3. 

The 200 foot linear limit for the removal 

of accumulated sediments in existing 

NWP 3 would not apply to situations 

where sediments are blocking or 

restricting outfall or intake structures, or 

to maintenance dredging to remove 

accumulated sediments from canals 

associated with outfall and intake 

structures. Pre-construction notification 

is required for all activities authorized 

under paragraph (b) of this NWP. The 

proposed changes to NWP 3 will 

consolidate within a single NWP the 

authorization for removal of 

accumulated sediments from existing 

structures and from canals associated 

with intake and outfall structures. 


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To simplify the text of this NWP, we 

are proposing to remove the explicit 

references to the ‘‘water quality’’ and 

‘‘management of water flows’’ general 

conditions, although these general 

conditions still apply. We are also 

proposing to add language to paragraph 

(c), to clarify that if temporary fills, 

structures, or work are required to 

conduct the maintenance activity, then 

separate authorization may be required. 

For example, it may be necessary to 

discharge dredged or fill material into 

waters of the United States to construct 

a cofferdam, so that the maintenance 

activity can be completed. The 

authorization for the temporary fills, 

structures, or work may be provided by 

NWP 33, Temporary Construction, 

Access, and Dewatering. We are 

proposing to modify the notification 

provision of this NWP to require 

information about original design 

capacities and configurations of 

structures and other features where 

maintenance dredging is proposed. That 

provision was adapted from the 

requirements for the current NWP 7 and 

will allow the district engineer to ensure 

compliance with the requirement that 

limits the removal of sediment to the 

minimum necessary to restore the 

waterway to its approximate dimensions 

when the structure was built. 

NWP 4. Fish and Wildlife Harvesting, 

Enhancement, and Attraction Devices 

and Activities. (Cat 2) We are proposing 

to remove the text authorizing shellfish 

seeding, since that activity would be 

authorized by proposed NWP D (if the 

activity is an existing commercial 

shellfish aquaculture operation) or NWP 

27 (if it is conducted for restoration 

activities). 

NWP 5. Scientific Measurement 

Devices. (Cat 2) We are proposing to 

remove the PCN requirement for 

discharges of 10 to 25 cubic yards for 

the construction of small weirs and 

flumes, however, we would still retain 

the 25 cubic yard limit for such 

construction. Division engineers can 

regionally condition this NWP to 

require PCNs for certain activities, 

including discharges that exceed a 

specified threshold for the construction 

of small weirs and flumes, where 

necessary to ensure minimal adverse 

effects. 

NWP 6. Survey Activities. (Cat 2) We 

are proposing to add exploratory 

trenching to the list of examples of 

activities authorized by this NWP, as 

well as a requirement to restore the 

trenched area to its pre-construction 

elevations upon completion of the work. 

District engineers have used this NWP 

to authorize exploratory trenching, with 

minimal adverse effects on the aquatic 

environment. In the text of this NWP, 

we are proposing a definition of 

‘‘exploratory trenching.’’ We are also 

proposing to modify this NWP to 

authorize the construction of temporary 

pads used for survey activities, provided 

the discharge does not exceed 25 cubic 

yards. The construction of temporary 

pads is often necessary to provide 

proper levels for equipment used for 

core sampling. 

NWP 7. Outfall Structures and 

Associated Intake Structures. (Cat 2) We 

are proposing to change the title of this 

NWP to more clearly describe what it 

authorizes. As discussed in the section 

on the proposed changes to NWP 3, we 

are proposing to remove the provisions 

regarding the removal of accumulated 

sediments from outfall and intake 

structures and associated canals, and 

place them in paragraph (b) of NWP 3. 

This proposed change will simplify 

NWP 7, and the removal of accumulated 

sediments may be authorized by NWP 3 

instead. 

NWP 8. Oil and Gas Structures on the 

Outer Continental Shelf. (Cat 1) We are 

proposing to change the title of this 

NWP to more clearly articulate what it 

authorizes. We are also proposing to 

modify this NWP to require preconstruction notification for all 

activities, to allow district engineers to 

review potential effects on navigation 

and national security. Requiring PCNs 

for all activities will also provide 

district engineers the opportunity to 

review compliance with fairway 

regulations, and exercise discretionary 

authority where limits of shipping 

safety fairways or traffic separation 

schemes have not been designated or 

where changes may occur. 

NWP 12. Utility Line Activities. (Cat 2) 

We are proposing several modifications 

to this NWP. For this proposed 

modification of this NWP, the 1⁄2 acre 

limit still applies to each single and 

complete project, as defined at 33 CFR 

330.2(i) and the ‘‘Definitions’’ section of 

the NWPs. 

To reduce duplication in the NWPs, 

we are proposing to modify this NWP by 

removing the provision for the 

construction of access roads. Permanent 

or temporary access roads may be 

authorized by NWPs 14 or 33, 

respectively, or by individual permits or 

regional general permits. As a result of 

this proposed change, Note 2 of the 

current NWP 12 would be removed. 

We are proposing to move the term 

that requires mitigation for permanent 

adverse effects to the functions and 

services of waters of the United States 

to paragraph (g) of the ‘‘mitigation’’

general condition (GC 20). District 

engineers may require compensatory 

mitigation for such impacts, if 

necessary, to ensure that the utility line 

activity results in minimal individual 

and cumulative adverse effects on the 

aquatic environment. 

We are also proposing to simplify the 

PCN thresholds for this NWP, by 

requiring notification only for those 

utility line activities that require a 

section 10 permit or that involve 

discharges of dredged or fill material 

resulting in the permanent or temporary 

loss of greater than 1⁄10 acre of waters of 

the United States. 

We are proposing to redesignate Note 

3 as Note 1, and move the first part of 

the former Note 1 to the main text of 

NWP 12. The second part of former Note 

1 would become Note 2 of the proposed 

modification of NWP 12. 

NWP 13. Bank stabilization. (Cat 2) 

We are proposing to modify this NWP 

to clarify that district engineers may 

authorize bank stabilization activities 

longer than 500 linear feet, or that result 

in the discharge of more than one cubic 

yard of material per running foot below 

the plane of the ordinary high water 

mark or high tide line. Bank 

stabilization activities that exceed either 

of these thresholds require preconstruction notification. In response to 

PCNs, district engineers can issue 

written waivers of these limits provided 

the proposed activities will result in 

minimal individual and cumulative 

adverse effects on the aquatic 

environment. 

We are also proposing to modify this 

NWP by requiring PCNs for bank 

stabilization activities that involve 

discharges of dredged or fill material 

into special aquatic sites, so that district 

engineers can authorize those activities 

if they determine that the individual 

and cumulative adverse effects on the 

aquatic environment are minimal. This 

will replace the current prohibition 

against the placement of materials in 

any special aquatic site, including 

wetlands. In some circumstances, it may 

be more beneficial to the watershed to 

stabilize eroding banks, even though 

small amounts of fringe wetlands or 

mudflats may be impacted by the bank 

stabilization activity. District engineers 

will exercise discretionary authority to 

require an individual permit if the 

proposed work would result in more 

than minimal adverse effects to special 

aquatic sites. 

We are proposing to remove the 

provision requiring that the ‘‘activity is 

part of a single and complete project’’, 

since that requirement applies to all 

NWPs. The phrase ‘‘single and complete 

project’’ is defined at 33 CFR 330.2(i) 

and the ‘‘Definitions’’ section of the 

NWPs. In place of the general statement 


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that the NWP may not be used to 

channelize a water of the United States, 

we are also proposing to clarify that 

NWP 13 does not authorize stream 

channelization activities. 

NWP 14. Linear Transportation 

Projects. (Cat 1) We are proposing to 

restructure this NWP to make it easier 

to understand, but the general scope of 

authorized activities is unchanged. The 

acreage limits and PCN thresholds are 

the same as before. In the first paragraph 

of this NWP, we are proposing to 

replace the word ‘‘crossings’’ with 

‘‘projects,’’ to be consistent with the title 

of this NWP. 

We are proposing to add a new 

condition to this NWP, to limit stream 

channel modifications to the minimum 

necessary to construct or protect linear 

transportation projects. We are also 

proposing to add language clarifying 

that NWP 14 does not authorize 

temporary construction, access, and 

dewatering activities; those activities 

may be authorized by NWP 33. That 

language is intended to support our 

objective to reduce duplication in the 

NWPs, since NWPs 14 and 33 can be 

combined to authorize single and 

complete linear transportation projects 

that involve temporary construction 

impacts, provided there is compliance 

with the ‘‘use of multiple nationwide 

permits’’ general condition (GC 24). 

We are proposing to remove the 

explicit requirement that the PCN 

include a compensatory mitigation 

proposal. The compensatory mitigation 

requirements for the NWPs are 

addressed in the ‘‘mitigation’’ general 

condition (GC 20). 

To simplify this NWP, we are also 

proposing to remove other redundant 

language: (1) The text requiring 

delineations of special aquatic sites to 

be submitted with PCNs, which is 

addressed by paragraph (b)(4) of the 

‘‘pre-construction notification’’ general 

condition (GC 27); (2) the text requiring 

that the width of the fill be limited to 

the minimum size necessary, which is 

addressed by the ‘‘mitigation’’ general 

condition (GC 20); (3) the references to 

the ‘‘management of water flows’’ and 

‘‘water quality’’ general conditions; and 

(4) the requirement that the linear 

transportation project be a single and 

complete project, since that requirement 

applies to all NWPs (see 33 CFR 

330.2(i)). 

NWP 16. Return Water From Upland 

Contained Disposal Areas. (Cat 1) We 

are proposing to rearrange the text of 

this NWP so that it will be consistent 

with the format of the other NWPs. We 

are not proposing any changes to the 

terms of this NWP. 

NWP 17. Hydropower Projects. (Cat 1) 

We are proposing to rearrange the text 

of this NWP, without modifying any of 

its terms or its scope. 

NWP 18. Minor Discharges. (Cat 2) To 

enhance protection of the aquatic 

environment, we are proposing to 

modify this NWP by applying the 1⁄10

acre limit to all losses of waters of the 

United States, not just special aquatic 

sites. This proposed change will also 

help simplify this NWP. We are also 

proposing to eliminate the second 

sentence of paragraph (b) of this NWP, 

since the concepts in that sentence are 

already addressed in the definition of 

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

We are proposing to remove the text 

requiring a delineation of special 

aquatic sites, since it will be addressed 

in paragraph (b)(4) of the ‘‘preconstruction notification’’ general 

condition (GC 27). We are also 

proposing to remove the language 

relating to the requirement that the 

discharge be part of a single and 

complete project, since that requirement 

applies to all NWPs. 

NWP 19. Minor Dredging. (Cat 1) We 

are proposing to remove the phrase ‘‘as 

part of a single and complete project,’’

since that requirement applies to all 

NWPs and it is not necessary to include 

that phrase in the text of this NWP. 

NWP 21. Surface Coal Mining 

Operations. (Cat 1) We are proposing to 

reissue NWP 21 to authorize discharges 

of dredged or fill material into waters of 

the United States associated with 

surface coal mining operations such as 

contour mining, mountaintop mining, 

and area mining. While surface coal 

mining operations occur throughout the 

United States, the majority of mines that 

create excess spoil material are located 

in the Appalachian coalfields region, 

many in steep slope terrains. These 

types of mining frequently result in 

excess spoil material being created that 

may not safely be placed back on the 

mine site. Other permanent impacts 

may include permanent stream 

diversions and/or relocations, fill for 

coal processing plants, and coal 

processing waste areas. Temporary 

impacts to waters of the United States 

frequently include temporary stream 

relocations, road crossings, and 

sediment ponds. Surface coal mining 

activities may also involve disturbances 

to stream channels. Coal deposits 

underlie many streams at shallow 

depths and mining activities routinely 

divert and relocate watercourses to 

remove the coal. 

An integrated permit processing 

procedure is envisioned by the Joint 

Procedures Framework Memorandum of 

Understanding signed by the Corps, U.S. 

EPA, U.S. FWS and Office of Surface 

Mining (OSM) on February 8, 2005. It is 

a collaborative process in which the 

Surface Mining Control and 

Reclamation Act authority chooses to be 

the lead agency in coordinating 

interagency review of applications for 

surface coal mining operations, while 

preserving the authorities and 

responsibilities of each agency for 

permit decisions. This should result in 

concurrent reviews by the agencies, 

reduce duplication, and allow for joint 

pre-application and public meetings and 

joint site visits. To date at least one state 

(Ohio) has initiated an integrated permit 

process, and several other states, such as 

Washington, are having discussions. 

This NWP is used to provide section 

404 authorization for surface coal 

mining activities that have also been 

authorized by the Office of Surface 

Mining (OSM) or states with approved 

programs under Title V of the Surface 

Mining Control and Reclamation Act of 

1977 (SMCRA). One of the objectives of 

NWP 21 is to reduce duplication 

between the SMCRA and Section 404 

permitting processes when authorizing 

surface coal mining projects. In previous 

versions of NWP 21, there has not been 

a limit on either the acreage or linear 

feet of waters and streams that could be 

impacted. This was based partly on the 

belief that the analyses and 

environmental protection performance 

standards required by SMCRA, in 

conjunction with PCN review, are 

generally sufficient to ensure that NWP 

21 activities result in minimal 

individual and cumulative adverse 

effects on the aquatic environment. 

Under SMCRA requirements, surface 

coal mine operators must minimize 

adverse impacts to fish and wildlife 

habitat and material damage to the 

hydrologic balance within the project 

area. They must also prevent material 

damage to the hydrologic balance in 

surrounding areas. OSM is in the 

process of developing revisions to its 

excess spoil disposal rules that would 

provide additional protection for 

streams. 

However, in processing PCNs for 

NWP 21, the Corps does not rely solely 

on the SMRCA process to ensure 

compliance with the requirements of the 

Clean Water Act (CWA). Additional 

measures, such as compensatory 

mitigation to offset losses of aquatic 

resource functions, are often needed to 

ensure that NWP 21 activities result in 

minimal individual and cumulative 

adverse effects on the aquatic 

environment. The SMCRA process is 

used to identify where surface coal 

mining activities will occur, and in 

Appalachia the SMCRA process is used 


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to identify the number and location of 

valley fills. The PCN process is used to 

determine what compensatory 

mitigation is needed to satisfy the 

404(b)(1) Guidelines and ensure that 

individual and cumulative impacts are 

minimal. While activities performed to 

satisfy SMCRA requirements may be 

considered in determining 

compensatory mitigation requirements 

under Section 404, there is no 

presumption that these activities by 

themselves are sufficient. Through an 

April 1999 Memorandum of 

Understanding (MOU) signed by the 

COE, EPA, OSM, FWS, and the West 

Virginia Department of Environmental 

Protection (WVDEP), the agencies 

agreed to conduct joint permit 

application reviews for surface coal 

mining projects in West Virginia which 

impacted streams draining watersheds 

of 250 acres or greater and these 

activities were required to obtain 

individual permits. Partly as a result of 

the MOU, many surface coal mining 

projects in the Huntington District are 

now authorized under individual 

permits. The MOU was rescinded after 

the Mountaintop Mining/Valley Fill 

Programmatic Environmental Impact 

Statement was finalized. 

In 2002, the Corps attempted to 

address concerns about the impacts of 

NWP 21 by requiring that all NWP 21 

projects, of any size, file a PCN with the 

Corps and wait for written authorization 

from the Corps before beginning work. 

In contrast, most NWPs allow the 

project sponsor to begin work 45 days 

after filing a complete PCN, unless the 

sponsor has heard explicitly from the 

Corps that the work is not authorized. 

To further strengthen its process for 

reviewing PCNs, on March 19, 2004, the 

Corps issued a standard operating 

procedure (SOP) for NWP 21 processing. 

This SOP was developed to improve 

consistency, and to enhance 

predictability and certainty. The 

procedures in the SOP make the NWP 

21 PCN review process similar to the 

individual permit review process, such 

as the requirement for agency 

coordination on all proposed NWP 21 

activities. The SOP lists the types of 

information needed by the Corps to 

make minimal impact determinations 

for proposed NWP 21 activities. 

Functional assessments appropriate to 

the region in which a proposed NWP 21 

activity is located are required to assess 

stream quality and wetland impacts. 

The SOP also discusses requirements for 

compensatory mitigation projects, 

including monitoring requirements and 

financial assurances, in cases where 

compensatory mitigation is necessary to 

ensure that an NWP 21 activity results 

in minimal individual and cumulative 

adverse effects on the aquatic 

environment. Further guidance on 

compensatory mitigation for impacts to 

aquatic resources resulting from surface 

coal mining activities was issued by the 

Corps on May 7, 2004. 

However, we have continued to hear 

concerns from some stakeholders about 

the lack of an acreage limit for NWP 21. 

In response, we are seeking comment on 

the need for an acreage, or other type, 

of limit for this NWP. Commenters 

should address the appropriate 

scientific and environmental basis for 

determining whether there is a need for 

a limit, and discuss types of possible 

limits (e.g., acreage or stream length 

impacted, watershed drained). 

Commenters should also indicate 

whether it is appropriate to maintain or 

modify the current notification 

requirements if a limit is added, since 

these were adopted partially in response 

to concerns about the lack of a limit. 

The terms and conditions of NWP 21, 

in conjunction with SMCRA 

requirements, the PCN review process, 

and any compensatory mitigation 

required under general condition 20, 

will ensure that this NWP authorizes 

only those activities with minimal 

individual and cumulative adverse 

effects on the aquatic environment. 

We are proposing to remove the text 

stating that the district engineer may 

require a bond to ensure the success of 

mitigation, since the district engineer 

has the discretion to impose that 

requirement on any NWP activity where 

mitigation is required. As with the 

current NWP 21, compensatory 

mitigation for impacts resulting in the 

loss of aquatic resources that is required 

by OSM or the state may be considered 

when determining compensatory 

mitigation for NWP 21 activities. In 

accordance with our proposed revisions 

to the ‘‘pre-construction notification’’

general condition (GC 27), all NWP 

PCNs require submission of delineations 

of waters of the United States, including 

special aquatic sites (see paragraph 

(b)(4) of that general condition). 

Division engineers can regionally 

condition this NWP to impose an 

acreage or linear foot limit or other 

special conditions, if there are concerns 

for the aquatic environment in a 

particular district, watershed, or other 

geographic region. 

NWP 22. Removal of Vessels. (Cat 2) 

We are proposing rearrange the text of 

this NWP so that it is in a format similar 

to the other NWPs. We are also 

proposing to require a PCN if the vessel 

removal activity involves discharges of 

dredged or fill material into special 

aquatic sites. We are proposing to move 

the term addressing vessel disposal in 

waters of the United States to the 

‘‘Note’’ at the end of the NWP. We are 

proposing to clarify that vessel disposal 

in waters of the United States requires 

separate authorization, if a Corps permit 

is required. 

NWP 23. Approved Categorical 

Exclusions. (Cat 1) We are proposing to 

modify this NWP by reorganizing the 

text to make it easier to read. We are 

proposing to add the phrase ‘‘including 

pre-construction notification 

requirements’’ to paragraph (c) of this 

NWP to clarify that some activities 

eligible for NWP authorization may 

require submission of PCNs to district 

engineers prior to commencing the 

activity. We are also proposing to 

change the Corps office designation 

from CECW–OR to CECW–CO to reflect 

organizational changes at Corps 

Headquarters. 

In the ‘‘Notification’’ provision, we 

are proposing to add a sentence to 

explain that there are Regulatory 

Guidance Letters (RGLs) that list the 

approved activities that require 

submission of PCNs. Prospective 

permittees should review the 

appropriate RGL to determine if an 

approved activity requires submittal of 

a PCN to the district engineer prior to 

beginning the activity. The current 

activities that have been approved (i.e., 

the Chief of Engineers has concurred 

that they are categorically excluded) for 

use of NWP 23 are provided in RGL 05–

07. 

We are also proposing to add a ‘‘Note’’

to this NWP, to clarify that agencies may 

submit requests to the Office of the 

Chief of Engineers to include additional 

activities as approved for authorization 

under NWP 23. Upon receipt of such 

requests, we will conduct a public 

notice and comment process to 

determine whether the proposed 

activities are in fact categorically 

excluded. Additional activities 

approved for use of NWP 23 would be 

announced in an RGL, which would be 

posted at the internet address indicated 

in the ‘‘Note.’’

NWP 24. Indian Tribe or State 

Administered Section 404 Programs. 

(Cat 2) We are proposing to modify this 

NWP to include Indian Tribes. Section 

518(e) of the Clean Water Act authorizes 

the U.S. EPA Administrator to treat an 

Indian Tribe as eligible for assuming the 

section 404 permit program. Currently, 

only two States (Michigan and New 

Jersey) and no Indian Tribes are 

approved to administer the section 404 

program, and we are proposing to add 

a note to list those states. We are also 

proposing to move the text clarifying 

that certain structures in navigable 


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waters do not require section 10 permits 

to a note. 

NWP 27. Aquatic Habitat Restoration, 

Establishment, and Enhancement 

Activities. (Cat 2) We are proposing to 

change the title of this NWP to more 

accurately reflect the types of activities 

it authorizes, since aquatic habitats 

other than streams and wetlands can be 

restored, established, or enhanced by 

activities authorized by this NWP. The 

term ‘‘creation’’ would be replaced with 

‘‘establishment,’’ to conform with the 

terminology in Regulatory Guidance 

Letter 02–02 for wetland project types 

and the definition in the Council on 

Environmental Quality’s April 2006 

report entitled ‘‘Conserving America’s 

Wetlands 2006: Two Years of Progress 

Implementing the President’s Goal.’’ We 

are proposing to modify this NWP to 

prohibit the conversion of natural 

wetlands to another aquatic use, but the 

relocation of non-tidal wetlands on the 

project site would still be authorized 

provided certain conditions are met. In 

addition, we are proposing to add 

shellfish seeding to the list of examples 

of authorized activities, since shellfish 

seeding is used to restore oyster 

populations. 

We are also proposing to modify this 

NWP to require permittees to submit 

copies of: Binding wetland 

enhancement, restoration, or 

establishment agreements; NRCS 

documentation for voluntary wetland 

restoration, enhancement, or 

establishment actions; or Surface 

Mining Control and Reclamation Act 

(SMCRA) permits issued by the Office of 

Surface Mining or the applicable state 

agency. 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. Standard PCNs 

are not required for activities conducted 

pursuant to one of these instruments 

(except reversion activities; see below), 

but the submission of these already 

prepared documents will allow the 

Corps to ensure that the conditions for 

use of the NWP have been satisfied, 

with minimal burden to the project 

proponent. 

We are proposing to replace ‘‘values’’

with ‘‘services’’ because ecosystem 

services provide more objective 

measures of the importance of aquatic 

resource functions to human 

populations. Services are the benefits 

that humans derive from the functions 

performed by wetlands and other 

aquatic resources. Examples of wetland 

services include flood damage 

reduction, water quality improvement, 

and opportunities for viewing birds and 

other wildlife. Aquatic resource 

restoration, establishment, and 

enhancement activities authorized by 

this NWP are likely to provide 

ecosystem services that benefit human 

populations. Values of aquatic resources 

are difficult to describe objectively, and 

are usually dependent on the point of 

view of the person making the 

assessment. Values may relate to either 

monetary or non-monetary measures, 

whereas services can be described in 

physical terms that are easier to evaluate 

and address, where necessary, in NWP 

authorization letters and special permit 

conditions. 

We are proposing to modify the 

reversion provision of this NWP by 

adding the Farm Service Agency (FSA) 

and appropriate designated state 

cooperating agencies of the U.S. Fish 

and Wildlife Service, Natural Resources 

Conservation Service, FSA, National 

Marine Fisheries Service, and National 

Ocean Service to the list of agencies that 

may execute wetland restoration, 

enhancement, or establishment 

agreements with landowners. This NWP 

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 that has not 

been abandoned or on uplands, in 

accordance with a binding agreement 

between the landowner and NRCS, FSA, 

FWS, or their designated state 

cooperating agencies. There may be 

cases where the designated state 

cooperating agency has taken over the 

operational aspects of executing 

wetland restoration, enhancement, or 

establishment agreements with 

landowners for those federal agencies. 

The Conservation Reserve Enhancement 

Program (CREP) administered by FSA 

may involve wetland restoration, 

enhancement, and/or establishment 

activities, and this program may be 

delegated to state agencies for 

implementation. A CREP contract 

between the landowner and the 

administering agency may be for a term 

of 10 to 15 years. We are also proposing 

to add the phrase ‘‘or on uplands’’ to the 

third sentence of this paragraph, since 

wetlands may be established on uplands 

as a result of an agreement between the 

landowner and another government 

agency. 

We are also proposing to modify this 

NWP by moving the requirement to 

notify the district engineer prior to 

conducting any reversion activities to 

the ‘‘Notification’’ provision. The 

‘‘Notification’’ provision requires the 

permittee or appropriate Federal or 

State agency to notify the district 

engineer in accordance with general 

condition 27. For reversion activities, 

the permittee must show that the 

activity qualifies for reversion by 

providing documentation showing that 

a prior agreement has expired, or that 

the reversion activity is otherwise 

authorized. This documentation may 

consist of either: (1) A copy of the 

original wetland enhancement, 

restoration, or establishment agreement 

between the landowner and the NRCS, 

FSA, FWS, or appropriate designated 

state cooperating agency that shows the 

expiration date, if the agreement has an 

expiration date; (2) the NRCS 

documentation for voluntary wetland 

enhancement, restoration, and 

establishment actions demonstrating 

compliance with NRCS regulations; or 

(3) a copy of the SMCRA permit issued 

by the OSM or applicable state agency. 

We are proposing to modify the 

‘‘Note’’ at the end of this NWP, by 

removing the first sentence. Since the 

first paragraph of this NWP states that 

it authorizes only those activities that 

result in a net increase in aquatic 

resource functions and services (except 

for authorized reversion activities), it is 

redundant to restate this requirement in 

the Note. We are also proposing to 

remove the text stating that 

compensatory mitigation is required for 

impacts to waters of the United States 

caused by the authorized construction 

of compensatory mitigation projects, 

including mitigation banks and in-lieu 

fee programs. 

In addition, we are proposing to 

remove the last sentence of the ‘‘Note,’’

which states that NWP 27 can be used 

to authorize the construction of a 

mitigation bank only when that bank 

has been approved in accordance with 

the procedures in the interagency 

mitigation banking guidance issued on 

November 28, 1995 (60 FR 58605). This 

provision is contrary to the 1995 

guidance, which states that a bank 

sponsor may proceed, at his or her own 

risk, with the construction of the 

mitigation bank after receiving the 

Department of the Army permit, if the 

mitigation banking instrument has not 

yet been approved. 

NWP 29. Residential Developments. 

(Cat 2) We are proposing to combine 

NWP 29 and the provisions of NWP 39 

pertaining to residential developments 

into a single nationwide permit that 

authorizes single unit residences (e.g., 

single family homes) and multiple unit 

residential developments. In other 

words, we are proposing that NWP 29 

authorize both single unit and multiple 

unit residential developments while 

NWP 39 would authorize commercial 

and institutional developments because 

residential developments differ from 

commercial and institutional 


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developments. In addition, residential 

developments are often subject to 

different state and local requirements. 

We are seeking comments on the 

appropriateness of having separate 

NWPs to authorize residential 

developments and commercial and 

institutional developments. 

We are proposing to require PCNs for 

all activities authorized by this NWP, to 

ensure that those activities result in 

minimal individual and cumulative 

adverse effects to the aquatic 

environment and other public interest 

review factors, such as floodplain 

values. 

The proposed acreage limit is 1⁄2 acre, 

and that acreage limit includes any 

losses of waters of the United States 

resulting from filling or excavating 

stream beds. We are also proposing to 

impose a 300 linear foot limit on the 

loss of stream bed. For intermittent and 

ephemeral stream beds, a district 

engineer can waive the 300 linear foot 

limit on a case-by-case basis, if he 

determines that the adverse effects on 

the aquatic environment are minimal, 

individually and cumulatively. These 

waivers must be issued in writing by the 

district engineer. The 300 linear foot 

limit cannot be waived for perennial 

stream beds. 

The proposed modification of this 

NWP provides more protection of the 

aquatic environment. The proposed 

NWP can be used in a narrower scope 

of waters than the current NWP 29. The 

current NWP 29 authorizes discharges 

of dredged or fill material into all nontidal waters of the United States, 

including those non-tidal wetlands that 

are adjacent to tidal waters. The 

proposed modification of NWP 29 does 

not authorize discharges of dredged or 

fill material into non-tidal wetlands 

adjacent to tidal waters. The current 

NWP 39 authorizes both single unit and 

multiple unit residential developments 

with a ⁄2 acre limit for discharges of 

dredged or fill material into non-tidal 

waters, except for non-tidal wetlands 

adjacent to tidal waters. In effect, the 

current NWP 29 is being eliminated, 

and we are proposing to replace it with 

the provisions of the current NWP 39 

that authorize single and multiple unit 

residential developments. 

We are proposing to remove the text 

requiring permittees to minimize onand off-site impacts and avoid flooding, 

since those requirements are addressed 

by the ‘‘mitigation’’ general condition 

(GC 20) and the ‘‘management of water 

flows’’ general condition (GC 9). We are 

proposing to remove the text requiring 

the maintenance of vegetated buffers 

next to open waters, since paragraph (d) 

of general condition 20 states that 

district engineers may require the 

establishment and maintenance of 

riparian areas next to streams and other 

open waters. We are proposing to 

eliminate the text defining the acreage 

loss of waters of the United States, since 

there is a definition of ‘‘loss of waters 

of the United States’’ in the 

‘‘Definitions’’ section of the NWPs. 

We are also proposing to eliminate the 

condition restricting the use of NWP 29 

to those individuals constructing single 

family homes for personal use, as well 

as the definitions for ‘‘individual’’ and 

‘‘parcel of land.’’ We believe that it is 

inappropriate to establish different 

permits for single and multiple 

residential development because the 

impacts to the aquatic environment are 

determined by the permit conditions 

themselves (e.g., 1⁄2 acre limit) and not 

the type of residential development or 

the type of permittee. Each proposed 

NWP 29 activity will be evaluated 

through the PCN process to determine if 

the activity qualifies for NWP 

authorization. 

This NWP can be used to authorize 

discharges of dredged or fill material 

into non-tidal waters of the United 

States (other than non-tidal wetlands 

adjacent to tidal waters) to construct 

building foundations and pads, as well 

as attendant features. The examples of 

attendant features listed in this NWP 

were taken from the current NWP 39. 

The scope of applicable waters is the 

same as the current NWP 39. We are 

proposing to retain the residential 

subdivision provision from the current 

NWP 39. 

In response to a PCN, the district 

engineer may impose special conditions 

on a case-by-case basis to ensure that 

the adverse effects on the aquatic 

environment are minimal or exercise 

discretionary authority to require an 

individual permit for the work. The 

issuance of this NWP, as with any NWP, 

allows for the use of discretionary 

authority when valuable or unique 

aquatic areas may be affected by these 

activities. 

NWP 30. Moist Soil Management for 

Wildlife. (Cat 2) We are proposing to 

modify this NWP by removing the 

phrase ‘‘performed on non-tidal 

Federally-owned or managed, Stateowned or managed property, and local 

government agency-owned or managed 

property, for’’. Removal of this phase 

will allow any landowner to use this 

NWP to authorize discharges of dredged 

or fill material into non-tidal waters of 

the United States for the purpose of 

managing wildlife habitat and feeding 

areas. We do not believe this NWP 

should be restricted to government 

agencies, since many private 

landowners have an interest in 

attracting and supporting various 

species of wildlife, and can do these 

activities without causing more than 

minimal adverse environmental effects. 

We are also proposing to remove the 

phrase ‘‘[t]he repair, maintenance or 

replacement of existing water control 

structures; the repair or maintenance of 

dikes; and’’ since those activities may be 

authorized by NWP 3. In its place, we 

are proposing to add an explanatory 

‘‘Note’’ at the end of the NWP. For the 

reasons provided in the preamble 

discussion of the definition of ‘‘riparian 

areas,’’ we are proposing to replace the 

phrase ‘‘vegetated buffers’’ with 

‘‘riparian areas.’’

NWP 31. Maintenance of Existing 

Flood Control Facilities. (Cat 1) We are 

proposing to remove the last sentence of 

the first paragraph of this NWP, which 

discussed certain types of maintenance 

activities that do not require section 404 

permits, since that issue is more 

appropriately addressed through the 

Corps current definition of ‘‘discharge of 

dredged material’’ at 33 CFR 323.2(d). 

We are proposing to add ‘‘levees’’ to 

the list of features that can be 

maintained through the authorization 

provided by this NWP, since levees are 

often integral parts of flood control 

facilities. Discharges of dredged or fill 

material in waters of the United States 

for levee maintenance may be 

authorized by this NWP, provided the 

levees are included in the maintenance 

baseline. 

NWP 32. Completed Enforcement 

Actions. (Cat 1) We are proposing to 

eliminate the phrase ‘‘For either (i), (ii), 

or (iii) above,’’ from the last paragraph 

of this NWP. This phrase is unnecessary 

because permittees must comply with 

all applicable terms and conditions of 

any NWP. We are also proposing to 

remove the phrase ‘‘or fails to complete 

the work by the specified completion 

date’’ since the completion date should 

be specified in the court decision, 

consent decree, or judicial/non-judicial 

settlement agreement. 

NWP 33. Temporary Construction, 

Access, and Dewatering. (Cat 1) We are 

proposing to divide the first sentence of 

this NWP into two sentences, to clarify 

that temporary structures or work in 

navigable waters of the United States or 

discharges of dredged or fill material in 

waters of the United States associated 

with construction activities that do not 

require permits from the Corps or the 

U.S. Coast Guard, as well as those that 

do require and have obtained such 

permits, are authorized by this NWP. 

We are also proposing to move the 

requirement for a restoration plan from 

the ‘‘pre-construction notification’’


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general condition (general condition 13 

of the 2002 NWPs) to the ‘‘Notification’’

paragraph of this NWP. The PCN must 

include a restoration plan showing how 

all temporary fills and structures will be 

removed and the area restored to preproject conditions. The restoration plan 

should also describe reasonable 

measures for avoidance and 

minimization of adverse effects to 

aquatic resources. We are proposing to 

remove the sentence that states that the 

district engineer will add special 

conditions to ensure minimal adverse 

effects, since the addition of special 

conditions where necessary to ensure 

minimal adverse effects is a condition of 

all NWPs. 

NWP 34. Cranberry Production 

Activities. (Cat 1) We are proposing to 

rearrange the text of this NWP, to 

conform with the general format of the 

proposed NWPs, and to eliminate the 

phrase ‘‘provided the activity meets all 

of the following criteria:’’ since 

activities must comply with all terms 

and conditions of an NWP. We are also 

proposing to remove the text requiring 

PCNs to include delineations of special 

aquatic sites, since that requirement is 

addressed by paragraph (b)(4) of the 

proposed modification of the ‘‘preconstruction notification’’ general 

condition (GC 27). 

We are proposing to modify this NWP 

to clarify that an existing cranberry 

production operation needs to submit a 

pre-construction notification only once 

during the period that this NWP is 

valid. The NWP authorization would 

apply to on-going discharges of dredged 

or fill material into waters of the United 

States, provided the 10 acre limit is not 

exceeded. 

NWP 36. Boat Ramps. (Cat 2) We are 

proposing to modify this NWP to allow 

district engineers to issue, on a case-bycase basis after reviewing preconstruction notifications, waivers to 

the 50 cubic yard limit for discharges of 

dredged or fill material into waters of 

the United States to construct a boat 

ramp. We are also proposing to allow 

district engineers to issue waivers to the 

20 foot width limit for boat ramps. 

These waivers can be issued only if, 

after reviewing a pre-construction 

notification, the district engineer 

determines that the adverse effects on 

the aquatic environment and other 

factors of the public interest will be 

minimal. These waivers must be issued 

in writing by the district engineer. 

We are proposing to modify this NWP 

to require pre-construction notification 

if the proposed boat ramp involves 

discharges of more than 50 cubic yards 

of dredged or fill material into waters of 

the United States, or if the proposed 

boat ramp is greater than 20 feet wide. 

We are also proposing to remove the 

text prohibiting the use of material that 

may cause unacceptable chemical 

pollution, since that issue is addressed 

by the ‘‘suitable material’’ general 

condition (GC 6). 

NWP 37. Emergency Watershed 

Protection and Rehabilitation. (Cat 1) 

We are proposing to rearrange the text 

of this NWP to conform with the format 

of the proposed modified NWPs, but it 

will not change the scope of activities 

authorized by this NWP. 

NWP 38. Cleanup of Hazardous and 

Toxic Waste. (Cat 1) We are proposing 

to modify this NWP by moving the 

requirement to submit a delineation of 

waters of the United States to paragraph 

(b)(4) of the ‘‘pre-construction 

notification’’ general condition (GC 27). 

We are also proposing to move the last 

sentence of this NWP to a ‘‘Note’’ at the 

end of the NWP. 

NWP 39. Commercial and 

Institutional Developments. (Cat 2) We 

are proposing to remove residential 

developments as an authorized activity 

from this NWP and modify NWP 29 to 

authorize both single unit and multiple 

unit residential developments. We 

believe that NWP 39 should be modified 

to authorize only commercial and 

institutional developments because 

those types of developments differ from 

residential developments in a number of 

ways. Commercial and institutional 

developments are often subject to 

different state and local requirements 

than residential developments, such as 

storm water management and 

infrastructure requirements. Planning 

and zoning requirements for residential, 

commercial, and institutional 

developments may also be different, 

which can affect where they are located 

in a watershed. We are soliciting 

comments on limiting NWP 39 to 

authorizing discharges of dredged or fill 

material into waters of the United States 

to construct or expand commercial and 

institutional developments. 

We are proposing to modify this NWP 

to require PCNs for all activities, to 

ensure that those activities result in 

minimal individual and cumulative 

adverse effects on the aquatic 

environment and other public interest 

review factors, such as floodplain 

values. Since PCNs will be required for 

all activities authorized by this NWP, 

we are proposing to eliminate the 

reporting requirement in paragraph (i) of 

the current NWP 39. For the same 

reason, we are also proposing to 

eliminate the ‘‘Note’’ from this NWP. 

We are also proposing to modify the 

300 linear foot limit for the loss of 

stream bed to apply that limit to 

ephemeral streams. We are proposing to 

allow district engineers to waive the 300 

linear foot limit, if the loss of 

intermittent or ephemeral stream bed 

will have minimal individual and 

cumulative adverse effects on the 

aquatic environment. These waivers 

must be issued in writing by the district 

engineer. 

Another modification we are 

proposing is to move the requirement to 

submit a delineation of waters of the 

United States to paragraph (b)(4) of the 

‘‘pre-construction notification’’ general 

condition (GC 27). Since we are 

proposing to modify this NWP to 

require PCNs for all activities and 

because the ‘‘mitigation’’ general 

condition (GC 20) requires permittees to 

avoid and minimize adverse effects to 

the maximum extent practicable on the 

project site, we are proposing to remove 

the text requiring submittal of a written 

avoidance and minimization statement 

and a compensatory mitigation proposal 

with the PCN. District engineers will 

review PCNs to ensure that all 

practicable on-site avoidance and 

minimization has been accomplished. In 

response to a PCN, the district engineer 

may require compensatory mitigation to 

ensure that the authorized activity 

results in minimal adverse 

environmental effects (see 33 CFR 

330.1(e)(3)). 

We are proposing to remove the text 

requiring the permittee to establish and 

maintain, to the maximum extent 

practicable, riparian areas next to 

streams and other open waters on the 

project site, since this issue is addressed 

by paragraph (e) of general condition 20, 

which applies to all NWPs, including 

NWP 39. 

We are proposing to remove the 

references to the general conditions 

relating to water quality and the 

management of water flows, since those 

general conditions apply, as 

appropriate, to all NWPs. 

In response to a PCN, the district 

engineer may impose special conditions 

on a case-by-case basis to ensure that 

the adverse effects on the aquatic 

environment are minimal or exercise 

discretionary authority to require an 

individual permit for the work. The 

issuance of this NWP, as with any NWP, 

allows for the use of discretionary 

authority when valuable or unique 

aquatic areas may be affected by these 

activities. 

NWP 40. Agricultural Activities. (Cat 

2) We are proposing to modify this NWP 

by eliminating the distinction between 

permittees that are U.S. Department of 

Agriculture (USDA) program 

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are not USDA program participants. 

Participants in USDA programs, as well 

as non-participants, are eligible to use 

this NWP for agricultural activities. 

NRCS would no longer need to 

determine the applicability of this NWP 

to authorize agricultural activities 

resulting in discharges of dredged or fill 

material into waters of the United 

States. 

We are proposing to modify this NWP 

to require PCNs for all activities, for 

case-by-case review by district engineers 

to ensure that those activities result in 

minimal individual and cumulative 

adverse effects to the aquatic 

environment and other public interest 

review factors. 

We are also proposing to modify this 

NWP to authorize the construction of 

farm ponds in non-tidal waters of the 

United States, excluding perennial 

streams, where the pond is necessary for 

agricultural production. This NWP 

would authorize 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) of the Act. 

This NWP does not authorize the 

construction of ponds on nonagricultural land, or the construction of 

recreational or ornamental ponds. We 

are proposing to limit discharges of 

dredged or fill material for the 

construction of farm ponds to non-tidal 

waters, other than perennial streams 

and non-tidal wetlands adjacent to tidal 

waters, to ensure that the construction 

of the farm pond results in minimal 

individual and cumulative adverse 

effects on the aquatic environment. The 

construction of ponds in perennial 

streams is more likely to cause more 

than minimal adverse effects on the 

aquatic environment, by disrupting 

stream geomorphic processes, as well as 

ecological functions of streams. 

Since we are proposing to modify this 

NWP to require PCNs for all activities, 

we are removing the explicit 

requirement to submit a compensatory 

mitigation plan with the PCN. In 

response to a PCN, the district engineer 

may require compensatory mitigation 

(see 33 CFR 330.1(e)(3)) to ensure that 

the authorized work results in minimal 

adverse effects on the aquatic 

environment. The ‘‘mitigation’’ general 

condition (GC 20) also addresses 

compensatory mitigation requirements 

for all NWPs. Any compensatory 

mitigation required for activities 

authorized by this NWP that requires 

section 404 authorization may be 

authorized by this NWP or NWP 27. 

We are proposing to remove the 

definition of ‘‘farm tract’’ and the 

conditions limiting the use of NWPs 39 

and 40 on a particular site, since district 

engineers will receive PCNs for all 

activities authorized by this NWP. 

District engineers will review PCNs for 

those NWPs to ensure that the proposed 

work results in minimal individual and 

cumulative adverse environmental 

effects. 

NWP 41. Reshaping Existing Drainage 

Ditches. (Cat 2) We are proposing to 

modify this NWP to clarify that it 

authorizes only the reshaping of 

drainage ditches constructed in waters 

of the United States where the purpose 

of reshaping the ditch is to improve 

water quality. As a result of this 

modification, we are also proposing to 

remove the sentence which states why 

compensatory mitigation is not required 

for the activities authorized by this 

NWP. 

The purpose of this NWP is to 

encourage landowners who need to 

maintain drainage ditches constructed 

in waters of the United States to do so 

in a manner that benefits the aquatic 

environment. The maintenance of a 

drainage ditch to its current 

configuration is exempt under Section 

404(f)(1)(C) of the Clean Water Act, and 

does not require a DA permit. This 

exemption does not authorize reshaping 

of existing drainage ditches, so this 

NWP authorizes reshaping activities 

that benefit the aquatic environment. 

This NWP was first issued on March 9, 

2000, (65 FR 12818) to authorize, to the 

extent that a section 404 permit is 

required, the grading of the banks of a 

currently serviceable ditch to gentler 

(shallower) slopes than its current or 

original configuration. Reshaping a 

drainage ditch so that it has shallower 

side slopes can help improve water 

quality by decreasing the velocity of 

water flowing through the ditch and by 

spreading out water flow over a greater 

area of soil surface. It should also 

provide more area for plants to become 

established and grow within the ditch. 

These changes are likely to help 

improve water quality by increasing 

water contact with vegetation and soil 

microbes, to facilitate the removal of 

nutrients and other chemical 

compounds through biogeochemical 

processes. Slower water flow rates 

through the ditch should also decrease 

erosion, also improving water quality. 

We are proposing to remove the 

prohibition against permanent 

sidecasting of excavated material into 

waters of the United States, where the 

excavated material results from the 

ditch reshaping activity. In cases where 

there are jurisdictional wetlands or 

other waters next to the ditch to be 

reshaped, this prohibition is likely to 

cause many landowners to maintain the 

ditch at its originally designed 

configuration to qualify for the 

exemption, since the 404(f)(1)(C) 

exemption allows discharges of dredged 

or fill material into waters of the United 

States resulting from ditch maintenance 

activities. 

Since one of the conditions of this 

NWP states that the centerline of the 

ditch must remain in approximately the 

same place, we do not believe that it is 

necessary to state that this NWP does 

not authorize stream relocation projects. 

NWP 42. Recreational Facilities. (Cat 

2) We are proposing to simplify this 

NWP by removing the term which limits 

its use to those recreational facilities 

that are integrated into the existing 

landscape and do not substantially 

change pre-construction grades or 

deviate from natural landscape 

contours. That particular term is 

problematic in many areas of the United 

States, especially those regions where 

the project area for a proposed 

recreational facility is predominantly 

uplands. The construction of 

recreational facilities that result in 

minimal individual and cumulative 

adverse effects on the aquatic 

environment should be authorized by 

this NWP, regardless of the amount of 

changes to pre-construction grades or 

natural landscape contours in areas not 

subject to regulatory jurisdiction under 

Section 404 of the Clean Water Act. 

We are also proposing to modify this 

NWP to require PCNs for all activities, 

so that district engineers will be able to 

review proposed recreational facilities 

to ensure that they result in minimal 

individual and cumulative adverse 

effects on the aquatic environment. 

We are also proposing to remove the 

text requiring submission of a 

compensatory mitigation proposal with 

a PCN, since GC 20 addresses 

compensatory mitigation requirements 

for all NWPs. We are proposing to 

remove the text that explicitly requires 

water quality management measures, 

since such measures may be required by 

district engineers for any NWP on a 

case-by-case basis in accordance with 

the ‘‘water quality’’ general condition 

(GC 21). 

We are proposing to modify the 300 

linear foot limit for the loss of stream 

bed, by applying that limit to ephemeral 

streams. We are also proposing to allow 

district engineers to waive the 300 

linear foot limit, if the stream bed is 

intermittent or ephemeral and the 

individual and cumulative adverse 

effects on the aquatic environment are 

minimal. These waivers must be issued 

in writing by the district engineer. 

This NWP can be used to authorize 

the construction of ski areas and golf 


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courses, as long as those activities result 

in minimal adverse environmental 

effects and are in the public interest. We 

are also proposing to expand this NWP 

to authorize playing fields and 

basketball and tennis courts. The 

condition prohibiting the use of this 

NWP to authorize hotels, restaurants, 

stadiums, racetracks, arenas, and similar 

facilities would be retained. District 

engineers will evaluate PCNs to 

determine if proposed recreational 

facilities are authorized by this NWP. 

In response to a PCN, the district 

engineer may impose special conditions 

on a case-by-case basis to ensure that 

the adverse effects on the aquatic 

environment are minimal or exercise 

discretionary authority to require an 

individual permit for the work. The 

issuance of this NWP, as with any NWP, 

allows for the use of discretionary 

authority when valuable or unique 

aquatic areas may be affected by these 

activities. 

NWP 43. Stormwater Management 

Facilities. (Cat 2) We are proposing to 

modify this NWP to require PCNs for 

the construction or expansion of 

stormwater management facilities, but 

not for maintenance activities. District 

engineers will review those PCNs to 

ensure that proposed activities result in 

minimal individual and cumulative 

adverse effects on the aquatic 

environment and other public interest 

review factors, including floodplain 

values. 

We are proposing to modify the 300 

linear foot limit for the loss of stream 

bed by applying that limit to ephemeral 

streams. We are also proposing to allow 

district engineers to waive the 300 

linear foot limit if the stream bed is 

intermittent or ephemeral and the filling 

and/or excavation of that stream bed 

will result in minimal individual and 

cumulative adverse effects on the 

aquatic environment. These waivers 

must be issued in writing by the district 

engineer. 

In addition, we are proposing to 

remove the requirement for prospective 

permittees to submit maintenance plans, 

since the NWP limits maintenance 

activities to restoring the stormwater 

management facility to its original 

design capacity. We are also proposing 

to remove the requirement to submit 

compensatory mitigation proposals with 

PCNs, since mitigation requirements are 

addressed by GC 20. General condition 

20 requires permittees to avoid and 

minimize impacts to waters of the 

United States on the project site to the 

maximum extent practicable, so we are 

proposing to remove the requirement for 

submitting an avoidance and 

minimization statement with the PCN. 

District engineers will review PCNs to 

determine if avoidance and 

minimization has been accomplished to 

the maximum extent practicable. 

We are also proposing to remove the 

text requiring compliance with the 

‘‘management of water flows’’ general 

condition (GC 9), since that general 

condition generally applies, as 

appropriate, to all NWPs. We are 

proposing to remove the requirement for 

maintenance excavation to be 

conducted in accordance with an 

approved maintenance plan, since the 

maintenance of an existing stormwater 

management facility is limited to its 

original design capacity and therefore it 

is likely to result in minimal adverse 

effects to the aquatic environment. 

NWP 44. Mining Activities. (Cat 2) We 

are proposing to simplify this NWP, and 

modify it to authorize all types of 

mining activities except for coal mining. 

Surface coal mining activities may be 

authorized by NWP 21. Other types of 

coal mining activities may be authorized 

by the proposed new NWP E (Coal 

Remining Activities) or NWP F 

(Underground Coal Mining Activities). 

This NWP would continue to authorize 

aggregate mining and hard rock/mineral 

mining activities. We are proposing to 

retain the 1⁄2 acre limit for this NWP. 

Pre-construction notifications are 

required for all activities authorized by 

this NWP, so we do not believe that it 

is necessary to partition the types of 

waters where certain types of mining 

activities can occur. District engineers 

will review PCNs to ensure that 

proposed mining activities will result in 

minimal adverse effects on the aquatic 

environment, individually and 

cumulatively, and will exercise 

discretionary authority if the adverse 

effects are more than minimal. This 

NWP authorizes only discharges of 

dredged or fill material into non-tidal 

waters of the United States, and does 

not authorize discharges into non-tidal 

wetlands adjacent to tidal waters. 

The PCN must include a copy of the 

reclamation plan, if reclamation is 

required by other statutes. We are 

proposing to remove the requirement to 

submit an avoidance and minimization 

statement, because the ‘‘mitigation’’

general condition (GC 20) requires 

avoidance and minimization of adverse 

effects to waters of the United States to 

the maximum extent practicable on the 

project site. We are proposing to remove 

the references to the general conditions 

relating to the ‘‘shellfish beds’’ and 

‘‘spawning areas’’ general conditions 

(GC 6 and GC 3), since those conditions 

apply, to the extent appropriate, to all 

NWPs. We believe that the terms 

requiring measures to prevent increases 

in stream gradient and water velocities, 

and minimizing turbidity, should be 

removed and the prevention or 

reduction of such impacts is more 

appropriately addressed through the 

NWP general conditions (e.g., GCs 3, 9, 

and 12), as well as the site-specific 

review and any case-specific special 

conditions added to NWP 

authorizations by district engineers. If 

the district engineer reviews a PCN and 

determines that the proposed mining 

activity will result in more than 

minimal adverse effects to stream 

gradient, water velocities, and turbidity, 

he will exercise discretionary authority 

and require an individual permit for the 

activity. 

We are also proposing to remove the 

references to the ‘‘water quality’’ general 

condition (GC 21) and the ‘‘management 

of water flows’’ general condition (GC 

9), since those general conditions apply, 

as appropriate, to all NWPs. We believe 

that restrictions for hard rock/mineral 

mining, including beneficiation and 

mineral processing, are more 

appropriately addressed through special 

conditions to NWP verifications, or by 

regional conditions imposed by division 

engineers. 

In response to a PCN, the district 

engineer may impose special conditions 

on a case-by-case basis to ensure that 

the adverse effects on the aquatic 

environment are minimal or exercise 

discretionary authority to require an 

individual permit for the work. The 

issuance of this NWP, as with any NWP, 

allows for the use of discretionary 

authority when valuable or unique 

aquatic areas may be affected by these 

activities. 

Discussion of Proposed New 

Nationwide Permits 

NWP A. Emergency Repair Activities. 

We are proposing to remove paragraph 

(iii) from the current NWP 3 and issue 

a new NWP to authorize emergency 

repair activities. This will simplify NWP 

3, and limit that NWP to routine 

maintenance activities. This proposed 

NWP requires PCNs for all activities. 

The PCN must be submitted within 12 

months of the date of the damage. This 

12 month period is intended to establish 

that the damage or loss of upland 

occurred in the recent past, and that the 

proposed activity is not intended to 

reclaim lost lands due to gradual 

erosion processes. The work must be 

completed within two years of 

submitting the PCN. 

The proposed NWP also authorizes 

bank stabilization activities to protect 

the restored uplands, as long as the bank 

stabilization activity does not extend 

beyond the ordinary high water mark 


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(OHWM) that existed before the 

damaging event occurred. Bank 

stabilization activities that extend 

beyond the pre-event OHWM may be 

authorized by NWP 13, a regional 

general permit, or an individual permit. 

We are proposing to replace the 50 

cubic yard limit for minor dredging to 

remove obstructions from the adjacent 

waterbody with a condition limiting 

minor dredging to the minimum 

necessary to restore bottom contours of 

the waterbody to their pre-event state. 

District engineers will review PCNs 

involving minor dredging for emergency 

repair activities, to ensure that the 

authorized work will result in minimal 

adverse environmental effects. We are 

also proposing to add a condition which 

states that project proponents may be 

required to obtain separate DA 

authorization, if temporary structures or 

discharges are necessary to conduct the 

rehabilitation or repair activity. Separate 

DA authorization would be required for 

temporary structures installed in 

navigable waters of the United States 

and/or temporary discharges of dredged 

or fill material into waters of the United 

States that are necessary to conduct 

emergency repair activities. The 

separate DA authorization may be 

provided by NWP 33, a regional general 

permit, or an individual permit. 

In the ‘‘Note’’ at the end of this NWP, 

we are proposing to modify text taken 

from paragraph (iii) of NWP 3 to clarify 

that restoring uplands up to the OHWM 

in non-tidal waters or the high tide line 

in tidal waters after a storm, flood, or 

other discrete event does not require a 

section 404 permit. If discharges of 

dredged or fill material to restore 

uplands lost as a result of a discrete 

event occur landward of the OHWM or 

high tide line, and there are no 

jurisdictional waters or wetlands 

landward of the OHWM or high tide 

line, a section 404 permit is not required 

because there would be no discharge of 

dredged or fill material into waters of 

the United States. In response to a PCN, 

the district engineer will determine, on 

a case-by-case basis, the location of the 

OHWM and the high tide line. In the 

‘‘Note,’’ we are also proposing to 

include a reference to 33 CFR 328.5, 

which addresses changes in limits to 

waters of the United States. 

In response to a PCN, the district 

engineer can exercise discretionary 

authority and require an individual 

permit if the proposed activity will 

result in more than minimal adverse 

effects on the aquatic environment, 

individually and cumulatively. 

NWP B. Discharges into Ditches and 

Canals. We are proposing a new NWP 

to authorize discharges of dredged or fill 

material into certain types of ditches 

and canals that are determined to be 

waters of the United States. The 

proposed NWP will allow a landowner 

to return his or her land to its prior 

condition, but only in those cases where 

the ditches or canals meet all three 

criteria specified in the NWP. To qualify 

for this NWP, those ditches and canals 

must be: (1) Constructed in uplands, (2) 

receive water from another water of the 

United States, and (3) divert water to 

another water of the United States. 

These three criteria will limit the use of 

this NWP to those ditches and canals 

that generally provide few aquatic 

resource functions. This proposed NWP 

does not authorize discharges of 

dredged or fill material into ditches or 

canals that were constructed in waters 

of the United States, such as streams. 

We are proposing a one acre limit for 

this NWP. We believe the one acre limit 

will authorize those activities that have 

minimal adverse effects on the aquatic 

environment, individually and 

cumulatively. Division engineers can 

regionally condition this NWP to lower 

the acreage limit or otherwise limit its 

use. We are proposing to require a PCN 

if the dredged or fill material will be 

discharged into more than 500 linear 

feet of ditch or canal. This proposed 

NWP is limited to activities that only 

require section 404 authorization. An 

individual permit, regional general 

permit, or another NWP would be 

needed to authorize discharges of 

dredged or fill material into ditches and 

canals that are determined to be 

navigable waters of the United States 

under section 10 jurisdiction. 

We are seeking comments on this 

proposed new NWP, including its terms 

and conditions, such as the proposed 

one acre limit. 

NWP C. Pipeline Safety Program 

Designated Time Sensitive Inspections 

and Repairs. We are proposing a new 

NWP to authorize the inspection, repair, 

rehabilitation, or replacement of any 

currently serviceable structure or fill for 

pipelines that are determined to be 

time-sensitive in accordance with the 

Pipeline and Hazardous Materials Safety 

Administration’s Pipeline Safety 

Program (PHP), including its criteria at 

49 CFR parts 192 and 195. This NWP 

would authorize time-sensitive pipeline 

inspection, repair, rehabilitation, or 

replacement activities in all waters of 

the United States, including navigable 

waters. 

The proposed NWP would 

significantly improve a participating 

pipeline operator’s ability to complete 

inspection and repair activities, and 

reduce environmental impacts due to 

pipeline ruptures. An Interagency 

Committee (IAC) was convened to 

implement Section 16 of the Pipeline 

Safety Improvement Act of 2002 (see 49 

U.S.C. 60133). The proposed NWP will 

help satisfy the requirements of this act. 

The environmental compliance and 

enforcement programs of the agencies 

participating in the interagency 

committee would also help ensure 

compliance with environmental statutes 

such as the Endangered Species Act and 

Section 106 of the National Historic 

Preservation Act. 

Although many of these activities 

could be authorized by NWPs 3 or 12, 

we are proposing to issue this NWP so 

that a time-sensitive inspection and/or 

repair that meets PHP criteria can 

proceed without submitting a PCN to 

the district engineer. To ensure that this 

NWP would allow these inspections and 

repairs to proceed in a timely manner, 

division engineers are not authorized to 

regionally condition this NWP. This 

proposed NWP requires project 

proponents to: (1) Participate in PHP’s 

early notification program, (2) utilize 

the Pipeline Repair and Environmental 

Guidance System (PREGS), (3) follow 

the agreed upon Recommended Best 

Management Practices (RMBPs), and (4) 

submit post-construction reports within 

7 days of completing the work via 

PREGS. District engineers can monitor 

the pipeline inspection and/or repair 

activity and the use of this NWP 

through the post-construction reporting 

in PREGS to ensure that the NWP 

authorizes activities that have minimal 

individual and cumulative adverse 

effects on the aquatic environment. 

Suspension or revocation of this NWP 

may occur only if the division engineer 

has formally determined, in accordance 

with the procedures at 33 CFR 330.5(c), 

that the NWP would result in more than 

minimal adverse environmental effects, 

either individually or cumulatively, 

within a particular district, watershed, 

or other geographic region. District 

engineers must follow the procedures at 

33 CFR 330.5(d) to suspend or revoke a 

case-specific authorization under this 

NWP. 

The Pipeline and Hazardous Materials 

Safety Administration and the IAC 

developed PREGS. Participating 

pipeline operators and agencies have 

access to PREGS. This system will 

provide early notification to 

participating agencies for upcoming 

pipeline inspection and repair activities. 

The RBMPs have been developed 

through the IAC to address habitat and 

resource issues at the national level. 

These RBMPs apply to pipeline 

inspection and repair activities, as well 

as post-activity remediation actions. The 

RMBPs are available on PREGS. 


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Pipeline operators are expected to use 

the RBMPs while conducting inspection 

and repair activities. 

Activities authorized by this NWP 

must comply with the ‘‘endangered 

species’’ general condition (GC 17) and 

the ‘‘historic properties’’ general 

condition (GC 18). If a proposed 

pipeline inspection and/or repair 

activity may affect endangered or 

threatened species or critical habitat, 

section 7 consultation is required. 

Activities that may affect historic 

properties require consultation under 

Section 106 of the National Historic 

Preservation Act. We are coordinating 

with PHP to determine who will be the 

lead federal agency for ESA and section 

106 consultation. 

NWP D. Commercial Shellfish 

Aquaculture Activities. We are 

proposing a new NWP to authorize 

continued operation of existing 

commercial shellfish aquaculture 

activities in navigable waters of the 

United States. This NWP would support 

the U.S. Department of Commerce’s 

Aquaculture Policy, which is intended 

to ‘‘assist in the development of a highly 

competitive, sustainable aquaculture 

industry in the United States that will 

meet growing consumer demand for 

aquatic foods and products that are of 

high quality, safe, competitively priced 

and are produced in an environmentally 

responsible manner with maximum 

opportunity for profitability in all 

sectors of the industry.’’ The proposed 

new NWP also supports the National 

Aquaculture Act of 1980, as amended 

(16 U.S.C. 2801 et seq.), which declared 

that aquaculture development is in the 

national interest, and included 

requirements for Federal agencies to 

address barriers to aquaculture 

development. 

This NWP authorizes structures or 

work in navigable waters of the United 

States, as well as discharges of dredged 

or fill material into all waters of the 

United States. Examples of commercial 

shellfish species for which this NWP 

could be used to authorize aquaculture 

activities include oysters, clams, 

geoducks, mussels, and scallops. The 

proposed NWP does not authorize 

commercial aquaculture activities for 

crustaceans or finfish. 

This NWP does not authorize the 

expansion of existing commercial 

aquaculture activities or facilities, 

however we are soliciting comment on 

this limitation. We are also soliciting 

comments on whether to impose a limit 

on the quantity of dredged or fill 

material that could be discharged into 

navigable waters, on the acreage of the 

facility as a whole or of submerged 

aquatic vegetation, and/or on the types 

of activities authorized. For example, 

discharges of dredged or fill material 

may be necessary to prepare a suitable 

substrate for shellfish seeding. Should 

this activity be authorized by the NWP? 

There are different types of shellfish 

seed that can be used to increase 

shellfish production. Shellfish seed may 

consist of immature individual 

shellfish, an individual shellfish 

attached to a shell or shell fragment (i.e., 

spat on shell) and shellfish shells or 

shell fragments placed into waters to 

provide a substrate for attachment by 

free swimming shellfish larvae (i.e., 

natural catch). 

To ensure that activities authorized by 

this NWP result in minimal individual 

and cumulative adverse effects on the 

aquatic environment, we are proposing 

to require pre-construction notification 

if: (1) The project area is greater than 25 

acres; (2) more than 10 acres of the 

project area is occupied by submerged 

aquatic vegetation; (3) the permittee 

intends to relocate existing operations 

into portions of the project area not 

previously used for aquaculture 

activities; or (4) dredge harvesting is 

conducted in areas inhabited by 

submerged aquatic vegetation. For the 

purposes of this NWP, we are proposing 

to define the project area as the area of 

navigable waters of the United States 

occupied by the aquaculture operation. 

In most cases, the project area will 

consist of a site for which the operator 

has obtained a permit, license, or lease 

from a state or local agency specifically 

authorizing aquaculture activities in 

that particular location. The project area 

may include areas in which there has 

been no previous aquaculture activity 

and/or areas that periodically are 

allowed to lie fallow as part of the 

normal operation of the facility. 

Relocation of existing operations into 

portions of the project area not 

previously used for aquaculture 

activities will require a pre-construction 

notification. Because shellfish require 

healthy ecosystems for their growth and 

productivity, in addition to providing 

the aquatic ecosystem services of 

improved water quality and increased 

food production, we believe that there is 

generally a net overall increase in 

aquatic resource functions in estuaries 

or bays where shellfish are produced. 

We are requesting comments on the 

potential beneficial and adverse effects 

that commercial shellfish aquaculture 

activities have on the aquatic 

environment. We are also seeking 

comment on this proposed PCN 

threshold, including the 

appropriateness of attempting to 

quantify these aquatic operations in 

terms of acres, ecosystem health, 

shellfish productivity, or some other 

threshold to ensure minimal adverse 

effects. 

Commercial shellfish aquaculture 

activities often take place in, and are 

found to co-exist with, intertidal areas 

that are occupied by submerged aquatic 

vegetation (i.e., vegetated shallows). To 

minimize adverse effects to this type of 

aquatic habitat, we are proposing to 

require PCNs if more than 10 acres of 

the project area is occupied by 

submerged aquatic vegetation. 

This proposed NWP does not 

authorize the cultivation of new species. 

In other words, the NWP does not 

authorize aquaculture activities for 

those species that were not previously 

cultivated by the existing commercial 

shellfish aquaculture activity. The 

commercial production of a shellfish 

species that has not been previously 

commercially produced by the existing 

facility may be authorized by an 

individual permit or a regional general 

permit. 

We are proposing that division 

engineers complete reviews of 

commercial shellfish aquaculture 

activities in the estuaries or bays in their 

areas on a recurring basis, in 

coordination with interested agency and 

shellfish producers as appropriate. 

These reviews would occur at least 

every 5 years in conjunction with the 

NWP reissuance cycle, but may occur 

more frequently. 

This NWP is limited to work 

associated with the continued operation 

of existing commercial shellfish 

projects, many of which have been in 

place for hundreds of years. We feel the 

potential for adverse environmental 

impacts from such existing operations is 

minimal, and we support the objectives 

of the U.S. Department of Commerce’s 

Aquaculture Policy to increase shellfish 

productivity in this country. Although 

new projects are not authorized initially 

by this NWP, once authorized by 

another form of Department of the Army 

permit, such as a regional general 

permit or an individual permit, the 

commercial shellfish activities may 

continue in accordance with the terms 

and conditions of the issued permit 

and/or this NWP until expired. We are 

committed to conducting reviews of 

commercial shellfish activities to 

validate, collect data, and ensure that 

the Corps is authorizing only those 

activities that result in minimal 

individual or cumulative adverse effects 

on the aquatic environment with this 

NWP or other general permits for 

aquaculture activities. These reviews 

will begin as soon as possible (but no 

later than 2007) in all coastal divisions, 

and will involve Federal, State and local 


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agencies, stakeholders and the general 

public to help the Corps develop 

regional and special conditions to 

mitigate impacts to the aquatic 

environment or other aspects of the 

public interest which may result from 

commercial shellfish aquaculture 

activities. 

This NWP authorizes the continued 

operation of existing commercial 

shellfish aquaculture activities. Those 

activities may have been previously 

authorized by another form of DA 

authorization. The construction period 

for a DA permit is the period of time 

where the permittee is authorized to 

conduct work in navigable waters of the 

United States and/or discharge dredged 

or fill material into waters of the United 

States. Once the DA permit expires, 

further authorization is not required to 

maintain the structures or fills, but if 

additional work in navigable waters or 

discharges of dredged or fill material in 

jurisdictional waters are necessary for 

the continued operation of those 

activities, then another DA permit is 

required. The proposed NWP provides 

the DA authorization for the continued 

operation of previously authorized 

commercial shellfish aquaculture 

activities. For example, the continued 

operation of an aquaculture activity may 

involve removing and replacing 

structures in navigable waters of the 

United States on a recurring basis. 

New commercial shellfish 

aquaculture activities or the substantial 

modification (e.g., the culture of 

different species) of existing commercial 

shellfish aquaculture activities in waters 

of the United States may be authorized 

by individual permits or regional 

general permits. 

NWP E. Coal Remining Activities. We 

are proposing this new NWP to 

authorize the restoration of mine sites 

throughout the United States that are 

causing physical and/or chemical 

impacts to waters of the United States. 

Many of these sites were abandoned or 

closed prior to the 1977 Surface Mining 

Control and Reclamation Act (SMRCA) 

and are currently on state lists for 

reclamation, although funding is 

limited. Other sites could include bond 

forfeitures on active mine sites and ‘‘no 

cost’’ abandoned mine land projects 

under SMCRA (e.g., government 

sponsored construction projects). In 

some cases, due to changes in 

technology, additional coal may be 

excavated as part of the reclamation 

process. In other cases, these sites may 

be combined with adjacent unmined 

areas to put together a project that is 

economically viable. The net result of 

these larger projects is that sources of 

pollution to downstream waters, 

including acid mine drainage and 

sources of sediment, will be eliminated 

or substantially diminished when the 

site is reclaimed. The integrated permit 

processing procedure and its potential 

applicability to this NWP is addressed 

above in the preamble discussion for 

NWP 21. 

As a result of the reclamation activity 

on these remined areas, local water 

quality would be improved. 

Reclamation activities may also involve 

the construction of emergent wetlands 

to help improve the quality of water 

from mines. Net increases in aquatic 

functions may be determined through 

available assessment methods, 

including functional assessments. 

Assessments may be used to compare 

ecosystem functions and site conditions 

that existed prior to remining to the 

ecosystem functions and site conditions 

that are predicted to be in place at the 

site after reclamation has been 

completed. Reclamation activities may 

result in the establishment of permanent 

structures or fills, to sustain ecological 

functions at the site. Such permanent 

structures or fills may include treatment 

wetlands, permanent water diversion 

structures, and permanent 

impoundments. Permanent roads may 

also be constructed, to facilitate site 

access and maintenance of the 

reclaimed site. 

This NWP authorizes discharges of 

dredged or fill material into non-tidal 

waters of the United States. This NWP 

may be used on sites where the ratio of 

previously mined areas to new coal 

removal areas is greater than 60 percent, 

therefore, we are proposing to allow up 

to 40 percent of the mine site to include 

unmined areas. In addition, to qualify 

for authorization under this NWP, we 

are requiring that the applicant clearly 

demonstrate that the overall project, 

including the reclamation activity and 

any new mining, will result in a net 

increase in aquatic resource functions. 

Such increases in aquatic resource 

functions will be identified through 

local functional assessment methods 

that have been approved for use by the 

Corps district in that region. 

In response to a PCN, the district 

engineer may impose special conditions 

on a case-by-case basis to ensure that 

the adverse effects on the aquatic 

environment are minimal or exercise 

discretionary authority to require an 

individual permit for the work. The 

issuance of this NWP, as with any NWP, 

provides for the use of discretionary 

authority when valuable or unique 

aquatic areas may be affected by these 

activities. 

NWP F. Underground Coal Mining 

Activities. We are proposing a new NWP 

to authorize discharges of dredged or fill 

material into non-tidal waters of the 

United States resulting from 

underground coal mining activities. 

This type of mining involves excavating 

rock and soil on the surface to expose 

the coal seam and providing access for 

people, equipment, and ventilation 

facilities, a process referred to as ‘‘facing 

up.’’ In steep terrain, excavated material 

from these ‘‘face-up’’ areas may result in 

small fills if the excavation is limited to 

providing coal seam access or larger fills 

if facilities such as fill for coal 

processing plants and coal processing 

waste areas are needed. Underground 

mining may also create fills from 

excavating non-coal waste rock 

underground. The mine operator may 

have to place fill in small streams 

adjacent to the preparation facility in 

order to dispose of coal waste from the 

cleaning and preparation of coal. 

Similarly, the operator of a preparation 

facility may need an impoundment in 

an adjacent stream valley for 

withdrawal of cleaning process water. 

The integrated permit processing 

procedure and its potential applicability 

to this NWP is addressed in the 

preamble discussion for NWP 21. 

Examples of activities that may be 

authorized by this NWP include, but are 

not limited to, treatment facilities for 

controlling water pollution during 

mining and reclamation (e.g., acid mine 

drainage impoundments, sedimentation 

ponds), access and haul roads, diversion 

ditches, support facilities, processing 

areas, and mined waste impoundments 

or embankments. This NWP would also 

authorize permanent structures or fills 

that would remain after reclamation 

activities have been completed (e.g., 

permanent diversion structures to 

minimize erosion and prevent water 

from contacting toxin-producing 

deposits). 

The proposed NWP has a 1⁄2 acre 

limit, and is limited to discharges of 

dredged or fill into non-tidal waters of 

the United States. The NWP does not 

authorize discharges of dredged or fill 

material into non-tidal wetlands 

adjacent to tidal waters. 

The proposed NWP does not 

authorize coal preparation and 

processing activities outside of the mine 

site; those activities may be authorized 

by NWP 21. Pre-construction 

notification is required for all activities 

authorized by this NWP, and if 

reclamation is required by other 

statutes, then a copy of the reclamation 

plan must be submitted with the preconstruction notification. 


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Discussion of Proposed Modifications to 

Nationwide Permit General Conditions 

We are proposing to add a ‘‘Note’’ to 

the list of NWP general conditions, to 

ensure that prospective permittees are 

aware that they must comply with the 

general conditions for the NWPs, as well 

as any regional conditions imposed by 

division engineers and special 

conditions added by district engineers. 

The proposed note encourages 

prospective permittees to contact the 

appropriate Corps district office to 

determine if regional conditions have 

been added to an NWP. The proposed 

note also encourages prospective 

permittees to contact the appropriate 

Corps district office to determine the 

status of water quality certification and/ 

or Coastal Zone Management Act 

consistency for any NWP they wish to 

use. 

We are also proposing to place the 

general conditions in a different order, 

to make them easier to read and to 

facilitate compliance. The general 

conditions relating to various 

environmental concerns and public 

interest review factors are listed first, 

and are followed by the general 

conditions relating to administrative 

requirements. 

GC 1. Navigation. (Remaining as 

general condition 1.) We are proposing 

to modify this general condition by 

adding two provisions. First, we are 

proposing to add paragraph (b), which 

requires permittees to install any safety 

lights and signals required by the U.S. 

Coast Guard. 

Second, we are proposing to add 

paragraph (c), which is intended to 

address future and current conflicts 

between Corps water resources 

development projects and structures or 

other work in navigable waters 

authorized by Corps permits. There may 

be cases where activities authorized by 

DA permits interfere with navigation or 

any existing or future operation of the 

United States, and need to be removed. 

In May 2000, we issued guidance 

requiring district engineers to add this 

language as a general condition to all 

DA permits, including nationwide 

permit and regional general permit 

verifications, that authorize activities 

under Section 10 of the Rivers and 

Harbors Act of 1899. 

Adding paragraph (c) to this general 

condition will help ensure that 

permittees are aware that they may need 

to remove authorized structures or work 

if the structures or work interfere with 

free navigation in navigable waters of 

the United States. This provision 

applies to all NWPs that authorize 

section 10 activities, including those 

that do not require pre-construction 

notification. 

GC 2. Aquatic Life Movements. 

(Formerly general condition 4.) We are 

proposing to modify the phrase 

‘‘necessary life cycle movements,’’ by 

adding ‘‘when known’’ following it, to 

reflect the fact that necessary life cycle 

movements are not always well 

understood for the wide variety of 

indigenous aquatic species inhabiting 

waters of the United States. This 

condition still prohibits the substantial 

disruption of known life cycle 

movements of aquatic life. 

GC 3. Spawning Areas. (Formerly 

general condition 20.) To simplify this 

general condition, we are proposing to 

remove the phrase ‘‘including structures 

or work in navigable waters of the U.S. 

or discharges of dredged or fill material’’

because it merely lists the general types 

of activities authorized by NWP under 

sections 10 and 404. 

GC 4. Migratory Bird Breeding Areas. 

(Formerly general condition 23.) We are 

modifying this general condition to 

cover migratory birds generally (not just 

waterfowl) that use aquatic habitat as 

breeding areas. To simplify this general 

condition, we are proposing to remove 

the phrase ‘‘including structures or 

work in navigable waters of the U.S. or 

discharges of dredged or fill material’’

because it merely lists the general types 

of activities authorized by NWP under 

sections 10 and 404. 

GC 5. Shellfish Beds. (Formerly 

general condition 17.) To simplify this 

general condition, we are proposing to 

remove the phrase ‘‘including structures 

or work in navigable waters of the U.S. 

or discharges of dredged or fill material’’

because it merely lists the general types 

of activities authorized by NWP under 

sections 10 and 404. We are also adding 

a reference to new NWP D, which 

explicitly authorizes discharges related 

to existing commercial shellfish 

aquaculture activities, which will 

generally include shellfish beds. 

GC 6. Suitable Material. (Formerly 

general condition 18.) To simplify this 

general condition, we are proposing to 

remove the phrase ‘‘including structures 

or work in navigable waters of the U.S. 

or discharges of dredged or fill material’’

because it merely lists the general types 

of activities authorized by NWP under 

sections 10 and 404. 

GC 7. Water Supply Intakes. 

(Formerly general condition 16.) We are 

proposing to add the phrase ‘‘or 

improvement’’ after the word ‘‘repair’’

since it may be necessary for water 

authorities to modify their intake 

structures to comply with new 

regulations or other reasons. To simplify 

this general condition, we are proposing 

to remove the phrase ‘‘including 

structures or work in navigable waters 

of the U.S. or discharges of dredged or 

fill material’’ because it merely lists the 

general types of activities authorized by 

NWP under sections 10 and 404. 

GC 8. Adverse Effects from 

Impoundments. (Formerly general 

condition 22.) We are proposing to 

remove the last sentence of this general 

condition, because it merely lists the 

general types of activities authorized by 

NWP under sections 10 and 404. 

GC 9. Management of Water Flows. 

(Formerly general condition 21.) We are 

proposing to simplify this general 

condition, to require permittees to 

maintain the pre-construction course, 

condition, capacity, and location of 

open waters to the maximum extent 

practicable. Exceptions to this 

requirement may be made if the primary 

purpose of the NWP activity is to 

impound water or if the activity benefits 

the aquatic environment. For example, 

stream restoration activities authorized 

by NWP 27 may alter the preconstruction course, condition, 

capacity, and location of streams, while 

providing important aquatic resource 

functions and services. 

GC 10. Fills within 100-Year 

Floodplains. (Formerly general 

condition 26.) We are proposing to 

modify this general condition to simply 

require permittees to comply with 

applicable state or local floodplain 

management requirements that have 

been approved by the Federal 

Emergency Management Agency 

(FEMA). As discussed below, instead of 

the prohibitions imposed by the 

versions of this general condition that 

were present in the 2000 and 2002 

nationwide permits, we are proposing to 

address impacts to 100-year floodplains 

through the case-by-case review that 

occurs through the PCN process. 

This general condition was initially 

adopted in 2000 and modified in 2002. 

In the 2002 NWPs, this general 

condition prohibited the use of NWPs 

39, 40, 42, 43, and 44 to authorize 

discharges of dredged or fill material in 

waters of the United States resulting in 

permanent above-grade fills within 

mapped 100-year floodplains located 

below headwaters. It also prohibited the 

use of NWPs 39, 40, 42, and 44 to 

authorize discharges of dredged or fill 

material in waters of the United States 

resulting in permanent above-grade fills 

within mapped floodways above 

headwaters. 

As noted in other sections of this 

preamble, we are proposing to require 

PCNs for all activities authorized by 

NWP 29 (the proposed modification of 

which includes residential development 


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activities authorized by the NWP 39 

issued in 2002), as well as NWPs 39, 40, 

42, and 44. We are also proposing to 

require PCNs for NWP 43 activities 

resulting in the construction or 

expansion of stormwater management 

facilities (only maintenance of existing 

facilities is exempted from the PCN 

requirement). Thus, any activity that 

was previously prohibited in the 100- 

year floodplain by this general 

condition will now require a PCN. 

During the PCN review process, 

district engineers consider adverse 

impacts to the aquatic environment, as 

well as other public interest review 

factors, including floodplain values and 

flood hazards (see 33 CFR 330.1(e)(2)). 

If an NWP activity results in more than 

minimal adverse effects to the aquatic 

environment or any other public interest 

review factor, the district engineer will 

exercise discretionary authority and 

require an individual permit. Potential 

impacts to flood hazards and floodplain 

values that may be more than minimal 

can be assessed in greater depth during 

the individual permit review process. In 

such cases, the Corps will defer to the 

FEMA-approved state or local 

floodplain management requirements. 

Where there are regional concerns 

regarding development activities in 100- 

year floodplains involving discharges of 

dredged or fill material into waters of 

the United States, division engineers 

can regionally condition certain NWPs 

to restrict or prohibit use of those NWPs 

to authorize activities in those 

floodplains. 

One of the environmental benefits of 

the NWP program is that it provides 

incentives for project proponents to 

avoid and minimize impacts to the 

waters of the United States to qualify for 

an expedited NWP authorization instead 

of applying for individual permits, 

which generally require greater costs 

and time to obtain. Prohibiting the use 

of NWPs 39, 40, 42, 43, and 44 removes 

that incentive to reduce impacts to 

qualify for general permit authorization. 

If required to obtain individual permits, 

project proponents may propose larger 

activities with greater impacts to waters 

of the United States within 100-year 

floodplains. 

Modifying this general condition will 

increase government efficiency, by 

promoting conformity with other 

federal, state, and local programs. At the 

Federal level, the Federal Emergency 

Management Agency (FEMA) is the lead 

Federal agency for floodplain 

management. FEMA programs, such as 

the National Flood Insurance Program 

(NFIP) and other floodplain 

management activities, as well as State 

and local government land use planning 

and zoning efforts, allow floodplain 

development. The NFIP imposes 

construction standards and 

requirements for structures built in 100- 

year floodplains. Those standards and 

requirements must be met to qualify for 

flood insurance. State and local 

governments may impose more 

restrictive standards and requirements 

than the NFIP. 

To harmonize the NWP program with 

FEMA’s floodplain management 

programs, we are proposing to revise 

this general condition. Adverse effects 

to public interest review factors, 

especially floodplain values and flood 

hazards, will be evaluated during the 

PCN review process for NWPs 29, 39, 

40, 42, 43, and 44, as well as other 

NWPs, to the extent appropriate. 

Management of floodplain development 

is more appropriately achieved through 

state and local government land use 

planning, which can address impacts to 

both the aquatic and terrestrial 

components of 100-year floodplains. 

GC 11. Equipment. (Formerly general 

condition 5.) We are proposing to add 

the phrase ‘‘or mudflats’’ to minimize 

soil disturbance in these special aquatic 

sites. 

GC 12. Soil Erosion and Sediment 

Controls. (Formerly general condition 

3.) We are not proposing any changes to 

this general condition. 

GC 13. Removal of Temporary Fills. 

(Formerly general condition 24.) We are 

proposing to replace the phrase ‘‘their 

preexisting elevation’’ with ‘‘preconstruction conditions’’ to clarify that 

temporarily filled areas are to be 

restored to the condition they were in 

prior to construction. 

GC 14. Proper Maintenance. 

(Formerly general condition 2.) We are 

not proposing any changes to this 

general condition. 

GC 15. Wild and Scenic Rivers. 

(Formerly general condition 7.) We are 

not proposing any changes to this 

general condition. 

GC 16. Tribal Rights. (Formerly 

general condition 8.) We are not 

proposing any changes to this general 

condition. 

GC 17. Endangered Species. 

(Formerly general condition 11.) We are 

proposing to add a sentence to 

paragraph (a) of this general condition 

to state that no activity which may affect 

a listed species or critical habitat is 

authorized by NWP unless Section 7 

consultation addressing the effects of 

the proposed activity has been 

completed. The district engineer is 

responsible for making the ‘‘may effect’’

determination. 

We are also proposing to modify this 

general condition by adding a provision 

that requires district engineers to notify 

prospective permittees within 45 days 

whether the proposed activity ‘‘may 

affect’’ or will have ‘‘no effect’’ to listed 

species and designated critical habitat. 

The proposed modification also states 

that applicants cannot begin proposed 

activities until: (1) They are notified by 

the Corps that those activities will result 

in ‘‘no effect’’ on listed species or 

critical habitat, or (2) Section 7 

consultation has been completed (see 33 

CFR 330.4(f)(2)). The purpose of the 

proposed provision is to facilitate 

compliance with the Endangered 

Species Act and keep prospective 

permittees informed of the status of 

their pre-construction notifications. 

GC 18. Historic Properties. (Formerly 

general condition 12.) We are proposing 

to modify this general condition by 

adding a provision that requires district 

engineers to notify prospective 

permittees within 45 days whether 

consultation under Section 106 of the 

National Historic Preservation Act is 

required. The purpose of the proposed 

provision is to facilitate section 106 

compliance and keep prospective 

permittees informed of the status of 

their pre-construction notifications. 

We are also proposing to remove the 

reference to Appendix C to 33 CFR part 

325, where our regulations for the 

protection of historic properties are 

currently located. On April 25, 2005, we 

issued revised interim guidance for 

implementing Appendix C with the 

Advisory Council on Historic 

Preservation’s revised regulations at 36 

CFR part 800. We believe this general 

condition should have a more general 

reference to the Corps Regulatory 

Program’s current procedures for section 

106 compliance, since we are using 

Appendix C, the revised interim 

guidance, and other guidance for section 

106 compliance. We are in the process 

of revising regulatory program 

procedures for Section 106 compliance. 

GC 19. Designated Critical Resource 

Waters. (Formerly general condition 25). 

This general condition is being 

simplified but not substantively 

changed. We are removing wild and 

scenic rivers and critical habitat for 

threatened or endangered species from 

the list of waters to which this general 

condition applies, because general 

conditions 15 and 17 already address 

these waters and the previous version of 

this general condition merely stated that 

these other general conditions must be 

complied with. District engineers will 

pay particular attention to critical 

resource waters in determining whether 

special permit conditions are needed, or 

whether discretionary authority to 


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require individual permits should be 

exercised. 

GC 20. Mitigation. (Formerly general 

condition 19.) As discussed above, we 

are proposing to modify several NWPs 

(e.g., NWPs 39, 40, and 42) which may 

authorize discharges of dredged or fill 

material into wetlands, to require PCNs 

for all activities. For some wetland 

impacts authorized by NWPs, such as 

discharges of dredged or fill material 

resulting in the loss of small amounts of 

wetlands, it may not be practicable or 

appropriate to require compensatory 

mitigation for those losses. Therefore, 

we are establishing a threshold of 1⁄10

acre for compensatory mitigation 

requirements. For projects that cause 

losses that exceed this threshold, 

compensatory mitigation will generally 

be required. For losses below this 

threshold, district engineers will review 

PCNs to determine if compensatory 

mitigation is necessary to ensure that 

the work authorized by NWP results in 

minimal adverse effects on the aquatic 

environment, individually and 

cumulatively. Permit applicants whose 

projects will exceed the 1⁄10 acre loss 

threshold must include a description in 

their PCN of how they intend to satisfy 

the mitigation requirement. 

We are also proposing to remove the 

paragraph that defines practicable 

mitigation and provides examples of 

appropriate and practicable mitigation. 

As discussed elsewhere in this notice, 

we are proposing to add a definition of 

the term ‘‘practicable’’ to the 

‘‘Definitions’’ section of the NWPs, so 

we do not believe it is necessary to 

include the definition in this general 

condition. 

We are proposing to modify paragraph 

(d) of this general condition, to clarify 

that compensatory mitigation cannot be 

used to increase the acreage losses 

allowed by the acreage limits of the 

NWPs. 

For the reasons stated in the preamble 

discussion for the definition of ‘‘riparian 

areas’’ we are proposing to change the 

term ‘‘vegetated buffer’’ to ‘‘riparian 

areas.’’ District engineers will make 

case-by-case determinations as to 

whether the establishment and 

maintenance of riparian areas is 

necessary, either in-lieu of or in 

addition to, wetlands compensatory 

mitigation, if both open waters and 

wetlands exist on the project site. Those 

determinations are based on 

consideration of watershed needs. 

We are also proposing to remove the 

paragraph stating that compensatory 

mitigation plans submitted with a PCN 

may be either conceptual or detailed, 

because that provision is in paragraph 

(e) of the ‘‘pre-construction notification’’

general condition (GC 27). Conditioning 

NWP verifications to require the 

submission of detailed compensatory 

mitigation plans prior to commencing 

work in waters of the United States is 

also addressed by the ‘‘pre-construction 

notification’’ general condition. 

We are also proposing to add a new 

paragraph to this general condition, 

stating that district engineers may 

require mitigation when certain 

functions and services of waters of the 

United States are permanently adversely 

affected by NWP activities. This 

paragraph was adapted from a term in 

the NWP 12 issued in 2002. 

GC 21. Water Quality. (Formerly 

general condition 9.) We are proposing 

to simplify this general condition by 

removing paragraph (b) and adding a 

sentence which states that the district 

engineer may require water quality 

management measures to ensure that the 

authorized activity does not result in 

more than minimal degradation of water 

quality. 

GC 22. Coastal Zone Management. 

(Formerly general condition 10.) We are 

proposing to modify this general 

condition to clarify that additional 

measures may be required to ensure that 

the authorized activity is consistent 

with State coastal zone management 

requirements. 

GC 23. Regional and Case-by-Case 

Conditions. (Formerly general condition 

6.) We are proposing to add U.S. EPA 

to the list of agencies issuing water 

quality certifications, since that agency 

issues water quality certifications in 

areas where there are no state or tribal 

water quality standards. We are also 

proposing to add language clarifying 

that the state issues Coastal Zone 

Management Act consistency 

determinations. 

GC 24. Use of Multiple Nationwide 

Permits. (Formerly general condition 

15.) The only modification we are 

proposing is to change the example from 

a parenthetical expression to a complete 

sentence. 

GC 25. Transfer of Nationwide Permit 

Verifications. We are proposing a new 

NWP general condition to address the 

transfer of NWP verifications when the 

project site is transferred from the 

project proponent who received the 

original NWP verification to a new 

project proponent. The new project 

proponent may have purchased the 

project site for the verified NWP 

activity. 

The NWP verification would be 

transferred to the new owner if the 

permittee submits a letter to the 

appropriate Corps district office, and the 

transferee signs the statement provided 

in this general condition. The district 

office would then validate the transfer 

by sending a confirmation letter to the 

new permittee. 

GC 26. Compliance Certification 

(Formerly general condition 14.) We are 

proposing only minor grammatical 

changes to this general condition. 

GC 27. Pre-construction Notification. 

(Formerly general condition 13.) We are 

proposing to simplify this general 

condition by deleting text that is 

redundant with the terms of specific 

NWPs. As part of our efforts to make the 

NWPs easier to understand, if there is 

information required to be submitted 

with a PCN that is only applicable to a 

particular NWP, those requirements are 

indicated in the ‘‘Notification’’

paragraph of that NWP. 

We are proposing to add a sentence to 

paragraph (a)(3) of this general 

condition, to clarify that the permittee 

cannot begin the NWP activity until 

consultations required by Section 7 of 

the Endangered Species Act (ESA) and/ 

or Section 106 of the National Historic 

Preservation Act (NHPA) are completed. 

The NWP regulations state that if the 

prospective permittee notifies the 

district engineer that Federally-listed 

endangered or threatened species or 

critical habitat might be affected or are 

in the vicinity of the project, he or she 

cannot begin work until notified by the 

district engineer that the requirements 

of the ESA have been satisfied (see 33 

CFR 330.5(f)(2)). There is a similar 

provision for compliance with Section 

106 of the NHPA at 33 CFR 330.5(g)(2). 

We are proposing to modify paragraph 

(b)(3), which lists the required contents 

of pre-construction notifications, by 

deleting the word ‘‘brief’’ and clarifying 

that PCNs must include descriptions of 

proposed NWP activities that are 

sufficiently detailed for the district 

engineer to determine that any adverse 

impacts to the aquatic environment are 

minimal, both individually and 

cumulatively, and to develop any 

special conditions, including 

compensatory mitigation, that may be 

needed to ensure that this requirement 

is satisfied. We believe that providing 

more detailed descriptions of proposed 

NWP activities will facilitate reviews of 

PCNs. 

In paragraph (b)(4), we are also 

proposing to require that PCNs include 

delineations of special aquatic sites and 

other waters of the United States on the 

project site. We believe that more 

complete delineations will help 

expedite reviews of PCNs, by indicating 

clearly the proposed impacts to waters 

of the United States. We are also 

proposing to modify this paragraph to 

clarify that there may be extended 

delays if the permittee asks the Corps to 


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conduct the delineation and the project 

site is large or contains many wetland 

areas. 

In paragraph (b)(5), we are proposing 

to add a requirement for the prospective 

permittee to submit a statement 

describing how the mitigation 

requirement will be satisfied for those 

activities resulting in the loss of greater 

than 1⁄10 acre of wetlands. 

We are proposing to add a provision 

to paragraph (d) to clarify the agency 

coordination process for NWP 37 PCNs. 

This provision states that emergency 

watershed protection and rehabilitation 

activities can proceed immediately, and 

a district engineer will consider 

comments received in response to 

agency coordination of the PCN (i.e., for 

NWP 37 activities resulting in the loss 

of greater than 1⁄2 acre of waters of the 

United States) when determining if the 

case-specific NWP 37 authorization 

should be modified, suspended, or 

revoked. 

In addition, we are proposing to drop 

one NWP general condition. 

GC 27. Construction Period. This 

general condition was first adopted in 

2002. During the implementation of the 

2002 NWPs, questions arose that have 

required us to revisit this general 

condition. Section 404(e)(2) of the Clean 

Water Act places a five-year limit on 

general permits issued under section 

404. General condition 27 allowed a 

district engineer to place any 

completion date on an NWP 

verification, based on the amount of 

time a project proponent estimated 

would be necessary to finish 

constructing the NWP activity and 

consideration of the public interest. 

This general condition did not specify 

any limits to these completion dates, in 

effect providing the district engineer 

with the authority to state that the NWP 

activity was authorized for any period of 

time. 

The NWP regulations contain a 

provision that allows permittees to 

continue work for one year in reliance 

on an NWP authorization, if that NWP 

has expired or been modified or 

revoked, as long as the activity was 

under construction or under contract to 

commence construction (see 33 CFR 

330.6(b)). If that work cannot be 

completed within that one-year time 

period, then the permittee would have 

to obtain another DA authorization. We 

believe this provision is sufficient to 

address the concern with projects that 

may not be completed before an NWP 

expires. 

Proponents of NWP activities that will 

require substantial amounts of time to 

complete (greater than one year beyond 

the expiration of currently applicable 

NWPs) should consider whether it 

would be more advantageous to pursue 

an individual permit authorization. 

There is greater flexibility in 

construction periods that can be 

authorized by individual permits. An 

individual permit authorization can also 

be extended, as long as the district 

engineer determines that the time 

extension would be consistent with 

applicable regulations and would not be 

contrary to the public interest. 

Discussion of Proposed Modifications to 

Existing Nationwide Permit Definitions 

We are proposing changes to some of 

the NWP definitions. If a definition is 

not discussed below, we are not 

proposing any substantive changes to 

that definition. 

Best Management Practices. We are 

proposing to modify this definition by 

removing the last sentence, since it does 

not help define this term. Instead, this 

sentence describes a potential 

consequence of implementing best 

management practices. 

Compensatory Mitigation. We are 

proposing to modify this definition by 

removing the phrase ‘‘For the purposes 

of Section 10/404, compensatory 

mitigation is’’ because the definitions in 

this section apply only to the NWP 

program. Therefore, it is not necessary 

to refer to section 10 or section 404. We 

are also proposing to replace ‘‘creation’’

with ‘‘establishment (creation)’’ to be 

consistent with the wetland project 

types described in Regulatory Guidance 

Letter 02–02. 

Creation. We are proposing to remove 

this term, and use the definition of 

‘‘establishment (creation)’’ in its place. 

Currently serviceable. We are 

proposing to move this definition from 

NWP 3 to the ‘‘Definitions’’ section, 

since this definition applies to more 

than one NWP (i.e., NWPs 3 and 41, as 

well as proposed new NWP C). 

Enhancement. We are proposing to 

modify this definition to be consistent 

with the wetland project type described 

in Regulatory Guidance Letter 02–02 

and the definition in the Council on 

Environmental Quality’s April 2006 

report entitled ‘‘Conserving America’s 

Wetlands 2006: Two Years of Progress 

Implementing the President’s Goal.’’

Establishment (creation). We are 

proposing to modify this definition to be 

consistent with the wetland project type 

described in Regulatory Guidance Letter 

02–02 and the definition in the Council 

on Environmental Quality’s April 2006 

report entitled ‘‘Conserving America’s 

Wetlands 2006: Two Years of Progress 

Implementing the President’s Goal.’’

This term would also be applied to the 

development of aquatic resources at 

upland or deepwater sites. 

Farm tract. We are proposing to 

remove this definition, since this term is 

not used in the proposed NWPs. 

Flood fringe. We are proposing to 

remove this definition, since this term is 

not used in the proposed NWPs. 

Floodway. We are proposing to 

remove this definition, since this term is 

not used in the proposed NWPs. 

Loss of waters of the United States. 

We are proposing to modify this 

definition by replacing the phrase 

‘‘above-grade, at-grade, or below-grade 

fills’’ with ‘‘discharges of dredged or fill 

material’’ to be consistent with the 

definitions of ‘‘fill material’’ and 

‘‘discharge of fill material’’ issued on 

May 9, 2002 (67 FR 31129) at 33 CFR 

323.2. We are also proposing to 

eliminate the sentence stating that 

impacts to ephemeral streams are not 

included in the linear foot limits for 

stream impacts in NWPs 39, 40, 42, and 

43, because of the proposed changes to 

those NWPs. For those NWPs with 300 

linear foot limits for filling or excavating 

stream bed, ephemeral streams will be 

included when determining compliance 

with that limit. As discussed elsewhere 

in this notice, the district engineer can 

issue a written waiver to those linear 

foot limits for ephemeral and 

intermittent streams on a case-by-case 

basis if the proposed work will have 

minimal individual and cumulative 

adverse effects on the aquatic 

environment. We are proposing to add 

a sentence to this definition to clarify 

that activities exempt from section 404 

permit requirements are not included 

when calculating the loss of waters of 

the United States. 

Open water. We are proposing to 

change this definition by adding a 

sentence that describes what an 

ordinary high water mark is. 

Permanent above-grade fill. We are 

proposing to remove this definition, 

since this term is not used in the 

proposed NWPs. 

Practicable. We are proposing to move 

this definition from the current 

‘‘mitigation’’ general condition (GC 20) 

to the ‘‘Definitions’’ section of the 

NWPs. 

Pre-construction notification. We are 

proposing to add this definition to 

clarify the various circumstances under 

which a PCN may be submitted. 

Preservation. We are proposing to 

modify this definition to be consistent 

with the definition for ‘‘protection/ 

maintenance (preservation)’’ in 

Regulatory Guidance Letter 02–02 and 

the definition in the Council on 

Environmental Quality’s April 2006 

report entitled ‘‘Conserving America’s 


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Wetlands 2006: Two Years of Progress 

Implementing the President’s Goal.’’

Re-establishment. We are proposing to 

add this definition, to be consistent with 

the wetland project type described in 

Regulatory Guidance Letter 02–02 and 

the definition in the Council on 

Environmental Quality’s April 2006 

report entitled ‘‘Conserving America’s 

Wetlands 2006: Two Years of Progress 

Implementing the President’s Goal.’’

Rehabilitation. We are proposing to 

add this definition, to be consistent with 

the wetland project type described in 

Regulatory Guidance Letter 02–02 and 

the definition in the Council on 

Environmental Quality’s April 2006 

report entitled ‘‘Conserving America’s 

Wetlands 2006: Two Years of Progress 

Implementing the President’s Goal.’’

Restoration. We are proposing to 

modify this definition to be consistent 

with the wetland project type described 

in Regulatory Guidance Letter 02–02 

and the definition in the Council on 

Environmental Quality’s April 2006 

report entitled ‘‘Conserving America’s 

Wetlands 2006: Two Years of Progress 

Implementing the President’s Goal.’’

Riparian areas. We are proposing to 

replace the definition of ‘‘vegetated 

buffers’’ with a definition of ‘‘riparian 

areas’’ since the latter term more 

accurately reflects what is normally 

required as mitigation for NWP 

activities where there are streams and 

other open waters on a project site. 

Since 1996, we have placed more 

emphasis in the NWP program on 

protecting streams and other open 

waters. Also, with the issuance of 

Regulatory Guidance Letter 02–02, we 

have taken a watershed approach to 

compensatory mitigation, which 

includes consideration of the ecological 

functions provided by riparian areas. 

In two of the NWPs issued on 

December 13, 1996 (61 FR 65874), 

specifically NWPs 29 and 30, we began 

requiring the establishment and 

maintenance of vegetated buffers next to 

open waters, such as streams, to 

preclude water quality degradation from 

erosion and sedimentation. That 

requirement was added to some of the 

NWPs issued on March 9, 2000 (65 FR 

12818). The 2000 NWPs clarified that 

vegetated buffers could be required only 

for perennial or intermittent streams or 

other open waters on the site. The 

vegetated buffer requirement does not 

apply to other aquatic resources, such as 

wetlands. 

Since the requirements of past NWPs, 

as well as the current NWPs, have 

focused on using vegetated areas next to 

open waters such as streams to ensure 

that certain NWP activities result in 

minimal adverse effects on the aquatic 

environment, the term ‘‘riparian area’’ is 

more accurate, and more clearly 

conveys to the regulated public a 

specific type of mitigation that may be 

required for some NWPs. The term 

‘‘vegetated buffer’’ is a vague term, 

because it can apply to any vegetated 

area next to some feature in the 

landscape. 

In 2002, the National Research 

Council (NRC) published a report 

entitled ‘‘Riparian Areas: Functions and 

Strategies for Management.’’ The 

proposed definition of ‘‘riparian areas’’

was adapted with modifications from 

the definition developed by the NRC. 

Stream channelization. We are 

proposing to simplify this definition, by 

generally considering man-made 

changes to a stream’s course, condition, 

capacity, or location to be stream 

channelization activities. 

Structure. We are proposing to add 

this definition to the NWPs. The 

examples in this definition were 

adapted from 33 CFR 322.2(b). 

Vegetated buffer. For the reasons 

discussed in the preamble discussion of 

the proposed definition of ‘‘riparian 

area’’ we are proposing to remove this 

definition. 

Waterbody. We are proposing to 

modify this definition to clarify that a 

waterbody is a jurisdictional water of 

the United States, and that it would 

have flowing or standing water during 

years with normal patterns of 

precipitation to the extent that an 

ordinary high water mark or other 

indicators of jurisdiction can be 

determined. The waterbody would 

include wetland areas. We are also 

proposing to amend this definition by 

adding a sentence that describes what 

an ordinary high water mark is. We are 

proposing to modify this definition so 

that a waterbody and its adjacent 

wetlands would be considered together 

as a single aquatic unit. The purpose of 

this definition is not to identify which 

waterbodies are jurisdictional, but to 

clarify how adjacent waters of the 

United States are grouped into 

waterbodies, especially for the purposes 

of implementing 33 CFR 330.2(i), which 

addresses single and complete projects 

for the NWPs. 

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 

The proposed NWPs will increase the 

number of permittees who are required 

to submit a PCN. The content of the 

PCN is not changed from the current 

NWPs, but the paperwork burden will 

increase because of the increased 

number of PCNs submitted. The Corps 

estimates the increased paperwork 

burden at 4,500 hours per year. This is 

based on an average burden to complete 

and submit a PCN of 10 hours, and an 

estimated 450 additional projects that 

will require PCNs. Prospective 

permittees who are required to submit a 

pre-construction notification (PCN) 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. 

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 April 30, 2008). 

Executive Order 12866 

Under Executive Order 12866 (58 FR 

51735, October 4, 1993), we must 

determine whether the regulatory action 

is ‘‘significant’’ and therefore subject to 

review by OMB and the requirements of 

the Executive Order. The Executive 

Order defines ‘‘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 


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President’s priorities, or the principles 

set forth in the Executive Order. 

Pursuant to the terms of Executive 

Order 12866, we have determined that 

the proposed rule is a ‘‘significant 

regulatory action’’ and the draft was 

submitted to OMB for review. 

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 proposed issuance 

and modification of NWPs does not 

have federalism implications. We do not 

believe that the proposed 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 proposed 

NWPs will not impose any additional 

substantive obligations on State or local 

governments. Therefore, Executive 

Order 13132 does not apply to this 

proposal. 

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 statues under which the Corps 

issues, reissues, or modifies nationwide 

permits 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 5 years. If the current 

NWPs are not reissued, they will expire 

on March 18, 2007, and 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. 

Nationwide permits help relieve 

regulatory burdens on small entities 

who need to obtain DA permits. They 

provide an expedited form of 

authorization, provided the project 

proponent meets all terms and 

conditions of the NWPs. In FY 2003, the 

Corps issued 35,317 NWP verifications, 

with an average processing time of 27 

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 times for the 4,035 standard 

permits and the 3,040 letters of 

permission issued during FY 2003 were 

187 days and 89 days, respectively. The 

NWPs proposed for reissuance, as well 

as the proposed new NWPs, 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 draft decision 

documents that were prepared for each 

NWP. The revised NWPs are not 

expected to significantly increase cost or 

paperwork burden for authorized 

activities (relative to the current NWPs), 

including those conducted by small 

businesses. 

When compared to the compliance 

costs for individual permits, most of the 

terms and conditions of the proposed 

NWPs are expected to result in 

decreases in the costs of complying with 

the permit requirements of sections 10 

and 404. The anticipated decrease in 

compliance cost results from the lower 

cost of obtaining NWP authorization 

instead of standard permits. Unlike 

standard permits, NWPs authorize 

activities without the requirement for 

public notice and comment on each 

proposed activity. 

Another requirement of Section 404(e) 

of the Clean Water Act is that general 

permits, including nationwide permits, 

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. 

After considering the economic 

impacts of the proposed nationwide 

permits 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 the revised NWPs will not 

impose substantially higher costs on 

small entities than those of the existing 

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 than can be authorized 

through NWPs, because we are adding 

several new NWPs, and we are 

removing some limitations in existing 

NWPs and replacing them with PCN 

requirements that will allow the district 


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engineer to judge whether any adverse 

effects of the proposed project are more 

than minimal, and authorize the project 

under an NWP if they are not. 

We are interested in the potential 

impacts of the proposed NWPs on small 

entities and welcome comments on 

issues related to such impacts. 

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 

proposed NWPs 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 proposed 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, this proposal is not subject to 

the requirements of Sections 202 and 

205 of the UMRA. For the same reasons, 

we have determined that the proposed 

NWPs contains no regulatory 

requirements that might significantly or 

uniquely affect small governments. 

Therefore, the proposed issuance and 

modification 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 

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 proposed NWPs are not subject to 

this Executive Order because they are 

not economically significant as defined 

in Executive Order 12866. In addition, 

the proposed 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 proposed NWPs do not have 

tribal implications. It is 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. However, in 

the spirit of Executive Order 13175, we 

specifically request comment from tribal 

officials on the proposed rule. 

Environmental Documentation 

A preliminary decision document, 

which includes a draft environmental 

assessment and Finding of No 

Significant Impact (FONSI) has been 

prepared for each proposed NWP. These 

preliminary decision documents are 

available at: www.regulations.gov 

(docket ID number COE–2006–0005). 

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. 


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The proposed NWPs 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 proposed 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. 

Authority 

We are proposing to issue new NWPs, 

modify existing NWPs, and reissue 

NWPs without change 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: September 18, 2006. 

Don T. Riley, 

Major General, U.S. Army, Director of Civil 

Works. 

Nationwide Permits, Conditions, 

Further Information, and Definitions 

A. Index of Nationwide Permits, 

Conditions, 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. Oil Spill Cleanup 

21. Surface Coal Mining Operations 

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 

39. Commercial and Institutional 

Developments 

40. Agricultural Activities 

41. Reshaping Existing Drainage Ditches 

42. Recreational Facilities 

43. Stormwater Management Facilities 

44. Mining Activities 

A. Emergency Repair Activities 

B. Discharges into Ditches and Canals 

C. Pipeline Safety Program Designated 

Time Sensitive Inspections and 

Repairs 

D. Commercial Shellfish Aquaculture 

Activities 

E. Coal Remining Activities 

F. Underground Coal Mining Activities 

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. Wild and Scenic Rivers 

16. Tribal Rights 

17. Endangered Species 

18. Historic Properties 

19. Designated Critical Resource Waters 

20. Mitigation 

21. Water Quality 

22. Coastal Zone Management 

23. Regional and Case-by-Case 

Conditions 

24. Use of Multiple Nationwide Permits 

25. Transfer of Nationwide Permit 

Verifications 

26. Compliance Certification 

27. Pre-Construction Notification 

Further Information 

Definitions 

Best management practices (BMPs) 

Compensatory mitigation 

Currently serviceable 

Enhancement 

Ephemeral stream 

Establishment (creation) 

Independent utility 

Intermittent stream 

Loss of waters of the United States 

Non-tidal wetland 

Open water 

Perennial stream 

Practicable 

Pre-construction notification 

Preservation 

Re-establishment 

Rehabilitation 

Restoration 

Riffle and pool complex 

Riparian areas 

Single and complete 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, or current 

construction codes or safety standards 

that are necessary to make repair, 

rehabilitation, or replacement are 

authorized. 

(b) This NWP also authorizes the 

removal of accumulated sediments and 

debris in the vicinity of and within 

existing structures (e.g., bridges, 

culverted road crossings, water intake 


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structures, etc.) and 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 immediate 

vicinity of the structure to the 

approximate dimensions that existed 

when the structure was built, but cannot 

extend further 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 upland 

area unless otherwise specifically 

approved by the district engineer under 

separate authorization. The placement 

of 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) Separate authorization is required 

for temporary structures or work in 

navigable waters of the United States or 

temporary discharges of dredged or fill 

material into waters of the United 

States, if those activities are necessary to 

conduct the maintenance activity and 

are not exempt from permit 

requirements. This NWP does not 

authorize maintenance dredging for the 

primary purpose of navigation or 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 27). 

Where maintenance dredging is 

proposed, 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, clam 

and oyster digging, 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 gages, water recording 

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. (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, 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 

and sampling the exposed material. The 

area in which the exploratory trench is 

dug must be restored to its preconstruction elevation upon completion 

of the work This NWP authorizes the 

construction of temporary pads, 

provided the discharge does not exceed 

25 cubic yards. 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 of outfall structures 

and associated intake structures, where 

the effluent from the outfall is 

authorized, conditionally authorized, or 

specifically exempted, or that are 

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 27.) (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 the Interior, Minerals 

Management Service. 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). 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 27.) (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. 


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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 

preconstruction 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 

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 that 

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′′ 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. 

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 does not 

result in the loss of greater than 1⁄2 acre 

of those waters. This NWP does not 

authorize discharges into non-tidal 

wetlands adjacent to tidal waters of the 

United States to construct substation 

facilities. 

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. 

This permit does not authorize the 

construction or maintenance of access 

roads. The construction of permanent 

maintenance roads may be authorized 

by NWP 14 and the construction of 

temporary construction roads may be 

authorized by NWP 33. 

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. 

Notification: The permittee must 

submit a pre-construction notification to 

the district engineer prior to 

commencing the activity if: (1) A section 

10 permit is required, or (2) the 

discharge will result in the permanent 

or temporary loss of greater than 1⁄10

acre of waters of the United States. (See 

general condition 27.) (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), 

copies of the PCN 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: 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. 

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 bank stabilization activity is 

no more than 500 feet in length, unless 

this criterion is waived in writing by the 

district engineer; 

(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 this 

criterion is waived in writing by the 

district engineer; 

(d) No material is of the type, or is 

placed in any location, or in any 

manner, to impair surface water flow 

into or out of any wetland area; 

(e) No material is placed in a manner 

that will be eroded by normal or 

expected high flows (properly anchored 

trees and treetops may be used in low 

energy areas); and, 

(f) The activity is not a stream 

channelization activity. 

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; (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 27.) (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 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. This NWP does not 

authorize temporary construction, 

access, and dewatering necessary to 

construct the linear transportation 

project; those activities may be 

authorized by NWP 33. 

Notification: The permittee must 

submit a pre-construction notification to 

the district engineer prior to 

commencing the activity if: (1) The 

discharge causes the loss of greater than 

1⁄10 acre of waters of the United States; 

or (2) there is a discharge in a special 

aquatic site, including wetlands. (See 

general condition 27.) (Sections 10 and 

404.) 

Note: Some discharges for the construction 

of farm roads, 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 bridges across navigable waters of the 

United States, including cofferdams, 

abutments, foundation seals, piers, and 


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temporary construction and access fills, 

provided such discharges have been 

authorized by the U.S. Coast Guard as 

part of the bridge permit. Causeways 

and approach fills are not included in 

this NWP and will require an individual 

section 404 permit or a regional general 

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 

on the upland 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 27.) (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 27.) (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. Oil Spill Cleanup. Activities 

required for the containment and 

cleanup of oil and hazardous substances 

that are subject to the National Oil and 

Hazardous Substances Pollution 

Contingency Plan (40 CFR part 300) 

provided that the work is done in 

accordance with the Spill Control and 

Countermeasure Plan required by 40 

CFR 112.3 and any existing state 

contingency plan and provided that the 

Regional Response Team (if one exists 

in the area) concurs with the proposed 

containment and cleanup action. 

(Sections 10 and 404.) 

21. Surface Coal Mining Operations. 

Discharges of dredged or fill material 

into waters of the United States 

associated with surface coal mining and 

reclamation operations provided the 

activities are already authorized by the 

Department of Interior (DOI), Office of 

Surface Mining (OSM), or by states with 

approved programs under Title V of the 

Surface Mining Control and 

Reclamation Act of 1977 or are currently 

being processed as part of an integrated 

permit processing procedure. 

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 27.) 

(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) if there is a discharge of dredged 

or fill material in a special aquatic site, 

including wetlands. (See general 

condition 27.) The permittee cannot 

commence the activity until informed 

by the district engineer that compliance 

with the ‘‘Historic Properties’’ general 

condition is completed. 

Note: 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 Corps permit is required for vessel 

disposal in waters of the United States, a 

separate Department of the Army 

authorization will be required. 

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 27). The activities that require 

pre-construction notification are listed 

in the appropriate Regulatory Guidance 

Letters. (Sections 10 and 404.) 

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. Current activities approved for 

authorization under this NWP are found in 

the Corps’ Regulatory Guidance Letters, 

which are available at: http:// 

www.usace.army.mil/inet/functions/cw/ 

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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 

a State section 404 permit are not included 

in this NWP, but certain structures will be 

exempted by Section 154 of Pub. L. 94–587, 

90 Stat. 2917 (33 U.S.C. 591) (see 33 CFR 

322.3(a)(2)). 

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 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 of former waters, the 

enhancement of degraded tidal and nontidal wetlands and riparian areas, the 

establishment of tidal and non-tidal 

wetlands and riparian areas, the 

restoration of non-tidal streams, and the 

restoration and enhancement of nontidal 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; 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 and 

drainage ditches; the removal of existing 

drainage structures; 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; 

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 does not authorize the 

conversion of a stream or natural 

wetlands to another aquatic use, such as 

the establishment of an impoundment 

for waterfowl habitat. This NWP does 

not authorize stream channelization. 

However, this NWP authorizes the 

relocation of non-tidal waters, including 

non-tidal wetlands, on the project site 

provided there are net gains in aquatic 

resource functions and services. For 

example, this NWP may authorize the 

establishment of an open water 

impoundment in a non-tidal emergent 

wetland, provided the non-tidal 

emergent wetland is replaced by 

establishing that wetland type on the 

project site. 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. 

Reversion. For enhancement, 

restoration, and establishment activities 

conducted: (1) In accordance with the 

terms and conditions of a binding 

wetland enhancement, restoration, or 

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), or their designated state 

cooperating agencies; (2) as voluntary 

wetland restoration, enhancement, and 

establishment actions documented by 

the NRCS pursuant to NRCS regulations; 

or (3) on reclaimed surface coal mine 

lands, in accordance with a Surface 

Mining Control and Reclamation Act 

permit issued by the OSM 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, 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 that has not 

been abandoned 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 

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 will be at that 

future date. The requirement that the 

activity result 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 wetland enhancement, 

restoration, or establishment agreement; 

(2) the NRCS documentation for the 

voluntary wetland restoration, 

enhancement, or establishment action; 

or (3) the SMCRA permit issued by OSM 

or the applicable state agency. 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. Except as provided 

below, the permittee must submit a preconstruction notification to the district 

engineer prior to commencing the 

activity. (See general condition 27.) 


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Except for reversion activities, preconstruction notification is not required 

for: 

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

in accordance with the terms and 

conditions of a binding wetland 

enhancement, restoration, or 

establishment agreement between the 

landowner and the U.S. FWS, NRCS, 

FSA, NMFS, NOS, or their designated 

state cooperating agencies; 

(2) Voluntary wetland restoration, 

enhancement, and establishment actions 

documented by the NRCS pursuant to 

NRCS regulations; or 

(3) The reclamation of surface coal 

mine lands, in accordance with an 

SMCRA permit issued by the OSM or 

the applicable state agency. 

However, the permittee should submit 

a copy of the appropriate 

documentation. (Sections 10 and 404.) 

Note: This NWP can be used to authorize 

compensatory mitigation projects, including 

mitigation banks and in-lieu fee programs. 

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 or a multiple unit 

residential development. 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 this 300 

linear foot limit is waived in writing by 

the district engineer. This NWP does not 

authorize discharges into non-tidal 

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 27.) (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, 

streams, etc., to preclude water quality 

degradation due to erosion and 

sedimentation. This NWP does not 

authorize the construction of new dikes, 

roads, water control structures, etc. 

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. 

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, by 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. Activities, including the 

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. This NWP does not 

authorize the removal of sediment and 

associated vegetation from the natural 

water courses except when these 

activities have been included in the 

maintenance baseline. All dredged 

material must be placed in an upland 

site or an 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 


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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 27). 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 

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 

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 upland areas, 

dredged material must be returned to its 

original location, and the affected areas 

must be restored to the pre-project 

conditions. Cofferdams cannot be used 

to dewater wetlands or other aquatic 

areas to change their use. Structures left 

in place after cofferdams are removed 

require a 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 27). The pre-construction 

notification must include a mitigation 

plan of reasonable measures to avoid 

and minimize adverse effects to aquatic 

resources. (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. 


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Notification: The permittee must 

submit a pre-construction notification to 

the district engineer prior to 

commencing the activity. For an 

existing cranberry production operation, 

the pre-construction notification needs 

only to be submitted once during the 

period that this NWP is valid, and the 

NWP would authorize that existing 

operation, provided the 10-acre limit is 

not exceeded. (See general condition 

27.) (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 

upland 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 placement of precast concrete planks or slabs, unless the 

50 cubic yard limit is waived in writing 

by the district engineer; 

(b) The boat ramp does not exceed 20 

feet in width, unless this criterion is 

waived in writing by the district 

engineer; 

(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 the 

upland; 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 

may 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 27.) (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); or 

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

Burned-Area Emergency Rehabilitation 

Handbook (FSH 509.13); or 

(c) The Department of the Interior for 

wildland fire management burned area 

emergency stabilization and 

rehabilitation (DOI Manual part 620, Ch. 

3). 

Notification: The permittee must 

submit a pre-construction notification to 

the district engineer prior to 

commencing the activity (see general 

condition 27). (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 

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 27.) (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, new ski areas, or oil and gas 

wells 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 this 300 

linear foot limit is waived in writing by 

the district engineer. 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 27.) (Sections 10 and 404.) 

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 does not 

authorize discharges into non-tidal 

wetlands adjacent to tidal waters. 

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. This NWP 

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

This NWP does not authorize the 

relocation of greater than 300 linear feet 

of existing serviceable drainage ditches 

constructed in non-tidal streams, unless 

for drainage ditches constructed in 

intermittent and ephemeral streams, this 

300 linear foot limit is waived in writing 

by the district engineer. 

Notification: The permittee must 

submit a pre-construction notification to 

the district engineer prior to 

commencing the activity. (See general 

condition 27.) (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). 

41. Reshaping Existing Drainage 

Ditches. Discharges of dredged or fill 

material into non-tidal waters of the 

United States, excluding non-tidal 


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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. The reshaping of the 

ditch cannot increase drainage capacity 

beyond the original design capacity nor 

can it expand the area drained by the 

ditch as originally designed (i.e., the 

capacity of the ditch must be the same 

as originally designed and it cannot 

drain additional wetlands or other 

waters of the United States). 

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 27.) 

(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 this 300 

linear foot limit is waived in writing by 

the district engineer. 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 27.) (Section 404.) 

43. Stormwater Management 

Facilities. Discharges of dredged or fill 

material into non-tidal waters of the 

United States for the construction and 

maintenance of stormwater management 

facilities, including activities for the 

excavation of stormwater ponds/ 

facilities, detention basins, and 

retention basins; the installation and 

maintenance of water control structures, 

outfall structures and emergency 

spillways; and the maintenance 

dredging of existing stormwater 

management ponds/facilities and 

detention and retention basins. 

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 this 300 

linear foot limit is waived in writing by 

the district engineer. This NWP does not 

authorize discharges into non-tidal 

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. 

Maintenance activities are limited to 

restoring the original design capacities 

of the stormwater management facility. 

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 27.) (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 wetlands. 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 27.) 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.) 

A. Emergency Repair Activities. This 

NWP authorizes the repair, 

rehabilitation, or replacement of 

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. 

This NWP also 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 that a PCN is filed, 

unless this condition is waived by the 

district engineer. This NWP cannot be 

used to reclaim lands lost to normal 

erosion processes over an extended 

period. 

Minor dredging is limited to the 

amount necessary to restore the preexisting bottom contours of the 

waterbody. If temporary structures and 

discharges, including cofferdams, are 

necessary to conduct the repair, 

rehabilitation, or replacement of 

structures or fills, separate authorization 

is required. 

Notification: The permittee must 

submit a pre-construction notification to 

the district engineer (see general 

condition 27) 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: Uplands 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.) 

B. Discharges in Ditches and Canals. 

Discharges of dredged or fill material 

into ditches and canals that are 

constructed in uplands, receive water 

from another water of the United States, 

divert water to another water of the 

United States, and 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 or canals 

constructed in streams or other waters 


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of the United States, or in streams that 

have been relocated in uplands. 

Notification: The permittee must 

submit a pre-construction notification to 

the district engineer prior to 

commencing the activity, if the dredged 

or fill material will be discharged into 

more than 500 linear feet of ditch or 

canal. (See general condition 27.) 

(Section 404.) 

C. Pipeline Safety Program Designated 

Time Sensitive Inspections and Repairs. 

Activities required for the inspection, 

repair, rehabilitation, or replacement of 

any currently serviceable structure or 

fill for pipelines that have been 

identified by the Pipeline and 

Hazardous Materials Safety 

Administration’s Pipeline Safety 

Program (PHP) within the U.S. 

Department of Transportation as timesensitive (see 49 CFR parts 192 and 195) 

and additional maintenance activities 

done in conjunction with the timesensitive inspection and repair 

activities. All activities must meet the 

following criteria: 

(a) 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 or 

access fills or dewatering of 

construction sites; 

(b) Material resulting from trench 

excavation may be temporarily sidecast 

into waters of the United States for no 

more than three months, provided that 

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. 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); 

(c) Temporary fill must consist of 

materials, and be placed in a manner, 

that will not be eroded by expected high 

flows. Temporary structures and fills 

must be removed upon completion of 

the activity and the affected areas 

returned to pre-construction conditions; 

(d) In wetlands, the top 6’’ to 12’’ of 

the trench should normally be 

backfilled with topsoil from the trench 

so that there is no change in 

preconstruction contours; 

(e) To the maximum extent 

practicable, the restoration of open 

waters must be to the pre-construction 

course, condition, capacity, and location 

of the waterbody; 

(f) Any exposed slopes and stream 

banks must be stabilized immediately 

upon completion of the project; 

(g) Additional maintenance activities 

done in conjunction with the timesensitive inspection or repair must not 

result in additional losses of waters of 

the United States; and, 

(h) The permittee is a participant in 

the Pipeline Repair and Environmental 

Guidance System (PREGS). 

Reporting: The permittee must submit 

a post construction report to the PHP 

within seven days after completing the 

work. The report must be submitted 

electronically to PHP via PREGS. The 

report must contain the following 

information: project sites located in 

waters of the United States, temporary 

access routes, stream dewatering sites, 

temporary fills and temporary structures 

identified on a map of the pipeline 

corridor; photographs of the pre- and 

post-construction work areas located in 

waters of the United States; and a list of 

best management practices employed 

for each pipeline segment shown on the 

map. (Section 10 and 404.) 

D. Commercial Shellfish Aquaculture 

Activities. This NWP authorizes the 

installation of buoys, floats, racks, trays, 

nets, lines, and other structures 

necessary for the continued operation of 

the aquaculture activity. This NWP also 

authorizes discharges of dredged or fill 

material 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 the 

expansion of the project area for the 

commercial shellfish aquaculture 

activity. This NWP does not authorize 

the cultivation of new species (i.e., 

species not previously cultivated by the 

existing commercial shellfish 

aquaculture activity). 

Notification: The permittee must 

submit a pre-construction notification to 

the district engineer if: (1) The project 

area is greater than 25 acres; (2) more 

than 10 acres of the project area is 

occupied by submerged aquatic 

vegetation; (3) the permittee intends to 

relocate existing operations into 

portions of the project area not 

previously used for aquaculture 

activities; or (4) dredge harvesting is 

conducted in areas inhabited by 

submerged aquatic vegetation. (See 

general condition 27.) (Sections 10 and 

404.) 

Note: The permittee should notify the 

applicable U.S. Coast Guard office regarding 

the project. 

E. 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, provided the 

activities are already authorized by the 

Department of Interior (DOI), Office of 

Surface Mining (OSM), or by states with 

approved programs under Title V of the 

Surface Mining Control and 

Reclamation Act of 1977 or are currently 

being processed as part of an integrated 

permit processing procedure. Areas 

previously disturbed by mining 

activities include reclaimed mine sites, 

abandoned mine land areas, or lands 

under bond forfeiture contracts. The 

permittee must clearly demonstrate to 

the district engineer that the 

reclamation plan will result in a net 

increase in aquatic resource functions. 

As part of the project, the permittee may 

conduct coal mining activities in an 

adjacent area, provided the newly 

mined area is less than 40 percent of the 

area being remined and reclaimed. 

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 27.) 

(Sections 10 and 404.) 

F. 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 by the 

Department of Interior (DOI), Office of 

Surface Mining (OSM), or by states with 

approved programs under Title V of the 

Surface Mining Control and 

Reclamation Act of 1977 or are currently 

being processed as part of an integrated 

permit processing procedure. 

The discharge must 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. 

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. (See general 

condition 27.) 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.) 

Note: Coal preparation and processing 

activities outside of the mine site may be 

authorized by NWP 21. 


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C. Nationwide Permit General 

Conditions 

Note: To qualify for NWP authorization, 

the prospective permittee must comply with 

the following general conditions, as 

appropriate, 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. 

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, if 

known, 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. 

Culverts placed in streams must be 

installed to maintain low flow 

conditions. 

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., excavate, fill, or smother 

downstream 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 D. 

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. The activity may alter 

the pre-construction 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 any 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 conditions. 

14. Proper Maintenance. Any 

authorized structure or fill shall be 

properly maintained, including 

maintenance to ensure public safety. 

15. 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 in the area (e.g., National Park 

Service, U.S. Forest Service, Bureau of 

Land Management, U.S. Fish and 

Wildlife Service). 

16. 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. 

17. Endangered Species. (a) No 

activity is authorized under any NWP 

which is likely to 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 

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) Non-federal permittees shall notify 

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 may 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 

may be affected by the proposed work 

or that utilize the designated critical 

habitat that may be affected by the 

proposed work. The district engineer 

will determine whether the proposed 


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

effect’’ to listed species and designated 

critical habitat and will notify the 

applicant of the Corps’ determination 

within 45 days of receipt of a complete 

pre-construction notification. 

Applicants 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. 

(c) 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. 

(d) 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, both 

lethal and non-lethal ‘‘takes’’ of 

protected species are in violation of the 

ESA. 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/ and 

http://www.noaa.gov/fisheries.html 

respectively. 

18. Historic Properties. (a) No activity 

which may affect historic properties 

listed, or eligible for listing, in the 

National Register of Historic Places is 

authorized, until the district engineer 

has complied with the current 

procedures for addressing the 

requirements of Section 106 of the 

National Historic Preservation Act 

(NHPA). 

(b) The prospective permittee must 

notify the district engineer if the 

authorized activity may affect any 

historic properties listed, determined to 

be eligible, or which the prospective 

permittee has reason to believe may be 

eligible for listing on the National 

Register of Historic Places, and shall not 

begin the activity until notified by the 

district engineer that the requirements 

of the NHPA have been satisfied and 

that the activity is authorized. The 

district engineer will notify the 

permittee within 45 days of receipt of a 

complete pre-construction notification 

whether NHPA section 106 consultation 

is required. If NHPA section 106 

consultation is required and will occur 

under the NWP process, the district 

engineer will notify the permittee that 

he or she cannot begin work until 

consultation is completed. 

(c) Information on the location and 

existence of historic resources can be 

obtained 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)). For activities that 

may affect historic properties listed in, 

or eligible for listing in, the National 

Register of Historic Places, the preconstruction notification must state 

which historic property may be affected 

by the proposed work or include a 

vicinity map indicating the location of 

the historic property. 

19. Designated Critical Resource 

Waters. Critical resource waters include, 

NOAA-designated marine sanctuaries, 

National Estuarine Research Reserves, 

state natural heritage sites, and 

outstanding national resource waters or 

other waters officially designated by a 

state as having particular environmental 

or ecological significance and identified 

by the district engineer after notice and 

opportunity for public comment. The 

district engineer may also designate 

additional critical resource waters after 

notice and opportunity for 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, and 

44 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 27, 

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. 

20. 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) 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 some other form of mitigation 

would be more environmentally 

appropriate and provides a projectspecific 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 result in minimal adverse 

effects on the aquatic environment. 

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. 

(d) 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 with 

greater than 1⁄2 acre of loss of waters, 

even if 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 NWPs. 

(e) Compensatory mitigation plans for 

projects in or near streams or other open 

waters will normally include a 

requirement for the 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. Where 

both wetlands and open waters exist on 

the project site, the district engineer will 

determine the appropriate 

compensatory mitigation (e.g., riparian 

areas 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. 


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(f) Permittees may propose the use of 

mitigation banks, in-lieu fee 

arrangements or separate activityspecific compensatory mitigation. In 

those cases, the mitigation provisions 

will specify the party responsible for 

accomplishing and/or complying with 

the mitigation plan. 

(g) 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. 

21. 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. 

22. 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 waived (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. 

23. 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. 

24. 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. 

25. 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) 

26. Compliance Certification. Each 

permittee who received an NWP 

verification from the Corps must submit 

a signed certification regarding the 

completed work and any required 

mitigation. The certification form must 

be forwarded by the Corps with the 

NWP verification letter and will 

include: 

(a) A statement that the authorized 

work was done in accordance with the 

NWP authorization, including any 

general or specific conditions; 

(b) A statement that any required 

mitigation was completed in accordance 

with the permit conditions; and 

(c) The signature of the permittee 

certifying the completion of the work 

and mitigation. 

27. Pre-Construction Notification. 

(a) Timing. Where required by the 

terms of the NWP, the prospective 

permittee must notify the district 

engineer by submitting a preconstruction notification (PCN) as early 

as possible. The district engineer must 

determine if the PCN is complete within 

30 days of the date of receipt and can 

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: 

(1) Until 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) If 45 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, the permittee 

cannot begin the activity until any 

consultation required under Section 7 of 

the Endangered Species Act (see 33 CFR 

330.4(f) and general condition 17) and/ 

or Section 106 of the National Historic 

Preservation (see 33 CFR 330.4(g) and 

general condition 18) is completed. 

Also, work cannot begin under NWP 21 

until the permittee has received written 

approval from the Corps. If the District 

or Division Engineer notifies the 

permittee in writing that an individual 

permit is required within 45 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; 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 any 

necessary compensatory mitigation. 

Sketches should be provided when 

necessary to show that the activity 

complies with the terms of the NWP. 

(Sketches usually clarify the project and 

when provided result in a quicker 

decision.); 

(4) The PCN must include a 

delineation of special aquatic sites and 

other waters of the United States 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 of the United States, but 

there may be a delay if the Corps does 

the delineation, especially if the project 

site is large or contains many wetland 

areas. Furthermore, the 45 day period 


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will not start until the delineation has 

been completed and submitted to the 

Corps, where 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. 

(6) For an activity that may adversely 

affect Federally-listed endangered or 

threatened species, the PCN must 

include the name(s) of those endangered 

or threatened species that may be 

affected by the proposed work or utilize 

the designated critical habitat that may 

be affected by the proposed work; and 

(7) For an activity that may affect a 

historic property listed in, or eligible for 

listing in, the National Register of 

Historic Places, 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. 

(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: 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. 

For activities requiring preconstruction notification to the district 

engineer that result in the loss of greater 

than 1⁄2-acre of waters of the United 

States, the district engineer will 

immediately provide (e.g., via facsimile 

transmission, overnight mail, or other 

expeditious manner) a copy of the 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 then 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, site-specific 

comments. 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, but will provide no 

response to the resource agency, except 

as provided below. The district engineer 

will indicate in the administrative 

record associated with each preconstruction notification that the 

resource agencies’ concerns were 

considered. For NWP 37, the emergency 

watershed protection and rehabilitation 

activity may proceed immediately and 

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. 

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

the Magnuson-Stevens Fishery 

Conservation and Management Act, the 

district engineer will provide a response 

to NMFS within 30 days of receipt of 

any Essential Fish Habitat conservation 

recommendations. 

Applicants are encouraged to provide 

the Corps multiple copies of preconstruction notifications to expedite 

agency coordination. 

(e) District Engineer’s Decision: 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. If the proposed activity will 

result in a loss of greater than 1/10 acre 

of wetlands, the prospective permittee 

should submit a proposed mitigation 

plan 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 work 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 conditions the district 

engineer deems necessary. The district 

engineer must approve any 

compensatory mitigation proposal 

before the permittee commences work. 

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 plan 

within 45 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. 

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: 

(1) 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; (2) that the project is 

authorized under the NWP subject to 

the applicant’s submission of a 

mitigation proposal that would reduce 

the adverse effects on the aquatic 

environment to the minimal level; or (3) 

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. The authorization will include 

the necessary conceptual or specific 

mitigation or a requirement that the 

applicant submit a mitigation proposal 

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. 

D. 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. 

E. Definitions 

Best management practices (BMPs): 

Policies, practices, procedures, or 

structures implemented to mitigate the 


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adverse environmental effects on 

surface water quality resulting from 

development. BMPs are categorized as 

structural or non-structural. 

Compensatory mitigation: The 

restoration, establishment, 

enhancement, or preservation of aquatic 

resources for the purpose of 

compensating for 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. 

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 or 

deepwater site. Establishment results in 

a gain in aquatic resource area. 

Independent utility: A test to 

determine what constitutes a single and 

complete 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. 

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 include 

the filled area and other waters that are 

permanently adversely affected by 

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 existing 

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 preconstruction 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 (i.e., a water of the 

United States) 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 (OHWM) 

can be determined. An OHWM is a line 

on the shore established by the 

fluctuations of water and indicated by 

physical characteristics or other 

appropriate means that consider the 

characteristics of the surrounding areas 

(see 33 CFR 328.3(e)). 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. 

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. 

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 


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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 a waterbody. Riparian 

areas are transitional between terrestrial 

and aquatic ecosystems, through which 

surface and subsurface hydrology 

connects waterbodies with their 

adjacent uplands. Riparian areas are 

adjacent to streams, lakes, and 

estuarine-marine shorelines and provide 

a variety of ecological functions and 

services and help improve or maintain 

local water quality. (See general 

condition 20.) 

Single and complete project: 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 (see 

definition of independent utility). For 

linear projects, the ‘‘single and complete 

project’’ (i.e., a single and complete 

crossing) will apply to each crossing of 

a separate water of the United States 

(i.e., a single waterbody) at that location. 

An exception is for linear projects 

crossing a single waterbody several 

times at separate and distant locations: 

each crossing is considered a single and 

complete project. 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. 

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 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 (i.e., spring high tide line) and are 

inundated by tidal waters two times per 

lunar month, during spring high tides. 

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 that, during 

a year with normal patterns of 

precipitation, has water flowing or 

standing above ground to the extent that 

an ordinary high water mark (OHWM) 

or other indicators of jurisdiction can be 

determined, as well as any wetland area 

(see 33 CFR 328.3(b)). An OHWM 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)). If a jurisdictional 

wetland is adjacent—meaning 

bordering, contiguous, or neighboring—

to a jurisdictional waterbody displaying 

an OHWM or other indicators of 

jurisdiction, 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. 06–7986 Filed 9–25–06; 8:45 am] 

BILLING CODE 3710–92–P 


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