1 

DRAFT DECISION DOCUMENT 

NATIONWIDE PERMIT 12

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); (2) a 

discussion of the environmental considerations necessary to comply with the National 

Environmental Policy Act; and (3) the impact analysis specified in Subparts C through F of 

the 404(b)(1) Guidelines (40 CFR Part 230). 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 

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. 

Utility lines: This NWP authorizes the construction, maintenance, or repair of utility lines, 

including outfall and intake structures, and the associated excavation, backfill, or bedding 

for the utility lines, in all waters of the United States, provided there is no change in 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 the material is not placed in such a 

manner that it is dispersed by currents or other forces. The district engineer may extend the 

period of temporary side casting for no more than a total of 180 days, where appropriate. In 

wetlands, the top 6 to 12 inches of the trench should normally be backfilled with topsoil 

from the trench. The trench cannot be constructed or backfilled in such a manner as to drain 

waters of the United States (e.g., backfilling with extensive gravel layers, creating a french 

drain effect). Any exposed slopes and stream banks must be stabilized immediately upon 

completion of the utility line crossing of each waterbody. 

Utility line substations: This NWP authorizes the construction, maintenance, or expansion of 

substation facilities associated with a power line or utility line in non-tidal waters of the 

United States, provided the activity, in combination with all other activities included in one 

single and complete project, does not result in the loss of greater than 1/2-acre of waters of 

the United States. This NWP does not authorize discharges into non-tidal wetlands adjacent 
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to tidal waters of the United States to construct, maintain, or expand substation facilities. 

Foundations for overhead utility line towers, poles, and anchors: This NWP authorizes the 

construction or maintenance of foundations for overhead utility line towers, poles, and 

anchors in all waters of the United States, provided the foundations are the minimum size 

necessary and separate footings for each tower leg (rather than a larger single pad) are used 

where feasible. 

Access roads: This NWP authorizes the construction of access roads for the construction and 

maintenance of utility lines, including overhead power lines and utility line substations, in 

non-tidal waters of the United States, provided the activity, in combination with all other 

activities included in one single and complete project, does not cause the loss of greater than 

1/2-acre of non-tidal waters of the United States. This NWP does not authorize discharges 

into non-tidal wetlands adjacent to tidal waters for access roads. Access roads must be the 

minimum width necessary (see Note 2, below). Access roads must be constructed so that the 

length of the road minimizes any adverse effects on waters of the United States and must be 

as near as possible to pre-construction contours and elevations (e.g., at grade corduroy roads 

or geotextile/gravel roads). Access roads constructed above pre-construction contours and 

elevations in waters of the United States must be properly bridged or culverted to maintain 

surface flows. 

This NWP may authorize utility lines in or affecting navigable waters of the United States 

even if there is no associated discharge of dredged or fill material (See 33 CFR Part 322). 

Overhead utility lines constructed over section 10 waters and utility lines that are routed in 

or under section 10 waters without a discharge of dredged or fill material require a section 

10 permit. 

This NWP also authorizes temporary structures, fills, and work necessary to conduct the 

utility line activity. Appropriate measures must be taken to maintain normal downstream 

flows and minimize flooding to the maximum extent practicable, when temporary structures, 

work, and discharges, including cofferdams, are necessary for construction activities, access 

fills, or dewatering of construction sites. Temporary fills must consist of materials, and be 

placed in a manner, that will not be eroded by expected high flows. Temporary fills must be 

removed in their entirety and the affected areas returned to pre-construction elevations. The 

areas affected by temporary fills must be revegetated, as appropriate. 

Notification: The permittee must submit a pre-construction notification to the district 

engineer prior to commencing the activity if any of the following criteria are met: (1) the 

activity involves mechanized land clearing in a forested wetland for the utility line right-ofway; (2) a section 10 permit is required; (3) the utility line in waters of the United States, 

excluding overhead lines, exceeds 500 feet; (4) the utility line is placed within a 

jurisdictional area (i.e., water of the United States), and it runs parallel to a stream bed that 

is within that jurisdictional area; (5) discharges that result in the loss of greater than 1/10-

acre of waters of the United States; (6) permanent access roads are constructed above grade 

in waters of the United States for a distance of more than 500 feet; or (7) permanent access 

roads are constructed in waters of the United States with impervious materials. (See general 
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condition 30.) (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 pre-construction notification and NWP 

verification will be sent by the Corps to the National Oceanic and Atmospheric 

Administration (NOAA), National Ocean Service (NOS), for charting the utility line to 

protect navigation. 

Note 2: Access roads used for both construction and maintenance may be authorized, 

provided they meet the terms and conditions of this NWP. Access roads used solely for 

construction of the utility line must be removed upon completion of the work, accordance 

with the requirements for temporary fills. 

Note 3: Pipes or pipelines used to transport gaseous, liquid, liquescent, or slurry substances 

over navigable waters of the United States are considered to be bridges, not utility lines, and 

may require a permit from the U.S. Coast Guard pursuant to Section 9 of the Rivers and 

Harbors Act of 1899. However, any discharges of dredged or fill material into waters of the 

United States associated with such pipelines will require a section 404 permit (see NWP 15). 

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) 

 Section 404 of the Clean Water Act (33 U.S.C. 1344) 

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 

pre-construction 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 
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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, 

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] 
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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 this NWP to clarify that losses of waters of the United States 

resulting from the construction of access roads are to be included towards the 1/2 acre limit 

for a single and complete project. 

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

2.0 Alternatives 

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

which requires a more expansive review than the Clean Water Act Section 404(b)(1) 

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

environmental impacts and impacts to the Corps, Federal, Tribal, and state resource 

agencies, general public, and prospective permittees. Since the consideration of off-site 

alternatives under the 404(b)(1) Guidelines does not apply to specific projects authorized by 

general permits, the alternatives analysis discussed below consists of a general NEPA 

alternatives analysis for the NWP. 

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 
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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 

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 the construction, maintenance, repair, and removal of utility lines and associated 

facilities, provided those activities and facilities have minimal adverse effects on the aquatic 

environment. The Corps has considered suggested changes to the terms and conditions of 
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this NWP, as well as modifying or adding NWP general conditions, as discussed in the 

preamble of the Federal Register notice announcing the proposed reissuance 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 to clarify that 

losses of waters of the United States resulting from the construction of access roads are to be 

included towards the 1/2 acre limit for a single and complete project. 

2.3 Regional Modification Alternatives 

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

differences in aquatic resource functions, services, 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 

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 on 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 
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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 terrestrial and aquatic ecosystems. The total land area 

in the contiguous United States is approximately 1,930,000,000 acres (Dahl 2006). Alaska 

is 366,050,000 acres in size and Hawaii is 4,110,720 acres in size (source: 

http://www.usgs.gov/state/ , accessed July 25, 2005). Terrestrial ecosystems comprise more 

than 93 percent of the contiguous United States and aquatic ecosystems make up the 

remainder (Dahl 2006). In the contiguous United States, approximately 67 percent of the 

land is privately owned, 31 percent is held by the United States government, and two 

percent is owned by state or local governments (Dale et al. 2000). Developed non-federal 

lands comprise 4.4 percent of the total land area of the contiguous United States (Dale et al. 

2000). 

The Federal Geographic Data Committee has established the Cowardin system developed by 

the U.S. Fish and Wildlife Service (USFWS) (Cowardin et al. 1979) as the national standard 

for wetland mapping, monitoring, and data reporting (Dahl 2006) (see also 

http://www.fgdc.gov/standards/projects/FGDC-standards-projects/wetlands/fgdc-announce , 

accessed April 3, 2006). The Cowardin system is a hierarchical system which describes 

various wetland and deepwater habitats, using structural characteristics such as vegetation, 

substrate, and water regime as defining characteristics. Wetlands are defined by vegetation 

type, soils, and flooding frequency. Deepwater habitats are permanently flooded areas 

located below the wetland boundary. In rivers and lakes, deepwater habitats are usually 

more than two meters deep. 

There are five major systems in the Cowardin classification scheme: marine, estuarine, 

riverine, lacustrine, and palustrine (Cowardin et al. 1979). The marine system consists of 

open ocean on the continental shelf and its high energy coastline. The estuarine system 

consists of tidal deepwater habitats and adjacent tidal wetlands that are usually partially 

enclosed by land, but may have open connections to open ocean waters. The riverine 

system generally consists of all wetland and deepwater habitats located within a river 

channel. The lacustrine system generally consists of wetland and deepwater habitats located 

within a topographic depression or dammed river channel, with a total area greater than 20 

acres. The palustrine system generally includes all non-tidal wetlands and wetlands located 

in tidal areas with salinities less than 0.5 parts per thousand; it also includes ponds less than 

20 acres in size. Approximately 95 percent of wetlands in the conterminous United States 

are freshwater wetlands, and the remaining 5 percent are estuarine or marine wetlands (Dahl 

2006). 

The Emergency Wetlands Resources Act of 1986 (Public Law 99-645) requires the USFWS 

to submit wetland status and trends reports to Congress (Dahl 2006). The latest status and 
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trends report, which covers the period of 1998 to 2004, is summarized in Table 3.1. 

Table 3.1. Estimated aquatic resource acreages in the conterminous United States in 

2004 (Dahl 2006). 

Aquatic Habitat Category 

Estimated Area 

in 2004 

(acres) 

Marine 128,600 

Estuarine intertidal non-vegetated 600,000 

Estuarine intertidal vegetated 4,571,700 

All intertidal waters and wetlands 5,300,300 

Palustrine non-vegetated 6,633,900 

Palustrine vegetated 95,819,800 

 Palustrine emergent wetlands 26,147,000 

 Palustrine forested wetlands 52,031,400 

 Palustrine shrub wetlands 17,641,400 

All palustrine aquatic habitats 102,453,700 

Lacustrine deepwater habitats 16,773,400 

Riverine deepwater habitats 6,813,300 

Estuarine subtidal habitats 17,717,800 

All aquatic habitats 149,058,500 

The acreage of lacustrine deepwater habitats does not include the open waters of Great 

Lakes (Dahl 2006). 

According to Hall et al. (1994), there are more than 204 million acres of wetlands and 

deepwater habitats in the State of Alaska, including approximately 174.7 million acres of 

wetlands. Wetlands and deepwater habitats comprise approximately 50.7 percent of the 

surface area in Alaska (Hall et al. 1994). 

The National Resources Inventory (NRI) is a statistical survey conducted by the Natural 

Resources Conservation Service (NRCS) (2009) of natural resources on non-federal land in 

the United States. The NRCS defines non-federal land as privately owned lands, tribal and 

trust lands, and lands under the control of local and State governments. The land use 

determined by 2007 NRI is summarized in Table 3.2. The 2007 NRI estimates that there are 

110,671,500 acres of palustrine and estuarine wetlands on non-Federal land and water areas 

in the United States (NRCS 2009). The 2007 NRI estimates that there are 48,471,100 acres 

of open waters on non-Federal land in the United States, including lacustrine, riverine, and 

marine habitats, as well as estuarine deepwater habitats. 

Table 3.2. The 2007 National Resources Inventory acreages for palustrine and 

estuarine wetlands on non-federal land, by land cover/use category (NRCS 

2009). 
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National Resources Inventory Land Cover/Use Category 

Area of Palustrine and 

Estuarine Wetlands 

(acres) 

cropland, pastureland, and Conservation Reserve Program 

land 16,790,300 

forest land 66,043,100 

rangeland 7,940,300 

other rural land 14,744,800 

developed land 1,571,900 

water area 3,581,100 

Total 110,671,500 

The land cover/use categories used by the 2007 NRI are defined below (NRCS 2009). 

Croplands are areas used to produce crops adapted for harvest. Pastureland is land managed 

for livestock grazing, through the production of introduced forage plants. Conservation 

Reserve Program land is under a Conservation Reserve Program contract. Forest land is 

comprised of at least 10 percent single stem woody plant species that will be at least 13 feet 

tall at maturity. Rangeland is land on which plant cover consists mostly of native grasses, 

herbaceous plants, or shrubs suitable for grazing or browsing, and introduced forage plant 

species. Other rural land consists of farmsteads and other farm structures, field windbreaks, 

marshland, and barren land. Developed land is comprised of large urban and built-up areas 

(i.e., urban and built-up areas 10 acres or more in size), small built-up areas (i.e., developed 

lands 0.25 to 10 acres in size) , and rural transportation land (e.g., roads, railroads, and 

associated rights-of-way outside urban and built-up areas). Water areas are comprised of 

waterbodies and streams that are permanent open waters. 

Leopold, Wolman, and Miller (1964) estimated that there are approximately 3,250,000 miles 

of river and stream channels in the United States. This estimate is based on an analysis of 

1:24,000 scale topographic maps, by stream order. This estimate does not include many 

small streams. Many small streams are not mapped on 1:24,000 scale U.S. Geological 

Survey topographic maps (Leopold 1994) or included in other analyses (Meyer and Wallace 

2001). In a study of stream mapping in the southeastern United States, only 20% of the 

stream network was mapped on 1:24,000 scale topographic maps, and nearly none of the 

observed intermittent or ephemeral streams were indicated on those maps (Hansen 2001). 

For a 1:24,000 scale topographic map, the smallest tributary found by using 10-foot contour 

interval has drainage area of 0.7 square mile and length of 1,500 feet, and smaller channels 

are common throughout the United States (Leopold 1994). Due to the difficulty in mapping 

small streams, there are no accurate estimates of the total number of river or stream miles in 

the conterminous United States that may be classified as “waters of the United States.” 

The USFWS status and trends study does not assess the condition or quality of wetlands and 

deepwater habitats (Dahl 2006). The Nation’s aquatic resource base is underestimated by 

the USFWS status and trends study, the National Wetland Inventory (NWI), and studies that 

estimate the length or number of stream channels within watersheds (see above). The 2006 

status and trends study does not include Alaska and Hawaii. The underestimate by the status 
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and trends study and the NWI results from the minimum size of wetlands detected through 

remote sensing techniques and the difficulty of identifying certain wetland types through 

those remote sensing techniques. The NWI maps do not show small or linear wetlands 

(Tiner 1997) that may be directly impacted by activities authorized by NWPs. For the latest 

USFWS status and trends study, most of the wetlands identified are larger than 2.5 acres, but 

the minimum size of detectable wetland varies by wetland type (Dahl 2006). Some wetland 

types less than one acre in size can be identified; the smallest wetland detected for the most 

recent status and trends report was 0.005 acre (Dahl 2006). Because of the limitations of 

remote sensing techniques, certain wetland types are not included in the USFWS status and 

trends study: seagrass beds, submerged aquatic vegetation, submerged reefs, certain types of 

forested wetlands, and emergent wetlands along the Pacific coast (Dahl 2006). Therefore, 

activities authorized by NWPs will adversely affect a smaller proportion of the Nation’s 

wetland base than indicated by the wetlands acreage estimates provided in the most recent 

status and trends report, or the NWI maps for a particular region. 

Not all of the Nation’s aquatic resources are subject to regulatory jurisdiction under Section 

404 of the Clean Water Act. Waters of the United States subject to Section 404 of the Clean 

Water Act are defined at 33 CFR part 328. Some wetlands are not subject to Clean Water 

Act jurisdiction because they do not meet the criteria at Part 328. In its decision in Solid 

Waste County of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 

(2001), the U.S. Supreme Court ruled that Clean Water Act jurisdiction does not apply to 

isolated, intrastate, non-navigable waters based on their use as habitat for migratory birds. 

Tiner (2003) estimated that in some areas of the country, the proportion of wetlands that are 

geographically isolated, and may not be subject to Clean Water Act jurisdiction is 

approximately 20 to 50 percent of the wetland area, and there are other areas where more 

than 50 percent of the wetlands are geographically isolated. Geographically isolated 

wetlands comprise a substantial proportion of the wetlands found in regions with arid, semiarid, and semi-humid climates, as well as areas with karst topography (Tiner 2003). 

However, it is difficult to determine from maps or aerial photographs whether wetlands are 

hydrologically isolated from other waters, because there may be small surface hydrologic 

connections that are not included on those maps or detected by those photographs (Tiner 

2003). The scope of waters subject to Clean Water Act jurisdiction has also been affected by 

the U.S. Supreme Court decision in the consolidated cases of Rapanos v. U.S. and Carabell 

v. U.S., but there have been no formal studies to estimate the proportion of wetlands, 

streams, and other aquatic resources that may have been affected by that decision. 

This NWP authorizes activities in all waters of the United States, including navigable 

waters. These waters are included in the marine, estuarine, palustrine, lacustrine, and 

riverine systems of the Cowardin classification system. 

Wetland functions are the biophysical processes that occur within a wetland (King et al. 

2000). Wetlands provide many functions, such as habitat for fish and shellfish, habitat for 

waterfowl and other wildlife, habitat for rare and endangered species, food production, plant 

production, flood conveyance, flood-peak reduction, flood storage, shoreline stabilization, 

water supply, ground water recharge, pollutant removal, sediment accretion, and nutrient 

uptake (NRC 1992). 
12 

Functions provided by streams include sediment transport, water transport, transport of 

nutrients and detritus, habitat for many species of plants and animals (including endangered 

or threatened species), and maintenance of biodiversity (NRC 1992). Streams also provide 

hydrologic functions, nutrient cycling functions, food web support, and corridors for 

movement of aquatic organisms (Allan and Castillo 2007). 

Freshwater ecosystems provide services such as water for drinking, household uses, 

manufacturing, thermoelectric power generation, irrigation, and aquaculture; production of 

finfish, waterfowl, and shellfish; and non-extractive services, such as flood control, 

transportation, recreation (e.g., swimming and boating), pollution dilution, hydroelectric 

generation, wildlife habitat, soil fertilization, and enhancement of property values (Postel 

and Carpenter 1997). 

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. For example, utility lines are important components of urban and rural 

infrastructure. They convey a variety of substances or products to people, such as water, 

fuel, and electricity. Utility lines are also essential for communication, including telephone 

lines, internet connections, and cable television. Utility lines are also important for the 

removal of wastes from residences, as well as commercial and institutional facilities. 

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 and the anticipated cumulative effects of those activities. 

In the assessment of these individual and cumulative effects, the terms and limits of the 

NWP, 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, the public interest review specified 

in 33 CFR 320.4(a)(1) and (2), and the impact analysis specified in Subparts C through F of 

the 404(b)(1) Guidelines (40 CFR Part 230). 

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 
13 

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 

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 the construction, maintenance, repair, or removal of utility lines and 

associated facilities in waters of the United States. The acreage limit for this NWP is 1/2 

acre. 

Pre-construction notification is required if: (1) the activity involves mechanized land 

clearing in a forested wetland for the utility line right-of-way; (2) a section 10 permit is 

required; (3) the utility line in waters of the United States, excluding overhead lines, exceeds 

500 feet; (4) the utility line is placed within a jurisdictional area (i.e., water of the United 

States), and it runs parallel to a stream bed that is within that jurisdictional area; (5) 

discharges that result in the loss of greater than 1/10-acre of waters of the United States; (6) 

permanent access roads are constructed above grade in waters of the United States for a 

distance of more than 500 feet; or (7) permanent access roads are constructed in waters of 

the United States with impervious materials. The pre-construction notification requirement 

allows district engineers to review proposed activities on a case-by-case basis to ensure that 

the adverse effects of those activities on the aquatic environment are minimal. 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 
14 

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) decrease the 

acreage limit for the NWP; 3) lower the notification threshold of the NWP to require 

notification for activities with smaller impacts in those waters; 4) require notification for all 

activities in those waters; 5) add regional conditions to the NWP to ensure that the adverse 

environmental effects are minimal; or 6) 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. 

The construction and use of fills for temporary access for construction may be authorized by 

NWP 33 or regional general permits issued by division or district engineers. The related 

work must meet the terms and conditions of the specified permit(s). If the discharge is 

dependent on portions of a larger project that require an individual permit, this NWP will 

not apply. [See 33 CFR 330.6(c) and (d)] 

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 

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 wetlands, streams, 

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 wetlands, streams, 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 wetlands, streams, and 

other aquatic resources in the United States, and alter the quantity and quality of those 

resources. Not all of those activities are regulated by the Corps under Section 404 of the 

Clean Water Act and Section 10 of the Rivers and Harbors Act of 1899. Federal, non-
15 

federal, and private activities contribute cumulative effects to aquatic resources. Activities 

authorized by DA permits, including structures and work in navigable waters and discharges 

of dredged or fill material, can directly or indirectly cause the loss of, or adversely affect the 

functions provided by, wetlands, streams, and other aquatic resources. Activities that do not 

require DA permits, because they are exempt from section 404 permit requirements, can 

also adversely affect the quantity and quality of the Nation’s wetlands, streams, and other 

aquatic resources. Discharges of dredged or fill material that convert wetlands, streams, and 

other aquatic resources to upland areas result in permanent losses of aquatic resource 

functions and services. Temporary fills and other activities may cause short-term or partial 

losses of aquatic resource functions and services. 

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 wetlands, streams, and aquatic 

resources, and adversely affect the quantity and quality of those resources. Changes in the 

use of uplands next to or near wetlands, streams, and other aquatic resources may directly or 

indirectly diminish the ecological functions and services provided by those waters (e.g., 

Allan 2004 for streams; Zedler and Kercher 2005 for wetlands). 

Actions that affect wetland quantity and quality include: land use changes that alter local 

hydrology (including water withdrawal), clearing and draining wetlands, constructing levees 

that sever hydrologic connections between rivers and floodplain wetlands, constructing 

other obstructions to water flow (e.g., dams, locks), constructing water diversions, 

accumulating nutrients and contaminants, and fire suppression (Brinson and Malvárez. 

2002). 

Actions that affect the quantity and quality of streams and rivers include habitat alterations 

caused by dam construction, channelization, and land use changes; changes in species 

composition caused by non-indigenous species; and additions of pollutants through either 

point sources or non-point sources (Allan and Castillo 2007). In urbanized and agricultural 

watersheds, the number of small stream channels has been substantially reduced, in part by 

activities that occurred between the 19th and mid-20th centuries (Meyer and Wallace 2001). 

Activities that affect the quantity and quality of small streams include residential, 

commercial, and industrial development, mining, agricultural activities, forestry activities, 

and road construction (Meyer and Wallace 2001). 

Dahl (1990) estimates that approximately 53 percent of the wetlands in the conterminous 

United States were lost in the 200-year period covering the 1780s to 1980s. The annual rate 

of wetland loss has decreased substantially since the 1970s (Dahl 2006), when wetland 

regulation became more prevalent (Brinson and Malvárez. 2002). According to the 2006 

status and trends report, during the period of 1998 to 2004 urban development accounted for 

39% of wetland losses (88,960 acres), rural development resulted in 22% of wetland losses 

(51,440 acres), silviculture accounted for 8% of wetland losses (18,000 acres), and wetland 

conversion to deepwater habitats caused a 31% loss in wetland area (70,100 acres) (Dahl 

2006). Some of the losses are for non-jurisdictional wetlands and some losses may be due to 

activities not regulated under Section 404 of the Clean Water Act, such as unregulated 
16 

drainage activities or water withdrawals. From 1998 to 2004, approximately 70,770 acres of 

wetlands were gained as a result of wetland restoration and conservation programs on 

agricultural land (Dahl 2006). Another source of wetland gain is conversion of uplands to 

wetlands (349,600 acres during the same time period) (Dahl 2006). It is important to 

understand that inventories of wetlands, streams, and other aquatic resources are likely to be 

incomplete (e.g., Dahl 2006. Meyer and Wallace 2001), which further complicates 

cumulative effects analysis. 

The estimated contribution of this NWP to the cumulative effects to wetlands, streams, and 

other aquatic resources in the United States during the five year period the NWP is in effect 

is provided in section 6.2.2. 

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. 

The Corps expects that the 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. Compensatory mitigation, if required for activities 

authorized by this NWP, will result in the restoration, enhancement, establishment, or 
17 

preservation of aquatic habitats that will offset losses to conservation values. The adverse 

effects of activities authorized by this NWP on conservation will be minor. 

(b) Economics: Utility line activities 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. Utility lines 

provide energy, potable water, telecommunications, and other services to residences and 

schools, as well as factories, offices, stores, and other places of business, to allow those 

facilities to operate. 

(c) Aesthetics: Utility line activities will alter the visual character of some waters of the 

United States. 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. Utility line activities authorized by this NWP can also modify other aesthetic 

characteristics, such as air quality and the amount of noise. The increased human use of the 

project area and surrounding land will also alter local aesthetic values. 

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

environmental concerns, such as water, air, noise, and land 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. General condition 22 

requires mitigation to minimize adverse effects to the aquatic environment through 

avoidance and minimization at the project site. Compensatory mitigation may be required 

by district engineers to ensure that the net adverse effects on the aquatic environment are 

minimal. Specific environmental concerns are addressed in other sections of this document. 

(e) Wetlands: The construction, maintenance, repair, or removal of utility lines and 

associated facilities may result in the destruction of wetlands. For the construction or 

maintenance of utility lines impacts to wetlands will be temporary, unless the site contains 

forested wetlands. The construction of utility line substations will result in the permanent 

loss of wetlands. Wetlands may also be converted to other uses and habitat types. Forested 

wetlands will not be allowed to grow back in the utility line right-of-way so that the utility 

line will not be damaged and can be easily maintained. Only shrubs and herbaceous plants 

will be allowed to grow in the right-of-way. Some wetlands may be temporarily impacted 

by the work when used as temporary staging areas. These wetlands will be restored, unless 

the district engineer authorizes another use for the area, but the plant community may be 

different, especially if the site was originally forested. 

Wetlands provide habitat, including foraging, nesting, spawning, rearing, and resting sites 

for aquatic and terrestrial species. The destruction of wetlands may alter natural drainage 

patterns. Wetlands reduce erosion by stabilizing the substrate. Wetlands also act as storage 

areas for stormwater and flood waters. Wetlands may act as groundwater discharge or 

recharge areas. The loss of wetland vegetation will adversely affect water quality because 
18 

these plants trap sediments, pollutants, and nutrients and transform chemical compounds. 

Wetland vegetation also provides habitat for microorganisms that remove nutrients and 

pollutants from water. Wetlands, through the accumulation of organic matter, act as sinks 

for some nutrients and other chemical compounds, reducing the amounts of these substances 

in the water. 

General condition 22 requires avoidance and minimization of impacts to waters of the 

United States, including wetlands, at the project site. Compensatory mitigation may be 

required to offset losses of waters of the United States so that the net adverse effects on the 

aquatic environment are minimal. General condition 21 prohibits the use of this NWP to 

discharge dredged or fill material in designated critical resource waters and adjacent 

wetlands, which may include high value wetlands. Division engineers can regionally 

condition this NWP to restrict or prohibit its use in high value wetlands. District engineers 

will also exercise discretionary authority to require an individual permit if high value 

wetlands will be affected by the work and the work will result in more than minimal adverse 

effects on the aquatic environment. District engineers can also add case-specific special 

conditions to the NWP authorization to reduce impacts to wetlands or require compensatory 

mitigation to offset losses of wetlands. 

(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 certain utility line activities in all waters 

of the United States. Discharges of dredged or fill material into waters of the United States 

for the construction of utility line substations is limited to non-tidal waters, excluding nontidal waters adjacent to tidal waters. Waters of the United States provide habitat to many 

species of fish and wildlife. Activities authorized by this NWP may alter the habitat 

characteristics of streams, wetlands, and other waters of the United States, decreasing the 

quantity and quality of fish and wildlife habitat. The construction of utility line right-ofways may fragment existing habitat and increase the amount of edge habitat in the area, 

causing changes in local species composition. Wetland, riparian, and estuarine vegetation 

provides food and habitat for many species, including foraging areas, resting areas, corridors 

for wildlife movement, and nesting and breeding grounds. Open waters provide habitat for 

fish and other aquatic organisms. Fish and other motile animals will avoid the project site 

during construction and maintenance. Woody riparian vegetation shades streams, which 

reduces water temperature fluctuations and provides habitat for fish and other aquatic 

animals. Riparian and estuarine vegetation provides organic matter that is consumed by fish 

and aquatic invertebrates. Woody riparian vegetation creates habitat diversity in streams 

when trees and large shrubs fall into the channel, forming snags that provide habitat and 

shade for fish. The morphology of a stream channel may be altered by activities authorized 

by this NWP, which can affect fish populations. However, pre-construction notification is 

required for certain activities authorized by this NWP, which provides district engineers 

with opportunities to review those activities, assess potential impacts on fish and wildlife 

values, and ensure that the authorized work results in minimal adverse effects on the aquatic 
19 

environment. Compensatory mitigation may be required by district engineers to restore, 

enhance, establish, and/or preserve wetlands and other aquatic habitats to offset losses of 

waters of the United States. The establishment and maintenance of riparian areas next to 

open and flowing waters may also be required as compensatory mitigation. These methods 

of compensatory mitigation will provide fish and wildlife habitat values. 

General condition 2 will reduce adverse effects to fish and other aquatic species by 

prohibiting activities that substantially disrupt the necessary life cycle movements of 

indigenous aquatic species, unless the primary purpose of the activity is to impound water. 

Compliance with general conditions 3 and 5 will ensure that the authorized work has 

minimal adverse effects on spawning areas and shellfish beds, respectively. The authorized 

work cannot have more than minimal adverse effects on breeding areas for migratory birds, 

due to the requirements of general condition 4. 

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 may affect the flood-holding 

capacity of the 100-year floodplain, including surface water flow velocities. Changes in the 

flood-holding capacity of the 100-year floodplain may impact human health, safety, and 

welfare. Compliance with general condition 9 will reduce flood hazards. This general 

condition requires the permittee to maintain, to the maximum extent practicable, the preconstruction course, condition, capacity, and location of open waters, except under certain 

circumstances. General condition 10 requires the activity to comply with applicable FEMAapproved state or local floodplain management requirements. Much of the land area within 

100-year floodplains is upland, and outside of the Corps scope of review. 

(i) Floodplain values: Activities authorized by this NWP may adversely affect the floodholding capacity of the floodplain, as well as other floodplain values. The fish and wildlife 

habitat values of floodplains will be adversely affected by activities authorized by this 

NWP, by modifying or eliminating areas used for nesting, foraging, resting, and 

reproduction. The water quality functions of floodplains may also be adversely affected by 

these activities. Modification of the floodplain may also adversely affect other hydrological 

processes, such as groundwater recharge. 

Compensatory mitigation may be required for activities authorized by this NWP, which will 

offset losses of waters of the United States and provide water quality functions and wildlife 
20 

habitat. General condition 22 requires avoidance and minimization of impacts to waters of 

the United States to the maximum extent practicable at the project site, which will reduce 

losses of floodplain values. The requirements of general condition 22 will minimize adverse 

effects to floodplain values, such as flood storage capacity, wildlife habitat, fish spawning 

areas, and nutrient cycling for aquatic ecosystems. Compliance with general condition 10 

will ensure that activities in 100-year floodplains will not cause more than minimal adverse 

effects on flood storage and conveyance. 

(j) Land use: Activities authorized by this NWP will often change the land use from natural 

to developed. The installation of utility lines may induce more development in the vicinity 

of the project. Since the primary responsibility for land use decisions is held by state, local, 

and Tribal governments, the Corps scope of review is limited to significant issues of 

overriding national importance, such as navigation and water quality (see 33 CFR 

320.4(j)(2)). 

(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. 

This NWP requires notification for all work in section 10 waters, which will allow district 

engineers to review the notification and determine if the proposed work will adversely affect 

navigation. 

(l) Shore erosion and accretion: The activities authorized by this NWP will have minor 

direct effects on shore erosion and accretion processes, since the NWP does not authorize 

the construction of utility line substations in tidal waters. The construction of utility lines 

and foundations for overhead utility line towers, poles, and anchors, will have minimal 

adverse effects on shore erosion and accretion. However, NWP 13, regional general 

permits, or individual permits may be used to authorize bank stabilization projects 

associated with utility line activities, which may affect shore erosion and accretion. 

(m) Recreation: Activities authorized by this NWP may change the recreational uses of the 

area. Certain recreational activities, such as bird watching, hunting, and fishing may no 

longer be available in the area. Some utility line activities may eliminate certain 

recreational uses of the area. 

(n) Water supply and conservation: Activities authorized by this NWP may adversely affect 

both surface water and groundwater supplies. Activities authorized by this NWP can also 

affect the quality of water supplies by adding pollutants and toxic chemicals to surface 

waters and groundwater, but many causes of water pollution, such as discharges regulated 

under Section 402 of the Clean Water Act, are outside the Corps scope of review. Some 

water pollution concerns can be addressed through the water quality management measures 

that may be required for activities authorized by this NWP. The quantity and quality of 

local water supplies may be enhanced through the construction of water treatment facilities. 

 Division and district engineers can prohibit the use of this NWP in watersheds for public 

water supplies, if it is in the public interest to do so. General condition 7 prohibits 

discharges in the vicinity of public water supply intakes. Compensatory mitigation required 

for activities authorized by this NWP may help improve the quality of surface waters. 
21 

(o) Water quality: Utility line activities in wetlands and open waters may have adverse 

effects on water quality. These activities can result in increases in sediments and pollutants 

in the water. The loss of wetland and riparian vegetation will adversely affect water quality 

because these plants trap sediments, pollutants, and nutrients and transform chemical 

compounds. Wetland and riparian vegetation also provides habitat for microorganisms that 

remove nutrients and pollutants from water. Wetlands, through the accumulation of organic 

matter, act as sinks for some nutrients and other chemical compounds, reducing the amounts 

of these substances in the water column. Wetlands and riparian areas also decrease the 

velocity of flood waters, removing suspended sediments from the water column and 

reducing turbidity. Riparian vegetation also serves an important role in the water quality of 

streams by shading the water from the intense heat of the sun. Compensatory mitigation 

may be required for activities authorized by this NWP, to ensure that the work does not have 

more than minimal adverse effects on the aquatic environment, including water quality. 

Wetlands and riparian areas restored, established, enhanced, or preserved as compensatory 

mitigation may provide local water quality benefits. 

During the construction, maintenance, and repair of utility lines and related activities, small 

amounts of oil and grease from construction equipment may be discharged into the 

waterway. 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. 

This NWP may require Section 401 water quality certification, since it authorizes discharges 

of dredged or fill material into waters of the United States. Most water quality concerns are 

addressed by the State or Tribal Section 401 agency. In accordance with general condition 

22, the permittee may be required to implement water quality management measures to 

minimize the degradation of water quality. Water quality management measures may 

involve the installation of stormwater management facilities to trap pollutants and the 

establishment and maintenance of riparian areas next to waters of the United States. 

Riparian areas help protect downstream water quality and enhance aquatic habitat. 

(p) Energy needs: The utility line activities authorized by this NWP may induce higher rates 

of energy consumption in the area by making electricity, natural gas, and petroleum 

products more readily available to consumers. Additional power plants or oil refineries may 

be needed to meet increases in energy demand, but these issues are beyond the Corps scope 

of review. This NWP may be used to authorize the expansion of existing infrastructure to 

provide energy to new developments. 

(q) Safety: The utility line activities authorized by this NWP will be subject to Federal, state, 

and local 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 may adversely affect food 

and fiber production, especially when utility line activities are constructed on agricultural 

land. Utility line activities usually require easements, which may take some agricultural 
22 

land out of production. These activities may reduce the amount of available farmland in the 

nation, unless that land is replaced by converting other land, such as forest, to agricultural 

land. The loss of farmland is more appropriately addressed through the land use planning 

and zoning authority held by state and local governments. Food production may be 

increased by activities authorized by this NWP. For example, this NWP can authorize the 

construction or expansion of utility lines that provide energy, water, and other services to 

commercial food production facilities, such as bakeries, canneries, and meat processing 

plants. 

(s) Mineral needs: Activities authorized by this NWP may increase demand for aggregates 

and stone, which may be used to construct utility lines, substations, and foundations for 

overhead utility line towers. Utility lines authorized by this NWP may increase the demand 

for other building materials, such as steel, aluminum, and copper, which are made from 

mineral ores. 

(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 utility line activities, provided those 

activities comply with the terms and conditions of the NWP and result in minimal adverse 

effects on the aquatic environment. 

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

This NWP authorizes the construction, maintenance, repair, and removal of utility lines and 

associated facilities, provided those activities have minimal adverse effects on the aquatic 

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

needs for the conveyance of a variety of substances, as well as communications and 

information transfer. The need for this NWP is based upon the large 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 
23 

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 the utility line 

activity. 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. 

6.0 Clean Water Act Section 404(b)(1) Guidelines Analysis 

The 404(b)(1) compliance criteria for general permits are provided at 40 CFR 230.7. 

6.1 Evaluation Process (40 CFR 230.7(b)) 

6.1.1 Alternatives (40 CFR 230.10(a))

General condition 22 requires permittees to avoid and minimize discharges of dredged or fill 

material into waters of the United States to the maximum extent practicable on the project 

site. The consideration of off-site alternatives is not directly applicable to general permits. 

6.1.2 Prohibitions (40 CFR 230.10(b))

This NWP authorizes discharges of dredged or fill material into waters of the United States, 

which require water quality certification. Water quality certification requirements will be 

met in accordance with the procedures at 33 CFR 330.4(c). 

No toxic discharges will be authorized by this NWP. General condition 6 states that the 

material must be free from toxic pollutants in toxic amounts. 
24 

This NWP does not authorize activities that jeopardize the continued existence of any listed 

threatened or endangered species or result in the destruction or adverse modification of 

critical habitat. Reviews of preconstruction notifications, regional conditions, and local 

operating procedures for endangered species will ensure compliance with the Endangered 

Species Act. Refer to general condition 19 and to 33 CFR 330.4(f) for information and 

procedures. 

This NWP will not authorize the violation of any requirement to protect any marine 

sanctuary. Refer to section 6.2.3(j)(1) of this document for further information. 

6.1.3 Findings of Significant Degradation (40 CFR 230.10(c))

Potential impact analysis (Subparts C through F): The potential impact analysis specified in 

Subparts C through F is discussed in section 6.2.3 of this document. Mitigation required by 

the district engineer will ensure that the adverse effects on the aquatic environment are 

minimal. 

Evaluation and testing (Subpart G): Because the terms and conditions of the NWP specify 

the types of discharges that are authorized, as well as those that are prohibited, individual 

evaluation and testing for the presence of contaminants will normally not be required. If a 

situation warrants, provisions of the NWP allow division or district engineers to further 

specify authorized or prohibited discharges and/or require testing. 

Based upon Subparts B and G, after consideration of Subparts C through F, the discharges 

authorized by this NWP will not cause or contribute to significant degradation of waters of 

the United States. 

6.1.4 Factual determinations (40 CFR 230.11)

The factual determinations required in 40 CFR 230.11 are discussed in section 6.2.3 of this 

document. 

6.1.5 Appropriate and practicable steps to minimize potential adverse impacts (40 CFR 

230.10(d))

As demonstrated by the information in this document, as well as the terms, conditions, and 

provisions of this NWP, actions to minimize adverse effects (Subpart H) have been 

thoroughly considered and incorporated into the NWP. General condition 22 requires 

permittees to avoid and minimize discharges of dredged or fill material into waters of the 

United States to the maximum extent practicable on the project site. Compensatory 

mitigation required by the district engineer will ensure that the net adverse effects on the 

aquatic environment are minimal. 

6.2 Evaluation Process (40 CFR 230.7(b)) 
25 

6.2.1 Description of permitted activities (40 CFR 230.7(b)(2)) 

As indicated by the text of this NWP in section 1.0 of this document, and the discussion of 

potential impacts in section 4.0, the activities authorized by this NWP are sufficiently 

similar in nature and environmental impact to warrant authorization under a single general 

permit. Specifically, the purpose of the NWP is to authorize discharges of dredged or fill 

material into waters of the United States for the construction, maintenance, repair, or 

removal of utility lines and associated facilities. The nature and scope of the impacts are 

controlled by the terms and conditions of the NWP. 

The activities authorized by this NWP are sufficiently similar in nature and environmental 

impact to warrant authorization by a general permit. The terms of the NWP authorize a 

specific category of activity (i.e., discharges of dredged or fill material for the construction, 

maintenance, repair, or removal of utility lines and associated facilities) in a specific 

category of waters (i.e., waters of the United States). The terms of the NWP do not authorize 

the construction of utility line substations in tidal waters or in non-tidal wetlands adjacent to 

tidal waters. The restrictions imposed by the terms and conditions of this NWP will result in 

the authorization of activities that have similar impacts on the aquatic environment, namely 

the replacement of aquatic habitats, such as certain categories of non-tidal wetlands, with 

utility line facilities. Most of the impacts relating to the construction, maintenance, repair, or 

removal of utility lines will be temporary. 

If a situation arises in which the activity requires further review, or is more appropriately 

reviewed under the individual permit process, provisions of the NWPs allow division and/or 

district engineers to take such action. 

6.2.2 Cumulative effects (40 CFR 230.7(b)(3))

The 404(b)(1) Guidelines at 40 CFR 230.11(a) define cumulative impacts as “...the changes 

in an aquatic ecosystem that are attributable to the collective effect of a number of 

individual discharges of dredged or fill material.” If a situation arises in which cumulative 

effects are likely to be more than minimal and the proposed activity requires further review, 

or is more appropriately reviewed under the individual permit process, provisions of the 

NWPs allow division and/or district engineers to take such action. 

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 7,900 times per year on a 

national basis, resulting in impacts to approximately 400 acres of waters of the United 

States, including jurisdictional wetlands. The Corps estimates that approximately 480 acres 

of compensatory mitigation will be required to offset these impacts. The demand for these 

types of activities could increase or decrease over the five-year duration of this NWP. 

Using the current trend, approximately 39,500 activities could be authorized over a five year 

period until this NWP expires, resulting in impacts to approximately 2,000 acres of waters 

of the United States, including jurisdictional wetlands. Approximately 2,400 acres of 

compensatory mitigation would be required to offset those impacts. Compensatory 

mitigation is the restoration (re-establishment or rehabilitation), establishment, 
26 

enhancement, and/or in certain circumstances preservation of aquatic resources for the 

purposes of offsetting unavoidable adverse impacts which remain after all appropriate and 

practicable avoidance and minimization has been achieved (see 33 CFR 332.2). Stream 

rehabilitation and enhancement projects, including the restoration and preservation of 

riparian areas, provide riverine functions and services (Allan and Castillo 2007 for rivers 

and streams, NRC (2002) for riparian areas). Wetland restoration, enhancement, and 

establishment projects can provide wetland functions and services, as long as the wetland 

compensatory mitigation project is placed in an appropriate landscape position, has 

appropriate hydrology for the desired wetland type, and watershed condition will support the 

desired wetland type (NRC 2001). The required compensatory mitigation will attenuate 

cumulative impacts on the Nation’s aquatic resources by providing aquatic resource 

functions and services, so that the net effects on the aquatic environment resulting from the 

activities authorized by this NWP will be minimal. The Corps expects that the 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. 

6.2.3 Section 404(b)(1) Guidelines Impact Analysis, Subparts C through F

(a) Substrate: Discharges of dredged or fill material into waters of the United States will 

alter the substrate of those waters, usually replacing the aquatic area with dry land, and 

changing the physical, chemical, and biological characteristics of the substrate. The original 

substrate will be removed or covered by other material, such as concrete, asphalt, soil, 

gravel, etc. Temporary fills may be placed upon the substrate, but must be removed upon 

completion of the work (see general condition 13). Higher rates of erosion may result 

during construction, but general condition 12 requires the use of appropriate measures to 

control soil erosion and sediment. 

(b) Suspended particulates/turbidity: Depending on the method of construction, soil erosion 

and sediment control measures, equipment, composition of the bottom substrate, and wind 

and current conditions during construction, fill material placed in open waters will 

temporarily increase water turbidity. Pre-construction notification is required for certain 

activities authorized by this NWP, which allows the district engineer to review those 

activities and ensure that the adverse effects on the aquatic environment are minimal. 

Particulates will be resuspended in the water column during removal of temporary fills. The 

turbidity plume will normally be limited to the immediate vicinity of the disturbance and 

should dissipate shortly after each phase of the construction activity. General condition 12 

requires the permittee to stabilize exposed soils and other fills, which will reduce turbidity. 

In many localities, sediment and erosion control plans are required to minimize the entry of 

soil into the aquatic environment. NWP activities cannot create turbidity plumes that 

smother important spawning areas downstream (see general condition 3). 

(c) Water: Utility line activities can affect some characteristics of water, such as water 

clarity, chemical content, dissolved gas concentrations, pH, and temperature. The 

construction of utility lines, and utility line substations can change the chemical and 

physical characteristics of the waterbody by introducing suspended or dissolved chemical 
27 

compounds or sediments into the water. Changes in water quality can affect the species and 

quantities of organisms inhabiting the aquatic area. Water quality certification is required 

for most activities authorized by this NWP, which will ensure that the work does not violate 

applicable water quality standards. Permittees may be required to implement water quality 

management measures to ensure that the authorized work does not result in more than 

minimal degradation of water quality. Stormwater management facilities may be required to 

prevent or reduce the input of harmful chemical compounds into the waterbody. The district 

engineer may require the establishment and maintenance of riparian areas next to open 

waters, such as streams. Riparian areas help improve or maintain water quality, by 

removing nutrients, moderating water temperature changes, and trapping sediments. 

(d) Current patterns and water circulation: Activities authorized by this NWP may adversely 

affect the movement of water in the aquatic environment. Certain utility line activities 

require notification to the district engineer, to ensure that adverse effects to current patterns 

and water circulation are minimal. General condition 9 requires the authorized activity to be 

designed to withstand expected high flows and to maintain the course, condition, capacity, 

and location of open waters to the maximum extent practicable. General condition 10 

requires activities to comply with applicable FEMA-approved state or local floodplain 

management requirements, which will reduce adverse effects to surface water flows. 

(e) Normal water level fluctuations: The activities authorized by this NWP will have 

negligible adverse effects on normal patterns of water level fluctuations due to tides and 

flooding. Most utility lines will have little effect on normal water level fluctuations because 

they occupy a small proportion of the land surface or are installed under the surface of the 

substrate. General condition 9 requires the permittee to maintain the pre-construction 

course, condition, capacity, and location of open waters, to the maximum extent practicable. 

To ensure that the NWP does not authorize activities that adversely affect normal flooding 

patterns, general condition 10 requires NWP activities to comply with applicable FEMAapproved state or local floodplain management requirements. 

(f) Salinity gradients: The activities authorized by this NWP are unlikely to adversely affect 

salinity gradients, unless the utility line activity is associated with an outfall structure that 

will release freshwater into marine or estuarine waters, thereby reducing the salinity of those 

waters in the vicinity of the outfall structure. These adverse effects are likely to be minimal. 

(g) Threatened and endangered 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. 
28 

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 

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. 
29 

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. 

(h) Fish, crustaceans, molluscs, and other aquatic organisms in the food web. Certain 

activities authorized by this NWP require notification to the district engineer, which will 

allow review of those projects to ensure that adverse effects to fish and other aquatic 

organisms in the food web are minimal. Fish and other motile animals will avoid the project 

site during construction. Sessile or slow-moving animals in the path of discharges, 

equipment, and building materials will be destroyed. Some aquatic animals may be 

smothered by the placement of fill material. Motile animals will return to those areas that 

are temporarily impacted by the work and restored or allowed to revert back to 

preconstruction conditions. Aquatic animals will not return to sites of permanent fills. 

Benthic and sessile animals are expected to recolonize sites temporarily impacted by the 

work, after those areas are restored. Activities that alter the riparian zone, especially 

floodplains, may adversely affect populations of fish and other aquatic animals, by altering 

stream flow, flooding patterns, and surface and groundwater hydrology. 

Division and district engineers can place conditions on this NWP to prohibit discharges 

during important stages of the life cycles of certain aquatic organisms. Such time of year 

restrictions can prevent adverse effects to these aquatic organisms during reproduction and 

development periods. General conditions 3 and 5 address protection of spawning areas and 

shellfish beds, respectively. General condition 3 states that activities in spawning areas 

during spawning seasons must be avoided to the maximum extent practicable. In addition, 

general condition 3 also prohibits activities that result in the physical destruction of 

important spawning areas. General condition 5 prohibits activities in areas of concentrated 

shellfish populations. General condition 9 requires the maintenance of pre-construction 

course, condition, capacity, and location of open waters to the maximum extent practicable, 

which will help minimize adverse impacts to fish, shellfish, and other aquatic organisms in 

the food web. 
30 

(i) Other wildlife: Activities authorized by this NWP will result in adverse effects to other 

wildlife associated with aquatic ecosystems, such as resident and transient mammals, birds, 

reptiles, and amphibians, through the destruction of aquatic habitat, including breeding and 

nesting areas, escape cover, travel corridors, and preferred food sources. This NWP does not 

authorize activities that jeopardize the continued existence of Federally-listed endangered 

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

Compensatory mitigation, including the establishment and maintenance of riparian areas 

next to open waters, may be required for activities authorized by this NWP, which will help 

offset losses of aquatic habitat for wildlife. General condition 4 states that activities in 

breeding areas for migratory birds must be avoided to the maximum extent practicable. 

(j) Special aquatic sites: The potential impacts to specific special aquatic sites are discussed 

below: 

(1) Sanctuaries and refuges: The activities authorized by this NWP will have 

minimal adverse effects on waters of the United States within sanctuaries or refuges 

designated by Federal or state laws or local ordinances. General condition 21 prohibits the 

use of this NWP to discharge dredged or fill material in NOAA-managed marine sanctuaries 

and marine monuments, National Estuarine Research Reserves, and state-designated 

outstanding national resource waters. District engineers will exercise discretionary authority 

and require individual permits for specific projects in waters of the United States in 

sanctuaries and refuges if those activities will result in more than minimal adverse effects on 

the aquatic environment. 

(2) Wetlands: The activities authorized by this NWP will have minimal adverse 

effects on wetlands. District engineers will review notifications for certain activities 

authorized by this NWP to ensure that the adverse effects on the aquatic environment are 

minimal. Division engineers can regionally condition this NWP to restrict or prohibit its use 

in certain high value wetlands. See paragraph (e) of section 5.1 for a more detailed 

discussion of impacts to wetlands. 

(3) Mud flats: The activities authorized by this NWP will have minor adverse effects 

on mud flats. Small portions of mud flats may be destroyed by the installation of utility 

lines, but these adverse effects will be minimal. Pre-construction notification is required for 

certain activities authorized by this NWP and the notification must include a delineation of 

special aquatic sites, including mud flats. 

(4) Vegetated shallows: The activities authorized by this NWP will have minimal 

adverse effects on vegetated shallows in tidal waters, since only utility lines and foundations 

for overhead utility line towers, poles, and anchors can be constructed in tidal waters that 

may be inhabited by submerged aquatic vegetation. District engineers will receive preconstruction notifications for all utility line activities in section 10 waters to determine if 

those activities will result in minimal adverse effects on the aquatic environment. Division 

engineers can regionally condition this NWP to restrict or prohibit its use in non-tidal 

vegetated shallows. For those activities that require notification, the district engineer will 

review the proposed work and may exercise discretionary authority to require the project 
31 

proponent to obtain an individual permit if the work will result in more than minimal 

adverse effects on the aquatic environment. 

(5) Coral reefs: The activities authorized by this NWP may affect coral reefs. The 

activities authorized by this NWP will have minimal adverse effects on coral reefs. Preconstruction notification is required for all section 10 activities authorized by this NWP, so 

that the district engineer can review the proposed work and ensure that it results in minimal 

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

the aquatic environment, the district engineer will exercise discretionary authority to require 

the project proponent to obtain an individual permit. 

(6) Riffle and pool complexes: The activities authorized by this NWP will have 

minimal adverse effects on riffle and pool complexes. Division engineers can regionally 

condition this NWP to restrict or prohibit its use in riffle and pool complexes. Preconstruction notification is required for certain utility line activities, which will allow 

district engineers to review the proposed work, and if the adverse effects are more than 

minimal, exercise discretionary authority to require the project proponent to obtain an 

individual permit. 

(k) Municipal and private water supplies: See paragraph (n) of section 5.1 for a discussion 

of potential impacts to water supplies. 

(l) Recreational and commercial fisheries, including essential fish habitat: The activities 

authorized by this NWP may adversely affect waters of the United States that act as habitat 

for populations of economically important fish and shellfish species. Division and district 

engineers can condition this NWP to prohibit discharges during important life cycle stages, 

such as spawning or development periods, of economically valuable fish and shellfish. All 

utility lines requiring section 10 authorization require submission of pre-construction 

notifications to the district engineer, which will allow review of each activity in navigable 

waters to ensure that adverse effects to economically important fish and shellfish are 

minimal. Compliance with general conditions 3 and 5 will ensure that the authorized work 

does not adversely affect important spawning areas or concentrated shellfish populations. As 

discussed in paragraph (g) of section 5.1, there are procedures to help ensure that impacts to 

essential fish habitat are minimal, individually or cumulatively. For example, 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. 

(m) Water-related recreation: See paragraph (m) of section 5.1 above. 

(n) Aesthetics: See paragraph (c) of section 5.1 above. 

(o) Parks, national and historical monuments, national seashores, wilderness areas, research 

sites, and similar areas: General condition 21 prohibits the use of this NWP to authorize 

discharges of dredged or fill material in designated critical resource waters and adjacent 

wetlands, which may be located in parks, national and historical monuments, national 

seashores, wilderness areas, and research sites. This NWP can be used to authorize 
32 

activities in parks, national and historical monuments, national seashores, wilderness areas, 

and research sites if the manager or caretaker wants to conduct work in waters of the United 

States and those activities result in minimal adverse effects on the aquatic environment. 

Division engineers can regionally condition the NWP to prohibit its use in designated areas, 

such as national wildlife refuges or wilderness areas. 

7.0 Determinations 

7.1 Finding of No Significant Impact 

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

7.2 Public Interest Determination 

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

7.3 Section 404(b)(1) Guidelines Compliance 

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

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

This NWP has been analyzed for conformity applicability pursuant to regulations 

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. 

7.5 Compliance with Relevant Executive Orders 

7.5.1 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. 

7.5.2 EO 11988, Floodplain Management

Compliance with NWP general condition 10, fills in 100-year floodplains, will minimize 
33 

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

beneficial values of floodplains. 

7.5.3 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. 

7.5.4 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. 

7.5.5 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. 
34 

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Ecosystems. Annual Review of Ecology, Evolution, and Systematics. 35:257–284. 

Allan, J.D. and M.M. Castillo. 2007. Stream Ecology: Structure and Function of Running 

Waters, 2nd edition. Springer (The Netherlands). 436 pp. 

Brinson, M.M. and A.I. Malvárez. 2002. Temperate freshwater wetlands: type, status and 

threats. Environmental Conservation 29:115-133. 

Cowardin, L.M., V. Carter, F.C. Golet, and E.T. LaRoe. 1979. Classification of Wetlands 

and Deepwater Habitats of the United States. U.S. Department of the Interior, Fish and 

Wildlife Service. FWS/OBS-79-31. 131 pp. 

Dahl, T.E. 2006. Status and trends of wetlands in the conterminous United States 1998 to 

2004. U.S. Department of the Interior, Fish and Wildlife Service, Washington, DC. 112 pp. 

Dahl, T.E. 1990. Wetlands losses in the United States 1780s to 1980s. U.S. Department of 

the Interior, Fish and Wildlife Service, Washington, D.C. 21 pp. 

Hall, J.V., W.E. Frayer, and B.O. Wilen. 1994. Status of Alaska Wetlands. U.S. Department 

of the Interior, Fish and Wildlife Service, Washington, DC. 33 pp. 

Hansen, W.F. 2001. Identifying stream types and management implications. Forest Ecology 

and Management 143:39-46. 

King, D.M., Wainger, L.A., C.C. Bartoldus, and J.S. Wakely. 2000. Expanding wetland 

assessment procedures: Linking indices of wetland function with services and values. 

ERDC/EL TR-00-17, U.S. Army Engineer Research and Development Center, Vickburg, 

MS. 

Leopold, L.B., M.G. Wolman, and J.P. Miller. 1964. Fluvial Processes in Geomorphology. 

Dover Publications, Inc. (New York). 522 pp. 

Leopold, L.B. 1994. A View of the River. Harvard University Press (Cambridge). 298 pp. 

Meyer, J.L. and J.B. Wallace. 2001. Lost linkages and lotic ecology: rediscovering small 

streams. In Ecology: Achievement and Challenge. Ed. by M.C. Press, N.J. Huntly, and S. 

Levin. Blackwell Science (Cornwall, Great Britain). pp. 295-317. 

National Research Council (NRC). 1992. Restoration of Aquatic Ecosystems. National 

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National Research Council (NRC). 2001. Compensating for Wetland Losses Under the 

Clean Water Act. National Academy Press (Washington, DC). 322 pp. 
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National Research Council (NRC). 2002. Riparian Areas: Functions and Strategies for 

Management National Academy Press (Washington, DC). 444 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. 

Postel, S. and S. Carpenter. 1997. Freshwater ecosystem services, in Nature’s Services: 

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

(Washington, DC). pp. 195-214. 

U.S. Department of Agriculture. 2009. Summary Report: 2007 National Resources 

Inventory, Natural Resources Conservation Service, Washington, DC, and Center for Survey 

Statistics and Methodology, Iowa State University, Ames, Iowa. 123 pages. 

http://www.nrcs.usda.gov/technical/NRI/2007/2007_NRI_Summary.pdf (accessed 

10/26/2010) 

Tiner, R.W. 2003. Geographically isolated wetlands in the United States. Wetlands 23:494-

516. 

Tiner, R. 1997. NWI maps: Basic information on the Nation’s wetlands. Bioscience 47:269. 

Zedler, J.B. and S. Kercher. 2005. Wetland resources: Status, trends, ecosystem services, 

and restorability. Annual Review Environmental Resources. 30:39-74.