9174 Federal Register / Vol. 76, No. 32 / Wednesday, February 16, 2011 / Notices 

DEPARTMENT OF DEFENSE 

Department of the Army, Corps of 

Engineers 

ZRIN 0710–ZA05 

Proposal To Reissue and Modify 

Nationwide Permits 

AGENCY: Army Corps of Engineers, DoD. 

ACTION: Notice. 

SUMMARY: The U.S. Army Corps of 

Engineers (Corps) is soliciting 

comments for the reissuance of the 

existing nationwide permits (NWPs), 

general conditions, and definitions, 

with some modifications. The Corps is 

also proposing to issue two new NWPs 

and two new general conditions. The 

Corps is requesting comment on all 

aspects of these proposed nationwide 

permits. More specifically, the Corps is 

requesting comments on options for 

NWP 21, which authorizes discharges of 

dredged or fill material into waters of 

the United States associated with 

surface coal mining activities, such as 

reissuing NWP 21 with modifications or 

not reissuing NWP 21. The Corps is also 

seeking comments on whether to reissue 

NWP 48 with modifications to authorize 

new commercial shellfish aquaculture 

activities or to issue a separate NWP to 

authorize only new commercial 

shellfish aquaculture activities. The 

reissuance process starts with today’s 

publication of the proposed NWPs in 

the Federal Register for a 60-day 

comment period. The purpose of this 

Federal Register notice is to solicit 

comments on the proposed new and 

modified NWPs, as well as the NWP 

general conditions and definitions. 

Shortly after the publication of this 

Federal Register notice, each Corps 

district will publish a public notice to 

solicit comments on their proposed 

regional conditions for the new and 

modified NWPs. The comment period 

for these district public notices will be 

45 days. 

DATES: Submit comments on or before 

April 18, 2011. 

ADDRESSES: You may submit comments, 

identified by docket number COE– 

2010–0035 and/or ZRIN 0710–ZA05, by 

any of the following methods: 

Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

E-mail: NWP2012@usace.army.mil. 

Include the docket number, COE–2010– 

0035, and/or the ZRIN number, 0710– 

ZA05, in the subject line of the message. 

Mail: U.S. Army Corps of Engineers, 

Attn: CECW–CO–R, 441 G Street, NW., 

Washington, DC 20314–1000. 

Hand Delivery/Courier: Due to 

security requirements, we cannot 

receive comments by hand delivery or 

courier. 

Instructions: Direct your comments to 

docket number COE–2010–0035 and/or 

ZRIN 0710–ZA05. All comments 

received will be included in the public 

docket without change and may be 

made available on-line at http:// 

www.regulations.gov, including any 

personal information provided, unless 

the commenter indicates that the 

comment includes information claimed 

to be Confidential Business Information 

(CBI) or other information whose 

disclosure is restricted by statute. Do 

not submit information that you 

consider to be CBI, or otherwise 

protected, through regulations.gov or 

e-mail. The regulations.gov Web site is 

an anonymous access system, which 

means we will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an e-mail directly to the 

Corps without going through 

regulations.gov, your e-mail address 

will be automatically captured and 

included as part of the comment that is 

placed in the public docket and made 

available on the Internet. If you submit 

an electronic comment, we recommend 

that you include your name and other 

contact information in the body of your 

comment and with any disk or CD–ROM 

you submit. If we cannot read your 

comment because of technical 

difficulties and cannot contact you for 

clarification, we may not be able to 

consider your comment. Electronic 

comments should avoid the use of any 

special characters, any form of 

encryption, and be free of any defects or 

viruses. 

Docket: For access to the docket to 

read background documents or 

comments received, go to 

regulations.gov. All documents in the 

docket are listed. Although listed in the 

index, some information is not publicly 

available, such as CBI or other 

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

is not placed on the Internet and will be 

publicly available only in hard copy 

form. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Dave Casey at 907–283–3519 or 202– 

761–5903 or Mr. David Olson at 202– 

761–4922 or access the U.S. Army Corps 

of Engineers Regulatory Home Page at 

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

Pages/cecwo_reg.aspx. 

SUPPLEMENTARY INFORMATION: 

Background 

The current nationwide permits 

(NWPs), which were published in the 

March 12, 2007, issue of the Federal 

Register (72 FR 11092) expire on March 

18, 2012. With this Federal Register 

notice, we are beginning the process for 

reissuing the NWPs so that the reissued 

NWPs will be in effect as the current 

NWPs expire. 

Section 404(e) of the Clean Water Act 

provides the statutory authority for the 

Secretary of the Army, after notice and 

opportunity for public hearing, to issue 

general permits on a nationwide basis 

for any category of activities involving 

discharges of dredged or fill material 

into waters of the United States. 

Activities authorized by NWPs must be 

similar in nature, cause only minimal 

adverse environmental effects when 

performed separately, and cause only 

minimal cumulative adverse effect on 

the aquatic environment. Nationwide 

permits can also be issued to authorize 

activities pursuant to Section 10 of the 

Rivers and Harbors Act of 1899. The 

NWP program is designed to provide 

timely authorizations for the regulated 

public while protecting the Nation’s 

aquatic resources. 

Today’s proposal to reissue 48 of the 

49 existing NWPs with some 

modifications and to issue two new 

NWPs reflects the Corps commitment to 

its environmental protection mission 

and to aquatic resource protection. For 

the reasons provided below, we are 

proposing to let one NWP expire and 

not reissue it: NWP 47—Pipeline Safety 

Program Designated Time Sensitive 

Inspections and Repairs. We are 

proposing to revise the text of some of 

the NWPs, general conditions, and 

definitions so that they are clearer and 

can be more easily understood by the 

regulated public, government personnel, 

and interested parties, while retaining 

terms and conditions that protect the 

aquatic environment. Making the text of 

the NWPs clearer and easier to 

understand will also facilitate 

compliance with these permits, which 

will benefit the aquatic environment. 

The NWP program allows the Corps to 

authorize activities with minimal 

adverse environmental impacts in a 

timely manner and protect the aquatic 

environment. The NWP program also 

allows the Corps to focus its limited 

resources on more extensive evaluation 

of projects that have the potential for 

causing environmentally damaging 

adverse effects. 

Through the NWPs, impacts to the 

aquatic environment may also receive 

additional protection through regional 

conditions, case-specific special 


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conditions, and case-specific 

discretionary authority to require 

individual permits. Nationwide permits 

and other general permits help protect 

the aquatic environment because permit 

applicants often reduce project impacts 

to meet the restrictive requirements of 

general permits and receive 

authorization more quickly than they 

would through the individual permit 

process. 

Thirty of the NWPs proposed for 

reissuance require pre-construction 

notification (PCN) for certain activities. 

Twenty of those NWPs require PCNs for 

all activities. Each of the two proposed 

new NWPs require PCNs. Preconstruction notification requirements 

give the Corps the opportunity to 

evaluate certain proposed NWP 

activities on a case-by-case basis to 

ensure that they will have no more than 

minimal adverse effects on the aquatic 

environment, individually and 

cumulatively. This case-by-case review 

often results in adding case-specific 

conditions to the NWP authorization to 

ensure that impacts to the aquatic 

environment are minimal. Review of a 

PCN may also result in the Corps 

asserting discretionary authority to 

require an individual permit if the 

district engineer determines, based on 

the information provided in the PCN, 

that adverse impacts will be more than 

minimal, either individually or 

cumulatively, or there are sufficient 

concerns for any of the Corps public 

interest review factors. 

Regional conditions may be imposed 

by division engineers to take into 

account regional differences in aquatic 

resource functions and services across 

the country and to restrict or prohibit 

the use of NWPs to protect those 

resources. Through regional conditions, 

a division engineer can modify an NWP 

to require submission of PCNs for 

certain activities. Regional conditions 

may also restrict or prohibit the use of 

an NWP in certain waters or geographic 

areas, if the use of that NWP in those 

waters or areas might result in more 

than minimal individual or cumulative 

adverse effects to the aquatic 

environment. 

District engineers may impose special 

conditions on NWP authorizations to 

ensure that the NWP authorizes only 

activities that result in minimal 

individual and cumulative effects on the 

aquatic environment and other public 

interest review factors. In addition, 

special conditions will often include 

compensatory mitigation requirements 

to reduce the project impacts to the 

minimal level. Compensatory mitigation 

may include the restoration, 

establishment, enhancement, and/or 

preservation of aquatic habitats, as well 

as the establishment and maintenance of 

riparian areas next to streams and other 

open waters. Compensatory mitigation 

can be provided through permitteeresponsible mitigation, mitigation 

banks, or in-lieu fee programs. 

Process for Reissuing the NWPs 

The NWPs reissued on March 12, 

2007, went into effect on March 19, 

2007, and expire on March 18, 2012. 

The reissuance process starts with 

today’s publication of the proposed 

NWPs in the Federal Register for a 

60-day comment period. Requests for a 

public hearing must be submitted in 

writing to the address in the ADDRESSES

section of this notice. These requests 

must state the reason(s) for holding a 

public hearing. If we determine that a 

public hearing or hearings would assist 

in making a decision on the issuance of 

the proposed new NWPs, reissuance of 

existing NWPs, or the NWP general 

conditions or definitions, a 30-day 

advance notice will be published in the 

Federal Register to advise interested 

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

the public hearing(s). Any 

announcement of public hearings would 

also be posted as a supporting material 

in the docket at http:// 

www.regulations.gov as well as the 

Corps regulatory home page at http:// 

www.usace.army.mil/CECW/Pages/ 

cecwo_reg.aspx. 

Shortly after the publication of this 

Federal Register notice, Corps district 

offices will issue public notices to 

solicit comments on proposed regional 

conditions. In their district public 

notices, district engineers may also 

propose to suspend or revoke some or 

all of these NWPs if they have issued, 

or are proposing to issue, regional 

general permits, programmatic general 

permits, or section 404 letters of 

permission for use in lieu of NWPs. The 

comment period for these district public 

notices will be 45 days. 

After the comment period has ended, 

we will review the comments received 

in response to this Federal Register 

notice. Then we will draft the final 

NWPs, and those final draft NWPs will 

be subjected to another review by 

interested Federal agencies. The final 

issued NWPs will be published in the 

Federal Register by December 2011. The 

final NWPs will go into effect 90 days 

after their publication. In the past, the 

schedule normally allowed state 

governments, tribal governments, and 

EPA a 60-day period for Clean Water 

Act Section 401 water quality 

certifications (WQCs) as well as Coastal 

Zone Management Act (CZMA) 

consistency determinations by states. 

The change to 90 days is made in order 

to meet the requirements of the 

Department of Commerce that require 

Federal agencies to provide at least 90 

days for state governments to make their 

CZMA consistency determinations (see 

15 CFR 930.36(b)). Within this 90-day 

period, division engineers will also 

develop regional conditions and 

supplemental decision documents. 

Supplemental decision documents 

address the environmental 

considerations related to the use of 

NWPs in a Corps district. The 

supplemental decision documents will 

certify that the NWPs, with any regional 

conditions or geographic suspensions or 

revocations, will only authorize 

activities within that Corps district that 

result in minimal individual and 

cumulative adverse effects on the 

aquatic environment. The regional 

conditioning and WQC/CZMA 

processes are discussed below. 

Compliance With Section 404(e) of the 

Clean Water Act 

The proposed NWPs are issued in 

accordance with Section 404(e) of the 

Clean Water Act. These NWPs authorize 

categories of activities that are similar in 

nature. The ‘‘similar in nature’’ 

requirement does not mean that 

activities authorized by an NWP must 

be identical to each other. We believe 

that the ‘‘categories of activities that are 

similar in nature’’ requirement of section 

404(e) is to be interpreted broadly, for 

practical implementation of this general 

permit program. Nationwide permits, as 

well as other general permits, are 

intended to reduce administrative 

burdens on the Corps and the regulated 

public, by efficiently authorizing 

activities that have minimal adverse 

environmental effects. 

As for the minimal adverse effects 

provision of section 404(e), the various 

terms and conditions of these NWPs, 

including the provisions in the NWP 

regulations at 33 CFR 330.1(d) and 33 

CFR 330.4(e) that allow district 

engineers to exercise discretionary 

authority, ensure compliance with this 

requirement. A decision document will 

be prepared for each NWP to address 

the requirements of the National 

Environmental Policy Act and generally 

discuss the anticipated impacts the 

NWP will have on the Corps public 

interest review factors. For those NWPs 

that may authorize discharges of 

dredged or fill material into waters of 

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

analysis will be provided in the 

decision document. The 404(b)(1) 

Guidelines analysis will be conducted 

in accordance with 40 CFR 230.7. The 

draft decision documents for the 


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proposed NWPs are available on the 

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

(docket ID number COE–2010–0035). 

We are soliciting comments on these 

draft decision documents, and any 

comments received will be considered 

when preparing the final decision 

documents for the NWPs. 

National Environmental Policy Act 

Compliance 

We have prepared a draft decision 

document for each proposed NWP. Each 

decision document contains an 

environmental assessment (EA). If the 

proposed NWP authorizes discharges of 

dredged or fill material into waters of 

the United States, the decision 

document will also include a 404(b)(1) 

Guidelines analysis conducted in 

accordance with 40 CFR 230.7. These 

decision documents will consider the 

environmental effects of each NWP from 

a national perspective. Division 

engineers will issue supplemental 

decision documents to evaluate regional 

effects on the aquatic environment and 

other public interest review factors. 

Those supplemental decision 

documents will discuss regional 

conditions imposed by division 

engineers to protect the aquatic 

environment and ensure that any 

adverse effects resulting from NWP 

activities will be no more than minimal. 

The assessment of cumulative effects 

occurs at two levels: national and 

regional (district). However, 

modifications at the district level are 

made by the appropriate division 

engineer. There are eight Corps division 

offices in the United States, with 38 

district offices. A division office may 

oversee as many as seven districts 

(Lakes and Rivers Division) or as few as 

two district offices (Pacific Ocean 

Division). 

At the national level, the decision 

documents issued by Corps 

Headquarters include cumulative effects 

assessments required by NEPA and, if 

the NWP authorizes discharges of 

dredged or fill material into waters of 

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

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

40 CFR 230.7(b) require an evaluation of 

the potential individual and cumulative 

impacts of the category of activities 

authorized under the NWP. 

The supplemental decision 

documents issued by division engineers 

include cumulative effects assessments 

at the regional (district) level, for each 

district within the division. For those 

NWPs that authorize section 404 

activities, the supplemental decision 

documents will also discuss local 

concerns relating to the Section 

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

decision documents do not adequately 

address those issues. If the NWP is not 

suspended or revoked in a district, the 

supplemental decision document 

includes a certification that the use of 

the NWP in that district, with any 

applicable regional conditions (i.e., 

applicable in a specific district), will 

result in minimal cumulative adverse 

environmental effects. The 

supplemental decision documents are 

prepared by Corps districts, but must be 

approved and formally issued by the 

appropriate division engineer, since the 

NWP regulations at 33 CFR 330.5(c) 

state that the division engineer has the 

authority to modify, suspend, or revoke 

NWP authorizations for any specific 

geographic area within his division. 

Regional conditions are considered 

NWP modifications. Therefore, when 

the process is completed, each district 

will have approved supplemental 

decision documents for each NWP, and 

those supplemental decision documents 

will assess cumulative effects within 

that district. 

District engineers may also 

recommend that the division engineer 

exercise discretionary authority to 

modify, suspend, or revoke case-specific 

NWP authorizations within a district to 

ensure that only minimal cumulative 

adverse effects on the aquatic 

environment result from activities 

authorized by that NWP. Evaluations by 

a district engineer may result in the 

division engineer modifying, 

suspending, or revoking NWP 

authorizations in a particular geographic 

region or watershed at a later time, if the 

use of an NWP in a particular area will 

result in more than minimal cumulative 

or individual adverse effects on the 

aquatic environment. Special conditions 

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

as compensatory mitigation 

requirements, help ensure that the 

NWPs authorize only activities that 

result in minimal individual and 

cumulative adverse effects on the 

aquatic environment. 

Acreage Limits and Pre-Construction 

Notification Thresholds 

We are proposing to retain most of the 

current acreage limits for the NWPs and 

propose to modify some of the NWPs 

acreage limits. We are also proposing to 

modify the language concerning the use 

of waivers in NWPs 13, 29, 36, 39, 40, 

42, and 43 by clarifying that a waiver 

may be granted only after the district 

engineer makes a written determination 

concluding that the discharge will result 

in minimal adverse effects. The 

modified waiver language will also be 

applied to NWPs 21, 44, and 50, as well 

as proposed new NWPs A and B. We are 

proposing to replace the 25 cubic yard 

limit for temporary pads in NWP 6 with 

a 1⁄10-acre limit for temporary pads. For 

NWP 50 we are proposing a 1⁄2-acre 

limit on non-tidal waters of the United 

States including the loss of no more 

than 300 linear feet of stream bed, 

unless for intermittent and ephemeral 

stream beds the district engineer waives 

the 300 linear foot limit by making a 

written determination concluding that 

the discharge will result in minimal 

adverse effects. In NWPs 40 and 44 we 

are proposing to increase protection of 

streams by adding a 300 linear foot limit 

for losses of stream bed, which can be 

waived for intermittent and ephemeral 

stream beds if the district engineer 

makes a written determination 

concluding that the discharge will result 

in minimal adverse effects. 

Proposed NWP A, Land-Based 

Renewable Energy Generation Facilities, 

and proposed NWP B, Water-Based 

Renewable Energy Generation Pilot 

Projects, have a 1⁄2-acre limit for losses 

of non-tidal waters of the United States, 

including the loss of no more than 300 

linear feet of stream bed, unless for 

intermittent and ephemeral stream beds 

the district engineer waives the 300 

linear foot limit by making a written 

determination concluding that the 

discharge will result in minimal adverse 

effects. Both of these proposed NWPs 

require PCNs. 

In NWP 48, we are proposing to add 

another PCN threshold for proposed 

expansions of the project area for the 

production of shellfish. 

Compliance With the Endangered 

Species Act 

In its April 6, 2005, decision in 

National Wildlife Federation et al. v. Les 

Brownlee (No. 03–1392), the U.S. 

District Court for the District of 

Columbia determined that the Corps is 

obligated to consult with the U.S. Fish 

and Wildlife Service (FWS) on the 

effects of the NWPs. In response to that 

decision, on March 13, 2007, the Corps 

initiated Endangered Species Act 

Section 7(a)(2) programmatic 

consultation with FWS and the National 

Marine Fisheries Service (NMFS) for the 

current NWPs. NMFS provided a draft 

biological opinion and the Corps 

provided comments on that draft 

biological opinion, as well as additional 

information regarding the NWPs to 

NMFS as well as FWS. The Corps also 

granted an extension of time to the 

NMFS to provide the next draft of the 

biological opinion, and to the FWS to 

provide its draft biological opinion. 

Since the 2007 programmatic 

consultation was not completed, the 


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Corps has reinitiated programmatic 

Section 7 consultation for the NWP 

program. Corps districts will consult, as 

necessary, with the FWS and the NMFS 

for the species that occur in their 

districts and may develop regional 

conditions to protect listed species and 

designated critical habitat. 

Essential Fish Habitat 

The NWP Program’s compliance with 

the essential fish habitat (EFH) 

consultation requirements of the 

Magnuson-Stevens Fishery 

Conservation and Management Act will 

be achieved through EFH consultations 

between Corps districts and NMFS 

regional offices. Corps districts will 

request EFH consultations with the 

NMFS regional office in cases where 

activities authorized by NWP may 

adversely affect EFH. The purpose of 

these regional consultations is to 

determine if implementation of the 

proposed NWPs and regional conditions 

within a particular region may have an 

adverse effect on EFH. These 

consultations will be conducted 

according to the EFH consultation 

regulations at 50 CFR 600.920. 

Regional Conditioning of Nationwide 

Permits 

Under Section 404(e), NWPs can only 

be issued for those activities that result 

in minimal individual and cumulative 

adverse effects on the aquatic 

environment. An important mechanism 

for ensuring compliance with this 

requirement is an effective regional 

conditioning process. Coordination with 

Federal and state agencies and Indian 

Tribes, and the solicitation of public 

comments, assist division and district 

engineers in identifying and developing 

appropriate regional conditions for the 

NWPs. Effective regional conditions 

protect local aquatic ecosystems and 

helps ensure that the NWPs authorize 

only those activities that result in 

minimal individual and cumulative 

adverse effects on the aquatic 

environment, and are in the public 

interest. 

There are two types of regional 

conditions: (1) Corps regional 

conditions and (2) water quality 

certification/Coastal Zone Management 

Act consistency determination regional 

conditions. 

Corps regional conditions may be 

added to NWPs by division engineers 

after a public notice and comment 

process and coordination with other 

Federal, state, and local agencies. 

Examples of Corps regional 

conditions include: 

• Restricting the types of waters of 

the United States where the NWPs may 

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

hardwoods, etc.) or prohibiting the use 

of some or all of the NWPs in those 

types of waters or in specific 

watersheds. 

• Restricting or prohibiting the use of 

NWPs in an area covered by a Special 

Area Management Plan, or an Advanced 

Identification study with associated 

regional general permits. 

• Adding pre-construction 

notification (PCN) requirements to 

NWPs to require notification for all 

work in certain watersheds or certain 

types of waters of the United States, or 

lowering the PCN threshold. 

• Reducing NWP acreage limits in 

certain types of waters of the United 

States, or specific waterbodies. 

• Revoking certain NWPs on a 

geographic or watershed basis. 

• Restricting activities authorized by 

NWPs to certain times of the year in a 

particular waterbody, to minimize the 

adverse effects of those activities on fish 

or shellfish spawning, wildlife nesting, 

or other ecologically cyclical events. 

• Conditions necessary to ensure 

compliance with the Endangered 

Species Act and essential fish habitat 

provisions of the Magnuson-Stevens 

Fishery Conservation and Management 

Act. 

Corps regional conditions approved 

by division engineers cannot remove or 

reduce any of the terms and conditions 

of the NWPs, including general 

conditions and PCN requirements. In 

other words, Corps regional conditions 

can only be more restrictive than the 

original NWP terms and conditions. 

Regional conditions may also be 

added to the NWPs as a result of water 

quality certifications (WQCs) issued by 

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

well as state Coastal Zone Management 

Act (CZMA) consistency 

determinations. 

At approximately the same time as the 

publication of this Federal Register 

notice, each Corps district will issue an 

initial public notice. Those initial 

public notices will include Corps 

regional conditions proposed by our 

district offices, and will also request 

comments or suggestions for additional 

Corps regional conditions. The initial 

public notice may also include, for 

informational purposes only, any 

proposed state or tribal WQC regional 

conditions or state CZMA regional 

conditions. However, public comment 

on the state or tribal WQC regional 

conditions or state CZMA regional 

conditions is handled through a 

separate state or tribal administrative 

procedures process. The public should 

not address such comments to the 

Corps. 

In response to the district’s initial 

public notice, interested parties may 

suggest additional Corps regional 

conditions, or suggest suspension or 

revocation of NWPs in certain 

geographic areas, such as specific 

watersheds or waterbodies. Such 

comments should include data to 

support the need for any suggested 

modifications, suspensions, or 

revocations of NWPs. 

After the NWPs are issued or reissued, 

the division engineer will issue 

supplemental decision documents for 

each NWP. These supplemental 

decision documents will address the 

NWP regional conditions. Each 

supplemental decision document will 

also include a statement by the division 

engineer, which will certify that the 

NWP, with approved regional 

conditions, will authorize only activities 

with minimal individual and 

cumulative adverse effects on the 

aquatic environment. 

After the division engineer approves 

the Corps regional conditions, each 

Corps district will issue a final public 

notice for the NWPs. The final public 

notice will announce both the final 

Corps regional conditions and any final 

WQC/CZMA regional conditions. The 

final public notices will also announce 

the final status of water quality 

certifications and CZMA consistency 

determinations for the NWPs. Corps 

districts may adopt additional regional 

conditions in future public notices 

(following public notice and comment 

procedures), if they identify a need for 

such conditions. 

Information on regional conditions 

and revocation can be obtained from the 

appropriate district engineer, as 

indicated below. Furthermore, this and 

additional information can be obtained 

on the internet at http:// 

www.usace.army.mil/CECW/Pages/ 

cecwo_reg.aspx. If you select a state on 

this Web site you will be directed to the 

Web site of the appropriate Corps 

district office. 

In cases where a Corps district has 

issued a regional general permit that 

authorizes similar activities as one or 

more NWPs, the district will clarify the 

use of the regional general permit versus 

the NWP(s) during the regional 

conditioning process. For example, the 

division engineer may revoke the 

applicable NWP(s) so that only the 

regional general permit may be used to 

authorize those activities. 

Water Quality Certification/Coastal 

Zone Management Act Consistency 

Determination for Nationwide Permits 

State or Tribal water quality 

certification, or waiver thereof, is 


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9178 Federal Register / Vol. 76, No. 32 / Wednesday, February 16, 2011 / Notices 

required by Section 401 of the Clean 

Water Act, for activities authorized by 

NWPs which result in a discharge into 

waters of the United States. In addition, 

any state with a federally-approved 

CZMA plan must agree with the Corps 

determination that activities authorized 

by NWPs which are within, or will 

affect any land or water uses or natural 

resources of the state’s coastal zone, are 

consistent with the CZMA plan to the 

maximum extent practicable. Water 

quality certifications and/or CZMA 

consistency determinations may be 

issued without conditions, issued with 

conditions, or denied for specific NWPs. 

We believe that, in general, the 

activities authorized by the NWPs will 

not violate State or Tribal water quality 

standards and will be consistent with 

state CZMA plans. The NWPs are 

conditioned to ensure that adverse 

environmental effects will be minimal 

and address the types of activities that 

would be routinely authorized if 

evaluated under the individual permit 

process. We recognize that in some 

states or Tribal lands there will be a 

need to add regional conditions, or 

individual state or Tribal review for 

some activities, to ensure compliance 

with water quality standards and/or 

consistency with the state’s CZMA 

plans. As a practical matter, we intend 

to work with states and Tribes to ensure 

that NWPs include the necessary 

conditions so that they can issue water 

quality certifications or CZMA 

consistency concurrences. Therefore, 

each Corps district will initiate 

discussions with their respective state(s) 

and Tribe(s), as appropriate, to discuss 

issues of concern and identify regional 

modification and other approaches to 

address the scope of waters, activities, 

discharges, and PCNs, as appropriate, to 

resolve these issues. Note that in some 

states the Corps has issued state 

programmatic general permits (SPGPs), 

and within those states some or all of 

the NWPs may be suspended or revoked 

by division engineers. Concurrent with 

today’s proposal, district engineers may 

be proposing modification or revocation 

of the NWPs in states where SPGPs will 

be used in place of some or all of the 

NWPs. 

Section 401 of the Clean Water Act 

This Federal Register notice serves as 

the Corps application to the Tribes, 

States, or EPA, where appropriate, for 

water quality certification of the 

activities authorized by these NWPs. 

The Tribes, States, and EPA, where 

appropriate, are requested to issue, 

deny, or waive water quality 

certification pursuant to 33 CFR 330.4(c) 

for these NWPs. 

If a state denies a water quality 

certification for an NWP within that 

state, then the affected activities are not 

authorized by NWP within that state, 

until a project proponent obtains an 

individual water quality certification, or 

the water quality certification is waived. 

However, when applicants request 

approval of such activities, and the 

Corps determines that those activities 

meet the terms and conditions of the 

NWP, the Corps will issue provisional 

NWP verification letters. The 

provisional verification letter will 

contain general and regional conditions 

as well as any project specific 

conditions the Corps determines are 

necessary for NWP authorization. The 

Corps will notify the applicant that they 

must obtain a project specific water 

quality certification, or waiver thereof, 

before they are authorized to start work 

in waters of the United States. That is, 

NWP authorization will be contingent 

upon obtaining the necessary water 

quality certification or waiver thereof 

from the State, Tribe, or EPA where 

appropriate. Anyone wanting to perform 

such activities where pre-construction 

notification to the Corps is not required 

has an affirmative responsibility to first 

obtain a project-specific water quality 

certification or waiver thereof from the 

Tribe, State, or EPA before proceeding 

under the NWP. This requirement is 

provided at 33 CFR 330.4(c). 

Section 307 of the Coastal Zone 

Management Act (CZMA) 

This Federal Register notice serves as 

the Corps determination that the 

activities authorized by these NWPs are, 

to the maximum extent practicable, 

consistent with state CZMA programs. 

This determination is contingent upon 

the addition of state CZMA conditions 

and/or regional conditions, or the 

issuance by the state of an individual 

consistency concurrence, where 

necessary. States are requested to agree 

or disagree with the consistency 

determination following 33 CFR 

330.4(d) for these NWPs. 

The Corps CZMA consistency 

determination only applies to NWP 

authorizations for activities that are 

within, or affect, any land, water uses or 

natural resources of a State’s coastal 

zone. NWP authorizations for activities 

that are not within or would not affect 

a State’s coastal zone do not require a 

Corps CZMA consistency determination 

and thus are not contingent on a State’s 

agreement with the Corps consistency 

determinations. 

If a state disagrees with the Corps 

consistency determination for an NWP, 

then the affected activities are not 

authorized by NWP within that state, 

until a project proponent obtains an 

individual consistency determination, 

or sufficient time (six months) passes 

after requesting a consistency 

determination for the applicant to make 

a presumption of consistency, as 

provided for in 33 CFR 330.4(d)(6). 

However, when applicants request 

approval of such activities, and the 

Corps determines that those activities 

meet the terms and conditions of the 

NWP, the Corps will issue provisional 

NWP verification letters. The 

provisional verification letter will 

contain general and regional conditions 

as well as any project specific 

conditions the Corps determines are 

necessary for NWP authorization. The 

Corps will notify the applicant that they 

must obtain a project specific CZMA 

consistency determination before they 

are authorized to start work in waters of 

the United States. That is, NWP 

authorization will be contingent upon 

obtaining the necessary CZMA 

consistency concurrence from the State. 

Anyone wanting to perform such 

activities where pre-construction 

notification to the Corps is not required 

has an affirmative responsibility to 

present a consistency certification to the 

appropriate State agency for 

concurrence. Upon concurrence with 

such consistency certifications by the 

state, the activity would be authorized 

by the NWP. This requirement is 

provided at 33 CFR 330.4(d). 

Nationwide Permit Verifications 

Certain NWPs require the permittee to 

submit a PCN, and thus request 

confirmation from the district engineer 

that an activity complies with the terms 

and conditions of an NWP, prior to 

commencing the proposed work. The 

requirement to submit a PCN is 

identified in the NWP text. Preconstruction notification requirements 

may be added to NWPs by division 

engineers through regional conditions. 

In cases where pre-construction 

notification is not required, a project 

proponent may submit a PCN 

voluntarily, if he or she wants assurance 

that the activity is authorized by an 

NWP. A NWP verification is a response 

to a PCN that confirms that a particular 

activity is authorized by an NWP. 

In response to an NWP verification 

request or PCN, the district engineer 

reviews the information submitted by 

the prospective permittee. If the district 

engineer determines that the activity 

complies with the terms and conditions 

of the NWP, he or she will notify the 

permittee. Special conditions, such as 

compensatory mitigation requirements, 

may be added to the NWP authorization 

to ensure that the activity results in 


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minimal individual and cumulative 

adverse effects on the aquatic 

environment and other public interest 

factors. The special conditions are 

incorporated into the NWP verification, 

along with the NWP text and the NWP 

general conditions. 

If the district engineer reviews the 

NWP verification request and 

determines that the proposed activity 

does not comply with the terms and 

conditions of an NWP, he or she will 

notify the project proponent and 

provide instructions for applying for 

authorization under a regional general 

permit or an individual permit. District 

engineers will respond to NWP 

verification requests, submitted 

voluntarily or when required, within 45 

days of receiving a complete PCN. 

Except for NWPs 21, 49, and 50, and for 

proposed NWP activities that require 

Endangered Species Act Section 7 

consultation and/or National Historic 

Preservation Act Section 106 

consultation, if the project sponsor has 

not received a reply from the Corps 

within 45 days, he or she may assume 

that the project is authorized, consistent 

with the information in the PCN. For 

NWPs 21 (Surface Coal Mining 

Activities), 49 (Coal Remining 

Activities), and 50 (Underground Coal 

Mining Activities), and for proposed 

NWP activities that require Endangered 

Species Act Section 7 consultation 

and/or National Historic Preservation 

Act Section 106 consultation, the 

project sponsor may not begin work 

before receiving a written NWP 

verification. 

Contact Information for Corps District 

Engineers 

Alabama 

Mobile District Engineer, ATTN: 

CESAM–RD, 109 St. Joseph Street, 

Mobile, AL 36602–3630. 

Alaska 

Alaska District Engineer, ATTN: 

CEPOA–RD, P.O. Box 6898, Elmendorf 

AFB, AK 99506–6898. 

Arizona 

Los Angeles District Engineer, ATTN: 

CESPL–RG–R, P.O. Box 532711, Los 

Angeles, CA 90053–2325. 

Arkansas 

Little Rock District Engineer, ATTN: 

CESWL–RD, P.O. Box 867, Little Rock, 

AR 72203–0867. 

California 

Sacramento District Engineer, ATTN: 

CESPK–RD, 1325 J Street, Sacramento, 

CA 95814–2922. 

Colorado 

Albuquerque District Engineer, 

ATTN: CESPA–OD–R, 4101 Jefferson 

Plaza NE, Albuquerque, NM 87109– 

3435. 

Connecticut 

New England District Engineer, 

ATTN: CENAE–R, 696 Virginia Road, 

Concord, MA 01742–2751. 

Delaware 

Philadelphia District Engineer, ATTN: 

CENAP–OP–R, Wannamaker Building, 

100 Penn Square East, Philadelphia, PA 

19107–3390. 

Florida 

Jacksonville District Engineer, ATTN: 

CESAJ–RD, P.O. Box 4970, Jacksonville, 

FL 32232–0019. 

Georgia 

Savannah District Engineer, ATTN: 

CESAS–RD, 100 West Oglethorpe 

Avenue, Savannah, GA 31401–3640. 

Hawaii 

Honolulu District Engineer, ATTN: 

CEPOH–EC–R, Building 230, Fort 

Shafter, Honolulu, HI 96858–5440. 

Idaho 

Walla Walla District Engineer, ATTN: 

CENWW–RD, 201 North Third Avenue, 

Walla Walla, WA 99362–1876. 

Illinois 

Rock Island District Engineer, ATTN: 

CEMVR–OD–P, P.O. Box 2004, Rock 

Island, IL 61204–2004. 

Indiana 

Louisville District Engineer, ATTN: 

CELRL–OP–F, P.O. Box 59, Louisville, 

KY 40201–0059. 

Iowa 

Rock Island District Engineer, ATTN: 

CEMVR–OD–P, P.O. Box 2004, Rock 

Island, IL 61204–2004. 

Kansas 

Kansas City District Engineer, ATTN: 

CENWK–OD–R, 635 Federal Building, 

601 E. 12th Street, Kansas City, MO 

64106–2896. 

Kentucky 

Louisville District Engineer, ATTN: 

CELRL–OP–F, P.O. Box 59, Louisville, 

KY 40201–0059. 

Louisiana 

New Orleans District Engineer, ATTN: 

CEMVN–OD–S, P.O. Box 60267, New 

Orleans, LA 70160–0267. 

Maine 

New England District Engineer, 

ATTN: CENAE–R, 696 Virginia Road, 

Concord, MA 01742–2751. 

Maryland 

Baltimore District Engineer, ATTN: 

CENAB–OP–R, P.O. Box 1715, 

Baltimore, MD 21203–1715. 

Massachusetts 

New England District Engineer, 

ATTN: CENAE–R, 696 Virginia Road, 

Concord, MA 01742–2751. 

Michigan 

Detroit District Engineer, ATTN: 

CELRE–RG, 477 Michigan Avenue, 

Detroit, MI 48226–2550. 

Minnesota 

St. Paul District Engineer, ATTN: 

CEMVP–OP–R, 180 Fifth Street East, 

Suite 700, St. Paul, MN 55101–1678. 

Mississippi 

Vicksburg District Engineer, ATTN: 

CEMVK–OD–F, 4155 Clay Street, 

Vicksburg, MS 39183–3435. 

Missouri 

Kansas City District Engineer, ATTN: 

CENWK–OD–R, 635 Federal Building, 

601 E. 12th Street, Kansas City, MO 

64106–2896. 

Montana 

Omaha District Engineer, ATTN: 

CENWO–OD–R, 1616 Capitol Avenue, 

Omaha, NE 68102–4901. 

Nebraska 

Omaha District Engineer, ATTN: 

CENWO–OD–R, 1616 Capitol Avenue, 

Omaha, NE 68102–4901. 

Nevada 

Sacramento District Engineer, ATTN: 

CESPK–CO–R, 1325 J Street, 

Sacramento, CA 95814–2922. 

New Hampshire 

New England District Engineer, 

ATTN: CENAE–R, 696 Virginia Road, 

Concord, MA 01742–2751. 

New Jersey 

Philadelphia District Engineer, ATTN: 

CENAP–OP–R, Wannamaker Building, 

100 Penn Square East, Philadelphia, PA 

19107–3390. 

New Mexico 

Albuquerque District Engineer, 

ATTN: CESPA–OD–R, 4101 Jefferson 

Plaza NE, Albuquerque, NM 87109– 

3435. 


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New York 

New York District Engineer, ATTN: 

CENAN–OP–R, 26 Federal Plaza, New 

York, NY 10278–0090. 

North Carolina 

Wilmington District Engineer, ATTN: 

CESAW–RG, P.O. Box 1890, 

Wilmington, NC 28402–1890. 

North Dakota 

Omaha District Engineer, ATTN: 

CENWO–OD–R, 1616 Capitol Avenue, 

Omaha, NE 68102–4901. 

Ohio 

Huntington District Engineer, ATTN: 

CELRH–OR–F, 502 8th Street, 

Huntington, WV 25701–2070. 

Oklahoma 

Tulsa District Engineer, ATTN: 

CESWT–RO, 1645 S. 101st East Ave, 

Tulsa, OK 74128–4609. 

Oregon 

Portland District Engineer, ATTN: 

CENWP–OD–G, P.O. Box 2946, 

Portland, OR 97208–2946. 

Pennsylvania 

Baltimore District Engineer, ATTN: 

CENAB–OP–R, P.O. Box 1715, 

Baltimore, MD 21203–1715. 

Rhode Island 

New England District Engineer, 

ATTN: CENAE–R, 696 Virginia Road, 

Concord, MA 01742–2751. 

South Carolina 

Charleston District Engineer, ATTN: 

CESAC–CO–P, P.O. Box 919, 

Charleston, SC 29402–0919. 

South Dakota 

Omaha District Engineer, ATTN: 

CENWO–OD–R, 1616 Capitol Avenue, 

Omaha, NE 68102–4901. 

Tennessee 

Nashville District Engineer, ATTN: 

CELRN–OP–F, 3701 Bell Road, 

Nashville, TN 37214. 

Texas 

Galveston District Engineer, ATTN: 

CESWG–PE–R, P.O. Box 1229, 

Galveston, TX 77553–1229. 

Utah 

Sacramento District Engineer, ATTN: 

CESPK–RD, 1325 J Street, CA 95814– 

2922. 

Vermont 

New England District Engineer, 

ATTN: CENAE–R, 696 Virginia Road, 

Concord, MA 01742–2751. 

Virginia 

Norfolk District Engineer, ATTN: 

CENAO–REG, 803 Front Street, Norfolk, 

VA 23510–1096. 

Washington 

Seattle District Engineer, ATTN: 

CENWS–OP–RG, P.O. Box 3755, Seattle, 

WA 98124–3755. 

West Virginia 

Huntington District Engineer, ATTN: 

CELRH–OR–F, 502 8th Street, 

Huntington, WV 25701–2070. 

Wisconsin 

St. Paul District Engineer, ATTN: 

CEMVP–OP–R, 180 Fifth Street East, 

Suite 700, St. Paul, MN 55101–1678. 

Wyoming 

Omaha District Engineer, ATTN: 

CENWO–OD–R, 1616 Capitol Avenue, 

Omaha, NE 68102–4901. 

District of Columbia 

Baltimore District Engineer, ATTN: 

CENAB–OP–R, P.O. Box 1715, 

Baltimore, MD 21203–1715. 

Pacific Territories (American Samoa, 

Guam, & Commonwealth of the 

Northern Mariana Islands) 

Honolulu District Engineer, ATTN: 

CEPOH–EC–R, Building 230, Fort 

Shafter, Honolulu, HI 96858–5440. 

Puerto Rico and Virgin Islands 

Jacksonville District Engineer, ATTN: 

CESAJ–RD, P.O. Box 4970, Jacksonville, 

FL 32232–0019. 

Request for Comment 

We are proposing to reissue 48 

nationwide permits, as well as the 

general conditions and definitions. We 

are also proposing to issue two new 

NWPs, two new general conditions, and 

one new definition. Substantive changes 

to the nationwide permits, general 

conditions, and definitions are 

discussed below, but we are soliciting 

comments on all the nationwide 

permits, general conditions, and 

definitions. Minor grammatical changes, 

the removal of redundant language, and 

other small changes are not discussed in 

the preamble below. Therefore, 

commenters should carefully read each 

proposed NWP, general condition, and 

definition in this notice. 

NWP Not Proposed for Reauthorization 

NWP 47. Pipeline Safety Program 

Designated Time Sensitive Inspections 

and Repairs. This NWP was first issued 

in 2007 in reliance on the Pipeline and 

Hazardous Materials Safety 

Administration’s (PHMSA) 

implementation of a Web-based system 

called the Pipeline Repair and 

Environmental Guidance System 

(PREGS). The terms of NWP 47 required 

permittees to report their use of this 

NWP through PREGS. PHMSA ceased 

their development of PREGS, which the 

Corps planned to use in order to 

monitor projects authorized by NWP 47. 

In the place of NWP 47, projects subject 

to PHMSA’s Pipeline Safety Program 

may be eligible for authorization under 

NWP 3, Maintenance, or NWP 12, 

Utility Line Activities, provided those 

projects meet the terms and conditions 

of the appropriate NWP(s). 

Discussion of Proposed Modifications to 

Existing Nationwide Permits 

If an existing NWP is not listed in this 

section of the preamble, we are 

proposing to reissue the NWP without 

changing it. 

NWP 3. Maintenance. We are 

proposing to clarify that stream channel 

excavation immediately adjacent to the 

structure or fill being maintained that 

involves discharges of dredged or fill 

material into waters of the United States 

and/or work in navigable waters of the 

United States is authorized under 

paragraph (a) and does not require a 

PCN. Examples of stream channel 

excavation activities that may be 

authorized under paragraph (a) include 

those necessary to facilitate minor 

deviations in a structure’s configuration 

or filled area. This can occur when 

structures or fills are replaced with 

larger culverts or bridges that improve 

fish passage. Specifically, we are 

proposing to add ‘‘Any stream channel 

modification, is limited to the minimum 

necessary for the repair, rehabilitation, 

or replacement of the structure or fill; 

such modifications must be 

immediately adjacent to the project’’ to 

paragraph (a). 

To simplify and clarify the text, we 

propose to replace the word ‘‘and’’ with 

‘‘and/or’’ in the first sentence of 

paragraph (b) to indicate that the 

activity does not need to include the 

placement of new or additional riprap 

in order to qualify for the NWP. In 

paragraph (d) we propose to explicitly 

state beach restoration is not authorized 

by the NWP by removing beach 

restoration from the first sentence and 

adding a stand-alone sentence. In the 

Notification provision we propose to 

remove from the first part of the second 

sentence the phrase ‘‘[w]here 

maintenance dredging is proposed’’ 

because paragraph (b) of the NWP is the 

only component of the NWP that 

requires a PCN. This deletion will 

simplify redundant and confusing text. 


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NWP 5. Scientific Measurement 

Devices. We are proposing to add a 

sentence to explicitly require the 

removal of the device and any 

associated structures or fills at the 

conclusion of the study. Specifically, we 

are proposing to add the following 

sentence: ‘‘Upon completion of the 

study the measuring device and any 

other structures or fills associated with 

that device (e.g., anchors, buoys, lines, 

etc.) must be removed and to the 

maximum extent practicable the site 

must be restored to pre-construction 

elevations after the removal of 

associated structures.’’ We are proposing 

to add ‘‘meteorological stations’’ as an 

example of the types of scientific 

measuring devices authorized by this 

NWP since such devices are currently 

being used to collect meteorological 

data for planning offshore wind energy 

generation facilities. We are also 

proposing to add ‘‘current gages’’ and 

‘‘biological observation devices’’ to the 

list of examples, because such 

instruments may be used to collect data 

for sites that are being considered for 

hydrokinetic energy generation 

facilities. 

NWP 6. Survey Activities. We are 

proposing to modify how exploratory 

trenches are backfilled by stating the 

work ‘‘must not drain a water of the 

United States.’’ This would make the 

NWP consistent with other NWPs that 

involve backfilling. We also propose to 

adjust the requirements for the 

temporary pads necessary to provide 

proper levels for equipment used for 

core sampling. Specifically, we propose 

to remove 25 cubic yard limit and 

replace it with a 1⁄10-acre limit. The 

acreage limit for temporary pads applies 

to a single and complete project, as 

defined at 33 CFR 330.2(i). 

NWP 8. Oil and Gas Structures on the 

Outer Continental Shelf. We are 

proposing to update the name of former 

Mineral Management Service to the 

Bureau of Ocean Energy Management, 

Regulation, and Enforcement. 

NWP 12. Utility Line Activities. We 

are proposing one minor change 

regarding how the calculation of loss of 

waters of the United States for a single 

and complete project with multiple 

components is made by replacing the 

phrase ‘‘* * * the total discharge from 

a * * *’’ with ‘‘ * * * the activity, in 

combination with all other activities 

included in one * * *’’ to the access 

road component of the NWP. This 

adjustment would match the language 

from the utility line substation 

component of the NWP. 

NWP 13. Bank Stabilization. To 

encourage bank stabilization activities 

that use bioengineering techniques and 

other methods that may have less 

adverse environmental effects, we are 

proposing to modify paragraph (c) by 

removing the waiver provision and 

authorizing bank stabilization activities 

that utilize bioengineered techniques to 

exceed an average of one cubic yard per 

running foot placed along the bank 

below the plane of the ordinary high 

water mark or the high tide line. This 

change would not authorize bank 

stabilization activities that involve 

hardening the bank with material such 

as sheet pile, riprap, concrete, etc. if the 

discharge exceeds one cubic yard per 

running foot. A separate form of 

Department of the Army authorization, 

such as an individual permit or regional 

general permit, would be required for 

such activities. Bioengineered 

techniques can slow erosion rates and 

can have beneficial effects on habitat for 

macroinvertebrates and fish and may 

include the use of living material or 

other material such as tree revetments or 

root wads. 

Because some bank stabilization 

activities require temporary structures 

or fills, or a site to be temporarily 

dewatered, we propose to add language 

authorizing these associated activities. 

This proposed language is consistent 

with that used to authorize the same 

activity in NWPs 3, 12, and 14. 

NWP 15. U.S. Coast Guard Approved 

Bridges. We are proposing to modify 

this NWP by removing the reference to 

the U.S. Coast Guard authorizing the 

discharge of dredged or fill material into 

waters of the United States as a part of 

their bridge permit, since their bridge 

permits do not authorize such activities. 

We are also proposing to reference the 

U.S. Coast Guard’s bridge permitting 

authority under Section 9 of the Rivers 

and Harbors Act of 1899 and other 

applicable laws. The other applicable 

laws include: The International Bridge 

Act of 1972 (at 33 U.S.C. 535–535(i)), 

the General Bridge Act of 1946 (at 33 

U.S.C. 525, 528, 530, and 533), the 

Bridge Act of 1906 (at 33 U.S.C. 491, 

494, and 495); and the Rivers and 

Harbors Appropriation Act of 1899 (at 

33 U.S.C. 401, 403, 406, and 502). 

Because a bridge permit issued by the 

U.S. Coast Guard does not cover 

discharges of dredged or fill material 

into navigable waters of the United 

States, and such discharges are likely to 

be considered work that modifies those 

waters, we propose to add section 10 

authority to this NWP to provide 

authorization under the Rivers and 

Harbors Act of 1899. 

NWP 20. Response Operations for Oil 

and Hazardous Substances. We are 

proposing to change the name of this 

NWP from ‘‘Oil Spill Cleanup’’ to 

‘‘Response Operations for Oil and 

Hazardous Substances’’ to better 

describe the activities and types of 

materials authorized by the NWP. 

The proposed modification would 

also authorize a wider set of activities, 

specifically containment and mitigation, 

associated with a response operation’s 

effort to manage a release of oil or 

hazardous substances. 

We are also proposing to modify the 

NWP to authorize work under a wider 

range of approved response plans or 

work approved by a Federal on-scene 

coordinator as designated by 40 CFR 

part 300. 

Additionally, we propose to modify 

this NWP to authorize training exercises 

for the cleanup of oil and hazardous 

substance by this NWP. These drills can 

take place on land and water and 

sometimes involve the use of temporary 

structures and fills used to contain spilt 

materials. 

NWP 21. Surface Coal Mining 

Activities. To help make a fully 

informed decision about whether or not 

to reissue NWP 21, we are soliciting 

comment on three options for this NWP. 

Option 1 would be to not reissue NWP 

21. Option 2 would be to reissue NWP 

21 with modifications, including a 1⁄2- 

acre limit for losses of non-tidal waters 

of the United States, a 300 linear foot 

limit for the loss of stream bed (with a 

waiver for the loss of intermittent and 

ephemeral stream beds if the district 

engineer makes a written determination 

that the discharge will result in minimal 

adverse effects), and a provision 

prohibiting the use of NWP 21 to 

authorize discharges of dredged or fill 

material into waters of the United States 

associated with the construction of 

valley fills for surface coal mining 

activities. Option 3 would be to reissue 

NWP 21 with the same modifications as 

described for Option 2, except there 

would be no provision prohibiting the 

use of NWP 21 to authorize discharges 

of dredged or fill material into waters of 

the United States associated with the 

construction of valley fills. Options 2 

and 3 would not authorize discharges of 

dredged or fill material into tidal waters 

or non-tidal wetlands adjacent to tidal 

waters. 

The preferred option is Option 2, 

since the construction of valley fills for 

surface coal mining activities 

substantially alters the watersheds 

associated with headwater streams and 

has a greater potential to cause more 

than minimal adverse effects on the 

aquatic environment. Those changes to 

the watershed cause direct and indirect 

effects to downstream waters. 

Option 1, to not reissue NWP 21, 

would be consistent with a 


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determination that any discharge of 

dredge or fill material associated with 

surface coal mining activities, in any 

region of the country, might result in 

more than minimal adverse effects on 

the aquatic environment and thus 

warrant the more rigorous review 

associated with an individual permit. In 

contrast, the proposed modifications 

presented in Options 2 and 3 would 

authorize minor activities associated 

with surface coal mining activities such 

as the discharges of dredged or fill 

material to construct sediment ponds or 

minor road crossings. All the Options 

would require larger surface coal mining 

activities involving discharges of 

dredged or fill material into waters of 

the United States to be authorized by 

individual permits. In previously issued 

versions of NWP 21, there was no limit 

on losses of waters of the United States. 

Instead of acreage or linear foot limits 

the Corps relied on the following to 

ensure minimal adverse effects: (a) The 

implementation of environmental 

protections through SMCRA (e.g., 

preventing material damage to the 

hydrologic balance in the surrounding 

areas and minimizing adverse impacts 

to fish and wildlife habitat); and, (b) the 

requirement that the prospective 

permittee could not commence work in 

waters of the United States until he or 

she received written verification from 

the Corps district that the activity was 

authorized by NWP 21. Under Options 

2 and 3, the Corps would continue to 

rely on these sources of assurance, along 

with the proposed new acreage and 

linear foot limits, to ensure minimal 

adverse effects. The Corps believes that 

this combination of safeguards is 

sufficient, particularly if discharges 

associated with valley fills are not 

authorized, and has thus identified 

Option 2 as its preferred option. 

We are also soliciting public comment 

on additional options that should be 

considered for the reissuance of NWP 

21. In addition to the three options 

described above, we are proposing to 

change the title of this NWP by 

replacing the word ‘‘Operations’’ with 

‘‘Activities’’ because the Corps only 

authorizes discharges of dredged or fill 

material into waters of the United 

States, not the operation of the surface 

coal mine. The operation of a surface 

coal mine is regulated under the Surface 

Mining Control and Reclamation Act of 

1977 (SMCRA). In addition, Clean Water 

Act Section 402 National Pollutant 

Discharge Elimination System permits 

may authorize discharges of pollutants 

other than dredge or fill material to 

waters of the United States, including 

those from outfall pipes of sediment 

ponds. 

On June 11, 2009, the Department of 

the Army, the Department of the Interior 

(DOI), and the U.S. Environmental 

Protection Agency (EPA) signed a 

Memorandum of Understanding (MOU) 

that addresses actions to strengthen the 

environmental review of Appalachian 

surface coal mining. The MOU includes 

an Interagency Action Plan (IAP) that 

was developed to reduce the adverse 

environmental effects of surface coal 

mining activities in the Appalachian 

region of Kentucky, Ohio, Pennsylvania, 

Tennessee, Virginia, and West Virginia, 

while assuring that future mining 

remains consistent with the Clean Water 

Act and SMCRA. One of the short-term 

action items the Army agreed to do 

under the IAP was to issue a Federal 

Register notice proposing to modify 

NWP 21 to preclude its use to authorize 

discharges of fill material into streams 

for surface coal mining activities in the 

Appalachian region of these six states 

and to seek public comment on this 

proposal. On July 15, 2009, the Corps 

published a Federal Register notice (74 

FR 34311) to solicit public comment on 

this proposal. As an interim measure to 

provide environmental protection while 

the Corps evaluated the comments 

received on the proposal to modify 

NWP 21, on June 18, 2010, the Corps 

suspended NWP 21 in the Appalachian 

region of Kentucky, Ohio, Pennsylvania, 

Tennessee, Virginia, and West Virginia 

(see 75 FR 34711). 

Since the current NWP 21 will expire 

on March 18, 2012, it would be more 

prudent to address the modification of 

NWP 21 in today’s proposal, instead of 

making a separate decision on the July 

15, 2009, proposal to modify NWP 21 in 

the Appalachian region of Kentucky, 

Ohio, Pennsylvania, Tennessee, 

Virginia, and West Virginia. We also 

believe that substantial changes to NWP 

21 are necessary to ensure, at a national 

level, that it authorizes only those 

discharges of dredged or fill material 

into waters of the United States 

associated with surface coal mining 

activities that have minimal individual 

and cumulative adverse effects on the 

aquatic environment and other public 

interest review factors. Nationwide 

permit 21 has been used to authorize 

surface coal mining activities in at least 

20 other states, such as states in the 

west and southeast, and we believe it is 

necessary to impose an acreage limit on 

NWP 21 to ensure that the surface coal 

mining activities in those other states 

result in minimal adverse effects. 

Division engineers have the authority 

to regionally condition this NWP to 

impose an acreage or linear foot limit or 

other special conditions, if there are 

concerns for the aquatic environment in 

a particular district, watershed, or other 

geographic region. The proposed 

modification of NWP 21 will provide an 

NWP for minor activities associated 

with surface coal mining activities. Preconstruction notification is still required 

before any activities commence in 

waters of the United States and the 

applicant must receive authorization in 

writing from the Corps before beginning 

the activity. 

NWP 27. Aquatic Habitat Restoration, 

Establishment, and Enhancement 

Activities. We are proposing to add ‘‘the 

removal of small dams’’ to the list of 

examples of activities that can be 

authorized by this NWP. In the 

reversion provision we are proposing to 

remove the phrase ‘‘that has not been 

abandoned’’ that modifies the term 

‘‘prior converted cropland’’ because 

areas of prior converted cropland being 

used for wetland or stream 

enhancement or restoration that are 

eligible for this provision are subject to 

a binding agreement with the Natural 

Resources Conservation Service and 

have not been abandoned, so the 

qualifier is unnecessary. 

We are proposing to modify 

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

having stream restoration, 

rehabilitation, and enhancement 

activities conducted in accordance with 

binding agreements with the 

appropriate agencies or as voluntary 

actions documented by NRCS or a 

USDA Technical Service Provider be 

subject to the reporting provision 

instead. Additionally, we propose to 

modify notification provision (1) by 

adding the United States Forest Service 

to the list of Federal agencies that can 

develop stream or wetland 

enhancement, restoration, or 

establishment agreements. The 

‘‘Notification’’ provision requires the 

permittee or appropriate Federal or state 

agency to notify the district engineer in 

accordance with general condition 30 

(formerly general condition 27). 

NWP 29. Residential Developments. 

We are proposing to modify the waiver 

provision for activities resulting in the 

loss of greater than 300 linear feet of 

intermittent and ephemeral stream bed 

to clarify that the district engineer will 

only issue the waiver after making a 

project-specific written determination 

that the activity will result in minimal 

adverse effects. 

NWP 31. Maintenance of Existing 

Flood Control Facilities. We are 

proposing to add language that states, in 

those cases where a Corps permit is 

required, the NWP authorizes the 

removal of vegetation from levees 


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associated with a flood control project. 

The removal of vegetation from a flood 

control levee may require a permit 

under Section 10 of the Rivers and 

Harbors Act of 1899 if it is considered 

to be work in navigable waters of the 

United States. Vegetation removal may 

also require Clean Water Act Section 

404 authorization if it involves 

discharges of dredged or fill material 

into waters of the United States. 

NWP 39. Commercial and 

Institutional Developments. We are 

proposing to modify the waiver 

provision for activities resulting in the 

loss of greater than 300 linear feet of 

intermittent and ephemeral stream bed 

to clarify that the district engineer will 

only issue the waiver after making a 

project-specific written determination 

that the activity will result in minimal 

adverse effects. 

NWP 40. Agricultural Activities. We 

are proposing to modify the text of this 

NWP to impose a limit on stream bed 

impacts that mirrors the limits in other 

NWPs, such as NWPs 29 and 39. 

Currently, the 300 linear foot limit for 

this NWP only applies to the relocation 

of ditches constructed in streams. The 

modification would apply to all stream 

impacts authorized by the NWP. 

Specifically, we propose to replace the 

last sentence of the fourth paragraph 

with: ‘‘The discharge must not cause the 

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

waters of the United States, including 

the loss of no more than 300 linear feet 

of stream bed, unless for intermittent 

and ephemeral stream beds the district 

engineer waives the 300 linear foot limit 

by making a written determination 

concluding that the discharge will result 

in minimal adverse effects.’’ 

NWP 42. Recreational Facilities. We 

are proposing to modify the waiver 

provision for activities resulting in the 

loss of greater than 300 linear feet of 

intermittent and ephemeral stream bed 

to clarify that the district engineer will 

only issue the waiver after making a 

project-specific written determination 

that the activity will result in minimal 

adverse effects. 

NWP 43. Stormwater Management 

Facilities. We are proposing to add ‘‘low 

impact development stormwater 

features’’ to the examples of types of 

stormwater management facilities that 

are authorized by this NWP. Low impact 

development for stormwater 

management comprises a set of site 

design approaches and small-scale 

features that promote the use of natural 

systems for infiltration, 

evapotranspiration, and reuse of 

rainwater. The types of low impact 

development stormwater practices that 

would be eligible for this NWP could 

include bioretention features, swales 

and vegetated landscaping. We are also 

proposing to modify the waiver 

provision for activities resulting in the 

loss of greater than 300 linear feet of 

intermittent and ephemeral stream bed 

to clarify that the district engineer will 

only issue the waiver after making a 

project-specific written determination 

that the activity will result in minimal 

adverse effects. 

NWP 44. Mining Activities. To be 

consistent with other NWPs and ensure 

that the NWP authorizes only those 

activities with minimal adverse effects, 

we are proposing to add a 300 linear 

foot limit for the loss of stream bed, 

which for intermittent and ephemeral 

stream beds can be waived by the 

district engineer if he or she makes a 

written determination concluding that 

the discharge will result in minimal 

adverse effects. 

NWP 45. Repair of Uplands Damaged 

by Discrete Events. We are proposing to 

modify this NWP by adding a sentence 

to clarify that it does not authorize 

beach restoration. Beach nourishment or 

restoration activities may be authorized 

by individual permits or regional 

general permits. 

NWP 48. Existing Commercial 

Shellfish Aquaculture Activities. The 

modifications proposed for this NWP 

include authorizing the expansion of 

existing commercial shellfish 

aquaculture operations. We are 

proposing to remove the reporting 

requirement because we do not believe 

it is necessary to track all activities 

authorized by this NWP. Many existing 

commercial shellfish aquaculture 

activities have been in continuous 

operation for many years, and are 

subject to a multitude of Federal, state, 

and local regulations. We believe that 

our focus should be on reviewing those 

proposed commercial shellfish 

aquaculture activities that have the 

potential to result in more than minimal 

adverse effects on the aquatic 

environment. Such activities are those 

commercial shellfish aquaculture 

operations that exceed 100 acres in size, 

involve dredge harvesting, tilling, or 

harrowing in areas inhabited by 

submerged aquatic vegetation, or 

involve changes in operation, such as 

expansions, reconfigurations, 

relocations, changes in species 

cultivated, or changes in culture 

methods. Since many commercial 

shellfish aquaculture activities, 

especially those on the west coast, may 

affect listed or threatened species under 

the Endangered Species Act, the 

notification requirement in general 

condition 19, Endangered Species, will 

also result in these activities being 

reported to the Corps. 

We are also proposing to modify the 

notification thresholds by adding a preconstruction notification requirement 

for all activities that propose to expand 

the commercial production of shellfish 

beyond the existing project area. 

We are proposing to change the 

notification provision to require the 

prospective permittee to submit the 

information that was required for 

reporting under the current version of 

NWP 48. That information will be used 

with the information submitted in 

accordance with paragraph (b) of 

general condition 30, Pre-Construction 

Notification, to determine if the 

proposed activity will result in minimal 

individual and cumulative adverse 

effects on the aquatic environment and 

other public interest review factors. 

We are seeking comments on 

modifying NWP 48 to authorize new 

commercial shellfish aquaculture 

activities or alternatively, issuing a new 

NWP to authorize those activities that 

require DA authorization under Section 

404 of the Clean Water Act and/or 

Section 10 of the Rivers and Harbors Act 

of 1899. We are also soliciting 

comments and suggestions regarding 

appropriate limits for new commercial 

shellfish aquaculture activities, as well 

as other terms and conditions that 

would be appropriate for authorizing 

new shellfish aquaculture activities 

with a nationwide permit to ensure 

minimal individual and cumulative 

adverse effects. 

NWP 49. Coal Remining Activities. 

We are proposing to modify this NWP 

to clarify how the 40% of newly mined 

area is determined. As an example, if 

there are 600 acres of land previously 

unreclaimed as a result of previous 

mining activities and the Corps agrees 

with the SMCRA agency’s 

determination that there are 200 acres 

needed to adequately reclaim the 600 

acres, then there are a total of 800 acres 

included in the previously mined area 

and area needed to be reclaimed. Given 

this, the amount of newly mined area 

eligible for the NWP is 320 acres (40% 

of 800 acres). While the Corps 

acknowledges the SMCRA agency’s 

expertise, the Corps will review the 

SMCRA agency’s determination 

regarding the amount of previously 

unmined area necessary for the 

reclamation of the previously mined 

area and independently determine this 

area. This is necessary in order for the 

Corps to make informed decisions 

regarding whether the proposal satisfies 

the minimal adverse effects requirement 

of the NWP. We have also modified the 

notification provision by requiring the 


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prospective permittee to submit 

documentation with the PCN 

‘‘describing how the overall mining plan 

will result in a net increase in aquatic 

resource functions.’’ 

NWP 50. Underground Coal Mining 

Activities. To provide acreage and linear 

foot limits consistent with other NWPs 

and provide greater assurance that the 

NWP will only authorize activities with 

minimal adverse environmental effects, 

we are proposing to modify this NWP to 

impose a 1⁄2-acre limit on losses of nontidal waters of the United States, 

including the loss of no more than 300 

linear feet of stream bed, unless for 

intermittent and ephemeral stream beds 

the district engineer waives the 300 

linear foot limit by making a written 

determination concluding that the 

discharge will result in minimal adverse 

effects. 

Discussion of Proposed New 

Nationwide Permits 

A. Land Based Renewable Energy 

Generation Facilities. We are proposing 

to issue a new NWP to authorize the 

discharges of dredged or fill material 

into non-tidal waters of the United 

States, excluding non-tidal wetlands 

adjacent to tidal waters, for the 

construction, expansion, or 

modification of land-based renewable 

energy production facilities. Examples 

include infrastructure to generate solar 

(concentrating solar power and 

photovoltaic), biomass, wind or 

geothermal energy and their collection 

systems. Attendant features may 

include, but are not limited to roads, 

parking lots, utility lines, and storm 

water management facilities. 

We are proposing a 1⁄2-acre limit for 

this NWP, including the loss of no more 

than 300 linear feet of stream bed, 

unless for intermittent and ephemeral 

stream beds the district engineer waives 

this 300 linear foot limit by making a 

written determination concluding that 

the discharge will result in minimal 

adverse effects. We believe the 1⁄2-acre 

limit, as well as the 300 linear foot limit 

for stream impacts, will authorize only 

those activities that have minimal 

adverse effects on the aquatic 

environment, individually and 

cumulatively. Division engineers can 

regionally condition this NWP to lower 

the acreage or linear foot limit or 

otherwise limit its use. We are 

proposing to require pre-construction 

notification for all activities. We are 

seeking comments on this proposed 

NWP, including its terms and 

conditions, such as the proposed 1⁄2-acre 

and 300 linear foot limits. 

B. Water-Based Renewable Energy 

Generation Pilot Projects. We are 

proposing to issue a new NWP to 

authorize structures and work in 

navigable waters of the United States 

and the discharges of dredged or fill 

material into waters of the United 

States, for the construction, expansion, 

and modification of hydrokinetic or 

wind energy generation pilot projects 

and their attendant features. This NWP 

also authorizes structures and 

infrastructure to collect energy as well 

as utility lines to transfer the energy to 

land-based distribution facilities. 

We are proposing a 1⁄2-acre limit for 

this NWP, including the loss of no more 

than 300 linear feet of stream bed, 

unless for intermittent and ephemeral 

stream beds the district engineer waives 

this 300 linear foot limit by making a 

written determination concluding that 

the discharge will result in minimal 

adverse effects. We believe the 1⁄2-acre 

limit, as well as the 300 linear foot limit 

for stream impacts, will authorize only 

those activities that have minimal 

adverse effects on the aquatic 

environment, individually and 

cumulatively. Division engineers can 

regionally condition this NWP to lower 

the acreage or linear foot limit or add 

additional restrictions on its use. 

The proposed NWP would also 

prohibit activities in danger zones and 

restricted areas established by the 

Corps, as well as anchorage areas and 

shipping safety fairways or traffic 

separation schemes designated by the 

U.S. Coast Guard. This NWP would not 

authorize structures in open water 

dredged material disposal areas 

designated by the Corps or EPA. In 

addition, the NWP would not authorize 

activities in coral reefs. 

We are proposing to require preconstruction notification for all 

activities. This proposed NWP would 

authorize activities that require section 

10 and/or 404 authorization. 

We are proposing to add a note to this 

NWP (Note 1) to make it clear that if the 

proposed activity involves modification 

of an existing Corps project, a separate 

authorization from the Chief of 

Engineers is required under 33 U.S.C. 

408 to alter that Corps project. 

The proposed NWP also includes 

Note 2, which instructs district 

engineers to provide a copy of the NWP 

verification to the National Oceanic and 

Atmospheric Administration (NOAA), 

National Ocean Service (NOS) for 

charting structures and utility lines in 

navigable waters of the United States to 

protect navigation. 

We are seeking comments on this 

proposed new NWP, including its terms 

and conditions, such as the proposed 

1⁄2-acre and 300 linear foot limits. 

Discussion of Proposed Modifications to 

Nationwide Permit General Conditions 

In the 2007 NWPs we reordered the 

general conditions (GCs) to make them 

easier to read and to group together the 

GCs that are associated with 

environmental concerns and public 

interest review factors, followed by 

general conditions relating to 

administrative requirements. In this 

proposal, we are moving former general 

condition 28, Single and Complete 

Project, and renumbering it as general 

condition 16. The following GCs would 

be renumbered, but we are not 

proposing to make any changes to the 

text of those GCs: Proper Maintenance; 

Tribal Rights; Water Quality; Coastal 

Zone Management; Regional and Caseby-Case Conditions; Use of Multiple 

Nationwide Permits; and Transfer of 

Nationwide Permit Verifications. 

GC 2. Aquatic Life Movements. To 

provide added protection to the aquatic 

environment we are proposing to 

modify this GC by adding a statement 

requiring bottomless culverts to be used 

when practicable. We are proposing to 

provide an example of a circumstance 

where it would not be practicable to use 

a bottomless culvert, such as sites where 

sub-grade instability would make it 

unsafe to use a bottomless culvert. The 

proposed modification of this general 

condition would also require the bottom 

of the culvert to be below the grade of 

the stream bed unless the stream bed 

consists of bedrock or boulders. 

GC 14. Discovery of Previously 

Unknown Remains and Artifacts. We 

are proposing to add a new general 

condition to address circumstances 

when previously unknown historic, 

cultural or archeological remains or 

artifacts are discovered during 

construction of the authorized activity. 

The Corps uses a similar general 

condition (number 3) on all standard 

permits as prescribed by 33 CFR part 

325, Appendix A. This GC would also 

require a permittee, to the maximum 

extent practicable, to stop activities that 

would adversely affect those remains 

and artifacts until the required 

coordination has been completed. 

GC 17. Wild and Scenic Rivers. We 

are proposing to modify this general 

condition to clarify that project 

proponents should obtain information 

from the specific Federal land 

management agency responsible for the 

designated Wild and Scenic River or 

study river. 

GC 19. Endangered Species. We are 

proposing to modify paragraph (a) of 

this general condition to clarify that 

direct and indirect effects are to be 

taken into account when assessing 


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whether an activity may jeopardize the 

continued existence of a threatened or 

endangered species or a species 

proposed for such designation, or 

destroy or adversely modify the critical 

habitat of such species. 

We are also proposing to modify 

paragraph (e) to include definitions of 

‘‘take’’ and ‘‘harm’’. We are proposing to 

add a new paragraph (f) to provide 

prospective permittees with guidance 

on where they can obtain information 

on the locations of listed species and 

their critical habitat. That guidance was 

previously provided in paragraph (e). 

GC 20. Historic Properties. (Formerly 

general condition 18.) We are proposing 

to modify paragraph (c) by stating 

district engineers will comply with the 

current procedures for addressing the 

requirements of Section 106 of the 

National Historic Preservation Act. The 

Regulatory Program’s procedures for the 

protection of historic properties are 

provided in Appendix C of 33 CFR part 

325. On April 25, 2005, we issued 

revised interim guidance for 

implementing Appendix C in light of 

the Advisory Council on Historic 

Preservation’s revised regulations at 36 

CFR part 800. We believe this general 

condition should have a more general 

reference to the Corps Regulatory 

Program’s current procedures for section 

106 compliance, since we are using 

Appendix C, the revised interim 

guidance, and other guidance for section 

106 compliance. 

GC 21. Designated Critical Resource 

Waters. (Formerly general condition 19.) 

We are proposing to modify this general 

condition to clarify the types of areas 

subject to the GC by altering how 

NOAA’s marine sanctuaries are 

described, which categories of critical 

resource waters are always subject to 

this general condition, and which 

categories of critical resource waters can 

be designated by a district engineer after 

a public notice and comment process. 

This general condition will also specify 

that state-designated outstanding 

national resource waters are intended 

for inclusion in the general condition. 

We also propose making state natural 

heritage sites subject to the district 

engineer’s designation process in order 

to provide the public an opportunity to 

comment on a proposed designation of 

new critical resource waters and any 

effects the designation of those waters 

will have on local NWP program 

implementation. States may request the 

district engineer to consider designating 

state natural heritage sites as critical 

resource waters subject to this general 

condition. For those NWPs listed in 

paragraph (b), district engineers 

determine on a case-by-case basis 

whether special permit conditions are 

needed to protect critical resource 

waters, or whether discretionary 

authority to require an individual 

permit should be exercised. 

We are proposing to add proposed 

new NWPs A and B to the list of NWPs 

in paragraph (a) that cannot be used to 

authorize activities in designated 

critical resource waters. 

GC 22. Mitigation. (Formerly general 

condition 20.) We are proposing to 

modify paragraph (g) so it better reflects 

our compensatory mitigation regulations 

at 33 CFR part 332. Specifically, we 

would replace the word ‘‘arrangements’’ 

with ‘‘programs’’ in describing in-lieu 

fee programs. We are also proposing to 

replace the phrase ‘‘activity-specific’’ 

with ‘‘permittee-responsible’’ when 

referring to compensatory mitigation 

implemented by the permittee. Another 

proposed change is the addition of a 

provision stating that for activities 

resulting in the loss of marine or 

estuarine resources, permitteeresponsible compensatory mitigation 

may be environmentally preferable if 

there are no mitigation banks or in-lieu 

fee programs in the area that have 

marine or estuarine credits available for 

sale or transfer to the permittee. This 

will encourage the use of in-kind 

mitigation to compensate for the losses 

of marine or estuarine resources. Lastly, 

we propose to revise the last sentence of 

paragraph (g) to state that the party 

responsible for providing the required 

permittee-responsible mitigation, 

including any required long-term 

management, shall be identified in the 

special conditions of the NWP 

verification. 

GC 23. Safety of Impoundment 

Structures. We are proposing to add this 

general condition to clarify that district 

engineers can request that a non-Federal 

applicant demonstrate the proposed 

impoundment structure is designed for 

safety in accordance with 33 CFR 

320.4(k). 

GC 29. Compliance Certification. 

(Formerly general condition 26.) We are 

proposing to make minor changes to 

clarify that the Corps provides the 

permittee with the necessary document 

to complete and return to the Corps as 

the signed certification. 

GC 30. Pre-Construction Notification. 

(Formerly general condition 27.) We are 

proposing to rearrange paragraph (d)(2) 

to make it clearer that all NWP activities 

resulting in the loss of greater than 

1⁄2-acre of waters of the United States 

require agency coordination. We are 

also proposing to require agency 

coordination for an NWP 21, 29, 39, 40, 

42, 43, 50, A, or B PCN when the 

proposed activity will result in the loss 

of greater than 1,000 linear feet of 

intermittent and ephemeral stream bed. 

This is a subset of cases where a waiver 

by the district engineer is required for 

a loss of greater than 300 linear feet of 

intermittent and ephemeral stream bed. 

The Corps believes that the addition of 

this coordination requirement for a 

subset of waivers, along with the added 

requirement of written minimal adverse 

effects determinations for all waivers 

and further specification of factors that 

need to be taken into account in 

minimal effects determinations (see 

below), appropriately balances the need 

to ensure that any waiver does not result 

in more than minimal adverse effects, 

individually and cumulatively, with the 

regulated public’s expectation that the 

Corps will issue NWP verifications in a 

timely manner. The Corps requests 

comment on this approach for 

strengthening the waiver provisions of 

the affected NWPs. 

In paragraph (e), we are proposing to 

clarify that the district engineer must 

make a written determination of 

minimal adverse effects before waiving 

the 300 linear foot limit on impacts to 

intermittent or ephemeral streams or an 

otherwise applicable limit, as provided 

for in NWPs 13, 21, 29, 36, 39, 40, 42, 

43, 44, 50, A or B. More generally, we 

are also proposing to clarify that the 

district engineer is to consider direct 

and indirect effects caused by the NWP 

activity when determining if an NWP 

activity results in minimal adverse 

effects on the aquatic environment, 

individually and cumulatively. 

Specifically, we are proposing to add 

this language after the first sentence of 

paragraph (e)(1): ‘‘If an applicant 

requests a waiver of the 300 linear foot 

limit on impacts to intermittent or 

ephemeral streams or an otherwise 

applicable limit, as provided for in 

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

50, A or B, the district engineer will 

only grant the waiver upon a written 

determination that the discharge will 

result in minimal adverse effects. When 

making minimal effects determinations 

the district engineer will consider the 

direct and indirect effects caused by the 

NWP activity.’’ 

We are also proposing to add language 

to paragraph (e)(1) that describes factors 

to consider when making minimal 

effects determinations for the purposes 

of the NWPs. Functional assessments 

may be used to make minimal effects 

determinations, if appropriate methods 

are available and practicable to use for 

a particular NWP activity. District 

engineers may also add special 

conditions to NWP authorizations to 

address site-specific environmental 

concerns and impose requirements to 


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ensure that authorized activities result 

in minimal adverse effects. 

Discussion of Proposed Modifications to 

Existing Nationwide Permit Definitions 

We are proposing changes to some of 

the NWP definitions. If a definition is 

not discussed below, we are not 

proposing any substantive changes to 

that definition. 

Compensatory Mitigation. We are 

proposing to modify this definition to be 

consistent with the definition of this 

term found in 33 CFR 332.2. 

Re-establishment. We are proposing to 

modify this definition by adding ‘‘and 

functions’’ to the end of the last sentence 

in order to be consistent with the 

definition of this term found in 33 CFR 

332.2. 

Single and Complete Project. We are 

proposing to modify this definition by 

splitting it into two definitions 

pertaining to linear (Single and 

Complete Linear Projects) and nonlinear (Single and Complete Non-Linear 

Projects) projects in order to clarify how 

the ‘‘independent utility’’ test applies to 

non-linear projects. 

Discussion of New Proposed 

Nationwide Permit Definitions 

We are proposing to add three new 

definitions to assist those using the 

nationwide permits. As discussed 

above, we are proposing separate 

definitions of the terms ‘‘single and 

complete linear project’’ and ‘‘single and 

complete non-linear project.’’ We are 

also proposing to add a definition of the 

term ‘‘high tide line.’’ The definition of 

‘‘high tide line’’ is adapted from the 

definition at 33 CFR 328.3(d). 

Administrative Requirements 

Plain Language 

In compliance with the principles in 

the President’s Memorandum of June 1, 

1998, (63 FR 31855) regarding plain 

language, this preamble is written using 

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

notice refers to the Corps. We have also 

used the active voice, short sentences, 

and common everyday terms except for 

necessary technical terms. 

Paperwork Reduction Act 

The proposed NWPs will increase the 

number of permittees who are required 

to submit a PCN. The content of the 

PCN is not changed from the current 

NWPs, except for NWP 48, where 

information from the current reporting 

requirement is being moved into the 

PCN, but the paperwork burden will 

increase because of the increased 

number of PCNs submitted. For the two 

new proposed NWPs A and B, the 

paperwork burden would be an 

estimated 3,300 hours per year for 300 

PCNs. This is based on an average 

burden to complete and submit a PCN 

of 11 hours. However, activities that 

would be authorized by the two 

proposed new NWPs are currently 

authorized by alternative forms of 

Department of the Army (DA) permits 

(i.e., standard permits, letters of 

permission, or regional general permits), 

with many needing a standard permit 

application which requires an average 

burden of 11 hours to complete and 

submit. Since the paperwork burden is 

similar for standard permit applications 

and PCNs, we anticipate no additional 

paperwork burden if the two proposed 

NWPs are issued. Similarly, we 

anticipate no additional burden from 

the increased information required in a 

PCN for NWP 48 because the same 

information is currently being requested 

through the reporting requirement, 

which we are proposing to eliminate. 

Prospective permittees who are required 

to submit a PCN for a particular NWP, 

or who are requesting verification that a 

particular activity qualifies for NWP 

authorization, may use the current 

standard Department of the Army 

permit application form. 

An agency may not conduct or 

sponsor, and a person is not required to 

respond to, a collection of information 

unless it displays a currently valid 

Office of Management and Budget 

(OMB) control number. For the Corps 

Regulatory Program under Section 10 of 

the Rivers and Harbors Act of 1899, 

Section 404 of the Clean Water Act, and 

Section 103 of the Marine Protection, 

Research and Sanctuaries Act of 1972, 

the current OMB approval number for 

information collection requirements is 

maintained by the Corps of Engineers 

(OMB approval number 0710–0003, 

which expires on August 31, 2012). 

Executive Order 12866 

Under Executive Order 12866 (58 FR 

51735, October 4, 1993), we must 

determine whether the regulatory action 

is ‘‘significant’’ and therefore subject to 

review by OMB and the requirements of 

the Executive Order. The Executive 

Order defines ‘‘significant regulatory 

action’’ as one that is likely to result in 

a rule that may: 

(1) Have an annual effect on the 

economy of $100 million or more or 

adversely affect in a material way the 

economy, a sector of the economy, 

productivity, competition, jobs, the 

environment, public health or safety, or 

State, local, or Tribal governments or 

communities; 

(2) Create a serious inconsistency or 

otherwise interfere with an action taken 

or planned by another agency; 

(3) Materially alter the budgetary 

impact of entitlements, grants, user fees, 

or loan programs or the rights and 

obligations of recipients thereof; or 

(4) Raise novel legal or policy issues 

arising out of legal mandates, the 

President’s priorities, or the principles 

set forth in the Executive Order. 

Pursuant to the terms of Executive 

Order 12866, we have determined that 

the proposed rule is a ‘‘significant 

regulatory action’’ and the draft rule was 

submitted to OMB for review. 

Executive Order 13132 

Executive Order 13132, entitled 

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

1999), requires the Corps to develop an 

accountable process to ensure 

‘‘meaningful and timely input by State 

and local officials in the development of 

regulatory policies that have federalism 

implications.’’ The proposed issuance 

and modification of NWPs does not 

have federalism implications. We do not 

believe that the proposed NWPs will 

have substantial direct effects on the 

States, on the relationship between the 

Federal government and the States, or 

on the distribution of power and 

responsibilities among the various 

levels of government. The proposed 

NWPs will not impose any additional 

substantive obligations on State or local 

governments. Therefore, Executive 

Order 13132 does not apply to this 

proposal. 

Regulatory Flexibility Act, as Amended 

by the Small Business Regulatory 

Enforcement Fairness Act of 1996, 

5 U.S.C. 601 et seq. 

The Regulatory Flexibility Act 

generally requires an agency to prepare 

a regulatory flexibility analysis of any 

rule subject to notice-and-comment 

rulemaking requirements under the 

Administrative Procedure Act or any 

other statute unless the agency certifies 

that the rule will not have a significant 

economic impact on a substantial 

number of small entities. Small entities 

include small businesses, small 

organizations, and small governmental 

jurisdictions. 

For purposes of assessing the impacts 

of the proposed issuance and 

modification of NWPs on small entities, 

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

business based on Small Business 

Administration size standards; (2) a 

small governmental jurisdiction that is a 

government of a city, county, town, 

school district, or special district with a 

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

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

owned and operated and is not 

dominant in its field. 


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The statues under which the Corps 

issues, reissues, or modifies nationwide 

permits are Section 404(e) of the Clean 

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

Section 10 of the Rivers and Harbors Act 

of 1899 (33 U.S.C. 403). Under section 

404, Department of the Army (DA) 

permits are required for discharges of 

dredged or fill material into waters of 

the United States. Under section 10, DA 

permits are required for any structures 

or other work that affect the course, 

location, or condition of navigable 

waters of the United States. Small 

entities proposing to discharge dredged 

or fill material into waters of the United 

States and/or conduct work in navigable 

waters of the United States must obtain 

DA permits to conduct those activities, 

unless a particular activity is exempt 

from those permit requirements. 

Individual permits and general permits 

can be issued by the Corps to satisfy the 

permit requirements of these two 

statutes. Nationwide permits are a form 

of general permit issued by the Chief of 

Engineers. 

Nationwide permits automatically 

expire and become null and void if they 

are not modified or reissued within five 

years of their effective date (see 33 CFR 

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

the Clean Water Act states that general 

permits, including NWPs, can be issued 

for no more than five years. If the 

current NWPs are not reissued, they will 

expire on March 18, 2012, and small 

entities and other project proponents 

would be required to obtain alternative 

forms of DA permits (i.e., standard 

permits, letters of permission, or 

regional general permits) for activities 

involving discharges of dredged or fill 

material into waters of the United States 

or structures or work in navigable 

waters of the United States. Regional 

general permits that authorize similar 

activities as the NWPs may be available 

in some geographic areas, but small 

entities conducting regulated activities 

outside those geographic areas would 

have to obtain individual permits for 

activities that require DA permits. 

When compared to the compliance 

costs for individual permits, most of the 

terms and conditions of the proposed 

NWPs are expected to result in 

decreases in the costs of complying with 

the permit requirements of sections 10 

and 404. The anticipated decrease in 

compliance cost results from the lower 

cost of obtaining NWP authorization 

instead of standard permits. Unlike 

standard permits, NWPs authorize 

activities without the requirement for 

public notice and comment on each 

proposed activity. 

Another requirement of Section 404(e) 

of the Clean Water Act is that general 

permits, including nationwide permits, 

authorize only those activities that 

result in minimal adverse 

environmental effects, individually and 

cumulatively. The terms and conditions 

of the NWPs, such as acreage or linear 

foot limits, are imposed to ensure that 

the NWPs authorize only those activities 

that result in minimal adverse effects on 

the aquatic environment and other 

public interest review factors. 

After considering the economic 

impacts of the proposed nationwide 

permits on small entities, I certify that 

this action will not have a significant 

impact on a substantial number of small 

entities. Small entities may obtain 

required DA authorizations through the 

NWPs, in cases where there are 

applicable NWPs authorizing those 

activities and the proposed work will 

result in minimal adverse effects on the 

aquatic environment and other public 

interest review factors. The terms and 

conditions of the revised NWPs will not 

impose substantially higher costs on 

small entities than those of the existing 

NWPs. If an NWP is not available to 

authorize a particular activity, then 

another form of DA authorization, such 

as an individual permit or regional 

general permit, must be secured. 

However, as noted above, we expect a 

slight to moderate increase in the 

number of activities than can be 

authorized through NWPs, because we 

are adding two new NWPs, and we are 

removing some limitations in existing 

NWPs and replacing them with PCN 

requirements that will allow the district 

engineer to judge whether any adverse 

effects of the proposed project are more 

than minimal, and authorize the project 

under an NWP if they are not. 

We are interested in the potential 

impacts of the proposed NWPs on small 

entities and welcome comments on 

issues related to such impacts. 

Unfunded Mandates Reform Act 

Title II of the Unfunded Mandates 

Reform Act of 1995 (UMRA), Public 

Law 104–4, establishes requirements for 

Federal agencies to assess the effects of 

their regulatory actions on State, local, 

and Tribal governments and the private 

sector. Under Section 202 of the UMRA, 

the agencies generally must prepare a 

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

rules with ‘‘Federal mandates’’ that may 

result in expenditures to State, local, 

and Tribal governments, in the 

aggregate, or to the private sector, of 

$100 million or more in any one year. 

Before promulgating a rule for which a 

written statement is needed, Section 205 

of the UMRA generally requires the 

agencies to identify and consider a 

reasonable number of regulatory 

alternatives and adopt the least costly, 

most cost-effective, or least burdensome 

alternative that achieves the objectives 

of the rule. The provisions of section 

205 do not apply when they are 

inconsistent with applicable law. 

Moreover, section 205 allows an agency 

to adopt an alternative other than the 

least costly, most cost-effective, or least 

burdensome alternative if the agency 

publishes with the final rule an 

explanation why that alternative was 

not adopted. Before an agency 

establishes any regulatory requirements 

that may significantly or uniquely affect 

small governments, including Tribal 

governments, it must have developed, 

under Section 203 of the UMRA, a small 

government agency plan. The plan must 

provide for notifying potentially 

affected small governments, enabling 

officials of affected small governments 

to have meaningful and timely input in 

the development of regulatory proposals 

with significant Federal 

intergovernmental mandates, and 

informing, educating, and advising 

small governments on compliance with 

the regulatory requirements. 

We have determined that the 

proposed NWPs do not contain a 

Federal mandate that may result in 

expenditures of $100 million or more 

for State, local, and Tribal governments, 

in the aggregate, or the private sector in 

any one year. The proposed NWPs are 

generally consistent with current agency 

practice, do not impose new substantive 

requirements and therefore do not 

contain a Federal mandate that may 

result in expenditures of $100 million or 

more for State, local, and Tribal 

governments, in the aggregate, or the 

private sector in any one year. 

Therefore, this proposal is not subject to 

the requirements of Sections 202 and 

205 of the UMRA. For the same reasons, 

we have determined that the proposed 

NWPs contain no regulatory 

requirements that might significantly or 

uniquely affect small governments. 

Therefore, the proposed issuance and 

modification of NWPs is not subject to 

the requirements of Section 203 of 

UMRA. 

Executive Order 13045 

Executive Order 13045, ‘‘Protection of 

Children from Environmental Health 

Risks and Safety Risks’’ (62 FR 19885, 

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

(1) Is determined to be ‘‘economically 

significant’’ as defined under Executive 

Order 12866, and (2) concerns an 

environmental health or safety risk that 

we have reason to believe may have a 

disproportionate effect on children. If 

the regulatory action meets both criteria, 


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we must evaluate the environmental 

health or safety effects of the proposed 

rule on children, and explain why the 

regulation is preferable to other 

potentially effective and reasonably 

feasible alternatives. 

The proposed NWPs are not subject to 

this Executive Order because they are 

not economically significant as defined 

in Executive Order 12866. In addition, 

the proposed NWPs do not concern an 

environmental health or safety risk that 

we have reason to believe may have a 

disproportionate effect on children. 

Executive Order 13175 

Executive Order 13175, entitled 

‘‘Consultation and Coordination with 

Indian Tribal Governments’’ (65 FR 

67249, November 6, 2000), requires 

agencies to develop an accountable 

process to ensure ‘‘meaningful and 

timely input by tribal officials in the 

development of regulatory policies that 

have tribal implications.’’ The phrase 

‘‘policies that have tribal implications’’ 

is defined in the Executive Order to 

include regulations that have 

‘‘substantial direct effects on one or 

more Indian tribes, on the relationship 

between the Federal government and 

the Indian tribes, or on the distribution 

of power and responsibilities between 

the Federal government and Indian 

tribes.’’ 

The proposal to issue NWPs 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. 

Therefore, Executive Order 13175 does 

not apply to this proposal. However, in 

the spirit of Executive Order 13175, we 

specifically request comment from 

Tribal officials on the proposed rule. 

Each Corps district will be conducting 

government-to-government consultation 

with Tribes, to identify regional 

conditions or other local NWP 

modifications that may be necessary to 

protect aquatic resources of interest to 

Tribes, as part of the Corps 

responsibility to protect trust resources. 

Environmental Documentation 

A draft decision document, which 

includes a draft environmental 

assessment and Finding of No 

Significant Impact (FONSI) has been 

prepared for each proposed NWP. These 

draft decision documents are available 

at: http://www.regulations.gov (docket 

ID number COE–2010–0035). They are 

also available by contacting 

Headquarters, U.S. Army Corps of 

Engineers, Operations and Regulatory 

Community of Practice, 441 G Street, 

NW., Washington, DC 20314–1000. 

Congressional Review Act 

The Congressional Review Act, 5 

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

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. We will submit a 

report containing the final NWPs and 

other required information to the U.S. 

Senate, the U.S. House of 

Representatives, and the Comptroller 

General of the United States. A major 

rule cannot take effect until 60 days 

after it is published in the Federal 

Register. The proposed NWPs are not a 

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

804(2). 

Executive Order 12898 

Executive Order 12898 requires that, 

to the greatest extent practicable and 

permitted by law, each Federal agency 

must make achieving environmental 

justice part of its mission. Executive 

Order 12898 provides that each Federal 

agency conduct its programs, policies, 

and activities that substantially affect 

human health or the environment in a 

manner that ensures that such programs, 

policies, and activities do not have the 

effect of excluding persons (including 

populations) from participation in, 

denying persons (including 

populations) the benefits of, or 

subjecting persons (including 

populations) to discrimination under 

such programs, policies, and activities 

because of their race, color, or national 

origin. 

The proposed NWPs are not expected 

to negatively impact any community, 

and therefore are not expected to cause 

any disproportionately high and adverse 

impacts to minority or low-income 

communities. 

Executive Order 13211 

The proposed NWPs are not a 

‘‘significant energy action’’ as defined in 

Executive Order 13211, ‘‘Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use’’ (66 FR 28355, May 

22, 2001) because it is not likely to have 

a significant adverse effect on the 

supply, distribution, or use of energy. 

Authority 

We are proposing to issue new NWPs, 

modify existing NWPs, and reissue 

NWPs without change under the 

authority of Section 404(e) of the Clean 

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

10 of the Rivers and Harbors Act of 1899 

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

Dated: February 9, 2011. 

MG William T. Grisoli, 

Deputy Commanding General for Civil and 

Emergency Operations. 

Nationwide Permits, Conditions, 

Further Information, and Definitions 

A. Index of Nationwide Permits, 

Conditions, Further Information, and 

Definitions Nationwide Permits 

1. Aids to Navigation 

2. Structures in Artificial Canals 

3. Maintenance 

4. Fish and Wildlife Harvesting, 

Enhancement, and Attraction Devices and 

Activities 

5. Scientific Measurement Devices 

6. Survey Activities 

7. Outfall Structures and Associated Intake 

Structures 

8. Oil and Gas Structures on the Outer 

Continental Shelf 

9. Structures in Fleeting and Anchorage 

Areas 

10. Mooring Buoys 

11. Temporary Recreational Structures 

12. Utility Line Activities 

13. Bank Stabilization 

14. Linear Transportation Projects 

15. U.S. Coast Guard Approved Bridges 

16. Return Water From Upland Contained 

Disposal Areas 

17. Hydropower Projects 

18. Minor Discharges 

19. Minor Dredging 

20. Response Operations for Oil and 

Hazardous Substances 

21. Surface Coal Mining Activities 

22. Removal of Vessels 

23. Approved Categorical Exclusions 

24. Indian Tribe or State Administered 

Section 404 Programs 

25. Structural Discharges 

26. [Reserved] 

27. Aquatic Habitat Restoration, 

Establishment, and Enhancement 

Activities 

28. Modifications of Existing Marinas 

29. Residential Developments 

30. Moist Soil Management for Wildlife 

31. Maintenance of Existing Flood Control 

Facilities 

32. Completed Enforcement Actions 

33. Temporary Construction, Access, and 

Dewatering 

34. Cranberry Production Activities 

35. Maintenance Dredging of Existing Basins 

36. Boat Ramps 

37. Emergency Watershed Protection and 

Rehabilitation 

38. Cleanup of Hazardous and Toxic Waste 

39. Commercial and Institutional 

Developments 

40. Agricultural Activities 

41. Reshaping Existing Drainage Ditches 

42. Recreational Facilities 

43. Stormwater Management Facilities 

44. Mining Activities 


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45. Repair of Uplands Damaged by Discrete 

Events 

46. Discharges in Ditches 

47. [Reserved] 

48. Existing Commercial Shellfish 

Aquaculture Activities 

49. Coal Remining Activities 

50. Underground Coal Mining Activities 

A. Land-Based Renewable Energy Generation 

Facilities 

B. Water-Based Renewable Energy 

Generation Pilot Projects 

Nationwide Permit General Conditions 

1. Navigation 

2. Aquatic Life Movements 

3. Spawning Areas 

4. Migratory Bird Breeding Areas 

5. Shellfish Beds 

6. Suitable Material 

7. Water Supply Intakes 

8. Adverse Effects from Impoundments 

9. Management of Water Flows 

10. Fills Within 100-Year Floodplains 

11. Equipment 

12. Soil Erosion and Sediment Controls 

13. Removal of Temporary Fills 

14. Discovery of Previously Unknown 

Remains and Artifacts 

15. Proper Maintenance 

16. Single and Complete Project 

17. Wild and Scenic Rivers 

18. Tribal Rights 

19. Endangered Species 

20. Historic Properties 

21. Designated Critical Resource Waters 

22. Mitigation 

23. Safety of Impoundment Structures 

24. Water Quality 

25. Coastal Zone Management 

26. Regional and Case-by-Case Conditions 

27. Use of Multiple Nationwide Permits 

28. Transfer of Nationwide Permit 

Verifications 

29. Compliance Certification 

30. Pre-Construction Notification 

Further Information 

Definitions 

Best management practices (BMPs) 

Compensatory mitigation 

Currently serviceable 

Discharge 

Enhancement 

Ephemeral stream 

Establishment (creation) 

High Tide Line 

Historic property 

Independent utility 

Intermittent stream 

Loss of waters of the United States 

Non-tidal wetland 

Open water 

Ordinary high water mark 

Perennial stream 

Practicable 

Pre-construction notification 

Preservation 

Re-establishment 

Rehabilitation 

Restoration 

Riffle and pool complex 

Riparian areas 

Shellfish seeding 

Single and complete linear project 

Single and complete non-linear project 

Stormwater management 

Stormwater management facilities 

Stream bed 

Stream channelization 

Structure 

Tidal wetland 

Vegetated shallows 

Waterbody 

B. Nationwide Permits 

1. Aids to Navigation. The placement 

of aids to navigation and regulatory 

markers which are approved by and 

installed in accordance with the 

requirements of the U.S. Coast Guard 

(see 33 CFR, chapter I, subchapter C, 

part 66). (Section 10) 

2. Structures in Artificial Canals. 

Structures constructed in artificial 

canals within principally residential 

developments where the connection of 

the canal to a navigable water of the 

United States has been previously 

authorized (see 33 CFR 322.5(g)). 

(Section 10) 

3. Maintenance. (a) The repair, 

rehabilitation, or replacement of any 

previously authorized, currently 

serviceable structure, or fill, or of any 

currently serviceable structure or fill 

authorized by 33 CFR 330.3, provided 

that the structure or fill is not to be put 

to uses differing from those uses 

specified or contemplated for it in the 

original permit or the most recently 

authorized modification. Minor 

deviations in the structure’s 

configuration or filled area, including 

those due to changes in materials, 

construction techniques, or current 

construction codes or safety standards 

that are necessary to make the repair, 

rehabilitation, or replacement are 

authorized. Any stream channel 

modification is limited to the minimum 

necessary for the repair, rehabilitation, 

or replacement of the structure or fill; 

such modifications must be 

immediately adjacent to the project. 

This NWP also authorizes the repair, 

rehabilitation, or replacement of those 

structures or fills destroyed or damaged 

by storms, floods, fire or other discrete 

events, provided the repair, 

rehabilitation, or replacement is 

commenced, or is under contract to 

commence, within two years of the date 

of their destruction or damage. In cases 

of catastrophic events, such as 

hurricanes or tornadoes, this two-year 

limit may be waived by the district 

engineer, provided the permittee can 

demonstrate funding, contract, or other 

similar delays. 

(b) This NWP also authorizes the 

removal of accumulated sediments and 

debris in the vicinity of and within 

existing structures (e.g., bridges, 

culverted road crossings, water intake 

structures, etc.) and/or the placement of 

new or additional riprap to protect the 

structure. The removal of sediment is 

limited to the minimum necessary to 

restore the waterway in the immediate 

vicinity of the structure to the 

approximate dimensions that existed 

when the structure was built, but cannot 

extend further than 200 feet in any 

direction from the structure. This 200 

foot limit does not apply to maintenance 

dredging to remove accumulated 

sediments blocking or restricting outfall 

and intake structures or to maintenance 

dredging to remove accumulated 

sediments from canals associated with 

outfall and intake structures. All 

dredged or excavated materials must be 

deposited and retained in an upland 

area unless otherwise specifically 

approved by the district engineer under 

separate authorization. The placement 

of riprap must be the minimum 

necessary to protect the structure or to 

ensure the safety of the structure. Any 

bank stabilization measures not directly 

associated with the structure will 

require a separate authorization from 

the district engineer. 

(c) This NWP also authorizes 

temporary structures, fills, and work 

necessary to conduct the maintenance 

activity. Appropriate measures must be 

taken to maintain normal downstream 

flows and minimize flooding to the 

maximum extent practicable, when 

temporary structures, work, and 

discharges, including cofferdams, are 

necessary for construction activities, 

access fills, or dewatering of 

construction sites. Temporary fills must 

consist of materials, and be placed in a 

manner, that will not be eroded by 

expected high flows. Temporary fills 

must be removed in their entirety and 

the affected areas returned to preconstruction elevations. The areas 

affected by temporary fills must be 

revegetated, as appropriate. 

(d) This NWP does not authorize 

maintenance dredging for the primary 

purpose of navigation. This NWP does 

not authorize beach restoration. This 

NWP does not authorize new stream 

channelization or stream relocation 

projects. 

Notification: For activities authorized 

by paragraph (b) of this NWP, the 

permittee must submit a preconstruction notification to the district 

engineer prior to commencing the 

activity (see general condition 30). The 

pre-construction notification must 

include information regarding the 

original design capacities and 

configurations of the outfalls, intakes, 

small impoundments, and canals. 

(Sections 10 and 404) 

Note: This NWP authorizes the repair, 

rehabilitation, or replacement of any 


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previously authorized structure or fill 

that does not qualify for the Clean Water 

Act Section 404(f) exemption for 

maintenance. 

4. Fish and Wildlife Harvesting, 

Enhancement, and Attraction Devices 

and Activities. Fish and wildlife 

harvesting devices and activities such as 

pound nets, crab traps, crab dredging, 

eel pots, lobster traps, duck blinds, and 

clam and oyster digging, and small fish 

attraction devices such as open water 

fish concentrators (sea kites, etc.). This 

NWP does not authorize artificial reefs 

or impoundments and semiimpoundments of waters of the United 

States for the culture or holding of 

motile species such as lobster, or the use 

of covered oyster trays or clam racks. 

(Sections 10 and 404) 

5. Scientific Measurement Devices. 

Devices, whose purpose is to measure 

and record scientific data, such as staff 

gages, tide and current gages, 

meteorological stations, water recording 

and biological observation devices, 

water quality testing and improvement 

devices, and similar structures. Small 

weirs and flumes constructed primarily 

to record water quantity and velocity are 

also authorized provided the discharge 

is limited to 25 cubic yards. Upon 

completion of the study, the measuring 

device and any other structures or fills 

associated with that device (e.g., 

anchors, buoys, lines, etc.) must be 

removed and, to the maximum extent 

practicable, the site must be restored to 

pre-construction elevations. (Sections 

10 and 404) 

6. Survey Activities. Survey activities, 

such as core sampling, seismic 

exploratory operations, plugging of 

seismic shot holes and other 

exploratory-type bore holes, exploratory 

trenching, soil surveys, sampling, and 

historic resources surveys. For the 

purposes of this NWP, the term 

‘‘exploratory trenching’’ means 

mechanical land clearing of the upper 

soil profile to expose bedrock or 

substrate, for the purpose of mapping or 

sampling the exposed material. The area 

in which the exploratory trench is dug 

must be restored to its pre-construction 

elevation upon completion of the work 

and must not drain a water of the 

United States. In wetlands, the top 6 to 

12 inches of the trench should normally 

be backfilled with topsoil from the 

trench. This NWP authorizes the 

construction of temporary pads, 

provided the discharge does not exceed 

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

and structures associated with the 

recovery of historic resources are not 

authorized by this NWP. Drilling and 

the discharge of excavated material from 

test wells for oil and gas exploration are 

not authorized by this NWP; the 

plugging of such wells is authorized. 

Fill placed for roads and other similar 

activities is not authorized by this NWP. 

The NWP does not authorize any 

permanent structures. The discharge of 

drilling mud and cuttings may require a 

permit under Section 402 of the Clean 

Water Act. (Sections 10 and 404) 

7. Outfall Structures and Associated 

Intake Structures. Activities related to 

the construction or modification of 

outfall structures and associated intake 

structures, where the effluent from the 

outfall is authorized, conditionally 

authorized, or specifically exempted by, 

or that are otherwise in compliance with 

regulations issued under the National 

Pollutant Discharge Elimination System 

Program (Section 402 of the Clean Water 

Act). The construction of intake 

structures is not authorized by this 

NWP, unless they are directly associated 

with an authorized outfall structure. 

Notification: The permittee must 

submit a pre-construction notification to 

the district engineer prior to 

commencing the activity. (See general 

condition 30.) (Sections 10 and 404) 

8. Oil and Gas Structures on the Outer 

Continental Shelf. Structures for the 

exploration, production, and 

transportation of oil, gas, and minerals 

on the outer continental shelf within 

areas leased for such purposes by the 

Department of the Interior, Bureau of 

Ocean Energy Management, Regulation, 

and Enforcement. Such structures shall 

not be placed within the limits of any 

designated shipping safety fairway or 

traffic separation scheme, except 

temporary anchors that comply with the 

fairway regulations in 33 CFR 322.5(l). 

The district engineer will review such 

proposals to ensure compliance with the 

provisions of the fairway regulations in 

33 CFR 322.5(l). Any Corps review 

under this NWP will be limited to the 

effects on navigation and national 

security in accordance with 33 CFR 

322.5(f). Such structures will not be 

placed in established danger zones or 

restricted areas as designated in 33 CFR 

part 334, nor will such structures be 

permitted in EPA or Corps designated 

dredged material disposal areas. 

Notification: The permittee must 

submit a pre-construction notification to 

the district engineer prior to 

commencing the activity. (See general 

condition 30.) (Section 10) 

9. Structures in Fleeting and 

Anchorage Areas. Structures, buoys, 

floats and other devices placed within 

anchorage or fleeting areas to facilitate 

moorage of vessels where the U.S. Coast 

Guard has established such areas for 

that purpose. (Section 10) 

10. Mooring Buoys. Non-commercial, 

single-boat, mooring buoys. (Section 10) 

11. Temporary Recreational 

Structures. Temporary buoys, markers, 

small floating docks, and similar 

structures placed for recreational use 

during specific events such as water 

skiing competitions and boat races or 

seasonal use, provided that such 

structures are removed within 30 days 

after use has been discontinued. At 

Corps of Engineers reservoirs, the 

reservoir manager must approve each 

buoy or marker individually. (Section 

10) 

12. Utility Line Activities. Activities 

required for the construction, 

maintenance, repair, and removal of 

utility lines and associated facilities in 

waters of the United States, provided 

the activity does not result in the loss 

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

United States. 

Utility lines: This NWP authorizes the 

construction, maintenance, or repair of 

utility lines, including outfall and 

intake structures, and the associated 

excavation, backfill, or bedding for the 

utility lines, in all waters of the United 

States, provided there is no change in 

pre-construction contours. A ‘‘utility 

line’’ is defined as any pipe or pipeline 

for the transportation of any gaseous, 

liquid, liquescent, or slurry substance, 

for any purpose, and any cable, line, or 

wire for the transmission for any 

purpose of electrical energy, telephone, 

and telegraph messages, and radio and 

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 


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utility line in non-tidal waters of the 

United States, provided the activity, in 

combination with all other activities 

included in one single and complete 

project, does not result in the loss of 

greater than 1⁄2-acre of waters of the 

United States. This NWP does not 

authorize discharges into non-tidal 

wetlands adjacent to tidal waters of the 

United States to construct, maintain, or 

expand substation facilities. 

Foundations for overhead utility line 

towers, poles, and anchors: This NWP 

authorizes the construction or 

maintenance of foundations for 

overhead utility line towers, poles, and 

anchors in all waters of the United 

States, provided the foundations are the 

minimum size necessary and separate 

footings for each tower leg (rather than 

a larger single pad) are used where 

feasible. 

Access roads: This NWP authorizes 

the construction of access roads for the 

construction and maintenance of utility 

lines, including overhead power lines 

and utility line substations, in non-tidal 

waters of the United States, provided 

the activity, in combination with all 

other activities included in one single 

and complete project, does not cause the 

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

waters of the United States. This NWP 

does not authorize discharges into nontidal wetlands adjacent to tidal waters 

for access roads. Access roads must be 

the minimum width necessary (see Note 

2, below). Access roads must be 

constructed so that the length of the 

road minimizes any adverse effects on 

waters of the United States and must be 

as near as possible to pre-construction 

contours and elevations (e.g., at grade 

corduroy roads or geotextile/gravel 

roads). Access roads constructed above 

pre-construction contours and 

elevations in waters of the United States 

must be properly bridged or culverted to 

maintain surface flows. 

This NWP may authorize utility lines 

in or affecting navigable waters of the 

United States even if there is no 

associated discharge of dredged or fill 

material (See 33 CFR Part 322). 

Overhead utility lines constructed over 

section 10 waters and utility lines that 

are routed in or under section 10 waters 

without a discharge of dredged or fill 

material require a section 10 permit. 

This NWP also authorizes temporary 

structures, fills, and work necessary to 

conduct the utility line activity. 

Appropriate measures must be taken to 

maintain normal downstream flows and 

minimize flooding to the maximum 

extent practicable, when temporary 

structures, work, and discharges, 

including cofferdams, are necessary for 

construction activities, access fills, or 

dewatering of construction sites. 

Temporary fills must consist of 

materials, and be placed in a manner, 

that will not be eroded by expected high 

flows. Temporary fills must be removed 

in their entirety and the affected areas 

returned to pre-construction elevations. 

The areas affected by temporary fills 

must be revegetated, as appropriate. 

Notification: The permittee must 

submit a pre-construction notification to 

the district engineer prior to 

commencing the activity if any of the 

following criteria are met: (1) The 

activity involves mechanized land 

clearing in a forested wetland for the 

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

permit is required; (3) the utility line in 

waters of the United States, excluding 

overhead lines, exceeds 500 feet; (4) the 

utility line is placed within a 

jurisdictional area (i.e., water of the 

United States), and it runs parallel to a 

stream bed that is within that 

jurisdictional area; (5) discharges that 

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

of waters of the United States; (6) 

permanent access roads are constructed 

above grade in waters of the United 

States for a distance of more than 500 

feet; or (7) permanent access roads are 

constructed in waters of the United 

States with impervious materials. (See 

general condition 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, in 

accordance with the requirements for 

temporary fills. 

Note 3: Pipes or pipelines used to transport 

gaseous, liquid, liquescent, or slurry 

substances over navigable waters of the 

United States are considered to be bridges, 

not utility lines, and may require a permit 

from the U.S. Coast Guard pursuant to 

Section 9 of the Rivers and Harbors Act of 

1899. However, any discharges of dredged or 

fill material into waters of the United States 

associated with such pipelines will require a 

section 404 permit (see NWP 15). 

13. Bank Stabilization. Bank 

stabilization activities necessary for 

erosion prevention, provided the 

activity meets all of the following 

criteria: 

(a) No material is placed in excess of 

the minimum needed for erosion 

protection; 

(b) The activity is no more than 500 

feet in length along the bank, unless the 

district engineer waives this criterion by 

making a written determination 

concluding that the discharge will result 

in minimal adverse effects; 

(c) The activity will not exceed an 

average of one cubic yard per running 

foot placed along the bank below the 

plane of the ordinary high water mark 

or the high tide line, unless the 

permittee utilizes bioengineering 

techniques to accomplish the bank 

stabilization; 

(d) The activity does not involve 

discharges of dredged or fill material 

into special aquatic sites, unless the 

district engineer waives this criterion by 

making a written determination 

concluding that the discharge will result 

in minimal adverse effects; 

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

placed in any location, or in any 

manner, to impair surface water flow 

into or out of any water of the United 

States; 

(f) No material is placed in a manner 

that will be eroded by normal or 

expected high flows (properly anchored 

trees and treetops may be used in low 

energy areas); and, 

(g) The activity is not a stream 

channelization activity. 

This NWP also authorizes temporary 

structures, fills, and work necessary to 

construct the bank stabilization activity. 

Appropriate measures must be taken to 

maintain normal downstream flows and 

minimize flooding to the maximum 

extent practicable, when temporary 

structures, work, and discharges, 

including cofferdams, are necessary for 

construction activities, access fills, or 

dewatering of construction sites. 

Temporary fills must consist of 

materials, and be placed in a manner, 

that will not be eroded by expected high 

flows. Temporary fills must be removed 

in their entirety and the affected areas 

returned to pre-construction elevations. 

The areas affected by temporary fills 

must be revegetated, as appropriate. 

Notification: The permittee must 

submit a pre-construction notification to 

the district engineer prior to 

commencing the activity if the bank 

stabilization activity: (1) Involves 

discharges into special aquatic sites; or 

(2) is in excess of 500 feet in length. (See 

general condition 30.) (Sections 10 and 

404) 

14. Linear Transportation Projects. 

Activities required for the construction, 

expansion, modification, or 

improvement of linear transportation 

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


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trails, airport runways, and taxiways) in 

waters of the United States. For linear 

transportation projects in non-tidal 

waters, the discharge cannot cause the 

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

the United States. For linear 

transportation projects in tidal waters, 

the discharge cannot cause the loss of 

greater than 1⁄3-acre of waters of the 

United States. Any stream channel 

modification, including bank 

stabilization, is limited to the minimum 

necessary to construct or protect the 

linear transportation project; such 

modifications must be in the immediate 

vicinity of the project. 

This NWP also authorizes temporary 

structures, fills, and work necessary to 

construct the linear transportation 

project. Appropriate measures must be 

taken to maintain normal downstream 

flows and minimize flooding to the 

maximum extent practicable, when 

temporary structures, work, and 

discharges, including cofferdams, are 

necessary for construction activities, 

access fills, or dewatering of 

construction sites. Temporary fills must 

consist of materials, and be placed in a 

manner, that will not be eroded by 

expected high flows. Temporary fills 

must be removed in their entirety and 

the affected areas returned to preconstruction elevations. The areas 

affected by temporary fills must be 

revegetated, as appropriate. 

This NWP cannot be used to authorize 

non-linear features commonly 

associated with transportation projects, 

such as vehicle maintenance or storage 

buildings, parking lots, train stations, or 

aircraft hangars. 

Notification: The permittee must 

submit a pre-construction notification to 

the district engineer prior to 

commencing the activity if: (1) The loss 

of waters of the United States exceeds 

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

special aquatic site, including wetlands. 

(See general condition 30.) (Sections 10 

and 404) 

Note: Some discharges for the construction 

of farm roads or forest roads, or temporary 

roads for moving mining equipment, may 

qualify for an exemption under Section 404(f) 

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

15. U.S. Coast Guard Approved 

Bridges. Discharges of dredged or fill 

material incidental to the construction 

of a bridge across navigable waters of 

the United States, including cofferdams, 

abutments, foundation seals, piers, and 

temporary construction and access fills, 

provided the construction of the bridge 

structure has been authorized by the 

U.S. Coast Guard under Section 9 of the 

Rivers and Harbors Act of 1899 and 

other applicable laws. Causeways and 

approach fills are not included in this 

NWP and will require a separate section 

404 permit. (Sections 10 and 404) 

16. Return Water From Upland 

Contained Disposal Areas. Return water 

from an upland contained dredged 

material disposal area. The return water 

from a contained disposal area is 

administratively defined as a discharge 

of dredged material by 33 CFR 323.2(d), 

even though the disposal itself occurs 

on the upland and does not require a 

section 404 permit. This NWP satisfies 

the technical requirement for a section 

404 permit for the return water where 

the quality of the return water is 

controlled by the state through the 

section 401 certification procedures. 

The dredging activity may require a 

section 404 permit (33 CFR 323.2(d)), 

and will require a section 10 permit if 

located in navigable waters of the 

United States. (Section 404) 

17. Hydropower Projects. Discharges 

of dredged or fill material associated 

with hydropower projects having: (a) 

Less than 5,000 kW of total generating 

capacity at existing reservoirs, where 

the project, including the fill, is licensed 

by the Federal Energy Regulatory 

Commission (FERC) under the Federal 

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

a licensing exemption granted by the 

FERC pursuant to Section 408 of the 

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

2705 and 2708) and Section 30 of the 

Federal Power Act, as amended. 

Notification: The permittee must 

submit a pre-construction notification to 

the district engineer prior to 

commencing the activity. (See general 

condition 30.) (Section 404) 

18. Minor Discharges. Minor 

discharges of dredged or fill material 

into all waters of the United States, 

provided the activity meets all of the 

following criteria: 

(a) The quantity of discharged 

material and the volume of area 

excavated do not exceed 25 cubic yards 

below the plane of the ordinary high 

water mark or the high tide line; 

(b) The discharge will not cause the 

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

the United States; and 

(c) The discharge is not placed for the 

purpose of a stream diversion. 

Notification: The permittee must 

submit a pre-construction notification to 

the district engineer prior to 

commencing the activity if: (1) The 

discharge or the volume of area 

excavated exceeds 10 cubic yards below 

the plane of the ordinary high water 

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

discharge is in a special aquatic site, 

including wetlands. (See general 

condition 30.) (Sections 10 and 404) 

19. Minor Dredging. Dredging of no 

more than 25 cubic yards below the 

plane of the ordinary high water mark 

or the mean high water mark from 

navigable waters of the United States 

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

not authorize the dredging or 

degradation through siltation of coral 

reefs, sites that support submerged 

aquatic vegetation (including sites 

where submerged aquatic vegetation is 

documented to exist but may not be 

present in a given year), anadromous 

fish spawning areas, or wetlands, or the 

connection of canals or other artificial 

waterways to navigable waters of the 

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

(Sections 10 and 404) 

20. Response Operations for Oil and 

Hazardous Substances. Activities 

conducted in response to a discharge or 

release of oil and hazardous substances 

that are subject to the National Oil and 

Hazardous Substances Pollution 

Contingency Plan (40 CFR part 300) 

including containment, cleanup, and 

mitigation efforts, provided that the 

activities are done under either: (1) The 

Spill Control and Countermeasure Plan 

required by 40 CFR 112.3; (2) the 

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

part 300; or (3) any approved existing 

state, regional or local contingency plan 

provided that the Regional Response 

Team (if one exists in the area) concurs 

with the proposed response efforts. This 

NWP also authorizes activities required 

for the cleanup of oil releases in waters 

of the United States from electrical 

equipment that are governed by EPA’s 

polychlorinated biphenyl spill response 

regulations at 40 CFR part 761. This 

NWP also authorizes the use of 

temporary structures and fills in waters 

of the U.S. for spill response training 

exercises. (Sections 10 and 404) 

21. Surface Coal Mining Activities. 

We are seeking comment on the 

following three options: 

Option 1—Do not reissue NWP 21. 

Option 2 (Preferred Option)—21. 

Surface Coal Mining Activities. 

Discharges of dredged or fill material 

into waters of the United States 

associated with surface coal mining and 

reclamation operations provided the 

activities are already authorized, or are 

currently being processed by states with 

approved programs under Title V of the 

Surface Mining Control and 

Reclamation Act of 1977 or as part of an 

integrated permit processing procedure 

by the Department of Interior (DOI), 

Office of Surface Mining Reclamation 

and Enforcement (OSMRE). 

The discharge must not cause the loss 

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

waters of the United States, including 


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the loss of no more than 300 linear feet 

of stream bed, unless for intermittent 

and ephemeral stream beds the district 

engineer waives the 300 linear foot limit 

by making a written determination 

concluding that the discharge will result 

in minimal adverse effects. This NWP 

does not authorize discharges into tidal 

waters or non-tidal wetlands adjacent to 

tidal waters. 

This NWP does not authorize 

discharges of dredged or fill material 

into waters of the United States 

associated with the construction of 

valley fills. 

Notification: The permittee must 

submit a pre-construction notification to 

the district engineer and receive written 

authorization prior to commencing the 

activity. (See general condition 30.) 

(Sections 10 and 404) 

Option 3—21. Surface Coal Mining 

Activities. Discharges of dredged or fill 

material into waters of the United States 

associated with surface coal mining and 

reclamation operations provided the 

activities are already authorized, or are 

currently being processed by states with 

approved programs under Title V of the 

Surface Mining Control and 

Reclamation Act of 1977 or as part of an 

integrated permit processing procedure 

by the Department of Interior (DOI), 

Office of Surface Mining Reclamation 

and Enforcement (OSMRE). 

The discharge must not cause the loss 

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

waters of the United States, including 

the loss of no more than 300 linear feet 

of stream bed, unless for intermittent 

and ephemeral stream beds the district 

engineer waives the 300 linear foot limit 

by making a written determination 

concluding that the discharge will result 

in minimal adverse effects. This NWP 

does not authorize discharges into tidal 

waters or non-tidal wetlands adjacent to 

tidal waters. 

Notification: The permittee must 

submit a pre-construction notification to 

the district engineer and receive written 

authorization prior to commencing the 

activity. (See general condition 30.) 

(Sections 10 and 404) 

22. Removal of Vessels. Temporary 

structures or minor discharges of 

dredged or fill material required for the 

removal of wrecked, abandoned, or 

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

NWP does not authorize maintenance 

dredging, shoal removal, or riverbank 

snagging. 

Notification: The permittee must 

submit a pre-construction notification to 

the district engineer prior to 

commencing the activity if: (1) The 

vessel is listed or eligible for listing in 

the National Register of Historic Places; 

or (2) the activity is conducted in a 

special aquatic site, including coral 

reefs and wetlands. (See general 

condition 30.) If condition 1 above is 

triggered, the permittee cannot 

commence the activity until informed 

by the district engineer that compliance 

with the ‘‘Historic Properties’’ general 

condition is completed. (Sections 10 

and 404) 

Note 1: If a removed vessel is disposed of 

in waters of the United States, a permit from 

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

229.3). If a Department of the Army permit 

is required for vessel disposal in waters of 

the United States, separate authorization will 

be required. 

Note 2: Compliance with general condition 

19, Endangered Species, and general 

condition 20, Historic Properties, is required 

for all NWPs. The concern with historic 

properties is emphasized in the notification 

requirements for this NWP because of the 

likelihood that submerged vessels may be 

historic properties. 

23. Approved Categorical Exclusions. 

Activities undertaken, assisted, 

authorized, regulated, funded, or 

financed, in whole or in part, by another 

Federal agency or department where: 

(a) That agency or department has 

determined, pursuant to the Council on 

Environmental Quality’s implementing 

regulations for the National 

Environmental Policy Act (40 CFR part 

1500 et seq.), that the activity is 

categorically excluded from 

environmental documentation, because 

it is included within a category of 

actions, which neither individually nor 

cumulatively have a significant effect on 

the human environment; and 

(b) The Office of the Chief of 

Engineers (Attn: CECW–CO) has 

concurred with that agency’s or 

department’s determination that the 

activity is categorically excluded and 

approved the activity for authorization 

under NWP 23. 

The Office of the Chief of Engineers 

may require additional conditions, 

including pre-construction notification, 

for authorization of an agency’s 

categorical exclusions under this NWP. 

Notification: Certain categorical 

exclusions approved for authorization 

under this NWP require the permittee to 

submit a pre-construction notification to 

the district engineer prior to 

commencing the activity (see general 

condition 30). The activities that require 

pre-construction notification are listed 

in the appropriate Regulatory Guidance 

Letters. (Sections 10 and 404) 

Note: The agency or department may 

submit an application for an activity believed 

to be categorically excluded to the Office of 

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

Prior to approval for authorization under this 

NWP of any agency’s activity, the Office of 

the Chief of Engineers will solicit public 

comment. As of the date of issuance of this 

NWP, agencies with approved categorical 

exclusions are the: Bureau of Reclamation, 

Federal Highway Administration, and U.S. 

Coast Guard. Activities approved for 

authorization under this NWP as of the date 

of this notice are found in Corps Regulatory 

Guidance Letter 05–07, which is available at: 

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

rglsindx.aspx. Any future approved 

categorical exclusions will be announced in 

Regulatory Guidance Letters and posted on 

this same Web site. 

24. Indian Tribe or State 

Administered Section 404 Programs. 

Any activity permitted by a state or 

Indian Tribe administering its own 

section 404 permit program pursuant to 

33 U.S.C. 1344(g)–(l) is permitted 

pursuant to Section 10 of the Rivers and 

Harbors Act of 1899. (Section 10) 

Note 1: As of the date of the promulgation 

of this NWP, only New Jersey and Michigan 

administer their own section 404 permit 

programs. 

Note 2: Those activities that do not involve 

an Indian Tribe or State section 404 permit 

are not included in this NWP, but certain 

structures will be exempted by Section 154 

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

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

25. Structural Discharges. Discharges 

of material such as concrete, sand, rock, 

etc., into tightly sealed forms or cells 

where the material will be used as a 

structural member for standard pile 

supported structures, such as bridges, 

transmission line footings, and 

walkways, or for general navigation, 

such as mooring cells, including the 

excavation of bottom material from 

within the form prior to the discharge of 

concrete, sand, rock, etc. This NWP 

does not authorize filled structural 

members that would support buildings, 

building pads, homes, house pads, 

parking areas, storage areas and other 

such structures. The structure itself may 

require a section 10 permit if located in 

navigable waters of the United States. 

(Section 404) 

26. [Reserved] 

27. Aquatic Habitat Restoration, 

Establishment, and Enhancement 

Activities. Activities in waters of the 

United States associated with the 

restoration, enhancement, and 

establishment of tidal and non-tidal 

wetlands and riparian areas and the 

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

waters, provided those activities result 

in net increases in aquatic resource 

functions and services. 

To the extent that a Corps permit is 

required, activities authorized by this 

NWP include, but are not limited to: 


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The removal of accumulated sediments; 

the installation, removal, and 

maintenance of small water control 

structures, dikes, and berms; the 

installation of current deflectors; the 

enhancement, restoration, or 

establishment of riffle and pool stream 

structure; the placement of in-stream 

habitat structures; modifications of the 

stream bed and/or banks to restore or 

establish stream meanders; the 

backfilling of artificial channels and 

drainage ditches; the removal of existing 

drainage structures; the construction of 

small nesting islands; the construction 

of open water areas; the construction of 

oyster habitat over unvegetated bottom 

in tidal waters; shellfish seeding; 

activities needed to reestablish 

vegetation, including plowing or discing 

for seed bed preparation and the 

planting of appropriate wetland species; 

mechanized land clearing to remove 

non-native invasive, exotic, or nuisance 

vegetation; the removal of small dams; 

and other related activities. Only native 

plant species should be planted at the 

site. 

This NWP authorizes the relocation of 

non-tidal waters, including non-tidal 

wetlands and streams, on the project 

site provided there are net increases in 

aquatic resource functions and services. 

Except for the relocation of non-tidal 

waters on the project site, this NWP 

does not authorize the conversion of a 

stream or natural wetlands to another 

aquatic habitat type (e.g., stream to 

wetland or vice versa) or uplands. This 

NWP does not authorize stream 

channelization. This NWP does not 

authorize the relocation of tidal waters 

or the conversion of tidal waters, 

including tidal wetlands, to other 

aquatic uses, such as the conversion of 

tidal wetlands into open water 

impoundments. 

Reversion. For enhancement, 

restoration, and establishment activities 

conducted: (1) In accordance with the 

terms and conditions of a binding 

stream or wetland enhancement or 

restoration agreement, or a wetland 

establishment agreement, between the 

landowner and the U.S. Fish and 

Wildlife Service (FWS), the Natural 

Resources Conservation Service (NRCS), 

the Farm Service Agency (FSA), the 

National Marine Fisheries Service 

(NMFS), the National Ocean Service 

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

their designated state cooperating 

agencies; (2) as voluntary wetland 

restoration, enhancement, and 

establishment actions documented by 

the NRCS or USDA Technical Service 

Provider pursuant to NRCS Field Office 

Technical Guide standards; or (3) on 

reclaimed surface coal mine lands, in 

accordance with a Surface Mining 

Control and Reclamation Act permit 

issued by the Office of Surface Mining 

Reclamation and Enforcement (OSMRE) 

or the applicable state agency, this NWP 

also authorizes any future discharge of 

dredged or fill material associated with 

the reversion of the area to its 

documented prior condition and use 

(i.e., prior to the restoration, 

enhancement, or establishment 

activities). The reversion must occur 

within five years after expiration of a 

limited term wetland restoration or 

establishment agreement or permit, and 

is authorized in these circumstances 

even if the discharge occurs after this 

NWP expires. The five-year reversion 

limit does not apply to agreements 

without time limits reached between the 

landowner and the FWS, NRCS, FSA, 

NMFS, NOS, USFS, or an appropriate 

state cooperating agency. This NWP also 

authorizes discharges of dredged or fill 

material in waters of the United States 

for the reversion of wetlands that were 

restored, enhanced, or established on 

prior-converted cropland or on uplands, 

in accordance with a binding agreement 

between the landowner and NRCS, FSA, 

FWS, or their designated state 

cooperating agencies (even though the 

restoration, enhancement, or 

establishment activity did not require a 

section 404 permit). The prior condition 

will be documented in the original 

agreement or permit, and the 

determination of return to prior 

conditions will be made by the Federal 

agency or appropriate state agency 

executing the agreement or permit. 

Before conducting any reversion activity 

the permittee or the appropriate Federal 

or state agency must notify the district 

engineer and include the documentation 

of the prior condition. Once an area has 

reverted to its prior physical condition, 

it will be subject to whatever the Corps 

Regulatory requirements are applicable 

to that type of land at the time. The 

requirement that the activity result in a 

net increase in aquatic resource 

functions and services does not apply to 

reversion activities meeting the above 

conditions. Except for the activities 

described above, this NWP does not 

authorize any future discharge of 

dredged or fill material associated with 

the reversion of the area to its prior 

condition. In such cases a separate 

permit would be required for any 

reversion. 

Reporting: For those activities that do 

not require pre-construction 

notification, the permittee must submit 

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

binding stream enhancement or 

restoration agreement or wetland 

enhancement, restoration, or 

establishment agreement, or a project 

description, including project plans and 

location map; (2) the NRCS or USDA 

Technical Service Provider 

documentation for the voluntary stream 

enhancement or restoration action or 

wetland restoration, enhancement, or 

establishment action; or (3) the SMCRA 

permit issued by OSMRE or the 

applicable state agency. These 

documents must be submitted to the 

district engineer at least 30 days prior to 

commencing activities in waters of the 

United States authorized by this NWP. 

Notification. The permittee must 

submit a pre-construction notification to 

the district engineer prior to 

commencing the activity (see general 

condition 30), except for the following 

activities: 

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

in accordance with the terms and 

conditions of a binding stream 

enhancement or restoration agreement 

or wetland enhancement, restoration, or 

establishment agreement between the 

landowner and the U.S. FWS, NRCS, 

FSA, NMFS, NOS, USFS or their 

designated state cooperating agencies; 

(2) Voluntary stream or wetland 

restoration or enhancement action, or 

wetland establishment action, 

documented by the NRCS or USDA 

Technical Service Provider pursuant to 

NRCS Field Office Technical Guide 

standards; or 

(3) The reclamation of surface coal 

mine lands, in accordance with an 

SMCRA permit issued by the OSMRE or 

the applicable state agency. 

However, the permittee must submit a 

copy of the appropriate documentation. 

(Sections 10 and 404) 

Note: This NWP can be used to authorize 

compensatory mitigation projects, including 

mitigation banks and in-lieu fee projects. 

However, this NWP does not authorize the 

reversion of an area used for a compensatory 

mitigation project to its prior condition, since 

compensatory mitigation is generally 

intended to be permanent. 

28. Modifications of Existing Marinas. 

Reconfiguration of existing docking 

facilities within an authorized marina 

area. No dredging, additional slips, dock 

spaces, or expansion of any kind within 

waters of the United States is authorized 

by this NWP. (Section 10) 

29. Residential Developments. 

Discharges of dredged or fill material 

into non-tidal waters of the United 

States for the construction or expansion 

of a single residence, a multiple unit 

residential development, or a residential 

subdivision. This NWP authorizes the 

construction of building foundations 

and building pads and attendant 


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features that are necessary for the use of 

the residence or residential 

development. Attendant features may 

include but are not limited to roads, 

parking lots, garages, yards, utility lines, 

storm water management facilities, 

septic fields, and recreation facilities 

such as playgrounds, playing fields, and 

golf courses (provided the golf course is 

an integral part of the residential 

development). 

The discharge must not cause the loss 

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

waters of the United States, including 

the loss of no more than 300 linear feet 

of stream bed, unless for intermittent 

and ephemeral stream beds the district 

engineer waives the 300 linear foot limit 

by making a written determination 

concluding that the discharge will result 

in minimal adverse effects. This NWP 

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

Subdivisions: For residential 

subdivisions, the aggregate total loss of 

waters of United States authorized by 

this NWP cannot exceed 1⁄2-acre. This 

includes any loss of waters of the 

United States associated with 

development of individual subdivision 

lots. 

Notification: The permittee must 

submit a pre-construction notification to 

the district engineer prior to 

commencing the activity. (See general 

condition 30.) (Sections 10 and 404) 

30. Moist Soil Management for 

Wildlife. Discharges of dredged or fill 

material into non-tidal waters of the 

United States and maintenance 

activities that are associated with moist 

soil management for wildlife for the 

purpose of continuing ongoing, sitespecific, wildlife management activities 

where soil manipulation is used to 

manage habitat and feeding areas for 

wildlife. Such activities include, but are 

not limited to, plowing or discing to 

impede succession, preparing seed beds, 

or establishing fire breaks. Sufficient 

riparian areas must be maintained 

adjacent to all open water bodies, 

including streams to preclude water 

quality degradation due to erosion and 

sedimentation. This NWP does not 

authorize the construction of new dikes, 

roads, water control structures, or 

similar features associated with the 

management areas. The activity must 

not result in a net loss of aquatic 

resource functions and services. This 

NWP does not authorize the conversion 

of wetlands to uplands, impoundments, 

or other open water bodies. (Section 

404) 

Note: The repair, maintenance, or 

replacement of existing water control 

structures or the repair or maintenance of 

dikes may be authorized by NWP 3. Some 

such activities may qualify for an exemption 

under Section 404(f) of the Clean Water Act 

(see 33 CFR 323.4). 

31. Maintenance of Existing Flood 

Control Facilities. Discharges of dredged 

or fill material resulting from activities 

associated with the maintenance of 

existing flood control facilities, 

including debris basins, retention/ 

detention basins, levees, and channels 

that: (i) Were previously authorized by 

the Corps by individual permit, general 

permit, or 33 CFR 330.3, or did not 

require a permit at the time they were 

constructed, or (ii) were constructed by 

the Corps and transferred to a nonFederal sponsor for operation and 

maintenance. Activities authorized by 

this NWP are limited to those resulting 

from maintenance activities that are 

conducted within the ‘‘maintenance 

baseline,’’ as described in the definition 

below. Discharges of dredged or fill 

materials associated with maintenance 

activities in flood control facilities in 

any watercourse that have previously 

been determined to be within the 

maintenance baseline are authorized 

under this NWP. To the extent that a 

Corps permit is required, this NWP 

authorizes the removal of vegetation 

from levees associated with the flood 

control project. This NWP does not 

authorize the removal of sediment and 

associated vegetation from natural water 

courses except when these activities 

have been included in the maintenance 

baseline. All dredged material must be 

placed in an upland site or an 

authorized disposal site in waters of the 

United States, and proper siltation 

controls must be used. 

Maintenance Baseline: The 

maintenance baseline is a description of 

the physical characteristics (e.g., depth, 

width, length, location, configuration, or 

design flood capacity, etc.) of a flood 

control project within which 

maintenance activities are normally 

authorized by NWP 31, subject to any 

case-specific conditions required by the 

district engineer. The district engineer 

will approve the maintenance baseline 

based on the approved or constructed 

capacity of the flood control facility, 

whichever is smaller, including any 

areas where there are no constructed 

channels but which are part of the 

facility. The prospective permittee will 

provide documentation of the physical 

characteristics of the flood control 

facility (which will normally consist of 

as-built or approved drawings) and 

documentation of the approved and 

constructed design capacities of the 

flood control facility. If no evidence of 

the constructed capacity exists, the 

approved capacity will be used. The 

documentation will also include best 

management practices to ensure that the 

impacts to the aquatic environment are 

minimal, especially in maintenance 

areas where there are no constructed 

channels. (The Corps may request 

maintenance records in areas where 

there has not been recent maintenance.) 

Revocation or modification of the final 

determination of the maintenance 

baseline can only be done in accordance 

with 33 CFR 330.5. Except in 

emergencies as described below, this 

NWP cannot be used until the district 

engineer approves the maintenance 

baseline and determines the need for 

mitigation and any regional or activityspecific conditions. Once determined, 

the maintenance baseline will remain 

valid for any subsequent reissuance of 

this NWP. This NWP does not authorize 

maintenance of a flood control facility 

that has been abandoned. A flood 

control facility will be considered 

abandoned if it has operated at a 

significantly reduced capacity without 

needed maintenance being 

accomplished in a timely manner. 

Mitigation: The district engineer will 

determine any required mitigation onetime only for impacts associated with 

maintenance work at the same time that 

the maintenance baseline is approved. 

Such one-time mitigation will be 

required when necessary to ensure that 

adverse environmental impacts are no 

more than minimal, both individually 

and cumulatively. Such mitigation will 

only be required once for any specific 

reach of a flood control project. 

However, if one-time mitigation is 

required for impacts associated with 

maintenance activities, the district 

engineer will not delay needed 

maintenance, provided the district 

engineer and the permittee establish a 

schedule for identification, approval, 

development, construction and 

completion of any such required 

mitigation. Once the one-time 

mitigation described above has been 

completed, or a determination made 

that mitigation is not required, no 

further mitigation will be required for 

maintenance activities within the 

maintenance baseline. In determining 

appropriate mitigation, the district 

engineer will give special consideration 

to natural water courses that have been 

included in the maintenance baseline 

and require compensatory mitigation 

and/or best management practices as 

appropriate. 

Emergency Situations: In emergency 

situations, this NWP may be used to 

authorize maintenance activities in 

flood control facilities for which no 

maintenance baseline has been 

approved. Emergency situations are 


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those which would result in an 

unacceptable hazard to life, a significant 

loss of property, or an immediate, 

unforeseen, and significant economic 

hardship if action is not taken before a 

maintenance baseline can be approved. 

In such situations, the determination of 

mitigation requirements, if any, may be 

deferred until the emergency has been 

resolved. Once the emergency has 

ended, a maintenance baseline must be 

established expeditiously, and 

mitigation, including mitigation for 

maintenance conducted during the 

emergency, must be required as 

appropriate. 

Notification: The permittee must 

submit a pre-construction notification to 

the district engineer before any 

maintenance work is conducted (see 

general condition 30). The preconstruction notification may be for 

activity-specific maintenance or for 

maintenance of the entire flood control 

facility by submitting a five-year (or 

less) maintenance plan. The preconstruction notification must include a 

description of the maintenance baseline 

and the dredged material disposal site. 

(Sections 10 and 404) 

32. Completed Enforcement Actions. 

Any structure, work, or discharge of 

dredged or fill material remaining in 

place or undertaken for mitigation, 

restoration, or environmental benefit in 

compliance with either: 

(i) The terms of a final written Corps 

non-judicial settlement agreement 

resolving a violation of Section 404 of 

the Clean Water Act and/or Section 10 

of the Rivers and Harbors Act of 1899; 

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

consent resolving a violation of Section 

404 of the Clean Water Act, provided 

that: 

(a) The unauthorized activity affected 

no more than 5 acres of non-tidal waters 

or 1 acre of tidal waters; 

(b) The settlement agreement provides 

for environmental benefits, to an equal 

or greater degree, than the 

environmental detriments caused by the 

unauthorized activity that is authorized 

by this NWP; and 

(c) The district engineer issues a 

verification letter authorizing the 

activity subject to the terms and 

conditions of this NWP and the 

settlement agreement, including a 

specified completion date; or 

(ii) The terms of a final Federal court 

decision, consent decree, or settlement 

agreement resulting from an 

enforcement action brought by the 

United States under Section 404 of the 

Clean Water Act and/or Section 10 of 

the Rivers and Harbors Act of 1899; or 

(iii) The terms of a final court 

decision, consent decree, settlement 

agreement, or non-judicial settlement 

agreement resulting from a natural 

resource damage claim brought by a 

trustee or trustees for natural resources 

(as defined by the National Contingency 

Plan at 40 CFR subpart G) under Section 

311 of the Clean Water Act, Section 107 

of the Comprehensive Environmental 

Response, Compensation and Liability 

Act, Section 312 of the National Marine 

Sanctuaries Act, Section 1002 of the Oil 

Pollution Act of 1990, or the Park 

System Resource Protection Act at 16 

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

permit is required. 

Compliance is a condition of the NWP 

itself. Any authorization under this 

NWP is automatically revoked if the 

permittee does not comply with the 

terms of this NWP or the terms of the 

court decision, consent decree, or 

judicial/non-judicial settlement 

agreement. This NWP does not apply to 

any activities occurring after the date of 

the decision, decree, or agreement that 

are not for the purpose of mitigation, 

restoration, or environmental benefit. 

Before reaching any settlement 

agreement, the Corps will ensure 

compliance with the provisions of 33 

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

and (e). (Sections 10 and 404) 

33. Temporary Construction, Access, 

and Dewatering. Temporary structures, 

work, and discharges, including 

cofferdams, necessary for construction 

activities or access fills or dewatering of 

construction sites, provided that the 

associated primary activity is authorized 

by the Corps of Engineers or the U.S. 

Coast Guard. This NWP also authorizes 

temporary structures, work, and 

discharges, including cofferdams, 

necessary for construction activities not 

otherwise subject to the Corps or U.S. 

Coast Guard permit requirements. 

Appropriate measures must be taken to 

maintain near normal downstream flows 

and to minimize flooding. Fill must 

consist of materials, and be placed in a 

manner, that will not be eroded by 

expected high flows. The use of dredged 

material may be allowed if the district 

engineer determines that it will not 

cause more than minimal adverse effects 

on aquatic resources. Following 

completion of construction, temporary 

fill must be entirely removed to upland 

areas, dredged material must be 

returned to its original location, and the 

affected areas must be restored to preconstruction elevations. The affected 

areas must also be revegetated, as 

appropriate. This permit does not 

authorize the use of cofferdams to 

dewater wetlands or other aquatic areas 

to change their use. Structures left in 

place after construction is completed 

require a separate section 10 permit if 

located in navigable waters of the 

United States. (See 33 CFR part 322.) 

Notification: The permittee must 

submit a pre-construction notification to 

the district engineer prior to 

commencing the activity (see general 

condition 30). The pre-construction 

notification must include a restoration 

plan showing how all temporary fills 

and structures will be removed and the 

area restored to pre-project conditions. 

(Sections 10 and 404) 

34. Cranberry Production Activities. 

Discharges of dredged or fill material for 

dikes, berms, pumps, water control 

structures or leveling of cranberry beds 

associated with expansion, 

enhancement, or modification activities 

at existing cranberry production 

operations. The cumulative total acreage 

of disturbance per cranberry production 

operation, including but not limited to, 

filling, flooding, ditching, or clearing, 

must not exceed 10 acres of waters of 

the United States, including wetlands. 

The activity must not result in a net loss 

of wetland acreage. This NWP does not 

authorize any discharge of dredged or 

fill material related to other cranberry 

production activities such as 

warehouses, processing facilities, or 

parking areas. For the purposes of this 

NWP, the cumulative total of 10 acres 

will be measured over the period that 

this NWP is valid. 

Notification: The permittee must 

submit a pre-construction notification to 

the district engineer once during the 

period that this NWP is valid, and the 

NWP will then authorize discharges of 

dredge or fill material at an existing 

operation for the permit term, provided 

the 10-acre limit is not exceeded. (See 

general condition 30.) (Section 404) 

35. Maintenance Dredging of Existing 

Basins. Excavation and removal of 

accumulated sediment for maintenance 

of existing marina basins, access 

channels to marinas or boat slips, and 

boat slips to previously authorized 

depths or controlling depths for ingress/ 

egress, whichever is less, provided the 

dredged material is deposited at an 

upland site and proper siltation controls 

are used. (Section 10) 

36. Boat Ramps. Activities required 

for the construction of boat ramps, 

provided the activity meets all of the 

following criteria: 

(a) The discharge into waters of the 

United States does not exceed 50 cubic 

yards of concrete, rock, crushed stone or 

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

district engineer waives the 50 cubic 

yard limit by making a written 

determination concluding that the 

discharge will result in minimal adverse 

effects; 


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(b) The boat ramp does not exceed 

20 feet in width, unless the district 

engineer waives this criterion by making 

a written determination concluding that 

the discharge will result in minimal 

adverse effects; 

(c) The base material is crushed stone, 

gravel or other suitable material; 

(d) The excavation is limited to the 

area necessary for site preparation and 

all excavated material is removed to the 

upland; and, 

(e) No material is placed in special 

aquatic sites, including wetlands. 

The use of unsuitable material that is 

structurally unstable is not authorized. 

If dredging in navigable waters of the 

United States is necessary to provide 

access to the boat ramp, the dredging 

may be authorized by another NWP, a 

regional general permit, or an individual 

permit. 

Notification: The permittee must 

submit a pre-construction notification to 

the district engineer prior to 

commencing the activity if: (1) The 

discharge into waters of the United 

States exceeds 50 cubic yards, or (2) the 

boat ramp exceeds 20 feet in width. (See 

general condition 30.) (Sections 10 and 

404) 

37. Emergency Watershed Protection 

and Rehabilitation. Work done by or 

funded by: 

(a) The Natural Resources 

Conservation Service for a situation 

requiring immediate action under its 

emergency Watershed Protection 

Program (7 CFR part 624); 

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

Burned-Area Emergency Rehabilitation 

Handbook (FSH 2509.13); 

(c) The Department of the Interior for 

wildland fire management burned area 

emergency stabilization and 

rehabilitation (DOI Manual part 620, 

Ch. 3); 

(d) The Office of Surface Mining, or 

states with approved programs, for 

abandoned mine land reclamation 

activities under Title IV of the Surface 

Mining Control and Reclamation Act 

(30 CFR Subchapter R), where the 

activity does not involve coal extraction; 

or 

(e) The Farm Service Agency under its 

Emergency Conservation Program 

(7 CFR part 701). 

In general, the prospective permittee 

should wait until the district engineer 

issues an NWP verification or 45 

calendar days have passed before 

proceeding with the watershed 

protection and rehabilitation activity. 

However, in cases where there is an 

unacceptable hazard to life or a 

significant loss of property or economic 

hardship will occur, the emergency 

watershed protection and rehabilitation 

activity may proceed immediately and 

the district engineer will consider the 

information in the pre-construction 

notification and any comments received 

as a result of agency coordination to 

decide whether the NWP 37 

authorization should be modified, 

suspended, or revoked in accordance 

with the procedures at 33 CFR 330.5. 

Notification: Except in cases where 

there is an unacceptable hazard to life 

or a significant loss of property or 

economic hardship will occur, the 

permittee must submit a preconstruction notification to the district 

engineer prior to commencing the 

activity (see general condition 30). 

(Sections 10 and 404) 

38. Cleanup of Hazardous and Toxic 

Waste. Specific activities required to 

effect the containment, stabilization, or 

removal of hazardous or toxic waste 

materials that are performed, ordered, or 

sponsored by a government agency with 

established legal or regulatory authority. 

Court ordered remedial action plans or 

related settlements are also authorized 

by this NWP. This NWP does not 

authorize the establishment of new 

disposal sites or the expansion of 

existing sites used for the disposal of 

hazardous or toxic waste. 

Notification: The permittee must 

submit a pre-construction notification to 

the district engineer prior to 

commencing the activity. (See general 

condition 30.) (Sections 10 and 404) 

Note: Activities undertaken entirely 

on a Comprehensive Environmental 

Response, Compensation, and Liability 

Act (CERCLA) site by authority of 

CERCLA as approved or required by 

EPA, are not required to obtain permits 

under Section 404 of the Clean Water 

Act or Section 10 of the Rivers and 

Harbors Act. 

39. Commercial and Institutional 

Developments. Discharges of dredged or 

fill material into non-tidal waters of the 

United States for the construction or 

expansion of commercial and 

institutional building foundations and 

building pads and attendant features 

that are necessary for the use and 

maintenance of the structures. 

Attendant features may include, but are 

not limited to, roads, parking lots, 

garages, yards, utility lines, storm water 

management facilities, and recreation 

facilities such as playgrounds and 

playing fields. Examples of commercial 

developments include retail stores, 

industrial facilities, restaurants, 

business parks, and shopping centers. 

Examples of institutional developments 

include schools, fire stations, 

government office buildings, judicial 

buildings, public works buildings, 

libraries, hospitals, and places of 

worship. The construction of new golf 

courses, new ski areas, or oil and gas 

wells is not authorized by this NWP. 

The discharge must not cause the loss 

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

waters of the United States, including 

the loss of no more than 300 linear feet 

of stream bed, unless for intermittent 

and ephemeral stream beds the district 

engineer waives the 300 linear foot limit 

by making a written determination 

concluding that the discharge will result 

in minimal adverse effects. This NWP 

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

Notification: The permittee must 

submit a pre-construction notification to 

the district engineer prior to 

commencing the activity. (See general 

condition 30.) (Sections 10 and 404) 

40. Agricultural Activities. Discharges 

of dredged or fill material into non-tidal 

waters of the United States for 

agricultural activities, including the 

construction of building pads for farm 

buildings. Authorized activities include 

the installation, placement, or 

construction of drainage tiles, ditches, 

or levees; mechanized land clearing; 

land leveling; the relocation of existing 

serviceable drainage ditches constructed 

in waters of the United States; and 

similar activities. 

This NWP also authorizes the 

construction of farm ponds in non-tidal 

waters of the United States, excluding 

perennial streams, provided the farm 

pond is used solely for agricultural 

purposes. This NWP does not authorize 

the construction of aquaculture ponds. 

This NWP also authorizes discharges 

of dredged or fill material into non-tidal 

waters of the United States to relocate 

existing serviceable drainage ditches 

constructed in non-tidal streams. 

The discharge must not cause the loss 

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

waters of the United States, including 

the loss of no more than 300 linear feet 

of stream bed, unless for intermittent 

and ephemeral stream beds the district 

engineer waives the 300 linear foot limit 

by making a written determination 

concluding that the discharge will result 

in minimal adverse effects. This NWP 

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

Notification: The permittee must 

submit a pre-construction notification to 

the district engineer prior to 

commencing the activity. (See general 

condition 30.) (Section 404) 

Note: Some discharges for agricultural 

activities may qualify for an exemption under 

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

CFR 323.4). This NWP authorizes the 

construction of farm ponds that do not 

qualify for the Clean Water Act Section 


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

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

41. Reshaping Existing Drainage 

Ditches. Discharges of dredged or fill 

material into non-tidal waters of the 

United States, excluding non-tidal 

wetlands adjacent to tidal waters, to 

modify the cross-sectional configuration 

of currently serviceable drainage ditches 

constructed in waters of the United 

States, for the purpose of improving 

water quality by regrading the drainage 

ditch with gentler slopes, which can 

reduce erosion, increase growth of 

vegetation, and increase uptake of 

nutrients and other substances by 

vegetation. The reshaping of the ditch 

cannot increase drainage capacity 

beyond the original as-built capacity nor 

can it expand the area drained by the 

ditch as originally constructed (i.e., the 

capacity of the ditch must be the same 

as originally constructed and it cannot 

drain additional wetlands or other 

waters of the United States). 

Compensatory mitigation is not required 

because the work is designed to improve 

water quality. 

This NWP does not authorize the 

relocation of drainage ditches 

constructed in waters of the United 

States; the location of the centerline of 

the reshaped drainage ditch must be 

approximately the same as the location 

of the centerline of the original drainage 

ditch. This NWP does not authorize 

stream channelization or stream 

relocation projects. 

Notification: The permittee must 

submit a pre-construction notification to 

the district engineer prior to 

commencing the activity, if more than 

500 linear feet of drainage ditch will be 

reshaped. (See general condition 30.) 

(Section 404) 

42. Recreational Facilities. Discharges 

of dredged or fill material into non-tidal 

waters of the United States for the 

construction or expansion of 

recreational facilities. Examples of 

recreational facilities that may be 

authorized by this NWP include playing 

fields (e.g., football fields, baseball 

fields), basketball courts, tennis courts, 

hiking trails, bike paths, golf courses, 

ski areas, horse paths, nature centers, 

and campgrounds (excluding 

recreational vehicle parks). This NWP 

also authorizes the construction or 

expansion of small support facilities, 

such as maintenance and storage 

buildings and stables that are directly 

related to the recreational activity, but it 

does not authorize the construction of 

hotels, restaurants, racetracks, stadiums, 

arenas, or similar facilities. 

The discharge must not cause the loss 

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

waters of the United States, including 

the loss of no more than 300 linear feet 

of stream bed, unless for intermittent 

and ephemeral stream beds the district 

engineer waives the 300 linear foot limit 

by making a written determination 

concluding that the discharge will result 

in minimal adverse effects. This NWP 

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

Notification: The permittee must 

submit a pre-construction notification to 

the district engineer prior to 

commencing the activity. (See general 

condition 30.) (Section 404) 

43. Stormwater Management 

Facilities. Discharges of dredged or fill 

material into non-tidal waters of the 

United States for the construction and 

maintenance of stormwater management 

facilities, including the excavation of 

stormwater ponds/facilities, detention 

basins, and retention basins; the 

installation and maintenance of water 

control structures, outfall structures and 

emergency spillways; low impact 

development stormwater features; and 

the maintenance dredging of existing 

stormwater management ponds/ 

facilities and detention and retention 

basins. 

The discharge must not cause the loss 

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

waters of the United States, including 

the loss of no more than 300 linear feet 

of stream bed, unless for intermittent 

and ephemeral stream beds the district 

engineer waives the 300 linear foot limit 

by making a written determination 

concluding that the discharge will result 

in minimal adverse effects. This NWP 

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

This NWP does not authorize discharges 

of dredged or fill material for the 

construction of new stormwater 

management facilities in perennial 

streams. 

Notification: For the construction of 

new stormwater management facilities, 

or the expansion of existing stormwater 

management facilities, the permittee 

must submit a pre-construction 

notification to the district engineer prior 

to commencing the activity. (See general 

condition 30.) Maintenance activities do 

not require pre-construction notification 

if they are limited to restoring the 

original design capacities of the 

stormwater management facility. 

(Section 404) 

44. Mining Activities. Discharges of 

dredged or fill material into non-tidal 

waters of the United States for mining 

activities, except for coal mining 

activities. The discharge must not cause 

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

including the loss of no more than 300 

linear feet of stream bed, unless for 

intermittent and ephemeral stream beds 

the district engineer waives the 300 

linear foot limit by making a written 

determination concluding that the 

discharge will result in minimal adverse 

effects. This NWP does not authorize 

discharges into non-tidal wetlands 

adjacent to tidal waters. 

Notification: The permittee must 

submit a pre-construction notification to 

the district engineer prior to 

commencing the activity. (See general 

condition 30.) If reclamation is required 

by other statutes, then a copy of the 

reclamation plan must be submitted 

with the pre-construction notification. 

(Sections 10 and 404) 

45. Repair of Uplands Damaged by 

Discrete Events. This NWP authorizes 

discharges of dredged or fill material, 

including dredging or excavation, into 

all waters of the United States for 

activities associated with the restoration 

of upland areas damaged by storms, 

floods, or other discrete events. This 

NWP authorizes bank stabilization to 

protect the restored uplands. The 

restoration of the damaged areas, 

including any bank stabilization, must 

not exceed the contours, or ordinary 

high water mark, that existed before the 

damage occurred. The district engineer 

retains the right to determine the extent 

of the pre-existing conditions and the 

extent of any restoration work 

authorized by this NWP. The work must 

commence, or be under contract to 

commence, within two years of the date 

of damage, unless this condition is 

waived in writing by the district 

engineer. This NWP cannot be used to 

reclaim lands lost to normal erosion 

processes over an extended period. 

This NWP does not authorize beach 

restoration. 

Minor dredging is limited to the 

amount necessary to restore the 

damaged upland area and should not 

significantly alter the pre-existing 

bottom contours of the waterbody. 

Notification: The permittee must 

submit a pre-construction notification to 

the district engineer (see general 

condition 30) within 12-months of the 

date of the damage. The preconstruction notification should include 

documentation, such as a recent 

topographic survey or photographs, to 

justify the extent of the proposed 

restoration. (Sections 10 and 404) 

Note: The uplands themselves that are lost 

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

event can be replaced without a section 404 

permit, if the uplands are restored to the 

ordinary high water mark (in non-tidal 

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

(See also 33 CFR 328.5.) This NWP 

authorizes discharges of dredged or fill 


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material into waters of the United States 

associated with the restoration of uplands. 

46. Discharges in Ditches. Discharges 

of dredged or fill material into non-tidal 

ditches that are: (1) Constructed in 

uplands, (2) receive water from an area 

determined to be a water of the United 

States prior to the construction of the 

ditch, (3) divert water to an area 

determined to be a water of the United 

States prior to the construction of the 

ditch, and (4) are determined to be 

waters of the United States. The 

discharge must not cause the loss of 

greater than one acre of waters of the 

United States. 

This NWP does not authorize 

discharges of dredged or fill material 

into ditches constructed in streams or 

other waters of the United States, or in 

streams that have been relocated in 

uplands. This NWP does not authorize 

discharges of dredged or fill material 

that increase the capacity of the ditch 

and drain those areas determined to be 

waters of the United States prior to 

construction of the ditch. 

Notification: The permittee must 

submit a pre-construction notification to 

the district engineer prior to 

commencing the activity. (See general 

condition 30.) (Section 404) 

47. [Reserved] 

48. Existing Commercial Shellfish 

Aquaculture Activities. Discharges of 

dredged or fill material in waters of the 

United States or structures or work in 

navigable waters of the United States 

necessary for the continued operation 

and/or expansion of existing 

commercial shellfish aquaculture 

operations, including the installation of 

buoys, floats, racks, trays, nets, lines, 

tubes, containers, and other structures. 

This NWP also authorizes discharges of 

dredged or fill material necessary for 

shellfish seeding, rearing, cultivating, 

transplanting, and harvesting activities. 

Rafts and other floating structures must 

be securely anchored and clearly 

marked. This NWP does not authorize: 

(a) The cultivation of species not 

previously cultivated in the waterbody 

or of an aquatic nuisance species as 

defined in the Non-Indigenous Aquatic 

Nuisance Prevention and Control Act of 

1990; or, 

(b) Attendant features such as docks, 

piers, boat ramps, stockpiles, staging 

areas, or the deposition of shell material 

back into waters of the United States as 

waste. 

This NWP does not authorize new 

commercial shellfish aquaculture 

operations, except for expansions of 

existing operations. 

Notification: The permittee must 

submit a pre-construction notification to 

the district engineer if: (1) The project 

area is greater than 100 acres; or (2) 

there is any reconfiguration of the 

aquaculture activity, such as relocating 

existing operations into portions of the 

project area not previously used for 

aquaculture activities; or (3) there is a 

change in culture methods (e.g., from 

bottom culture to off-bottom culture); or 

(4) dredge harvesting, tilling, or 

harrowing is conducted in areas 

inhabited by submerged aquatic 

vegetation; or, (5) there is an expansion 

to the project area. (See general 

condition 30.) 

In addition to the information 

required by paragraph (b) of general 

condition 30, the pre-construction 

notification must also include the 

following information: (a) The size of 

the project area, plus any proposed 

expansion (in acres); (b) the corner 

latitude and longitude coordinates of 

the project area and the expansion area; 

(c) a brief description of the culture and 

harvest method(s), including plans for 

rotating production within a project 

area; (d) the name(s) of the cultivated 

species; (e) whether canopy predator 

nets are being used; and, (f) a 

description of the composition of the 

substrate material and vegetation. 

(Sections 10 and 404) 

Note 1: The permittee should notify the 

applicable U.S. Coast Guard office regarding 

the project. 

Note 2: The Nonindigenous Aquatic 

Nuisance Prevention and Control Act of 1990 

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

nonindigenous species that threatens the 

diversity or abundance of native species or 

the ecological stability of infested waters, or 

commercial, agricultural, aquacultural, or 

recreational activities dependent on such 

waters.’’ 

49. Coal Remining Activities. 

Discharges of dredged or fill material 

into non-tidal waters of the United 

States associated with the remining and 

reclamation of lands that were 

previously mined for coal. The activities 

must already be authorized, or they 

must currently be in process as part of 

an integrated permit processing 

procedure, by the Department of Interior 

(DOI) Office of Surface Mining 

Reclamation and Enforcement (OSMRE), 

or by states with approved programs 

under Title IV or Title V of the Surface 

Mining Control and Reclamation Act 

(SMCRA) of 1977. Areas previously 

mined include reclaimed mine sites, 

abandoned mine land areas, or lands 

under bond forfeiture contracts. 

As part of the project, the permittee 

may conduct new coal mining activities 

in conjunction with the remining 

activities when he or she clearly 

demonstrates to the district engineer 

that the overall mining plan will result 

in a net increase in aquatic resource 

functions. The Corps will consider the 

SMCRA agency’s decision regarding the 

amount of currently undisturbed 

adjacent lands needed to facilitate the 

remining and reclamation of the 

previously mined area. The total area 

disturbed by new mining must not 

exceed 40 percent of the total acreage 

covered by both the remined area and 

the additional area necessary to carry 

out the reclamation of the previously 

mined area. 

Notification: The permittee must 

submit a pre-construction notification 

and a document describing how the 

overall mining plan will result in a net 

increase in aquatic resource functions to 

the district engineer and receive written 

authorization prior to commencing the 

activity. (See general condition 30.) 

(Sections 10 and 404) 

50. Underground Coal Mining 

Activities. Discharges of dredged or fill 

material into non-tidal waters of the 

United States associated with 

underground coal mining and 

reclamation operations provided the 

activities are authorized, or are 

currently being processed as part of an 

integrated permit processing procedure, 

by the Department of Interior (DOI), 

Office of Surface Mining Reclamation 

and Enforcement (OSMRE), or by states 

with approved programs under Title V 

of the Surface Mining Control and 

Reclamation Act of 1977. 

The discharge must not cause the loss 

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

waters of the United States, including 

the loss of no more than 300 linear feet 

of stream bed, unless for intermittent 

and ephemeral stream beds the district 

engineer waives the 300 linear foot limit 

by making a written determination 

concluding that the discharge will result 

in minimal adverse effects. This NWP 

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

This NWP does not authorize coal 

preparation and processing activities 

outside of the mine site. 

Notification: The permittee must 

submit a pre-construction notification to 

the district engineer and receive written 

authorization prior to commencing the 

activity. (See general condition 30.) If 

reclamation is required by other 

statutes, then a copy of the reclamation 

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

and 404) 

Note: Coal preparation and processing 

activities outside of the mine site may be 

authorized by NWP 21. 


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A. Land-Based Renewable Energy 

Generation Facilities. Discharges of 

dredged or fill material into non-tidal 

waters of the United States, excluding 

non-tidal wetlands adjacent to tidal 

waters, for the construction, expansion, 

or modification of land-based renewable 

energy production facilities. Such 

facilities include infrastructure to 

collect solar (concentrating solar power 

and photovoltaic), wind, biomass, or 

geothermal energy, as well as utility 

lines to transfer the energy to land-based 

distribution facilities. Attendant 

features may include, but are not 

limited to roads, parking lots, utility 

lines, and storm water management 

facilities. 

The discharge must not cause the loss 

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

waters of the United States, including 

the loss of no more than 300 linear feet 

of stream bed, unless for intermittent 

and ephemeral stream beds the district 

engineer waives the 300 linear foot limit 

by making a written determination 

concluding that the discharge will result 

in minimal adverse effects. This permit 

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

Notification: The permittee must 

submit a pre-construction notification to 

the district engineer prior to 

commencing the activity. (See general 

condition 30.) (Sections 10 and 404) 

B. Water-Based Renewable Energy 

Generation Pilot Projects. Structures and 

work in navigable waters of the United 

States and discharges of dredged or fill 

material into waters of the United States 

for the construction, expansion, or 

modification of water-based wind or 

hydrokinetic renewable energy 

generation pilot projects and their 

attendant features. Attendant features 

may include, but are not limited to, 

land-based distribution facilities, roads, 

parking lots, stormwater management 

facilities, utility lines, including utility 

lines to transfer the energy to land-based 

distribution facilities. 

The discharge must not cause the loss 

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

United States, including the loss of no 

more than 300 linear feet of stream bed, 

unless for intermittent and ephemeral 

stream beds the district engineer waives 

the 300 linear foot limit by making a 

written determination concluding that 

the discharge will result in minimal 

adverse effects. 

For each single and complete project, 

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

wind turbines) are authorized. 

This NWP does not authorize 

activities in coral reefs. 

Structures in an anchorage area 

established by the U.S. Coast Guard 

must comply with the requirements in 

33 CFR part 322.5(l)(2). 

Structures may not be placed in 

established danger zones or restricted 

areas as designated in 33 CFR part 334, 

shipping safety fairways or traffic 

separation schemes established by the 

U.S. Coast Guard (see 33 CFR part 

322.5(l)(1)), or EPA or Corps designated 

open water dredged material disposal 

areas. 

Notification: The permittee must 

submit a pre-construction notification to 

the district engineer prior to 

commencing the activity. (See general 

condition 30.) (Sections 10 and 404) 

Note 1: An activity that is located on an 

existing locally or federally maintained U.S. 

Army Corps of Engineers project requires 

separate approval from the Chief of Engineers 

under 33 U.S.C. 408. 

Note 2: Copies of the NWP verification will 

be sent by the Corps to the National Oceanic 

and Atmospheric Administration (NOAA), 

National Ocean Service (NOS), for charting 

the project and associated utility line(s) to 

protect navigation. 

C. Nationwide Permit General 

Conditions 

Note: To qualify for NWP authorization, 

the prospective permittee must comply with 

the following general conditions, as 

appropriate, in addition to any regional or 

case-specific conditions imposed by the 

division engineer or district engineer. 

Prospective permittees should contact the 

appropriate Corps district office to determine 

if regional conditions have been imposed on 

an NWP. Prospective permittees should also 

contact the appropriate Corps district office 

to determine the status of Clean Water Act 

Section 401 water quality certification and/ 

or Coastal Zone Management Act consistency 

for an NWP. Every person who may wish to 

obtain permit authorization under one or 

more NWPs, or who is currently relying on 

an existing or prior permit authorization 

under one or more NWPs, has been and is on 

notice that all of the provisions of 33 CFR 

330.1 through 330.6 apply to every NWP 

authorization. Note especially 33 CFR 330.5 

relating to the modification, suspension, or 

revocation of any NWP authorization. 

1. Navigation. (a) No activity may 

cause more than a minimal adverse 

effect on navigation. 

(b) Any safety lights and signals 

prescribed by the U.S. Coast Guard, 

through regulations or otherwise, must 

be installed and maintained at the 

permittee’s expense on authorized 

facilities in navigable waters of the 

United States. 

(c) The permittee understands and 

agrees that, if future operations by the 

United States require the removal, 

relocation, or other alteration, of the 

structure or work herein authorized, or 

if, in the opinion of the Secretary of the 

Army or his authorized representative, 

said structure or work shall cause 

unreasonable obstruction to the free 

navigation of the navigable waters, the 

permittee will be required, upon due 

notice from the Corps of Engineers, to 

remove, relocate, or alter the structural 

work or obstructions caused thereby, 

without expense to the United States. 

No claim shall be made against the 

United States on account of any such 

removal or alteration. 

2. Aquatic Life Movements. No 

activity may substantially disrupt the 

necessary life cycle movements of those 

species of aquatic life indigenous to the 

waterbody, including those species that 

normally migrate through the area, 

unless the activity’s primary purpose is 

to impound water. Culverts placed in 

streams must be installed to maintain 

low flow conditions. Bottomless 

culverts must be used where 

practicable. For an activity where it is 

not practicable to use a bottomless 

culvert, such as circumstances where 

sub-grade instability would make it 

unsafe to use a bottomless culvert, the 

bottom of the culvert must be below the 

grade of the stream bed unless the 

stream bed consists of bedrock or 

boulders. 

3. Spawning Areas. Activities in 

spawning areas during spawning 

seasons must be avoided to the 

maximum extent practicable. Activities 

that result in the physical destruction 

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

downstream smothering by substantial 

turbidity) of an important spawning area 

are not authorized. 

4. Migratory Bird Breeding Areas. 

Activities in waters of the United States 

that serve as breeding areas for 

migratory birds must be avoided to the 

maximum extent practicable. 

5. Shellfish Beds. No activity may 

occur in areas of concentrated shellfish 

populations, unless the activity is 

directly related to a shellfish harvesting 

activity authorized by NWPs 4 and 48. 

6. Suitable Material. No activity may 

use unsuitable material (e.g., trash, 

debris, car bodies, asphalt, etc.). 

Material used for construction or 

discharged must be free from toxic 

pollutants in toxic amounts (see Section 

307 of the Clean Water Act). 

7. Water Supply Intakes. No activity 

may occur in the proximity of a public 

water supply intake, except where the 

activity is for the repair or improvement 

of public water supply intake structures 

or adjacent bank stabilization. 

8. Adverse Effects From 

Impoundments. If the activity creates an 

impoundment of water, adverse effects 

to the aquatic system due to accelerating 

the passage of water, and/or restricting 


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its flow must be minimized to the 

maximum extent practicable. 

9. Management of Water Flows. To the 

maximum extent practicable, the preconstruction course, condition, 

capacity, and location of open waters 

must be maintained for each activity, 

including stream channelization and 

storm water management activities, 

except as provided below. The activity 

must be constructed to withstand 

expected high flows. The activity must 

not restrict or impede the passage of 

normal or high flows, unless the 

primary purpose of the activity is to 

impound water or manage high flows. 

The activity may alter the preconstruction course, condition, 

capacity, and location of open waters if 

it benefits the aquatic environment (e.g., 

stream restoration or relocation 

activities). 

10. Fills Within 100-Year Floodplains. 

The activity must comply with 

applicable FEMA-approved state or 

local floodplain management 

requirements. 

11. Equipment. Heavy equipment 

working in wetlands or mudflats must 

be placed on mats, or other measures 

must be taken to minimize soil 

disturbance. 

12. Soil Erosion and Sediment 

Controls. Appropriate soil erosion and 

sediment controls must be used and 

maintained in effective operating 

condition during construction, and all 

exposed soil and other fills, as well as 

any work below the ordinary high water 

mark or high tide line, must be 

permanently stabilized at the earliest 

practicable date. Permittees are 

encouraged to perform work within 

waters of the United States during 

periods of low-flow or no-flow. 

13. Removal of Temporary Fills. 

Temporary fills must be removed in 

their entirety and the affected areas 

returned to pre-construction elevations. 

The affected areas must be revegetated, 

as appropriate. 

14. Discovery of Previously Unknown 

Remains and Artifacts. If you discover 

any previously unknown historic, 

cultural or archeological remains and 

artifacts while accomplishing the 

activity authorized by this permit, you 

must immediately notify this office of 

what you have found, and to the 

maximum extent practicable, stop 

activities that would adversely affect 

those remains and artifacts until the 

required coordination has been 

completed. We will initiate the Federal, 

Tribal and state coordination required to 

determine if the items or remains 

warrant a recovery effort or if the site is 

eligible for listing in the National 

Register of Historic Places. 

15. Proper Maintenance. Any 

authorized structure or fill shall be 

properly maintained, including 

maintenance to ensure public safety. 

16. Single and Complete Project. The 

activity must be a single and complete 

project. The same NWP cannot be used 

more than once for the same single and 

complete project. 

17. Wild and Scenic Rivers. No 

activity may occur in a component of 

the National Wild and Scenic River 

System, or in a river officially 

designated by Congress as a ‘‘study 

river’’ for possible inclusion in the 

system while the river is in an official 

study status, unless the appropriate 

Federal agency with direct management 

responsibility for such river, has 

determined in writing that the proposed 

activity will not adversely affect the 

Wild and Scenic River designation or 

study status. Information on Wild and 

Scenic Rivers may be obtained from the 

appropriate Federal land management 

agency responsible for the designated 

Wild and Scenic River or study river 

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

Service, Bureau of Land Management, 

U.S. Fish and Wildlife Service). 

18. Tribal Rights. No activity or its 

operation may impair reserved tribal 

rights, including, but not limited to, 

reserved water rights and treaty fishing 

and hunting rights. 

19. Endangered Species. (a) No 

activity is authorized under any NWP 

which is likely to directly or indirectly 

jeopardize the continued existence of a 

threatened or endangered species or a 

species proposed for such designation, 

as identified under the Federal 

Endangered Species Act (ESA), or 

which will directly or indirectly destroy 

or adversely modify the critical habitat 

of such species. No activity is 

authorized under any NWP which ‘‘may 

affect’’ a listed species or critical habitat, 

unless Section 7 consultation 

addressing the effects of the proposed 

activity has been completed. 

(b) Federal agencies should follow 

their own procedures for complying 

with the requirements of the ESA. 

Federal permittees must provide the 

district engineer with the appropriate 

documentation to demonstrate 

compliance with those requirements. 

(c) Non-Federal permittees shall 

notify the district engineer if any listed 

species or designated critical habitat 

might be affected or is in the vicinity of 

the project, or if the project is located in 

designated critical habitat, and shall not 

begin work on the activity until notified 

by the district engineer that the 

requirements of the ESA have been 

satisfied and that the activity is 

authorized. For activities that might 

affect Federally-listed endangered or 

threatened species or designated critical 

habitat, the pre-construction notification 

must include the name(s) of the 

endangered or threatened species that 

may be affected by the proposed work 

or that utilize the designated critical 

habitat that may be affected by the 

proposed work. The district engineer 

will determine whether the proposed 

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

effect’’ to listed species and designated 

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

determination within 45 days of receipt 

of a complete pre-construction 

notification. In cases where the nonFederal applicant has identified listed 

species or critical habitat that might be 

affected or is in the vicinity of the 

project, and has so notified the Corps, 

the applicant shall not begin work until 

the Corps has provided notification the 

proposed activities will have ‘‘no effect’’ 

on listed species or critical habitat, or 

until Section 7 consultation has been 

completed. 

(d) As a result of formal or informal 

consultation with the FWS or NMFS the 

district engineer may add speciesspecific regional endangered species 

conditions to the NWPs. 

(e) Authorization of an activity by a 

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

threatened or endangered species as 

defined under the ESA. In the absence 

of separate authorization (e.g., an ESA 

Section 10 Permit, a Biological Opinion 

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

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

Endangered Species Act prohibits any 

person subject to the jurisdiction of the 

United States to take a listed species, 

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

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

capture, or collect, or to attempt to 

engage in any such conduct. The word 

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

an act which actually kills or injures 

wildlife. Such an act may include 

significant habitat modification or 

degradation where it actually kills or 

injures wildlife by significantly 

impairing essential behavioral patterns, 

including breeding, feeding or 

sheltering. 

(f) Information on the location of 

threatened and endangered species and 

their critical habitat can be obtained 

directly from the offices of the U.S. FWS 

and NMFS or their world wide Web 

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

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

www.noaa.gov/fisheries.html 

respectively. 

20. Historic Properties. (a) In cases 

where the district engineer determines 

that the activity may affect properties 

listed, or eligible for listing, in the 


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National Register of Historic Places, the 

activity is not authorized, until the 

requirements of Section 106 of the 

National Historic Preservation Act 

(NHPA) have been satisfied. 

(b) Federal permittees should follow 

their own procedures for complying 

with the requirements of Section 106 of 

the National Historic Preservation Act. 

Federal permittees must provide the 

district engineer with the appropriate 

documentation to demonstrate 

compliance with those requirements. 

(c) Non-Federal permittees must 

submit a pre-construction notification to 

the district engineer if the authorized 

activity may have the potential to cause 

effects to any historic properties listed, 

determined to be eligible for listing on, 

or potentially eligible for listing on the 

National Register of Historic Places, 

including previously unidentified 

properties. For such activities, the preconstruction notification must state 

which historic properties may be 

affected by the proposed work or 

include a vicinity map indicating the 

location of the historic properties or the 

potential for the presence of historic 

properties. Assistance regarding 

information on the location of or 

potential for the presence of historic 

resources can be sought from the State 

Historic Preservation Officer or Tribal 

Historic Preservation Officer, as 

appropriate, and the National Register of 

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

When reviewing pre-construction 

notifications, district engineers will 

comply with the current procedures for 

addressing the requirements of Section 

106 of the National Historic 

Preservation Act. The district engineer 

shall make a reasonable and good faith 

effort to carry out appropriate 

identification efforts, which may 

include background research, 

consultation, oral history interviews, 

sample field investigation, and field 

survey. Based on the information 

submitted and these efforts, the district 

engineer shall determine whether the 

proposed activity has the potential to 

cause an effect on the historic 

properties. Where the non-Federal 

applicant has identified historic 

properties on which the activity may 

have the potential to cause effects and 

so notified the Corps, the non-Federal 

applicant shall not begin the activity 

until notified by the district engineer 

either that the activity has no potential 

to cause effects or that consultation 

under Section 106 of the NHPA has 

been completed. 

(d) The district engineer will notify 

the prospective permittee within 45 

days of receipt of a complete preconstruction notification whether NHPA 

Section 106 consultation is required. 

Section 106 consultation is not required 

when the Corps determines that the 

activity does not have the potential to 

cause effects on historic properties (see 

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

consultation is required and will occur, 

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

begin work until Section 106 

consultation is completed. 

(e) Prospective permittees should be 

aware that section 110k of the NHPA 

(16 U.S.C. 470h–2(k)) prevents the 

Corps from granting a permit or other 

assistance to an applicant who, with 

intent to avoid the requirements of 

Section 106 of the NHPA, has 

intentionally significantly adversely 

affected a historic property to which the 

permit would relate, or having legal 

power to prevent it, allowed such 

significant adverse effect to occur, 

unless the Corps, after consultation with 

the Advisory Council on Historic 

Preservation (ACHP), determines that 

circumstances justify granting such 

assistance despite the adverse effect 

created or permitted by the applicant. If 

circumstances justify granting the 

assistance, the Corps is required to 

notify the ACHP and provide 

documentation specifying the 

circumstances, the degree of damage to 

the integrity of any historic properties 

affected, and proposed mitigation. This 

documentation must include any views 

obtained from the applicant, SHPO/ 

THPO, appropriate Indian tribes if the 

undertaking occurs on or affects historic 

properties on tribal lands or affects 

properties of interest to those tribes, and 

other parties known to have a legitimate 

interest in the impacts to the permitted 

activity on historic properties. 

21. Designated Critical Resource 

Waters. Critical resource waters include, 

NOAA-managed marine sanctuaries and 

marine monuments, National Estuarine 

Research Reserves, and state designated 

outstanding national resource waters. 

The district engineer may designate, 

after notice and opportunity for public 

comment, additional waters officially 

designated by a state as having 

particular environmental or ecological 

significance, such as state natural 

heritage sites. The district engineer may 

also designate additional critical 

resource waters after notice and 

opportunity for public comment. 

(a) Discharges of dredged or fill 

material into waters of the United States 

are not authorized by NWPs 7, 12, 14, 

16, 17, 21, 29, 31, 35, 39, 40, 42, 43, 44, 

49, 50, A, and B for any activity within, 

or directly affecting, critical resource 

waters, including wetlands adjacent to 

such waters. 

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

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

38, notification is required in 

accordance with general condition 30, 

for any activity proposed in the 

designated critical resource waters 

including wetlands adjacent to those 

waters. The district engineer may 

authorize activities under these NWPs 

only after it is determined that the 

impacts to the critical resource waters 

will be no more than minimal. 

22. Mitigation. The district engineer 

will consider the following factors when 

determining appropriate and practicable 

mitigation necessary to ensure that 

adverse effects on the aquatic 

environment are minimal: 

(a) The activity must be designed and 

constructed to avoid and minimize 

adverse effects, both temporary and 

permanent, to waters of the United 

States to the maximum extent 

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

site). 

(b) Mitigation in all its forms 

(avoiding, minimizing, rectifying, 

reducing, or compensating) will be 

required to the extent necessary to 

ensure that the adverse effects to the 

aquatic environment are minimal. 

(c) Compensatory mitigation at a 

minimum one-for-one ratio will be 

required for all wetland losses that 

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

district engineer determines in writing 

that some other form of mitigation 

would be more environmentally 

appropriate and provides a projectspecific waiver of this requirement. For 

wetland losses of 1⁄10-acre or less that 

require pre-construction notification, 

the district engineer may determine on 

a case-by-case basis that compensatory 

mitigation is required to ensure that the 

activity results in minimal adverse 

effects on the aquatic environment. 

Since the likelihood of success is greater 

and the impacts to potentially valuable 

uplands are reduced, wetland 

restoration should be the first 

compensatory mitigation option 

considered. 

(d) For losses of streams or other open 

waters that require pre-construction 

notification, the district engineer may 

require compensatory mitigation, such 

as stream restoration, to ensure that the 

activity results in minimal adverse 

effects on the aquatic environment. 

(e) Compensatory mitigation will not 

be used to increase the acreage losses 

allowed by the acreage limits of the 

NWPs. For example, if an NWP has an 

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

used to authorize any project resulting 

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

waters of the United States, even if 


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compensatory mitigation is provided 

that replaces or restores some of the lost 

waters. However, compensatory 

mitigation can and should be used, as 

necessary, to ensure that a project 

already meeting the established acreage 

limits also satisfies the minimal impact 

requirement associated with the NWPs. 

(f) Compensatory mitigation plans for 

projects in or near streams or other open 

waters will normally include a 

requirement for the establishment, 

maintenance, and legal protection (e.g., 

conservation easements) of riparian 

areas next to open waters. In some 

cases, riparian areas may be the only 

compensatory mitigation required. 

Riparian areas should consist of native 

species. The width of the required 

riparian area will address documented 

water quality or aquatic habitat loss 

concerns. Normally, the riparian area 

will be 25 to 50 feet wide on each side 

of the stream, but the district engineer 

may require slightly wider riparian 

areas to address documented water 

quality or habitat loss concerns. Where 

both wetlands and open waters exist on 

the project site, the district engineer will 

determine the appropriate 

compensatory mitigation (e.g., riparian 

areas and/or wetlands compensation) 

based on what is best for the aquatic 

environment on a watershed basis. In 

cases where riparian areas are 

determined to be the most appropriate 

form of compensatory mitigation, the 

district engineer may waive or reduce 

the requirement to provide wetland 

compensatory mitigation for wetland 

losses. 

(g) Permittees may propose the use of 

mitigation banks, in-lieu fee programs, 

or separate permittee-responsible 

mitigation. For activities resulting in the 

loss of marine or estuarine resources, 

permittee-responsible compensatory 

mitigation may be environmentally 

preferable if there are no mitigation 

banks or in-lieu fee programs in the area 

that have marine or estuarine credits 

available for sale or transfer to the 

permittee. For permittee-responsible 

mitigation, the special conditions of the 

NWP verification must clearly indicate 

the party or parties responsible for the 

implementation, performance, and longterm management of the compensatory 

mitigation project. 

(h) Where certain functions and 

services of waters of the United States 

are permanently adversely affected, 

such as the conversion of a forested or 

scrub-shrub wetland to a herbaceous 

wetland in a permanently maintained 

utility line right-of-way, mitigation may 

be required to reduce the adverse effects 

of the project to the minimal level. 

23. Safety of Impoundment 

Structures. To ensure that all 

impoundment structures are safely 

designed, the district engineer may 

require non-Federal applicants to 

demonstrate that the structures comply 

with established state dam safety 

criteria or have been designed by 

qualified persons. The district engineer 

may also require documentation that the 

design has been independently 

reviewed by similarly qualified persons, 

and appropriate modifications made to 

ensure safety. 

24. Water Quality. Where States and 

authorized Tribes, or EPA where 

applicable, have not previously certified 

compliance of an NWP with CWA 

Section 401, individual 401 Water 

Quality Certification must be obtained 

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

district engineer or State or Tribe may 

require additional water quality 

management measures to ensure that the 

authorized activity does not result in 

more than minimal degradation of water 

quality. 

25. Coastal Zone Management. In 

coastal states where an NWP has not 

previously received a state coastal zone 

management consistency concurrence, 

an individual state coastal zone 

management consistency concurrence 

must be obtained, or a presumption of 

concurrence must occur (see 33 CFR 

330.4(d)). The district engineer or a 

State may require additional measures 

to ensure that the authorized activity is 

consistent with state coastal zone 

management requirements. 

26. Regional and Case-By-Case 

Conditions. The activity must comply 

with any regional conditions that may 

have been added by the Division 

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

any case specific conditions added by 

the Corps or by the state, Indian Tribe, 

or U.S. EPA in its section 401 Water 

Quality Certification, or by the state in 

its Coastal Zone Management Act 

consistency determination. 

27. Use of Multiple Nationwide 

Permits. The use of more than one NWP 

for a single and complete project is 

prohibited, except when the acreage loss 

of waters of the United States 

authorized by the NWPs does not 

exceed the acreage limit of the NWP 

with the highest specified acreage limit. 

For example, if a road crossing over 

tidal waters is constructed under NWP 

14, with associated bank stabilization 

authorized by NWP 13, the maximum 

acreage loss of waters of the United 

States for the total project cannot exceed 

1⁄3-acre. 

28. Transfer of Nationwide Permit 

Verifications. If the permittee sells the 

property associated with a nationwide 

permit verification, the permittee may 

transfer the nationwide permit 

verification to the new owner by 

submitting a letter to the appropriate 

Corps district office to validate the 

transfer. A copy of the nationwide 

permit verification must be attached to 

the letter, and the letter must contain 

the following statement and signature: 

‘‘When the structures or work 

authorized by this nationwide permit 

are still in existence at the time the 

property is transferred, the terms and 

conditions of this nationwide permit, 

including any special conditions, will 

continue to be binding on the new 

owner(s) of the property. To validate the 

transfer of this nationwide permit and 

the associated liabilities associated with 

compliance with its terms and 

conditions, have the transferee sign and 

date below.’’ 

lllllllllllllllllll

(Transferee) 

lllllllllllllllllll

(Date) 

29. Compliance Certification. Each 

permittee who receives an NWP 

verification letter from the Corps must 

provide a signed certification 

documenting completion of the 

authorized activity and any required 

compensatory mitigation. The Corps 

will provide the permittee the 

certification document with the NWP 

verification letter. The certification 

document will include: 

(a) A statement that the authorized 

work was done in accordance with the 

NWP authorization, including any 

general or specific conditions; 

(b) A statement that any required 

compensatory mitigation was completed 

in accordance with the permit 

conditions; and 

(c) The signature of the permittee 

certifying the completion of the work 

and mitigation. 

30. Pre-Construction Notification. 

(a) Timing. Where required by the terms 

of the NWP, the prospective permittee 

must notify the district engineer by 

submitting a pre-construction 

notification (PCN) as early as possible. 

The district engineer must determine if 

the PCN is complete within 30 calendar 

days of the date of receipt and, as a 

general rule, will request additional 

information necessary to make the PCN 

complete only once. However, if the 

prospective permittee does not provide 

all of the requested information, then 

the district engineer will notify the 

prospective permittee that the PCN is 

still incomplete and the PCN review 

process will not commence until all of 

the requested information has been 

received by the district engineer. The 


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prospective permittee shall not begin 

the activity until either: 

(1) He or she is notified in writing by 

the district engineer that the activity 

may proceed under the NWP with any 

special conditions imposed by the 

district or division engineer; or 

(2) 45 calendar days have passed from 

the district engineer’s receipt of the 

complete PCN and the prospective 

permittee has not received written 

notice from the district or division 

engineer. However, if the permittee was 

required to notify the Corps pursuant to 

general condition 19 that listed species 

or critical habitat might be affected or in 

the vicinity of the project, or to notify 

the Corps pursuant to general condition 

20 that the activity may have the 

potential to cause effects to historic 

properties, the permittee cannot begin 

the activity until receiving written 

notification from the Corps that there is 

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

potential to cause effects’’ on historic 

properties, or that any consultation 

required under Section 7 of the 

Endangered Species Act (see 33 CFR 

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

National Historic Preservation (see 33 

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

work cannot begin under NWPs 21, 49, 

or 50 until the permittee has received 

written approval from the Corps. If the 

proposed activity requires a written 

waiver to exceed specified limits of an 

NWP, the permittee cannot begin the 

activity until the district engineer issues 

the waiver. If the district or division 

engineer notifies the permittee in 

writing that an individual permit is 

required within 45 calendar days of 

receipt of a complete PCN, the permittee 

cannot begin the activity until an 

individual permit has been obtained. 

Subsequently, the permittee’s right to 

proceed under the NWP may be 

modified, suspended, or revoked only in 

accordance with the procedure set forth 

in 33 CFR 330.5(d)(2). 

(b) Contents of Pre-Construction 

Notification: The PCN must be in 

writing and include the following 

information: 

(1) Name, address and telephone 

numbers of the prospective permittee; 

(2) Location of the proposed project; 

(3) A description of the proposed 

project; the project’s purpose; direct and 

indirect adverse environmental effects 

the project would cause; any other 

NWP(s), regional general permit(s), or 

individual permit(s) used or intended to 

be used to authorize any part of the 

proposed project or any related activity. 

The description should be sufficiently 

detailed to allow the district engineer to 

determine that the adverse effects of the 

project will be minimal and to 

determine the need for compensatory 

mitigation. Sketches should be provided 

when necessary to show that the activity 

complies with the terms of the NWP. 

(Sketches usually clarify the project and 

when provided results in a quicker 

decision.); 

(4) The PCN must include a 

delineation of special aquatic sites and 

other waters of the United States on the 

project site. Wetland delineations must 

be prepared in accordance with the 

current method required by the Corps. 

The permittee may ask the Corps to 

delineate the special aquatic sites and 

other waters of the United States, but 

there may be a delay if the Corps does 

the delineation, especially if the project 

site is large or contains many waters of 

the United States. Furthermore, the 

45-day period will not start until the 

delineation has been submitted to or 

completed by the Corps, as appropriate; 

(5) If the proposed activity will result 

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

wetlands and a PCN is required, the 

prospective permittee must submit a 

statement describing how the mitigation 

requirement will be satisfied. As an 

alternative, the prospective permittee 

may submit a conceptual or detailed 

mitigation plan. 

(6) If any listed species or designated 

critical habitat might be affected or is in 

the vicinity of the project, or if the 

project is located in designated critical 

habitat, for non-Federal applicants the 

PCN must include the name(s) of those 

endangered or threatened species that 

might be affected by the proposed work 

or utilize the designated critical habitat 

that may be affected by the proposed 

work. Federal applicants must provide 

documentation demonstrating 

compliance with the Endangered 

Species Act; and 

(7) For an activity that may affect a 

historic property listed on, determined 

to be eligible for listing on, or 

potentially eligible for listing on, the 

National Register of Historic Places, for 

non-Federal applicants the PCN must 

state which historic property may be 

affected by the proposed work or 

include a vicinity map indicating the 

location of the historic property. Federal 

applicants must provide documentation 

demonstrating compliance with Section 

106 of the National Historic 

Preservation Act. 

(c) Form of Pre-Construction 

Notification: The standard individual 

permit application form (Form ENG 

4345) may be used, but the completed 

application form must clearly indicate 

that it is a PCN and must include all of 

the information required in paragraphs 

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

condition. A letter containing the 

required information may also be used. 

(d) Agency Coordination: (1) The 

district engineer will consider any 

comments from Federal and state 

agencies concerning the proposed 

activity’s compliance with the terms 

and conditions of the NWPs and the 

need for mitigation to reduce the 

project’s adverse environmental effects 

to a minimal level. 

(2) For all NWP activities that result 

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

waters of the United States, NWP 21, 29, 

39, 40, 42, 43, 44, 50, A, and B activities 

that will result in the loss of greater than 

1,000 linear feet of intermittent and 

ephemeral stream bed, and all NWP 48 

activities requiring pre-construction 

notification, the district engineer will 

immediately provide (e.g., via facsimile 

transmission, overnight mail, or other 

expeditious manner) a copy of the PCN 

to the appropriate Federal or state 

offices (U.S. FWS, state natural resource 

or water quality agency, EPA, State 

Historic Preservation Officer (SHPO) or 

Tribal Historic Preservation Office 

(THPO), and, if appropriate, the NMFS). 

With the exception of NWP 37, these 

agencies will then have 10 calendar 

days from the date the material is 

transmitted to telephone or fax the 

district engineer notice that they intend 

to provide substantive, site-specific 

comments. If so contacted by an agency, 

the district engineer will wait an 

additional 15 calendar days before 

making a decision on the preconstruction notification. The district 

engineer will fully consider agency 

comments received within the specified 

time frame, but will provide no 

response to the resource agency, except 

as provided below. The district engineer 

will indicate in the administrative 

record associated with each preconstruction notification that the 

resource agencies’ concerns were 

considered. For NWP 37, the emergency 

watershed protection and rehabilitation 

activity may proceed immediately in 

cases where there is an unacceptable 

hazard to life or a significant loss of 

property or economic hardship will 

occur. The district engineer will 

consider any comments received to 

decide whether the NWP 37 

authorization should be modified, 

suspended, or revoked in accordance 

with the procedures at 33 CFR 330.5. 

(3) In cases where the prospective 

permittee is not a Federal agency, the 

district engineer will provide a response 

to NMFS within 30 calendar days of 

receipt of any Essential Fish Habitat 

conservation recommendations, as 

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


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Magnuson-Stevens Fishery 

Conservation and Management Act. 

(4) Applicants are encouraged to 

provide the Corps multiple copies of 

pre-construction notifications to 

expedite agency coordination. 

(e) District Engineer’s Decision: (1) In 

reviewing the PCN for the proposed 

activity, the district engineer will 

determine whether the activity 

authorized by the NWP will result in 

more than minimal individual or 

cumulative adverse environmental 

effects or may be contrary to the public 

interest. If an applicant requests a 

waiver of the 300 linear foot limit on 

impacts to intermittent or ephemeral 

streams or of an otherwise applicable 

limit, as provided for in NWPs 13, 21, 

29, 36, 39, 40, 42, 43, 44, 50, A or B, 

the district engineer will only grant the 

waiver upon a written determination 

that the NWP activity will result in 

minimal adverse effects. When making 

minimal effects determinations the 

district engineer will consider the direct 

and indirect effects caused by the NWP 

activity. The district engineer will also 

consider site specific factors, such as the 

environmental setting in the vicinity of 

the NWP activity, the functions 

provided by the aquatic resources that 

will be affected by the NWP activity, the 

degree or magnitude the aquatic 

resources perform those functions, the 

extent that aquatic resource functions 

will be lost as a result of the NWP 

activity (e.g., partial or complete loss), 

the duration of the adverse effects 

(temporary or permanent), the 

importance of the aquatic resource 

functions to the region (e.g., watershed 

or ecoregion), and mitigation required 

by the district engineer. If an 

appropriate functional assessment 

method is available and practicable to 

use, that assessment method may be 

used by the district engineer to assist in 

the minimal adverse effects 

determination. The district engineer 

may add case-specific special 

conditions to the NWP authorization to 

address site-specific environmental 

concerns. 

(2) If the proposed activity requires a 

PCN and will result in a loss of greater 

than 1⁄10-acre of wetlands, the 

prospective permittee should submit a 

mitigation proposal with the PCN. 

Applicants may also propose 

compensatory mitigation for projects 

with smaller impacts. The district 

engineer will consider any proposed 

compensatory mitigation the applicant 

has included in the proposal in 

determining whether the net adverse 

environmental effects to the aquatic 

environment of the proposed work are 

minimal. The compensatory mitigation 

proposal may be either conceptual or 

detailed. If the district engineer 

determines that the activity complies 

with the terms and conditions of the 

NWP and that the adverse effects on the 

aquatic environment are minimal, after 

considering mitigation, the district 

engineer will notify the permittee and 

include any conditions the district 

engineer deems necessary. The district 

engineer must approve any 

compensatory mitigation proposal 

before the permittee commences work. 

If the prospective permittee elects to 

submit a compensatory mitigation plan 

with the PCN, the district engineer will 

expeditiously review the proposed 

compensatory mitigation plan. The 

district engineer must review the plan 

within 45 calendar days of receiving a 

complete PCN and determine whether 

the proposed mitigation would ensure 

no more than minimal adverse effects 

on the aquatic environment. If the net 

adverse effects of the project on the 

aquatic environment (after 

consideration of the compensatory 

mitigation proposal) are determined by 

the district engineer to be minimal, the 

district engineer will provide a timely 

written response to the applicant. The 

response will state that the project can 

proceed under the terms and conditions 

of the NWP. 

(3) If the district engineer determines 

that the adverse effects of the proposed 

work are more than minimal, then the 

district engineer will notify the 

applicant either: (1) That the project 

does not qualify for authorization under 

the NWP and instruct the applicant on 

the procedures to seek authorization 

under an individual permit; (2) that the 

project is authorized under the NWP 

subject to the applicant’s submission of 

a mitigation plan that would reduce the 

adverse effects on the aquatic 

environment to the minimal level; or 

(3) that the project is authorized under 

the NWP with specific modifications or 

conditions. Where the district engineer 

determines that mitigation is required to 

ensure no more than minimal adverse 

effects occur to the aquatic 

environment, the activity will be 

authorized within the 45-day PCN 

period. The authorization will include 

the necessary conceptual or specific 

mitigation or a requirement that the 

applicant submit a mitigation plan that 

would reduce the adverse effects on the 

aquatic environment to the minimal 

level. When mitigation is required, no 

work in waters of the United States may 

occur until the district engineer has 

approved a specific mitigation plan. 

D. Further Information 

1. District Engineers have authority to 

determine if an activity complies with 

the terms and conditions of an NWP. 

2. NWPs do not obviate the need to 

obtain other Federal, state, or local 

permits, approvals, or authorizations 

required by law. 

3. NWPs do not grant any property 

rights or exclusive privileges. 

4. NWPs do not authorize any injury 

to the property or rights of others. 

5. NWPs do not authorize interference 

with any existing or proposed Federal 

project. 

E. Definitions 

Best management practices (BMPs): 

Policies, practices, procedures, or 

structures implemented to mitigate the 

adverse environmental effects on 

surface water quality resulting from 

development. BMPs are categorized as 

structural or non-structural. 

Compensatory mitigation: The 

restoration (re-establishment or 

rehabilitation), establishment (creation), 

enhancement, and/or in certain 

circumstances preservation of aquatic 

resources for the purposes of offsetting 

unavoidable adverse impacts which 

remain after all appropriate and 

practicable avoidance and minimization 

has been achieved. 

Currently serviceable: Useable as is or 

with some maintenance, but not so 

degraded as to essentially require 

reconstruction. 

Discharge: The term ‘‘discharge’’ 

means any discharge of dredged or fill 

material and any activity that causes or 

results in such a discharge. 

Enhancement: The manipulation of 

the physical, chemical, or biological 

characteristics of an aquatic resource to 

heighten, intensify, or improve a 

specific aquatic resource function(s). 

Enhancement results in the gain of 

selected aquatic resource function(s), 

but may also lead to a decline in other 

aquatic resource function(s). 

Enhancement does not result in a gain 

in aquatic resource area. 

Ephemeral stream: An ephemeral 

stream has flowing water only during, 

and for a short duration after, 

precipitation events in a typical year. 

Ephemeral stream beds are located 

above the water table year-round. 

Groundwater is not a source of water for 

the stream. Runoff from rainfall is the 

primary source of water for stream flow. 

Establishment (creation): The 

manipulation of the physical, chemical, 

or biological characteristics present to 

develop an aquatic resource that did not 

previously exist at an upland site. 

Establishment results in a gain in 

aquatic resource area. 


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High Tide Line: The line of 

intersection of the land with the water’s 

surface at the maximum height reached 

by a rising tide. The high tide line may 

be determined, in the absence of actual 

data, by a line of oil or scum along shore 

objects, a more or less continuous 

deposit of fine shell or debris on the 

foreshore or berm, other physical 

markings or characteristics, vegetation 

lines, tidal gages, or other suitable 

means that delineate the general height 

reached by a rising tide. The line 

encompasses spring high tides and other 

high tides that occur with periodic 

frequency but does not include storm 

surges in which there is a departure 

from the normal or predicted reach of 

the tide due to the piling up of water 

against a coast by strong winds such as 

those accompanying a hurricane or 

other intense storm. 

Historic Property: Any prehistoric or 

historic district, site (including 

archaeological site), building, structure, 

or other object included in, or eligible 

for inclusion in, the National Register of 

Historic Places maintained by the 

Secretary of the Interior. This term 

includes artifacts, records, and remains 

that are related to and located within 

such properties. The term includes 

properties of traditional religious and 

cultural importance to an Indian tribe or 

Native Hawaiian organization and that 

meet the National Register criteria (36 

CFR part 60). 

Independent utility: A test to 

determine what constitutes a single and 

complete non-linear project in the Corps 

regulatory program. A project is 

considered to have independent utility 

if it would be constructed absent the 

construction of other projects in the 

project area. Portions of a multi-phase 

project that depend upon other phases 

of the project do not have independent 

utility. Phases of a project that would be 

constructed even if the other phases 

were not built can be considered as 

separate single and complete projects 

with independent utility. 

Intermittent stream: An intermittent 

stream has flowing water during certain 

times of the year, when groundwater 

provides water for stream flow. During 

dry periods, intermittent streams may 

not have flowing water. Runoff from 

rainfall is a supplemental source of 

water for stream flow. 

Loss of waters of the United States: 

Waters of the United States that are 

permanently adversely affected by 

filling, flooding, excavation, or drainage 

because of the regulated activity. 

Permanent adverse effects include 

permanent discharges of dredged or fill 

material that change an aquatic area to 

dry land, increase the bottom elevation 

of a waterbody, or change the use of a 

waterbody. The acreage of loss of waters 

of the United States is a threshold 

measurement of the impact to 

jurisdictional waters for determining 

whether a project may qualify for an 

NWP; it is not a net threshold that is 

calculated after considering 

compensatory mitigation that may be 

used to offset losses of aquatic functions 

and services. The loss of stream bed 

includes the linear feet of stream bed 

that is filled or excavated. Waters of the 

United States temporarily filled, 

flooded, excavated, or drained, but 

restored to pre-construction contours 

and elevations after construction, are 

not included in the measurement of loss 

of waters of the United States. Impacts 

resulting from activities eligible for 

exemptions under Section 404(f) of the 

Clean Water Act are not considered 

when calculating the loss of waters of 

the United States. 

Non-tidal wetland: A non-tidal 

wetland is a wetland that is not subject 

to the ebb and flow of tidal waters. The 

definition of a wetland can be found at 

33 CFR 328.3(b). Non-tidal wetlands 

contiguous to tidal waters are located 

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

spring high tide line). 

Open water: For purposes of the 

NWPs, an open water is any area that in 

a year with normal patterns of 

precipitation has water flowing or 

standing above ground to the extent that 

an ordinary high water mark can be 

determined. Aquatic vegetation within 

the area of standing or flowing water is 

either non-emergent, sparse, or absent. 

Vegetated shallows are considered to be 

open waters. Examples of ‘‘open waters’’ 

include rivers, streams, lakes, and 

ponds. 

Ordinary High Water Mark: An 

ordinary high water mark is a line on 

the shore established by the fluctuations 

of water and indicated by physical 

characteristics, or by other appropriate 

means that consider the characteristics 

of the surrounding areas (see 33 CFR 

328.3(e)). 

Perennial stream: A perennial stream 

has flowing water year-round during a 

typical year. The water table is located 

above the stream bed for most of the 

year. Groundwater is the primary source 

of water for stream flow. Runoff from 

rainfall is a supplemental source of 

water for stream flow. 

Practicable: Available and capable of 

being done after taking into 

consideration cost, existing technology, 

and logistics in light of overall project 

purposes. 

Pre-construction notification: A 

request submitted by the project 

proponent to the Corps for confirmation 

that a particular activity is authorized 

by nationwide permit. The request may 

be a permit application, letter, or similar 

document that includes information 

about the proposed work and its 

anticipated environmental effects. Preconstruction notification may be 

required by the terms and conditions of 

a nationwide permit, or by regional 

conditions. A pre-construction 

notification may be voluntarily 

submitted in cases where preconstruction notification is not required 

and the project proponent wants 

confirmation that the activity is 

authorized by nationwide permit. 

Preservation: The removal of a threat 

to, or preventing the decline of, aquatic 

resources by an action in or near those 

aquatic resources. This term includes 

activities commonly associated with the 

protection and maintenance of aquatic 

resources through the implementation 

of appropriate legal and physical 

mechanisms. Preservation does not 

result in a gain of aquatic resource area 

or functions. 

Re-establishment: The manipulation 

of the physical, chemical, or biological 

characteristics of a site with the goal of 

returning natural/historic functions to a 

former aquatic resource. Reestablishment results in rebuilding a 

former aquatic resource and results in a 

gain in aquatic resource area and 

functions. 

Rehabilitation: The manipulation of 

the physical, chemical, or biological 

characteristics of a site with the goal of 

repairing natural/historic functions to a 

degraded aquatic resource. 

Rehabilitation results in a gain in 

aquatic resource function, but does not 

result in a gain in aquatic resource area. 

Restoration: The manipulation of the 

physical, chemical, or biological 

characteristics of a site with the goal of 

returning natural/historic functions to a 

former or degraded aquatic resource. For 

the purpose of tracking net gains in 

aquatic resource area, restoration is 

divided into two categories: reestablishment and rehabilitation. 

Riffle and pool complex: Riffle and 

pool complexes are special aquatic sites 

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

and pool complexes sometimes 

characterize steep gradient sections of 

streams. Such stream sections are 

recognizable by their hydraulic 

characteristics. The rapid movement of 

water over a course substrate in riffles 

results in a rough flow, a turbulent 

surface, and high dissolved oxygen 

levels in the water. Pools are deeper 

areas associated with riffles. A slower 

stream velocity, a streaming flow, a 

smooth surface, and a finer substrate 

characterize pools. 


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Riparian areas: Riparian areas are 

lands adjacent to streams, lakes, and 

estuarine-marine shorelines. Riparian 

areas are transitional between terrestrial 

and aquatic ecosystems, through which 

surface and subsurface hydrology 

connects waterbodies with their 

adjacent uplands. Riparian areas 

provide a variety of ecological functions 

and services and help improve or 

maintain local water quality. (See 

general condition 20.) 

Shellfish seeding: The placement of 

shellfish seed and/or suitable substrate 

to increase shellfish production. 

Shellfish seed consists of immature 

individual shellfish or individual 

shellfish attached to shells or shell 

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

substrate may consist of shellfish shells, 

shell fragments, or other appropriate 

materials placed into waters for 

shellfish habitat. 

Single and complete linear project: 

For linear projects, the term ‘‘single and 

complete project’’ is defined as the total 

project proposed or accomplished by 

one owner/developer or partnership or 

other association of owners/developers 

and includes all crossings of a single 

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

waterbody) at a specific location. For 

linear projects crossing a single 

waterbody several times at separate and 

distant locations, each crossing is 

considered a single and complete 

project. However, individual channels 

in a braided stream or river, or 

individual arms of a large, irregularly 

shaped wetland or lake, etc., are not 

separate waterbodies, and crossings of 

such features cannot be considered 

separately. 

Single and complete non-linear 

project: For non-linear projects, the term 

‘‘single and complete project’’ is defined 

at 33 CFR 330.2(i) as the total project 

proposed or accomplished by one 

owner/developer or partnership or other 

association of owners/developers. A 

single and complete non-linear project 

must have independent utility (see 

definition of ‘‘independent utility’’). 

Stormwater management: Stormwater 

management is the mechanism for 

controlling stormwater runoff for the 

purposes of reducing downstream 

erosion, water quality degradation, and 

flooding and mitigating the adverse 

effects of changes in land use on the 

aquatic environment. 

Stormwater management facilities: 

Stormwater management facilities are 

those facilities, including but not 

limited to, stormwater retention and 

detention ponds and best management 

practices, which retain water for a 

period of time to control runoff and/or 

improve the quality (i.e., by reducing 

the concentration of nutrients, 

sediments, hazardous substances and 

other pollutants) of stormwater runoff. 

Stream bed: The substrate of the 

stream channel between the ordinary 

high water marks. The substrate may be 

bedrock or inorganic particles that range 

in size from clay to boulders. Wetlands 

contiguous to the stream bed, but 

outside of the ordinary high water 

marks, are not considered part of the 

stream bed. 

Stream channelization: The 

manipulation of a stream’s course, 

condition, capacity, or location that 

causes more than minimal interruption 

of normal stream processes. A 

channelized stream remains a water of 

the United States. 

Structure: An object that is arranged 

in a definite pattern of organization. 

Examples of structures include, without 

limitation, any pier, boat dock, boat 

ramp, wharf, dolphin, weir, boom, 

breakwater, bulkhead, revetment, 

riprap, jetty, artificial island, artificial 

reef, permanent mooring structure, 

power transmission line, permanently 

moored floating vessel, piling, aid to 

navigation, or any other manmade 

obstacle or obstruction. 

Tidal wetland: A tidal wetland is a 

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

that is inundated by tidal waters. The 

definitions of a wetland and tidal waters 

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

CFR 328.3(f), respectively. Tidal waters 

rise and fall in a predictable and 

measurable rhythm or cycle due to the 

gravitational pulls of the moon and sun. 

Tidal waters end where the rise and fall 

of the water surface can no longer be 

practically measured in a predictable 

rhythm due to masking by other waters, 

wind, or other effects. Tidal wetlands 

are located channelward of the high tide 

line, which is defined at 33 CFR 

328.3(d). 

Vegetated shallows: Vegetated 

shallows are special aquatic sites under 

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

that are permanently inundated and 

under normal circumstances have 

rooted aquatic vegetation, such as 

seagrasses in marine and estuarine 

systems and a variety of vascular rooted 

plants in freshwater systems. 

Waterbody: For purposes of the 

NWPs, a waterbody is a jurisdictional 

water of the United States that, during 

a year with normal patterns of 

precipitation, has water flowing or 

standing above ground to the extent that 

an ordinary high water mark (OHWM) 

or other indicators of jurisdiction can be 

determined, as well as any wetland area 

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

wetland is adjacent—meaning 

bordering, contiguous, or neighboring— 

to a jurisdictional waterbody displaying 

an OHWM or other indicators of 

jurisdiction, that waterbody and its 

adjacent wetlands are considered 

together as a single aquatic unit (see 33 

CFR 328.4(c)(2)). Examples of 

‘‘waterbodies’’ include streams, rivers, 

lakes, ponds, and wetlands. 

[FR Doc. 2011–3371 Filed 2–15–11; 8:45 am] 

BILLING CODE 3720–58–P 


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