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DRAFT DECISION DOCUMENT 

NATIONWIDE PERMIT 8

This document discusses the factors considered by the Corps of Engineers (Corps) during 

the issuance process for this Nationwide Permit (NWP). This document contains: (1) the 

public interest review required by Corps regulations at 33 CFR 320.4(a)(1) and (2); and (2) 

a discussion of the environmental considerations necessary to comply with the National 

Environmental Policy Act. This evaluation of the NWP includes a discussion of compliance 

with applicable laws, consideration of public comments, an alternatives analysis, and a 

general assessment of individual and cumulative impacts, including the general potential 

effects on each of the public interest factors specified at 33 CFR 320.4(a). 

1.0 Text of the Nationwide Permit 

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, Bureau of Ocean Energy 

Management, Regulation, and Enforcement. 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 30.) (Section 10) 

1.1 Requirements 

General conditions of the NWPs are in the Federal Register notice announcing the issuance 

of this NWP. Pre-construction notification requirements, additional conditions, limitations, 

and restrictions are in 33 CFR part 330. 

1.2 Statutory Authority 

 Section 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. 403) 
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1.3 Compliance with Related Laws (33 CFR 320.3) 

1.3.1 General 

NWPs are a type of general permit designed to authorize certain activities that have minimal 

adverse effects on the aquatic environment and generally comply with the related laws cited 

in 33 CFR 320.3. Activities that result in more than minimal adverse effects on the aquatic 

environment, individually or cumulatively, cannot be authorized by NWPs. Individual 

review of each activity authorized by an NWP will not normally be performed, except when 

preconstruction notification to the Corps is required or when an applicant requests 

verification that an activity complies with an NWP. Potential adverse impacts and 

compliance with the laws cited in 33 CFR 320.3 are controlled by the terms and conditions 

of each NWP, regional and case-specific conditions, and the review process that is 

undertaken prior to the issuance of NWPs. 

The evaluation of this NWP, and related documentation, considers compliance with each of 

the following laws, where applicable: Sections 401, 402, and 404 of the Clean Water Act; 

Section 307(c) of the Coastal Zone Management Act of 1972, as amended; Section 302 of 

the Marine Protection, Research and Sanctuaries Act of 1972, as amended; the National 

Environmental Policy Act of 1969; the Fish and Wildlife Act of 1956; the Migratory Marine 

Game-Fish Act; the Fish and Wildlife Coordination Act, the Federal Power Act of 1920, as 

amended; the National Historic Preservation Act of 1966; the Interstate Land Sales Full 

Disclosure Act; the Endangered Species Act; the Deepwater Port Act of 1974; the Marine 

Mammal Protection Act of 1972; Section 7(a) of the Wild and Scenic Rivers Act; the Ocean 

Thermal Energy Act of 1980; the National Fishing Enhancement Act of 1984; the 

Magnuson-Stevens Fishery and Conservation and Management Act, the Bald and Golden 

Eagle Protection Act; and the Migratory Bird Treaty Act. In addition, compliance of the 

NWP with other Federal requirements, such as Executive Orders and Federal regulations 

addressing issues such as floodplains, essential fish habitat, and critical resource waters is 

considered. 

1.3.2 Terms and Conditions 

Many NWPs have notification requirements that trigger case-by-case review of certain 

activities. Two NWP general conditions require case-by-case review of all activities that 

may adversely affect Federally-listed endangered or threatened species or historic properties 

(i.e., general conditions 19 and 20). General condition 17 restricts the use of NWPs for 

activities that are located in Federally-designated wild and scenic rivers. None of the NWPs 

authorize artificial reefs. General condition 27 prohibits the use of an NWP with other 

NWPs, except when the acreage loss of waters of the United States does not exceed the 

highest specified acreage limit of the NWPs used to authorize the single and complete 

project. 

In some cases, activities authorized by an NWP may require other federal, state, or local 

authorizations. Examples of such cases include, but are not limited to: activities that are in 

marine sanctuaries or affect marine sanctuaries or marine mammals; the ownership, 
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construction, location, and operation of ocean thermal conversion facilities or deep water 

ports beyond the territorial seas; activities that result in discharges of dredged or fill material 

into waters of the United States and require Clean Water Act Section 401 water quality 

certification; or activities in a state operating under a coastal zone management program 

approved by the Secretary of Commerce under the Coastal Zone Management Act. In such 

cases, a provision of the NWPs states that an NWP does not obviate the need to obtain other 

authorizations required by law. [33 CFR 330.4(b)(2)] 

Additional safeguards include provisions that allow the Chief of Engineers, division 

engineers, and/or district engineers to: assert discretionary authority and require an 

individual permit for a specific activity; modify NWPs for specific activities by adding 

special conditions on a case-by-case basis; add conditions on a regional or nationwide basis 

to certain NWPs; or take action to suspend or revoke an NWP or NWP authorization for 

activities within a region or state. Regional conditions are imposed to protect important 

regional concerns and resources. [33 CFR 330.4(e) and 330.5] 

1.3.3 Review Process 

The analyses in this document and the coordination that was undertaken prior to the 

issuance of the NWP fulfill the requirements of the National Environmental Policy Act 

(NEPA), the Fish and Wildlife Coordination Act, and other acts promulgated to protect the 

quality of the environment. 

All NWPs that authorize activities which may result in discharges of dredged or fill material 

into waters of the United States require water quality certification. NWPs that authorize 

activities within, or affecting land or water uses within a state that has a Federally-approved 

coastal zone management program, must also be certified as consistent with the state’s 

program. The procedures to ensure that the NWPs comply with these laws are described in 

33 CFR 330.4(c) and (d), respectively. 

1.4 Public Comment and Response 

For a summary of the public comments received in response to the February 16, 2011, 

Federal Register notice, refer to the preamble in the Federal Register notice announcing the 

reissuance of this NWP. The substantive comments received in response to the February 16, 

2011, Federal Register notice were used to improve the NWP by changing NWP terms and 

limits, notification requirements, and/or NWP general conditions, as necessary. 

The Corps proposed to change the reference to the Minerals Management Service to the 

“Bureau of Ocean Energy Management, Regulation, and Enforcement” to reflect the name 

change made by the agency with primary responsibility for regulating oil and gas structures 

on the outer continental shelf. 

[This section to be completed for the final NWP.] 

 
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2.0 Alternatives 

This evaluation includes an analysis of alternatives based on the requirements of NEPA. 

The alternatives discussed below are based on an analysis of the potential environmental 

impacts and impacts to the Corps, Federal and state resource agencies, general public, and 

prospective permittees. 

2.1 No Action Alternative (No Nationwide Permit) 

The no action alternative would not achieve one of the goals of the Corps Nationwide 

Permit Program, which is to reduce the regulatory burden on applicants for activities that 

result in minimal adverse effects on the aquatic environment, individually or cumulatively. 

The no action alternative would also reduce the Corps ability to pursue the current level of 

review for other activities that have greater adverse effects on the aquatic environment, 

including activities that require individual permits as a result of the Corps exercising its 

discretionary authority under the NWP program. The no action alternative would also 

reduce the Corps ability to conduct compliance actions. 

If this NWP is not available, substantial additional resources would be required for the 

Corps to evaluate these minor activities through the individual permit process, and for the 

public and Federal, Tribal, and state resource agencies to review and comment on the large 

number of public notices for these activities. In a considerable majority of cases, when the 

Corps publishes public notices for proposed activities that result in minimal adverse effects 

on the aquatic environment, the Corps typically does not receive responses to these public 

notices from either the public or Federal, Tribal, and state resource agencies. Another 

important benefit of the NWP program that would not be achieved through the no action 

alternative is the incentive for project proponents to design their projects so that those 

activities meet the terms and conditions of an NWP. The Corps believes the NWPs have 

significantly reduced adverse effects to the aquatic environment because most applicants 

modify their projects to comply with the NWPs and avoid the delays and costs typically 

associated with the individual permit process. 

In the absence of this NWP, Department of the Army (DA) authorization in the form of 

another general permit (i.e., regional or programmatic general permits, where available) or 

individual permits would be required. Corps district offices may develop regional general 

permits if an NWP is not available, but this is an impractical and inefficient method for 

activities with minimal individual or cumulative adverse effects on the aquatic environment 

that are conducted across the Nation. Not all districts would develop these regional general 

permits for a variety of reasons. The regulated public, especially those companies that 

conduct work in more than one Corps district, would be adversely affected by the 

widespread use of regional general permits because of the greater potential for lack of 

consistency and predictability in the authorization of similar activities with minimal adverse 

effects on the aquatic environment. These companies would incur greater costs in their 

efforts to comply with different regional general permit requirements between Corps 

districts. Nevertheless, in some states Corps districts have issued programmatic general 
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permits to take the place of this and other NWPs. However, this approach only works in 

states with regulatory programs comparable to the Corps Regulatory Program. 

2.2 National Modification Alternatives 

Since the Corps Nationwide Permit program began in 1977, the Corps has continuously 

strived to develop NWPs that authorize activities that result only in minimal adverse effects 

on the aquatic environment, individually or cumulatively. Every five years the Corps 

reevaluates the NWPs during the reissuance process, and may modify an NWP to address 

concerns for the aquatic environment. Utilizing collected data and institutional knowledge 

concerning activities authorized by the Corps regulatory program, the Corps reevaluates the 

potential impacts of activities authorized by NWPs. The Corps also uses substantive public 

comments on proposed NWPs to assess the expected impacts. This NWP was developed to 

authorize structures for the exploration, production, and transportation of oil, gas, and 

minerals on the outer continental shelf, provided those activities have minimal adverse 

effects on the aquatic environment. The Corps has considered modifying or adding NWP 

general conditions, as discussed in the preamble of the Federal Register notice announcing 

the issuance of this NWP. 

In the February 16, 2011, Federal Register notice, the Corps requested comments on the 

proposed reissuance of this NWP. The Corps proposed to change this NWP by changing the 

reference to the Minerals Management Service to the “Bureau of Ocean Energy 

Management, Regulation, and Enforcement” to reflect the name change made by the agency 

with primary responsibility for regulating oil and gas structures on the outer continental 

shelf. 

2.3 Regional Modification Alternatives 

An important aspect for the NWPs is the emphasis on regional conditions to address 

differences in aquatic resource functions and values across the nation. All Corps divisions 

and districts are expected to add regional conditions to the NWPs to enhance protection of 

the aquatic environment and address local concerns. Division engineers can also revoke an 

NWP if the use of that NWP results in more than minimal adverse effects on the aquatic 

environment, especially in high value or unique wetlands and other waters. 

Corps divisions and districts also monitor and analyze the cumulative adverse effects of the 

NWPs, and if warranted, further restrict or prohibit the use of the NWPs to ensure that the 

NWPs do not authorize activities that result in more than minimal adverse effects on the 

aquatic environment. To the extent practicable, division and district engineers will use 

regulatory automated information systems and institutional knowledge about the typical 

adverse effects of activities authorized by NWPs, as well as substantive public comments, to 

assess the individual and cumulative adverse effects on the aquatic environment resulting 

from regulated activities. 

2.4 Case-specific On-site Alternatives 
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Although the terms and conditions for this NWP have been established at the national level 

to authorize most activities that have minimal adverse effects on the aquatic environment, 

division and district engineers have the authority to impose case-specific special conditions 

on an NWP authorization to ensure that the authorized work will result in minimal adverse 

effects. 

General condition 22 requires the permittee to minimize and avoid impacts to waters of the 

United States to the maximum extent practicable at the project site. Off-site alternatives 

cannot be considered for activities authorized by NWPs. During the evaluation of a preconstruction notification, the district engineer may determine that additional avoidance and 

minimization is practicable. The district engineer may also condition the NWP 

authorization to require compensatory mitigation to offset losses of waters of the United 

States and ensure that the net adverse effects on the aquatic environment are minimal. As 

another example, the NWP authorization can be conditioned to prohibit the permittee from 

conducting the work during specific times of the year to protect spawning fish and shellfish. 

 If the proposed work will result in more than minimal adverse effects on the aquatic 

environment, then the district engineer will exercise discretionary authority and require an 

individual permit. Discretionary authority can be asserted where there are concerns for the 

aquatic environment, including high value aquatic habitats. The individual permit review 

process requires a project-specific alternatives analysis, including the consideration of offsite alternatives, and a public interest review. 

3.0 Affected Environment 

The affected environment consists of the outer continental shelf. The term “outer continental 

shelf” means “all submerged lands lying seaward and outside of the area of lands beneath 

navigable waters as defined in section 2 of the Submerged Lands Act (43 U.S.C. 1301) 

whose subsoil and seabed appertain to the United States and are subject to its jurisdiction 

and control.” (30 CFR 250.105, 7/1/2005 edition). The outer continental shelf is seaward of 

the State Seaward Boundary (Minerals Management Service 1999). Water depths may be 

200 meters (656 feet) or greater. The extent of the outer continental shelf varies from coast 

to coast, and is widest in the Gulf of Mexico and western and northwestern Alaska 

(Minerals Management Service 2005). 

The outer continental shelf and its overlying waters provide habitat for a variety of 

organisms. The waters overlying the outer continental shelf provide habitat for a wide 

variety of plankton and nekton species. The plankton communities in the ocean waters 

provide primary and secondary production that supports complex communities of oceanic 

organisms. Some fish species inhabiting those waters provide the basis for commercial 

fisheries. Benthic communities of the outer continental shelf consist of a variety of 

organisms that inhabit the surface of the benthos and the upper surface of the sediments 

covering the benthos. 

Functions provided by the open oceans and outer continental shelf include nutrient cycling, 

primary production, and secondary production. 
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Marine ecosystems provide a number of ecosystem services, including fish production; 

materials cycling (e.g., nitrogen, carbon, oxygen, phosphorous, and sulfur); transformation, 

detoxification, and sequestration of pollutants and wastes produced by humans; support of 

ocean-based recreation, tourism, and retirement industries; and coastal land development 

and valuation, including aesthetics related to living near the ocean (Peterson and Lubchenco 

1997). 

Activities authorized by this NWP will provide a wide variety of goods and services that are 

valued by society. Oil and gas structures on the outer continental shelf are used for the 

exploration, production, and transportation of oil, gas, and minerals. 

4.0 Environmental Consequences 

4.1 General Evaluation Criteria 

This document contains a general assessment of the foreseeable effects of the individual 

activities authorized by this NWP, the anticipated cumulative effects of those activities, and 

the potential future losses of waters of the United States that are estimated to occur until the 

expiration date of the NWP. In the assessment of these individual and cumulative effects, 

the terms and limits of the NWP, pre-construction notification requirements, and the 

standard NWP general conditions are considered. The supplementary documentation 

provided by division engineers will address how regional conditions affect the individual 

and cumulative effects of the NWP. 

The following evaluation comprises the NEPA analysis and the public interest review 

specified in 33 CFR 320.4(a)(1) and (2). 

The issuance of an NWP is based on a general assessment of the effects on public interest 

and environmental factors that are likely to occur as a result of using this NWP to authorize 

activities in waters of the United States. As such, this assessment must be speculative or 

predictive in general terms. Since NWPs authorize activities across the nation, projects 

eligible for NWP authorization may be constructed in a wide variety of environmental 

settings. Therefore, it is difficult to predict all of the indirect impacts that may be associated 

with each activity authorized by an NWP. For example, the NWP that authorizes 25 cubic 

yard discharges of dredged or fill material into waters of the United States may be used to 

fulfill a variety of project purposes. Indication that a factor is not relevant to a particular 

NWP does not necessarily mean that the NWP would never have an effect on that factor, but 

that it is a factor not readily identified with the authorized activity. Factors may be relevant, 

but the adverse effects on the aquatic environment are negligible, such as the impacts of a 

boat ramp on water level fluctuations or flood hazards. Only the reasonably foreseeable 

direct or indirect effects are included in the environmental assessment for this NWP. 

Division and district engineers will impose, as necessary, additional conditions on the NWP 

authorization or exercise discretionary authority to address locally important factors or to 

ensure that the authorized activity results in no more than minimal individual and 
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cumulative adverse effects on the aquatic environment. In any case, adverse effects will be 

controlled by the terms, conditions, and additional provisions of the NWP. For example, 

Section 7 Endangered Species Act consultation will be required for activities that may affect 

endangered or threatened species or critical habitat. 

4.2 Impact Analysis 

This NWP authorizes structures for the exploration, production, and transportation of oil, 

gas, and minerals on the outer continental shelf. This NWP authorizes structures in 

navigable waters of the United States, but it does not authorize discharges of dredged or fill 

material into those waters. 

Pre-construction notification is required for activities authorized by this NWP. If the district 

engineer determines that the adverse effects of a particular project are more than minimal 

after considering mitigation, then discretionary authority will be asserted and the applicant 

will be notified that another form of DA authorization, such as a regional general permit or 

individual permit, is required (see 33 CFR 330.4(e) and 330.5). 

Additional conditions can be placed on proposed activities on a regional or case-by-case 

basis to ensure that the work has minimal adverse effects on the aquatic environment. 

Regional conditioning of this NWP will be used to account for differences in aquatic 

resource functions, services, and values across the country, ensure that the NWP authorizes 

only those activities with minimal individual or cumulative adverse effects on the aquatic 

environment, and allow each Corps district to prioritize its workload based on where its 

efforts will best serve to protect the aquatic environment. Regional conditions can prohibit 

the use of an NWP in certain waters (e.g., high value waters or specific types of wetlands or 

waters), lower notification thresholds, or require notification for all work in certain 

watersheds or types of waters. Specific NWPs can also be revoked on a geographic or 

watershed basis where the adverse effects resulting from the use of those NWPs are more 

than minimal. 

In high value waters, division and district engineers can: 1) prohibit the use of the NWP in 

those waters and require an individual permit or regional general permit; 2) add regional 

conditions to the NWP to ensure that the adverse environmental effects are minimal; or 3) 

for those activities that require notification, add special conditions to NWP authorizations, 

such as compensatory mitigation requirements, to ensure that the adverse effects on the 

aquatic environment are minimal. NWPs can authorize activities in high value waters as 

long as the individual and cumulative adverse effects on the aquatic environment are 

minimal. 

4.3 Cumulative Impacts 

The Council on Environmental Quality’s NEPA regulations define cumulative impact as: 

“the impact on the environment which results from the incremental impact of the action 

when added to other past, present, and reasonably foreseeable future actions regardless of 

what agency (Federal or non-Federal) or person undertakes such other actions. Cumulative 
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impacts can result from individually minor but collectively significant actions taking place 

over a period of time.” [See 40 CFR 1508.7.] The NEPA cumulative impacts analysis for an 

NWP includes Federal and non-Federal activities that affect the Nation’s coastal waters, 

rivers, wetlands, and other aquatic resources, and is not limited to activities authorized by 

NWPs or other DA permits. The geographic scope of the cumulative impacts analysis is the 

United States, where the NWP can be used to authorize activities that require DA 

authorization. The temporal scope of the cumulative effects analysis includes past actions 

that have affected the Nation’s coastal waters, rivers, wetlands, and other aquatic resources, 

as well as present actions and reasonably foreseeable future actions that affect aquatic 

resources. 

There are many activities that contribute to cumulative effects on ocean waters, and alter the 

quality of those resources. Not all of those activities are regulated by the Corps under 

Section 10 of the Rivers and Harbors Act of 1899. Federal, non-federal, and private 

activities contribute cumulative effects to aquatic resources. Activities authorized by DA 

permits, including structures and work in navigable waters, can directly or indirectly cause 

the loss of, or adversely affect the functions provided by, oceanic and coastal waters. 

In addition to activities regulated and authorized by the Corps, including those authorized by 

this nationwide permit, other include federal, non-federal, and private actions not regulated 

by the Corps have cumulative effects on the Nation’s oceanic and coastal waters, and 

adversely affect the quality of those resources. Changes in the use of uplands next to or near 

oceanic and coastal waters may directly or indirectly diminish the ecological functions and 

services provided by those waters. 

The cumulative impacts of an NWP generally depends on the number of times the permit is 

used on a national basis. However, in a specific watershed, division or district engineers 

may determine that the cumulative adverse effects of activities authorized by NWPs are 

more than minimal. Division and district engineers will conduct more detailed assessments 

for geographic areas that are determined to be potentially subject to more than minimal 

cumulative adverse effects. Division and district engineers have the authority to require 

individual permits where the cumulative adverse effects are more than minimal, or add 

conditions to the NWP either on a case-by-case or regional basis to ensure that the 

cumulative adverse effects are minimal. When division or district engineers determine that 

a geographic area is subject to more than minimal cumulative adverse effects due to the use 

of the NWPs, they will use the revocation and modification procedure at 33 CFR 330.5. In 

reaching the final decision, they will compile information on the cumulative adverse effects 

and supplement this document. 

Based on reported use of this NWP during the period of August 1, 2009, to July 31, 2010, 

the Corps estimates that this NWP will be used approximately three times per year on a 

national basis, resulting no losses of waters of the United States. Compensatory mitigation 

is not normally required to offset the impacts resulting from the activities authorized by this 

NWP. The demand for these types of activities could increase or decrease over the five-year 

duration of this NWP. Using the current trend, approximately 15 activities could be 

authorized over a five year period until this NWP expires. The Corps expects that the 
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convenience and time savings associated with the use of this NWP will encourage applicants 

to design their projects within the scope of the NWP rather than request individual permits 

for projects which could result in greater adverse impacts to the aquatic environment. The 

minimization encouraged by the issuance of this NWP, as well as compensatory mitigation 

that may be required for specific activities authorized by this NWP, will help reduce 

cumulative effects to the Nation’s aquatic resources. 

5.0 Public Interest Review 

5.1 Public Interest Review Factors (33 CFR 320.4(a)(1)) 

For each of the 20 public interest review factors, the extent of the Corps consideration of 

expected impacts resulting from the use of this NWP is discussed, as well as the reasonably 

foreseeable cumulative adverse effects that are expected to occur. The Corps decision 

process involves consideration of the benefits and detriments that may result from the 

activities authorized by this NWP. 

(a) Conservation: The activities authorized by this NWP may modify the natural resource 

characteristics of the project area. Impacts to conservation are addressed on a case-by-case 

basis through the leasing process of the Minerals Management Service of the Department of 

the Interior. 

(b) Economics: The oil and gas structures authorized by this NWP will have positive 

impacts on the local economy. During construction, these activities will generate jobs and 

revenue for local contractors as well as revenue to building supply companies that sell 

construction materials. Oil and gas facilities generate income for energy companies. The 

production of goods and services will be facilitated by the energy provided through oil and 

gas structures. 

(c) Aesthetics: The activities authorized by this NWP may alter the visual character of 

waters on the outer continental shelf. The extent and perception of these changes will vary, 

depending on the size and configuration of the activity, the nature of the surrounding area, 

and the public uses of the area. Impacts to aesthetics are addressed on a case-by-case basis 

through the leasing process of the Minerals Management Service of the Department of the 

Interior. 

(d) General environmental concerns: Activities authorized by this NWP will affect general 

environmental concerns, such as water, air, and noise pollution. The authorized work will 

also affect the physical, chemical, and biological characteristics of the environment. The 

adverse effects of the activities authorized by this NWP on general environmental concerns 

will be minor. Adverse effects to the chemical composition of the aquatic environment will 

be controlled by general condition 6, which states that the material used for construction 

must be free from toxic pollutants in toxic amounts. Impacts to general environmental 

concerns are addressed on a case-by-case basis through the leasing process of the Minerals 

Management Service of the Department of the Interior. Specific environmental concerns 
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are addressed in other sections of this document. 

(e) Wetlands: Structures constructed in navigable waters of the United States for oil and gas 

facilities will have no adverse effects on wetlands since this NWP is limited to activities on 

the outer continental shelf. 

(f) Historic properties: General condition 20 states that in cases where the district engineer 

determines that the activity may affect properties listed, or eligible for listing, in the 

National Register of Historic Places, the activity is not authorized, until the requirements of 

Section 106 of the National Historic Preservation Act have been satisfied.

(g) Fish and wildlife values: This NWP authorizes structures in navigable waters of the 

United States, specifically the outer continental shelf. Impacts to fish and wildlife values 

are addressed on a case-by-case basis through the leasing process of the Minerals 

Management Service of the Department of the Interior. Waters overlying the outer 

continental shelf provide habitat for fish and other aquatic organisms. The structures 

authorized by this NWP may attract fish and other marine organisms. 

Compliance with the Bald and Golden Eagle Protection Act (16 U.S.C. 668(a)-(d)), the 

Migratory Bird Treaty Act (16 U.S.C. 703; 16 U.S.C. 712), and the Marine Mammal 

Protection Act (16 U.S.C. 1361 et seq.), including any requirements to obtain take permits, 

is the responsibility of the project proponent for a particular NWP activity. 

Consultation pursuant to the essential fish habitat provisions of the Magnuson-Stevens 

Fishery Conservation and Management Act will occur as necessary for proposed NWP 

activities that may adversely affect essential fish habitat. Consultation may occur on a caseby-case or programmatic basis. Division and district engineers can impose regional and 

special conditions to ensure that activities authorized by this NWP will result in minimal 

adverse effects on essential fish habitat. 

(h) Flood hazards: The activities authorized by this NWP will have no adverse effects on 

the flood-holding capacity of 100-year floodplains, including surface water flow velocities. 

This NWP authorizes structures on the outer continental shelf. 

(i) Floodplain values: Activities authorized by this NWP will not adversely affect the floodholding capacity of the floodplain, or other floodplain values. The fish and wildlife habitat 

values of floodplains will not be adversely affected by activities authorized by this NWP, 

since the NWP authorizes only structures on the outer continental shelf. The water quality 

functions of floodplains will not be adversely affected by these structures. 

(j) Land use: Activities authorized by this NWP will no adverse effects on land use, since it 

is limited to structures on the outer continental shelf. 

(k) Navigation: Activities authorized by this NWP must comply with general condition 1, 

which states that no activity may cause more than minimal adverse effects on navigation. 

The district engineer will review the impacts of the proposed structures on navigation and 
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national security. 

(l) Shore erosion and accretion: The activities authorized by this NWP will have no adverse 

effects on shore erosion and accretion processes, since the NWP is limited to structures on 

the outer continental shelf. 

(m) Recreation: Activities authorized by this NWP are unlikely to change the recreational 

uses of the area. The NWP authorizes only oil and gas structures on leased areas of the 

outer continental shelf. 

(n) Water supply and conservation: Activities authorized by this NWP will have no adverse 

effects on water supply and conservation, since it is limited to oil and gas structures installed 

on the outer continental shelf. The oceanic waters of the outer continental shelf are not 

potable. 

(o) Water quality: The installation of oil and gas structures on the outer continental shelf 

will have negligible adverse effects on water quality. During construction, small amounts of 

oil and grease from construction equipment may be discharged into oceanic waters. 

Because most of the construction will occur during a relatively short period of time, the 

frequency and concentration of these discharges are not expected to have more than minimal 

adverse effects on overall water quality. 

(p) Energy needs: The activities authorized by this NWP will satisfy energy needs, through 

the exploration, production, and transportation or oil, gas, and minerals. 

(q) Safety: The activities authorized by this NWP will be subject to Federal safety laws and 

regulations. Therefore, this NWP will not adversely affect the safety of the project area. 

(r) Food and fiber production: Activities authorized by this NWP will have negligible 

adverse effects on food and fiber production. Some fish species may be attracted to oil and 

gas structures on the outer continental shelf, which may enhance fishing opportunities. 

(s) Mineral needs: Activities authorized by this NWP may help mineral exploration, 

production, and transportation companies satisfy demand for minerals. The facilities 

authorized by this NWP will help companies extract mineral deposits located on the outer 

continental shelf. 

(t) Considerations of property ownership: The NWP complies with 33 CFR 320.4(g), which 

states that an inherent aspect of property ownership is a right to reasonable private use. The 

NWP provides expedited DA authorization for oil and gas structures constructed on the 

outer continental shelf. 

5.2 Additional Public Interest Review Factors (33 CFR 320.4(a)(2)) 

5.2.1 Relative extent of the public and private need for the proposed structure or work
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This NWP authorizes structures for the exploration, production, and transportation of oil, 

gas, and minerals on the outer continental shelf that have minimal adverse effects on the 

aquatic environment, individually and cumulatively. These activities satisfy public and 

private needs for oil, gas, and mineral products. The need for this NWP is based upon the 

number of these activities that occur annually with minimal adverse effects on the aquatic 

environment. 

5.2.2 Where there are unresolved conflicts as to resource use, the practicability of using 

reasonable alternative locations and methods to accomplish the objective of the 

proposed structure or work

Most situations in which there are unresolved conflicts concerning resource use arise when 

environmentally sensitive areas are involved (e.g., special aquatic sites, including wetlands) 

or where there are competing uses of a resource. The nature and scope of the activity, when 

planned and constructed in accordance with the terms and conditions of this NWP, reduce 

the likelihood of such conflict. In the event that there is a conflict, the NWP contains 

provisions that are capable of resolving the matter (see Section 1.2 of this document). 

General condition 22 requires permittees to avoid and minimize adverse effects to waters of 

the United States to the maximum extent practicable on the project site. Consideration of 

off-site alternative locations is not required for activities that are authorized by general 

permits. General permits authorize activities that have minimal individual and cumulative 

adverse effects on the aquatic environment and overall public interest. District engineers 

will exercise discretionary authority and require an individual permit if the proposed work 

will result in more than minimal adverse environmental effects on the project site. The 

consideration of off-site alternatives can be required during the individual permit process. 

5.2.3 The extent and permanence of the beneficial and/or detrimental effects which the 

proposed structure or work is likely to have on the public and private uses to which 

the area is suited

The nature and scope of the work authorized by the NWP will most likely restrict the extent 

of the beneficial and detrimental effects to the area immediately surrounding these 

structures. Activities authorized by this NWP will have minimal adverse effects on the 

aquatic environment. 

The terms, conditions, and provisions of the NWP were developed to ensure that individual 

and cumulative adverse environmental effects are minimal. Specifically, NWPs do not 

obviate the need for the permittee to obtain other Federal, state, or local authorizations 

required by law. The NWPs do not grant any property rights or exclusive privileges (see 33 

CFR 330.4(b) for further information). Additional conditions, limitations, restrictions, and 

provisions for discretionary authority, as well as the ability to add activity-specific or 

regional conditions to this NWP, will provide further safeguards to the aquatic environment 

and the overall public interest. There are also provisions to allow suspension, modification, 

or revocation of the NWP. 
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5.2.4 Endangered and threatened species.

The Corps believes that the procedures currently in place result in proper coordination under 

Section 7 of the Endangered Species Act (ESA) and ensure that activities authorized by this 

NWP will not jeopardize the continued existence or any listed threatened and endangered 

species or result in the destruction or adverse modification of critical habitat. The Corps 

also believes that current local procedures in Corps districts are effective in ensuring 

compliance with ESA. 

Under general condition 19, 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. 

Each activity authorized by an NWP is subject to general condition 19, which states that 

“[n]o activity is authorized under any NWP which is likely to directly or indirectly 

jeopardize the continued existence of a threatened or endangered species or a species 

proposed for such designation, as identified under the Federal Endangered Species Act 

(ESA), or which will directly or indirectly destroy or adversely modify the critical habitat of 

such species.” In addition, general condition 19 explicitly states that the NWP does not 

authorize the taking of threatened or endangered species, which will ensure that permittees 

do not mistake the NWP authorization as a Federal authorization to take threatened or 

endangered species. General condition 19 also requires non-federal permittees to 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. This 

general condition also states that, in such cases, non-federal permittees 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. 

Under the current Corps regulations (33 CFR 325.2(b)(5)), the district engineer must review 

all permit applications for potential impacts on threatened and endangered species or critical 

habitat. For the NWP program, this review occurs when the district engineer evaluates the 

pre-construction notification or request for verification. Based on the evaluation of all 

available information, the district engineer will initiate consultation with the U.S. Fish and 

Wildlife Service (USFWS) or National Marine Fisheries Service (NMFS), as appropriate, if 

he or she determines that the regulated activity may affect any threatened and endangered 

species or critical habitat. Consultation may occur during the NWP authorization process or 

the district engineer may exercise discretionary authority to require an individual permit for 

the proposed activity and initiate consultation through the individual permit process. If ESA 

consultation is conducted during the NWP authorization process without the district 

engineer exercising discretionary authority, then the applicant will be notified that he or she 

cannot proceed with the proposed activity until ESA consultation is complete. If the district 

engineer determines that the activity will have no effect on any threatened and endangered 

species or critical habitat, then the district engineer will notify the applicant that he or she 

may proceed under the NWP authorization. 

 

Corps districts have, in most cases, established informal or formal procedures with local 
15 

offices of the USFWS and NMFS, through which the agencies share information regarding 

threatened and endangered species and their critical habitat. This information helps district 

engineers determine if a proposed activity may affect endangered species or their critical 

habitat and, if necessary, initiate consultation. Corps districts may utilize maps or databases 

that identify locations of populations of threatened and endangered species and their critical 

habitat. Where necessary, regional conditions are added to NWPs to require notification for 

activities that occur in known locations of threatened and endangered species or critical 

habitat. For activities that require agency coordination during the pre-construction 

notification process, the USFWS and NMFS will review the proposed work for potential 

impacts to threatened and endangered species and their critical habitat. Any information 

provided by local maps and databases and any comments received during the preconstruction notification review process will be used by the district engineer to make a “no 

effect” or “may affect” decision. 

Based on the safeguards discussed above, especially general condition 19 and the NWP 

regulations at 33 CFR 330.5(f), the Corps has determined that the activities authorized by 

this NWP will not jeopardize the continued existence of any listed threatened or endangered 

species or result in the destruction or adverse modification of designated critical habitat. 

Although the Corps continues to believe that these procedures ensure compliance with ESA, 

the Corps has taken some steps to provide further assurance. Corps district offices have met 

with local representatives of the USFWS and NMFS to establish or modify existing 

procedures, where necessary, to ensure that the Corps has the latest information regarding 

the existence and location of any threatened or endangered species or their critical habitat. 

Corps districts can also establish, through local procedures or other means, additional 

safeguards that ensure compliance with ESA. Through formal consultation under Section 7 

of the Endangered Species Act, or through other coordination with the USFWS and/or the 

NMFS, as appropriate, the Corps will establish procedures to ensure that the NWP will not 

jeopardize any threatened and endangered species or result in the destruction or adverse 

modification of designated critical habitat. Such procedures may result in the development 

of regional conditions added to the NWP by the division engineer, or in special conditions to 

be added to an NWP authorization by the district engineer. 

6.0 Determinations 

6.1 Finding of No Significant Impact 

[To be determined after review of comments received in response to the proposal.] 

6.2 Public Interest Determination 

[To be determined after review of comments received in response to the proposal.] 

6.3 Section 176(c) of the Clean Air Act General Conformity Rule Review 

This NWP has been analyzed for conformity applicability pursuant to regulations 
16 

implementing Section 176(c) of the Clean Air Act. It has been determined that the activities 

authorized by this permit will not exceed de minimis levels of direct emissions of a criteria 

pollutant or its precursors and are exempted by 40 CFR 93.153. Any later indirect 

emissions are generally not within the Corps continuing program responsibility and 

generally cannot be practicably controlled by the Corps. For these reasons, a conformity 

determination is not required for this NWP. 

6.4 Compliance with Relevant Executive Orders 

6.4.1 EO 13175, Consultation and Coordination With Indian Tribal Governments

The issuance of this NWP does 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. Regional 

conditions or other local NWP modifications may be added to this NWP by division and 

district engineers to protect aquatic resources of interest to Tribes, as part of the Corps 

responsibility to protect trust resources. 

6.4.2 EO 11988, Floodplain Management

Compliance with NWP general condition 10, fills in 100-year floodplains, will minimize 

impacts of potential flooding on human health, safety, and welfare, as well as the natural and 

beneficial values of floodplains. 

6.4.3 EO 12898, Environmental Justice

In accordance with Title III of the Civil Right Act of 1964 and Executive Order 12898, it 

has been determined that the issuance of this NWP would not directly or through contractual 

or other arrangements, use criteria, methods, or practices that discriminate on the basis of 

race, color, or national origin nor would it have a disproportionate effect on minority or lowincome communities. 

6.4.4 EO 13112, Invasive Species

The issuance of this NWP will not cause or promote the introduction or spread of invasive 

species in the United States. The district engineer may add special conditions to an NWP 

authorization to require the permittee to control the introduction or spread of invasive 

species at the project site. 

6.4.5 EO 13212 and 13302, Actions to Expedite Energy-Related Projects

The issuance of this NWP will support the policy established in these Executive Orders, by 

providing an efficient form of DA authorization for minor activities associated with energyrelated projects. 
17 
18 

7.0 Literature Cited 

Minerals Management Service. 2005. Leasing oil and natural gas resources: Outer 

continental shelf. United States Department of the Interior, Minerals Management Service. 

57 pp. 

Minerals Management Service. 1999. Boundary development on the outer continental shelf. 

OCS Report MMS 99-0006. United States Department of the Interior, Minerals 

Management Service, Mapping and Boundary Branch. 12 pp. 

Peterson, C.H. and J. Lubchenco. 1997. Marine ecosystem services, in Nature’s Services: 

Societal Dependence on Natural Ecosystems. Edited by G.C. Daily. Island Press 

(Washington, DC). pp. 177-194.