Part 2 - Proposed Rules
Proposed New Nationwide Permits
A. Residential, Commercial, and Institutional Activities
B. Master Planned Development Activities
C. Stormwater Management Facilities
D. Passive Recreational Facilities
E. Mining Activities
F. Reshaping Existing Drainage DitchesNationwide Permits Proposed To Be Modified
3. Maintenance
7. Outfall Structures and Maintenance
12. Utility Activities
14. Linear Transportation Crossings
27. Stream and Wetland Restoration Activities
40. Agricultural Activities
Nationwide Permit Conditions
General Conditions
1. Navigation
2. Proper Maintenance
3. Soil Erosion and Sediment Controls
4. Aquatic Life Movements
5. Equipment
6. Regional and Case-by-Case Conditions
7. Wild and Scenic Rivers
8. Tribal Rights
9. Water Quality*
10. Coastal Zone Management
11. Endangered Species
12. Historic Properties
13. Notification*
14. Compliance Certification
15. Multiple Use of Nationwide Permits
16. Subdivisions*
17. Water Supply Intakes
18. Shellfish Production
19. Suitable Material*
20. Mitigation*
21. Spawning Areas*
22. Management of Water Flows*
23. Adverse Effects from Impoundments
24. Waterfowl Breeding Areas
25. Removal of Temporary Fills
(* Indicates conditions proposed to be changed.)Further Information
Definitions
1. Aquatic Bench
2. Best Management Practices
3. Channelized stream
4. Contiguous wetland
5. Drainage ditch
6. Ephemeral stream
7. Farm
8. Intermittent stream
9. Loss of waters of the United States
10. Noncontiguous wetland
11. Non-tidal wetland
12. Perennial stream
13. Riffle and pool complexes
14. Stormwater management
15. Stormwater management facilities
16. Tidal wetland
17. Vegetated shallows
18. Waterbody
A. Residential, Commercial, and Institutional Activities
Discharges into non-tidal waters of the United States, excluding non-tidal wetlands contiguous to tidal waters, associated with residential, commercial, and institutional development activities. Residential developments (multiple and single unit development for other than the personal residence of the permittee), commercial developments (such as retail stores, industrial parks, restaurants, business parks, shopping centers, and commercial recreational activities) and institutional developments (such as schools, fire stations, government office buildings, judicial buildings, public works buildings, libraries, hospitals and places of worship), are authorized, and may include activities such as: grading, rechannelization, expansion of an existing development, building pads, soil erosion and sediment control measures, and infrastructure such as utilities, roads, driveways, sidewalks, and recreation activities associated with the development, including activities such as playgrounds, ball fields, golf courses, nature trails, etc., provided that the activity meets all of the following criteria:
a. The discharge does not cause the loss of greater than 3 acres of non-tidal waters of the United States, using an index of impact acreage as follows*:
| Parcel Size | Maximum acreage loss authorized |
| Less than 5 acres | 1/4 acre. |
| 5-10 acres | 1/2 acre. |
| 10-15 acres | 1 acre. |
| 15-100 acres | 2 acres. |
| Greater than 100 acres | 3 acres. |
b. For discharges causing the loss of greater than 1/3 acre of non- tidal waters of the United States, including non-tidal wetlands, the permittee notifies the District Engineer in accordance with the "Notification" general condition;
c. For activities that involve excavation and/or filling of open waters, including perennial or intermittent waterways, below the ordinary high water mark, the permittee notifies the District Engineer in accordance with the "Notification" general condition;
d. For discharges in special aquatic sites, including wetlands, the notification must also include a delineation of affected special aquatic sites, including wetlands;
e. The discharge is part of a single and complete project;
f. The permittee must avoid and minimize discharges into waters of the United States at the project site to the maximum extent practicable, and the notification must include a written statement to the District Engineer detailing compliance with this condition, i.e., why the discharge must occur in waters of the United States and avoidance or additional minimization cannot be achieved;
g. For discharges requiring notification the permittee must submit a mitigation proposal that will offset the loss to waters of the United States;
h. Whenever any other NWP is used in conjunction with this NWP, the combined total acres of impacts to waters of the United States cannot exceed 3 acres and any combined total acreage exceeding 1/3 acre requires that the permittee notify the District Engineer in accordance with the "Notification" general condition; and
i. Any work authorized with this permit must not cause more than minor changes to the flow characteristics of any stream, or measurably degrade water quality (See General Conditions 9 and 22). (Sections 10 and 404)
*Note: For the purposes of the proposed NWP, a discussion of acreage limit options is provided in the preamble.
B. Master Planned Development Activities
Discharges into non-tidal waters of the United States, excluding non-tidal wetlands contiguous to tidal waters, associated with a comprehensively planned development which may include a combination of, but is not limited to, the following: residential housing, office parks, retail stores, restaurants, playgrounds, ball fields, golf courses, ponds, impoundments, community green space, parks, trails, soil erosion and sediment control measures, sewage and/or water treatment facilities, storm water management facilities, and infrastructure such as utilities, roads, driveways, and sidewalks, provided that the activity meets all of the following criteria:
a. The discharge does not cause the loss of greater than 10 acres of non-tidal waters of the United States, using an index of impact acreage as follows*:
| Parcel Size | Maximum acreage loss authorized |
| 100-200 acres | 3 acres. |
| 200-300 acres | 5 acres. |
| 300-500 acres | 7 acres. |
| Greater than 500 acres | 10 acres. |
b. The permittee notifies the District Engineer in accordance with the "Notification" general condition;
c. For discharges in all waters of the United States, including wetlands, the notification must also include a delineation of affected waters and/or wetlands;
d. The notification will include a wetland assessment utilizing a functional assessment approach approved by the District Engineer;
e. The discharge is part of a single and complete project; however the activity may proceed in phases;
f. The permittee must avoid and minimize discharges into waters of the United States at the project site to the maximum extent practicable, and the notification must include a written statement to the District Engineer detailing compliance with this condition (i.e., why the discharge must occur in waters of the United States and why avoidance or additional minimization cannot be achieved);
g. The notification must include a mitigation proposal that will offset the loss to waters of the United States;
h. Deed restrictions, protective covenants, land trusts, or other means of conservation and preservation will be required for all waters of the United States, including wetlands, on the project site, including riparian buffers and/or vegetated buffers adjacent to open water, as well as all existing, enhanced, restored, or created wetland areas; and
i. Whenever any other NWP is used in conjunction with this NWP, the combined total acres of impacts to waters of the United States cannot exceed 10 acres.
Master Planned Development: The intent of defining Master Planned Development is to distinguish these activities from those that would be authorized under NWP A. Unlike NWP A, this NWP is limited to authorizing those activities that are mixed-use in nature. Master planned developments are designed, constructed, and managed to integrate multiple uses in a manner that conserves and enhances the functions and values of the water resources on the project site. NWP B is intended to be consistent with the increasing nationwide efforts by counties and local communities across the country to encourage mixed-use development and to motivate land use planning alternatives that incorporate consideration of the environment. This NWP is designed to match up with the efforts of local communities to achieve these goals by encouraging the development of environmentally responsible, multiple-use communities and building upon the incentives currently provided by State and local governments. Such master planned developments provide communities with an opportunity to address a variety of concerns, including protecting sensitive natural areas, consolidating infrastructure and maximizing the delivery of urban services. The project may consist of cluster developments surrounded by a substantial amount of open or green space, including vegetated buffers to waters of the United States. All remaining waters of the United States on the project site, including wetlands and riparian areas that are restored, enhanced, or created as compensatory mitigation for impacts authorized by this NWP, as well as vegetated buffers, will be set aside and preserved through deed restrictions, protected covenants, land trusts, or other legal means, to protect these areas and maintain water quality and aquatic resource values. (Sections 10 and 404)
*Note: For the purposes of the proposed NWP, a discussion of acreage limit options is provided in the preamble.
C. Stormwater Management Facilities
Discharges of dredged or fill material into non-Section 10 waters of the United States, including wetlands, for the construction and maintenance of stormwater management facilities, including activities for the excavation for stormwater ponds/facilities, detention, and retention basins, installation and maintenance of water control structures, outfall structures and emergency spillways; and the maintenance dredging of existing stormwater management ponds/ facilities, detention and retention basins provided that the activity meets all of the following criteria:
a. The discharge or excavation for the construction of new stormwater management facilities does not cause the loss of greater than 2 acres of non-tidal wetlands;
b. For discharges or excavation for the construction of new stormwater management facilities causing the loss of greater than 1/3 acre of non-tidal waters of the United States, including wetlands, or for the maintenance of existing stormwater management facilities causing the loss of greater than 1 acre of non-tidal waters of the United States, or for the loss of greater than 500 linear feet of intermittent stream bed, the permittee notifies the District Engineer in accordance with the "Notification" general condition. In addition the notification must include:
(1) A maintenance plan, which is in accordance with State and local requirements, if any;
(2) For discharges in special aquatic sites, including wetlands, the notification must include a delineation of affected areas; and
(3) For discharges involving construction of stormwater management facilities, the notification must include a mitigation proposal that will offset the loss of waters of the United States. In appropriate circumstances, compensatory mitigation can be provided by the use of bioengineering techniques and aquatic benches within the stormwater management facility. Compensatory mitigation will not be allowed in designated facility maintenance areas. Where the size of the facility allows for the construction of sediment forebays, such designs will be used to the maximum extent practicable to enhance water quality and to minimize the maintenance area of the facility. Future maintenance in constructed areas will not require mitigation provided that maintenance is accomplished in designated maintenance areas and not within compensatory mitigation areas.
c. The stormwater management facility must be designed using Best Management Practices and watershed protection techniques (e.g., vegetated buffers, siting considerations to minimize adverse effects to aquatic resources, bioengineering methods incorporated into the facility design to benefit water quality and minimize adverse effects to aquatic resources from storm flows especially downstream of the facility, as appropriate) that provide for long term aquatic protection and enhancement, to the maximum extent practicable;
d. Maintenance excavation will be in accordance with an approved maintenance plan and will not exceed the original contours of the facility as approved and constructed; and
e. The discharge is part of a single and complete project.
f. This permit does not authorize the discharge of dredged or fill material for the construction of new stormwater management facilities in perennial streams. (Section 404)
D. Passive Recreational Facilities. Discharges of dredged or fill material into non-tidal waters of the United States, excluding non- tidal wetlands contiguous to tidal waters, for the construction or expansion of passive recreational facilities, provided that the activity meets all of the following criteria:
a. The discharge does not cause the loss of greater than 1 acre of non-tidal waters of the United States, including non-tidal wetlands;
b. For discharges causing the loss of greater than 1/3 acre of non-tidal waters of the United States, or the loss of greater than 500 linear feet of stream bed, the permittee notifies the District Engineer in accordance with the "Notification" general condition;
c. For discharges in special aquatic sites, including wetlands, the notification must include a delineation of affected special aquatic sites, including wetlands; and
d. The discharge is part of a single and complete project.
A passive recreational facility is defined as a low-impact recreational facility that is integrated into the natural landscape and consists primarily of open space that does not substantially change preconstruction grades or deviate from natural landscape contours. The primary function of passive recreational facilities does not include the use of motor vehicles, buildings, or impervious surfaces. Examples of passive recreational facilities that may be authorized by this NWP include: hiking trails, bike paths, horse paths, nature centers, and campgrounds (excluding trailer parks). The construction or expansion of golf courses and ski areas may be authorized by this NWP, provided the golf course or ski area does not substantially deviate from natural landscape contours and is designed to minimize adverse effects to waters of the United States and riparian areas through the use of such practices as integrated pest management, adequate stormwater management facilities, vegetated buffers, reduced fertilizer use, etc. The facility must have an adequate water quality management plan in accordance with General Condition 9, such as a stormwater management facility constructed in uplands to ensure that the recreational facility results in no substantial adverse effects to water quality. This NWP also authorizes support facilities, such as maintenance and storage buildings, office buildings, rental buildings, and stables that are directly related to the recreational activity. It does not authorize other buildings, hotels, restaurants, etc. Whenever any other NWP is used in conjunction with this NWP, the total acreage of impacts to waters of the United States of all NWPs combined, cannot exceed 1 acre. The construction or expansion of playing fields (e.g., baseball or football fields), basketball and tennis courts, race tracks, stadiums, and arenas is not authorized by this NWP. (Section 404)
E. Mining Activities
Discharges of dredged or fill material into non-tidal waters of the United States, excluding non-tidal wetlands contiguous to tidal waters, for aggregate mining (i.e., sand, gravel, crushed and broken stone) and hard rock metal/mineral mining activities (i.e., extraction of metalliferous ores from subsurface locations), including exploration, excavation, dredging, processing, stream relocation and/or diversion, overburden disposal, stockpiling, mechanized landclearing, mined land reclamation, and support activities, provided the discharge meets all of the following criteria:
a. Lower perennial riverine systems: Any discharges for excavation and dredging activities associated with sand and gravel mining in lower perennial riverine systems as defined by the Cowardin classification system for aquatic habitats (areas that are defined as special aquatic sites [40 CFR Subpart E, 230.40 through 230.45] are excluded), must:
1. not cause the loss of greater than 2 acres of waters of the United States;
2. not result in the excavation of fish spawning areas and shellfish beds;
3. include necessary measures to prevent increases in stream gradient and water velocities, to prevent adverse effects (e.g., head cutting, bank erosion) on upstream and downstream channel conditions;
4. not result in adverse affects on the course, capacity, or condition of navigable waters of the United States; and
5. include measures to minimize downstream turbidity;
b. Intermittent and ephemeral streams: Any discharges for excavation, dredging, processing, exploration, trenching, stockpiling, and mined land reclamation activities associated with sand and gravel mining activities in intermittent and ephemeral streams (areas that are defined as special aquatic sites [40 CFR Subpart E, 230.40 through 230.45] are excluded), must:
1. not cause the loss of greater than 1 acre of waters of the United States; and
2. include necessary measures to prevent increases in stream gradient and water velocities, to prevent adverse effects (e.g., head cutting, bank erosion) on upstream and downstream channel conditions;
c. Intermittent and small perennial stream relocations: Any discharges for stream relocation/diversion activities (i.e., mining may not occur in open waters below the ordinary high water mark; only stream relocation and diversion are authorized) associated with crushed or broken stone mining in intermittent and small perennial streams (areas that are defined as special aquatic sites [40 CFR Subpart E, 230.40 through 230.45] are excluded), must:
1. not cause the loss of greater than 1 acre of waters of the United States;
2. include necessary measures to prevent increases in stream gradient and water velocities and to prevent adverse effects (e.g., head cutting, bank erosion) on upstream and downstream channel conditions; and
3. not result in the excavation of fish spawning areas and shellfish beds;
d. Isolated wetlands and wetlands above the ordinary high water mark, in non-Section 10 waters: Any discharges for excavation, exploration, dredging, processing, mechanized landclearing, stockpiling, stream relocation/diversion, on-site overburden disposal, and mined land reclamation associated with aggregate mining activities in isolated wetlands and wetlands above the ordinary high water mark in non-Section 10 streams, must:
1. not cause the loss of greater than 2 acres of waters of the United States; and
2. be compensated for through mitigation approved by the Corps;
e. Dry washes and arroyos: Any discharges, including excavation, associated with aggregate mining activities in dry washes and arroyos, must:
1. not cause the loss of greater than 2 acres of waters of the United States;
2. include necessary measures to prevent increases in stream gradient and water velocities and to prevent adverse effects (e.g., head cutting, bank erosion) on upstream and downstream channel conditions; and
3. include necessary measures to prevent adverse water quality effects on groundwater resources;
f. Intermittent and small perennial stream relocations: Any discharges for stream relocation/diversion activities (i.e., mining may not occur in open waters below the ordinary high water mark; only stream relocation and diversion are authorized) associated with hard rock metal/mineral mining activities in intermittent and small perennial streams (areas that are defined as special aquatic sites [40 CFR Subpart E, 230.40 through 230.45] are excluded), must:
1. not cause the loss of greater than 1 acre of waters of the United States;
2. include necessary measures to prevent increases in stream gradient and water velocities and to prevent adverse effects (e.g., head cutting, bank erosion) on upstream and downstream channel conditions; and
3. not result in the excavation of fish spawning areas and shellfish beds;
g. Isolated wetlands and wetlands above the ordinary high water mark, in non-Section 10 waters: Any discharges for excavation, exploration, dredging, processing, mechanized landclearing, stockpiling, stream relocation/diversion, on-site overburden disposal, and mined land reclamation associated with hard rock metal/mineral mining activities in isolated wetlands and wetlands above the ordinary high water mark in non-Section 10 streams, must:
1. not cause the loss of greater than 2 acres of waters of the United States; and
2. be compensated for through mitigation approved by the Corps;
h. Dry washes and arroyos: Any discharges, including excavation, associated with hard rock metal/mineral mining activities in dry washes and arroyos, must:
1. not cause the loss of greater than 2 acres of waters of the United States;
2. include necessary measures to prevent increases in stream gradient and water velocities and to prevent adverse effects (e.g., head cutting, bank erosion) on upstream and downstream channel conditions; and
3. include necessary measures to prevent adverse water quality effects on groundwater resources;
i. Support activities: Any discharges for support activities associated with aggregate mining and/or hard rock metal/mineral mining activities, including the construction of berms, access and haul roads, rail lines, dikes, road crossings, settling ponds and settling basins, ditching, storm water and surface water management, head cutting prevention, sediment and erosion controls, and mechanized land clearing, must not cause the loss of more than 1 acre of waters of the United States, including wetlands. This acreage limit does not include temporary mining roads that are exempt under Section 404(f). The limit of 1 acre of impact for support activities will be in addition to the acreage allowed for the mining activities;
j. Single and complete project: The discharges must be for a single and complete project. Multiple mining activity discharges into several designated parcels of a mining project, may be included together as long as the acreage limit for each aquatic resource type is not exceeded and the combination of more than one aquatic resource type does not exceed 2 acres. The total maximum acreage of waters of the United States adversely affected by the mining activities combined with the support activities will not exceed 3 acres (2 acres)*;
k. Notification: The permittee notifies the District Engineer in accordance with the "Notification" general condition. The notification must include a description of all waters of the United States impacted by the project, and, where required, a discussion of measures to minimize or prevent adverse effects (e.g., head cutting, bank erosion, turbidity, water quality) to waters of the United States, a description of measures taken to meet the criteria associated with the discharge being permitted, and a reclamation plan; and
l. Authorized activities associated with hard rock/mineral mining may include beneficiation and mineral processing. This NWP does not authorize hard rock/mineral mining in Section 10 waters or any mining activity in wetlands that are contiguous to tidal waters. (Sections 10 and 404)
*Note: For the purposes of the proposed NWP, a discussion of acreage threshold options being considered for NWP E is provided in the preamble.
F. Reshaping Existing Drainage Ditches
Discharges of dredged or fill material into non-Section 10 waters of the United States to modify the cross-sectional configuration of existing serviceable drainage ditches constructed in non-Section 10 waters of the United States. No compensatory mitigation is required if the work is designed to improve water quality (e.g., by regrading the drainage ditch with gentler slopes, which can reduce erosion, increase growth of vegetation, increase uptake of nutrients and other substances by vegetation, etc.). The reshaping of the ditch cannot increase drainage beyond the original project boundaries or expand the area drained by the ditch as originally designed (i.e., the capacity of the ditch must be the same as originally designed and it cannot drain additional wetlands or other waters of the United States). The permittee must notify the District Engineer in accordance with the "Notification" general condition, if material excavated during ditch reshaping is sidecast into waters of the United States. This NWP does not apply to reshaping drainage ditches constructed in uplands, since these areas are not waters of the United States, or to the maintenance of existing drainage ditches to their original dimensions and configuration, which does not require a Section 404 permit (see 33 CFR 323.4(a)(3)). 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 the reshaping and maintenance of drainage ditches in navigable waters of the United States, which requires a Section 10 permit. This NWP does not authorize stream channelization or stream relocation projects. (Section 404)
3. Maintenance Activities related to: (i) 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, and the District Engineer receives notification for all work other than the replacement of a structure. 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 which are necessary to make repair, rehabilitation, or replacement are permitted, provided the environmental impacts resulting from such repair, rehabilitation, or replacement are minimal. Currently serviceable means useable as is or with some maintenance, but not so degraded as to essentially require reconstruction. This nationwide permit authorizes the repair, rehabilitation, or replacement of those structures 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. Maintenance dredging and beach restoration are not authorized by this nationwide permit.
(ii) Discharges of dredged or fill material, including excavation, into any waters of the United States to remove accumulated sediments and debris in the vicinity of existing structures (e.g., bridges, culverted road crossings, water intake structures, etc.) and the placement of new or additional rip rap to protect the structure, provided the permittee notifies the District Engineer in accordance with the "Notification" general condition. 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. The placement of rip rap must be the minimum necessary to protect the structure, or to ensure the safety of the structure. This NWP does not authorize new stream channelization or stream relocation projects. All excavated materials must be deposited and retained in an upland area unless otherwise specifically approved by the District Engineer under separate authorization. Any bank stabilization measures require a separate authorization from the District Engineer.
(iii) Discharges of dredged or fill material, including excavation, into waters of the United States for the restoration of upland areas damaged by a storm, flood or other discrete event, and minor dredging to remove obstructions in a waterbody adjacent to the upland, where such work requires activities in a regulated water of the United States, provided that the District Engineer receives notification within 12 months of the date of the damage, subject to the following criteria;
a. The extent of the proposed restoration must be justified by a recent topographic survey, or other evidence of the pre-existing conditions. The restoration of the damaged areas cannot exceed the contours, or ordinary high water mark, that existed prior to the damage. The District Engineer retains the right to determine the extent of the pre-existing conditions, and the extent of any restoration work;
b. Minor dredging to remove obstructions from the adjacent waterbody is limited to 50 cubic yards below the plane of the ordinary high water mark, and is limited to the degree needed to restore the pre-existing bottom contours of the waterbody. The dredging may not be done primarily to obtain fill for any restoration activities;
c. For activities affecting greater than 1/3 acre of waters of the United States, the permittee notifies the District Engineer in accordance with the "Notification" general condition;
d. The discharge of dredged or fill material and all related work needed to restore the upland is part of a single and complete project;
e. This permit authorizes such work, provided the District Engineer has been notified as appropriate in accordance with condition (3) within 12 months of the date of the damage, and the work has commenced, or is under contract to commence, within 2 years of the date of the damage;
f. This permit may not be used in conjunction with NWP 18 or NWP 19;
g. This NWP cannot be used to channelize a stream, and any work authorized must not cause more than minor changes to the hydraulic flow characteristics of the stream, increase flooding, or measurably degrade water quality (See General Conditions 9 and 22); and
h. This permit may not be used to reclaim historic lands lost, over an extended period of time, to normal erosion processes. (Sections 10 and 404)
7. Outfall Structures and Maintenance. Activities related to: (i) Construction of outfall structures and associated intake structures where the effluent from the outfall is authorized, conditionally authorized, or specifically exempted, or are otherwise in compliance with regulations issued under the National Pollutant Discharge Elimination System program (Section 402 of the Clean Water Act), and (ii) maintenance excavation, including dredging, to remove accumulated sediments blocking or restricting outfall and intake structures, accumulated sediments from small impoundments associated with outfall and intake structures, and accumulated sediments from canals associated with outfall and intake structures, provided that the activity meets all of the following criteria: a
a. The permittee notifies the District Engineer in accordance with the "Notification" general condition;
b. The amount of excavated or dredged material must be the minimum necessary to restore the outfalls, intakes, small impoundments, and canals to original design capacities and design configurations (i.e., depth and width);
c. The excavated or dredged material is deposited and retained at an upland site, unless otherwise approved by the District Engineer under separate authorization; and
d. Proper soil erosion and sediment control measures are used to minimize reentry of sediments into waters of the United States.
The construction of intake structures is not authorized by this NWP, unless they are directly associated with an outfall structure. For maintenance excavation and dredging to remove accumulated sediments, the notification must include information regarding the original design capacities and configurations of the facility. (Sections 10 and 404)
12. Utility Activities. Discharges of dredged or fill material into waters of the United States and/or structures in, over, or under navigable waters of the United States for the following utility activities:
(i) Utility lines: The construction or maintenance of utility lines, including outfall and intake structures and the associated excavation, backfill, or bedding for the utility lines, provided there is no change in preconstruction contours. A "utility line" is defined as any pipe or pipeline for the transportation of any gaseous, liquid, liquefiable, 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 (see Note 1, below). Material resulting from trench excavation may be temporarily sidecast (up to three months) into waters of the United States, provided that the material is not placed in such a manner that it is dispersed by currents or other forces. The District Engineer may extend the period of temporary side-casting not to exceed a total of 180 days, where appropriate. In wetlands, the top 6" to 12" of the trench should normally be backfilled with topsoil from the trench. Furthermore, the trench cannot be constructed in such a manner as to drain waters of the United States (e.g., backfilling with extensive gravel layers, creating a french drain effect). Any exposed slopes and stream banks must be stabilized immediately upon completion of the utility line crossing of each waterbody. This NWP also includes the repair of existing utility lines.
(ii) Electric or pumping substations: The construction, maintenance, or expansion of an electric or pumping substation, provided the discharge does not result in the loss of greater than 1 acre of non-Section 10 waters of the United States.
(iii) Foundations for overhead utility line towers, poles, and anchors: The construction or maintenance of foundations for overhead utility lines, 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.
(iv) Access roads: The construction of access roads for the construction and maintenance of utility lines, including overhead power lines, and substations is authorized, provided the discharge does not cause the loss of greater than 1 acre of non-Section 10 waters of the United States, excluding non-tidal waters contiguous with Section 10 waters. Access roads shall be the minimum width necessary (see Note 2, below). Access roads must be constructed so that the length of the road minimizes the adverse effects on waters of the United States and at preconstruction contours and elevations, or as near as possible (e.g., at grade corduroy roads or geotextile/gravel roads). Access roads constructed above preconstruction contours and elevations in waters of the United States must be properly bridged or culverted to maintain surface flows.
The term utility line does not include activities which drain a water of the United States, such as drainage tile or french drains; however, it does apply to pipes conveying drainage from another area. For the purposes of this NWP, the acreage of loss of waters of the United States includes the filled area plus waters of the United States that are adversely affected by flooding, excavation, or drainage as a result of the project. However, the term "loss" applies only to waters of the United States permanently affected by filling, flooding, excavation, or drainage and not to waters of the United States that are temporarily affected by the work and restored to preconstruction contours and wetland conditions. Temporary construction mats (e.g., timber, steel, geotextile) used during construction and removed upon completion of the work are not included in the calculation of permanent loss of waters of the United States.
Mechanized landclearing necessary for the installation and maintenance of utility lines and the construction and maintenance of electric and pumping substations, foundations for overhead utility lines, and access roads is authorized, provided the cleared area is kept to the minimum necessary and preconstruction contours are maintained as near as possible. The area of waters of the United States that is filled, excavated, or flooded must be limited to the minimum necessary to construct the utility line, substations, foundations, and access roads. Excess material must be removed to upland areas immediately upon completion of construction. 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). Construction of access roads or the construction or expansion of electric or pumping substations in navigable waters of the United States is not authorized by this NWP.
Notification: The permittee must notify the District Engineer in accordance with the "Notification" general condition, if any of the following criteria are met:
(a) Mechanized landclearing in a forested wetland for the right-of-way;
(b) A Section 10 permit is required;
(c) The utility line in waters of the United States, excluding overhead lines, exceeds 500 feet;
(d) The utility line is placed within a jurisdictional area (i.e., a water of the United States), and it runs parallel to a stream bed that is within that jurisdictional area;
(e) Discharges associated with the construction of electric or pumping substations that result in the loss of greater than 1/3 acre of non-tidal waters of the United States; or
(f) Permanent access roads constructed above grade in waters of the United States for a distance of more than 500 feet.
Note 1: 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; except for pipes or pipelines used to transport gaseous, liquid, liquefiable, or slurry substances over navigable waters of the United States, which 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 River and Harbor Act of 1899. However, any discharges of dredged or fill material associated with such pipelines will require a Corps permit under Section 404.
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 and the area restored to preconstruction contours, elevations, and wetland conditions. Temporary access roads for construction may be authorized by NWP 33. (Sections 10 and 404)
14. Linear Transportation Crossings. Activities required for the construction, expansion, modification or improvement of linear transportation crossings (e.g., highways, railways, trails, airport runways, and taxiways) in waters of the United States, including wetlands, provided that the activity meets the following criteria:
a. For public linear transportation crossings, the discharge is limited to non-tidal waters of the United States, excluding non-tidal wetlands contiguous to tidal waters, and does not cause the loss of greater than 2 acres (1 acre)* of non-tidal waters of the United States;
b. For private linear transportation crossings in waters of the United States or public linear transportation crossings in tidal waters or in non-tidal wetlands contiguous to tidal waters, the discharge does not cause the loss of greater than 1/3 acre of waters of the United States, including wetlands, and the length of the fill for the crossing in waters of the United States is limited to 200 linear feet;
c. The permittee notifies the District Engineer in accordance with the "Notification" general condition for discharges into special aquatic sites, including wetlands, or that cause the loss of greater than 1/3 acre of waters of the United States;
d. For public linear transportation crossings, the notification must include a mitigation proposal that will offset the loss of waters of the United States;
e. For discharges in special aquatic sites, including wetlands, the notification must include a delineation of the affected special aquatic sites;
f. The width of the fill is limited to the minimum necessary for the crossing;
g. This NWP cannot be used to channelize a stream, and any work authorized must not cause more than minor changes to the hydraulic flow characteristics of the stream, increase flooding, or measurably degrade water quality (See General Conditions 9 and 22); and
h. The crossing is part of a single and complete project for crossing a water of the United States.
Some discharges for crossings may be eligible for an exemption from the need for a Section 404 permit (see 33 CFR 323.4). (Sections 10 and 404)
*Note: For the purposes of this proposed modification to NWP 14, a discussion of acreage threshold options being considered for NWP 14 is provided in the preamble.
27. Stream and Wetland Restoration Activities. Activities in waters of the United States associated with the restoration and enhancement of former non-tidal wetlands and riparian areas, the enhancement of degraded wetlands and riparian areas, the creation of wetlands and riparian areas, and the restoration and enhancement of non-Section 10 streams and open water areas; (i) on non-Federal public lands and private lands, in accordance with the terms and conditions of a binding wetland enhancement, restoration or creation agreement between the landowner and the U.S. Fish and Wildlife Service or the Natural Resources Conservation Service (NRCS) or voluntary wetland restoration, enhancement, and creation actions documented by the NRCS pursuant to NRCS regulations; or (ii) on any Federal land; or (iii) on reclaimed surface coal mined lands, in accordance with a Surface Mining Control and Reclamation Act permit issued by the Office of Surface Mining or the applicable State agency. (The future reversion does not apply to streams or wetlands created, restored or enhanced as mitigation for the mining impacts, nor naturally due to hydrologic or topographic features, nor for a mitigation bank.); or (iv) on any public or private land, provided the permittee notifies the District Engineer in accordance with the "Notification" general condition.
Such activities include, but are not limited to, the removal of accumulated sediments, the installation, removal and maintenance of small water control structures, dikes and berms; the installation of current deflectors; the enhancement, restoration, or creation of riffle and pool stream structure; the placement of in-stream habitat structures; modifications of the stream bed and/or banks to restore or create 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; activities needed to reestablish vegetation, including plowing or discing for seed bed preparation; mechanized land-clearing to remove undesirable vegetation; and other related activities. This NWP cannot be used to authorize activities for the conversion of a stream to another aquatic use, such as the creation of an impoundment for waterfowl habitat. This NWP cannot be used to channelize a stream. This NWP does not authorize the conversion of natural wetlands to another aquatic use, such as creation of waterfowl impoundments where a forested wetland previously existed. However, this NWP may be used to relocate aquatic habitat types on the project site, provided there are net gains in aquatic resource functions and values. For example, this NWP may authorize the creation of an open water impoundment in an emergent wetland, provided the emergent wetland is replaced by creating that wetland type in the adjacent uplands.
Reversion. For enhancement, restoration and creation projects conducted under paragraphs (ii) and (iv), 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 at that time would be required for any reversion. For restoration, enhancement and creation projects conducted under paragraphs (i) and (iii), 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 creation activities) within five years after expiration of a limited term wetland restoration or creation agreement or permit, even if the discharge occurs after this NWP expires. The five year reversion limit does not apply to agreements without time limits reached under paragraph (i). 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. Prior to 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 back to its prior physical condition, it will be subject to whatever the Corps regulatory requirements will be at that future date. Because projects that would be authorized by this permit are designed to enhance the aquatic environment, mitigation will not be required for the work. (Sections 10 and 404)
40. Agricultural Activities. Discharges of dredged or fill material into non-tidal waters of the United States, including non-tidal wetlands, for the purpose of improving agricultural production and construction of building pads for farm buildings. Activities authorized include installation, placement, or construction of drainage tiles, ditches, or levees; mechanized land clearing, land leveling, and similar activities, provided:
a. The Natural Resources Conservation Service (NRCS) has made a written notification based on an NRCS certified wetland determination that the activity qualifies for a minimal effect exemption in accordance with the provisions of the Food Security Act (16 U.S.C. 3801 et seq.) and the National Food Security Act Manual (NFSAM) and the discharge does not cause a loss of greater than 1 acre of non-tidal wetlands and no greater than 1/3 acre of playas, prairie potholes, or vernal pools;
b. The discharge does not cause a loss of greater than 3 acres of non-tidal wetlands on a farm, using an index of impact acreage as follows:
| Farm Size | Maximum acreage loss authorized for wetlands on agricultural lands |
| Less than 15 acres | 1/4 acre. |
| 15-25 acres | 1/2 acre. |
| 25-50 acres | 3/4 acre. |
| 50-100 acres | 1 acre. |
| 100-500 acres | 2 acres. |
| Greater than 500 acres | 3 acres. |
and the permittee submits an NRCS (for USDA program participants and non-participants) or Corps (for USDA non-participants only) approved mitigation plan fully offsetting wetland losses;
c. The discharge does not cause the loss of greater than 1 acre of naturally vegetated playas, prairie potholes, or vernal pools, using an index of impact acreage as follows:
| Farm Size | Maximum acreage loss authorized for playas, prairie potholes, and vernal pools |
| Less than 25 acres | 1/4 acre. |
| 25-100 acres | 1/2 acre. |
| 100-500 acres | 3/4 acre. |
| Greater than 500 acres | 1 acre. |
and the permittee submits an NRCS (for USDA program participants and non-participants) or Corps (for USDA non-participants only) approved mitigation plan fully offsetting wetland losses;
d. For construction of building pads for farm buildings, the discharge does not cause the loss of greater than 1 acre of wetlands (not to include playas, prairie potholes, and vernal pools) that were in agricultural production prior to December 23, 1985; or
e. Any activity in other waters of the United States is limited to the relocation of existing serviceable drainage ditches and previously substantially manipulated intermittent and small perennial streams.
For the purposes of this NWP, the acreage of loss of waters of the United States includes the filled area plus waters of the United States that are adversely affected by flooding, excavation or drainage as a result of the project. Also, authorized activities involving excavation or drainage cannot have the effect of adversely impacting jurisdictional areas through flooding, draining, or restricting the flow and circulation of waters of the United States, including wetlands, beyond the acreage permitted. The acreage limits for the above activities to improve agriculture production are a cumulative limit not to exceed each limit above nor exceed a total of 3 acres per farm for the duration of this nationwide permit (i.e., until reissuance or any revocation). When this NWP is reissued it may be used again on the same farm to authorize activities for impacts not to exceed the acreage thresholds authorized in the reissuance. (The term "farm" refers to a land unit under one ownership operated as a farm as reported to the Internal Revenue Service.) This NWP may not be used in conjunction with any other NWP to exceed the acreage limits listed in (a), (b), (c) and (d) above for the purpose of increasing acreage for agriculture production. Regulated discharges associated with the mitigation are authorized and not calculated into the overall acreage figure. Work in waters of the United States not authorized by the above provisions, may be authorized by other NWPs (e.g., NWP 3--maintenance, NWP 13--bank stabilization, and NWP 27--wetland restoration).
Notification: The permittee must notify the District Engineer in accordance with the "Notification" general condition for the loss of: (1) Greater than 1/3 acre of non-tidal wetlands, or (2) greater than 500 linear feet of drainage ditches and previously substantially manipulated intermittent and small perennial streams. The appropriate Federal and State agencies will be notified for the loss of greater than 1 acre of non-tidal wetlands, in accordance with paragraph (e) of General Condition 13. The notification must also include any past use of this NWP on the farm. For discharges in special aquatic sites, including wetlands, the notification must include a delineation of the affected area.
This NWP does not affect, or otherwise regulate, discharges associated with agricultural activities when the discharge qualifies for an exemption under Section 404 of the Clean Water Act (CWA) (33 CFR Part 323.4) even though a minimal effect/mitigation determination may be required by the NRCS. (Section 404)
Note: For the purposes of this proposed modification to NWP 40, a discussion of acreage limit options, the types of waters affected in paragraph (b), and the definition of single and complete project, is provided in the preamble.
C. Nationwide Permit General Conditions
The following general conditions must be followed in order for any authorization by a NWP to be valid:
1. Navigation. No activity may cause more than a minimal adverse effect on navigation.
2. Proper Maintenance. Any structure or fill authorized shall be properly maintained, including maintenance to ensure public safety.
3. 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.
4. Aquatic Life Movements. No activity may substantially disrupt the movement of those species of aquatic life indigenous to the waterbody, including those species which normally migrate through the area, unless the activity's primary purpose is to impound water.
5. Equipment. Heavy equipment working in wetlands must be placed on mats, or other measures must be taken to minimize soil disturbance.
6. Regional and Case-by-Case Conditions. The activity must comply with any regional conditions which 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 or tribe in its section 401 water quality certification.
7. 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 effect the Wild and Scenic River designation, or study status. Information on Wild and Scenic Rivers may be obtained from the appropriate Federal land management agency in the area (e.g., National Park Service, U.S. Forest Service, Bureau of Land Management, U.S. Fish and Wildlife Service.)
8. 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.
9. Water Quality. In certain States and tribal lands an individual 401 water quality certification must be obtained or waived (See 33 CFR 330.4(c)). For NWPs 12, 14, 17, 18, 21, 32, 40, A, B, C, D, and E where the State or tribal 401 certification (either generically or individually) does not require/approve a water quality management plan, the permittee must include design criteria and techniques that provide for protection of aquatic resources. The project must include a method for storm water management that minimizes degradation of the downstream aquatic system, including water quality. To the maximum extent practicable, a vegetated buffer zone (including wetlands, uplands, or both) adjacent to the river, stream, or other open waterbody must be established and maintained, if the project occurs in the vicinity of such an open waterbody. The Corps district will determine the proper width of the buffer and in which cases it will be required.
10. Coastal Zone Management. In certain States, an individual State coastal zone management consistency concurrence must be obtained or waived (see Section 330.4(d)).
11. Endangered Species.
(a) No activity is authorized under any NWP which is likely to jeopardize the continued existence of a threatened or endangered species or a species proposed for such designation, as identified under the Federal Endangered Species Act, or which is likely to destroy or adversely modify the critical habitat of such species. Non-federal permittees shall notify the District Engineer if any listed species or critical habitat might be affected or is in the vicinity of the project, and shall not begin work on the activity until notified by the District Engineer that the requirements of the Endangered Species Act have been satisfied and that the activity is authorized.
(b) Authorization of an activity by a nationwide permit does not authorize the "take" of a threatened or endangered species as defined under the Federal Endangered Species Act. 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. Fish and Wildlife Service or the National Marine Fisheries Service, both lethal and non-lethal "takes" of protected species are in violation of the Endangered Species Act. Information on the location of threatened and endangered species and their critical habitat can be obtained directly from the offices of the U.S. Fish and Wildlife Service and National Marine Fisheries Service or their world wide web pages at http://www.fws.gov/r9endspp/endspp.html and http://kingfish.spp.nmfs.gov/tmcintyr/prot__res.html#ES and Recovery, respectively.
12. Historic Properties. No activity which may affect historic properties listed, or eligible for listing, in the National Register of Historic Places is authorized, until the DE has complied with the provisions of 33 CFR Part 325, Appendix C. The prospective permittee must notify the District Engineer if the authorized activity may affect any historic properties listed, determined to be eligible, or which the prospective permittee has reason to believe may be eligible for listing on the National Register of Historic Places, and shall not begin the activity until notified by the District Engineer that the requirements of the National Historic Preservation Act have been satisfied and that the activity is authorized. Information on the location and existence of historic resources can be obtained from the State Historic Preservation Office and the National Register of Historic Places (see 33 CFR 330.4(g)).
13. Notification.
(a) Timing: Where required by the terms of the NWP, the prospective permittee must notify the District Engineer with a Pre-Construction Notification (PCN) as early as possible and shall not begin the activity:
(1) Until notified by the District Engineer that the activity may proceed under the NWP with any special conditions imposed by the District or Division engineer; or
(2) If notified by the District or Division engineer that an individual permit is required; or
(3) Unless 30 days have passed from the District Engineer's receipt of the notification and the prospective permittee has not received notice from the District or Division Engineer. 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 Notification: The notification 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) Brief 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; and
(4) For NWPs 12, 14, 18, 21, 29, 34, 38, A, B, C, D, and F, the PCN must also include a delineation of affected special aquatic sites, including wetlands, vegetated shallows, (e.g., submerged aquatic vegetation, seagrass beds), and riffle and pool complexes (see paragraph 13(f));
(5) For NWP 7--Outfall Structures and Maintenance, the PCN must include information regarding the original design capacities and configurations of those areas of the facility where maintenance dredging or excavation is proposed.
(6) For NWP 12--Utility Activities, where the proposed utility line is constructed or installed in navigable waters of the United States (i.e., Section 10 waters), a copy of the PCN must be sent to the National Oceanic Atmospheric Administration, National Ocean Service, for charting the utility line to protect navigation.
(7) For NWP 21--Surface Coal Mining Activities, the PCN must include an OSM or State approved mitigation plan.
(8) For NWP 29--Single-Family Housing, the PCN must also include:
(i) Any past use of this NWP by the individual permittee and/or the permittee's spouse;
(ii) A statement that the single-family housing activity is for a personal residence of the permittee;
(iii) A description of the entire parcel, including its size, and a delineation of wetlands. For the purpose of this NWP, parcels of land measuring 0.5 acre or less will not require a formal on-site delineation. However, the applicant shall provide an indication of where the wetlands are and the amount of wetlands that exists on the property. For parcels greater than 0.5 acre in size, a formal wetland delineation must be prepared in accordance with the current method required by the Corps. (See paragraph 13(f));
(iv) A written description of all land (including, if available, legal descriptions) owned by the prospective permittee and/or the prospective permittee's spouse, within a one mile radius of the parcel, in any form of ownership (including any land owned as a partner, corporation, joint tenant, co-tenant, or as a tenant-by-the-entirety) and any land on which a purchase and sale agreement or other contract for sale or purchase has been executed;
(9) For NWP 31--Maintenance of Existing Flood Control Projects, the prospective permittee must either notify the District Engineer with a Pre-Construction Notification (PCN) prior to each maintenance activity or submit a five year (or less) maintenance plan. In addition, the PCN must include all of the following:
(i) Sufficient baseline information so as to identify the approved channel depths and configurations and existing facilities. Minor deviations are authorized, provided that the approved flood control protection or drainage is not increased;
(ii) A delineation of any affected special aquatic sites, including wetlands; and,
(iii) Location of the dredged material disposal site.
(10) For NWP 33--Temporary Construction, Access, and Dewatering, the PCN must also include a restoration plan of reasonable measures to avoid and minimize adverse effects to aquatic resources.
(11) For NWPs A and B, the PCN must also include a written statement to the District Engineer detailing why the discharge must occur in waters of the United States and additional avoidance or minimization cannot be achieved.
(12) For NWP B--Master Planned Development Activities, the PCN must also include:
(i) a wetland assessment utilizing a functional assessment approach approved by the District Engineer;
(ii) a mitigation proposal that will offset the loss of waters of the United States; and
(iii) evidence of deed restrictions, protective covenants, land trusts, or other means of conservation and preservation for vegetated buffers (both wetland and/or upland) to open water and any existing wetlands, as well as any wetlands restored, enhanced, or created as part of the project.
(13) For NWP C-Stormwater Management Facilities, the PCN must include, for the construction of stormwater management facilities, a mitigation proposal to offset losses of waters of the United States.
(14) For NWPs E-Mining Activities, the PCN must include a description of all waters of the United States impacted by the project and a reclamation plan.
(c) Form of Notification: The standard individual permit application form (Form ENG 4345) may be used as the notification but must clearly indicate that it is a PCN and must include all of the information required in (b) (1)-(7) of General Condition 13. A letter containing the requisite information may also be used.
(d) District Engineer's Decision: In reviewing the pre-construction notification 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. The prospective permittee may, optionally, submit a proposed mitigation plan with the pre-construction notification to expedite the process and the District Engineer will consider any optional mitigation the applicant has included in the proposal in determining whether the net adverse environmental effects of the proposed work are minimal. 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, the District Engineer will notify the permittee and include any conditions the District Engineer deems necessary.
Any mitigation proposal must be approved by the District Engineer prior to commencing work. If the prospective permittee elects to submit a mitigation plan, the District Engineer will expeditiously review the proposed mitigation plan, but will not commence a second 30-day notification procedure. If the net adverse effects of the project (with the mitigation proposal) are determined by the District Engineer to be minimal, the District Engineer will provide a timely written response to the applicant stating that the project can proceed under the terms and conditions of the nationwide permit.
If the District Engineer determines that the adverse effects of the proposed work are more than minimal, then he 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 submitting a mitigation proposal that would reduce the adverse effects to the minimal level; or (3) that the project is authorized under the NWP with specific modifications or conditions.
(e) Agency Coordination: The District Engineer will consider any comments from Federal and State agencies concerning the proposed activity's compliance with the terms and conditions of the NWPs and the need for mitigation to reduce the project's adverse environmental effects to a minimal level.
For NWPs A, B, C, E, and 40, where the loss of waters of United States is greater than 1 acre, and for NWPs 14, 21, 29, 33, 37, and 38, the District Engineer will, upon receipt of a notification, provide immediately, e.g., facsimile transmission, overnight mail or other expeditious manner, a copy to the appropriate offices of the Fish and Wildlife Service, State natural resource or water quality agency, EPA, State Historic Preservation Officer (SHPO), and, if appropriate, the National Marine Fisheries Service. For NWP 40, where the activity results in the loss of greater than 1/3 acre of playas, prairie potholes, or vernal pools, the District Engineer will, upon receipt of notification, provide immediately, a copy of the notification to the appropriate office of the U.S. Fish and Wildlife Service. With the exception of NWP 37, these agencies will then have 5 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 10 calendar days before making a decision on the notification. The District Engineer will fully consider agency comments received within the specified time frame, but will provide no response to the resource agency. The District Engineer will indicate in the administrative record associated with each notification that the resource agencies' concerns were considered. Applicants are encouraged to provide the Corps multiple copies of notifications to expedite agency notification.
(f) Wetlands Delineations: Wetland delineations must be prepared in accordance with the current method required by the Corps. For NWP 29 see paragraph (b)(6)(iii) for parcels less than 0.5 acres in size. The permittee may ask the Corps to delineate the special aquatic site. There may be some delay if the Corps does the delineation. Furthermore, the 30-day period will not start until the wetland delineation has been completed and submitted to the Corps, where appropriate.
(g) Mitigation: Factors that the District Engineer will consider when determining the acceptability of appropriate and practicable mitigation necessary to offset all impacts that are more than minimal include, but are not limited to:
(i) To be practicable, the mitigation must be available and capable of being done considering costs, existing technology, and logistics in light of the overall project purposes;
(ii) To the extent appropriate, permittees should consider mitigation banking and other forms of mitigation including contributions to wetland trust funds, "in lieu fees" to non-profit land restoration and stewardship organizations, State or county natural resource management agencies, where such fees contribute to the restoration, creation, replacement, enhancement, or preservation of wetlands. Furthermore, examples of mitigation that may be appropriate and practicable include but are not limited to: reducing the size of the project; establishing wetland or upland buffer zones to protect aquatic resource values; and replacing the loss of aquatic resource values by creating, restoring, enhancing, or preserving similar functions and values. In addition, mitigation must address wetland impacts, such as functions and values, and cannot be simply used to offset the acreage of wetland losses that would occur in order to meet the acreage limits of some of the NWPs (e.g., for NWP 14, 0.5 acre of wetlands cannot be created to change a 0.75-acre loss of wetlands to a 0.25 acre loss; however, 0.5 created acres can be used to reduce the impacts of a 0.3-acre loss.).
14. Compliance Certification. Every permittee who has received a Nationwide permit verification from the Corps will submit a signed certification regarding the completed work and any required mitigation. The certification will be forwarded by the Corps with the authorization letter and will include: a. A statement that the authorized work was done in accordance with the Corps authorization, including any general or specific conditions; b. A statement that any required mitigation was completed in accordance with the permit conditions; c. The signature of the permittee certifying the completion of the work and mitigation.
15. Multiple Use of Nationwide Permits. In any case where any NWP number 12 through 40 and any NWP A through F is combined with any other NWP number 12 through 40 and NWP A through F, as part of a single and complete project, the permittee must notify the District Engineer in accordance with paragraphs a, b, and c of the "Notification" General Condition number 13. Any NWP number 1 through 11 may be combined with any other NWP without notification to the Corps, unless notification is otherwise required by the terms of the NWPs. As provided at 33 CFR 330.6(c) two or more different NWPs can be combined to authorize a single and complete project. However, the same NWP cannot be used more than once for a single and complete project.
16. Subdivisions. Discharges in any real estate subdivision created or subdivided after October 5, 1984, which would cause the aggregate total loss of waters of the United States in said subdivision to exceed 3 acres under NWP A or 10 acres under NWP B, is not authorized by this NWP unless the District Engineer exempts a particular subdivision or parcel by making a written determination that the individual and cumulative adverse environmental effects would be minimal, high quality wetlands would not be adversely affected, and there would be an overall benefit to the aquatic environment. If an exemption is established for a subdivision, subsequent development by individual property owners may proceed using either NWP A or B, as appropriate. For purposes of this condition, the term "real estate subdivision" shall be interpreted to include circumstances where a landowner or developer divides a tract of land into smaller parcels for the purpose of selling, conveying, transferring, leasing, or developing said parcels. This would include the entire area of a residential, commercial, or other real estate subdivision, including all parcels and parts thereof.
17. Water Supply Intakes. No activity, including structures and work in navigable waters of the United States or discharges of dredged or fill material, may occur in the proximity of a public water supply intake except where the activity is for repair of the public water supply intake structures or adjacent bank stabilization.
18. Shellfish Production. No activity, including structures and work in navigable waters of the United States or discharges of dredged or fill material, may occur in areas of concentrated shellfish production, unless the activity is directly related to a shellfish harvesting activity authorized by NWP 4.
19. Suitable Material. No activity, including structures and work in navigable waters of the United States or discharges of dredged or fill material, may consist of unsuitable material (e.g., trash, debris, car bodies, asphalt, etc.,) and material used for construction or discharged must be free from toxic pollutants in toxic amounts (see Section 307 of the Clean Water Act).
20. Mitigation. Activities, including structures and work in navigable waters of the United States or discharges of dredged or fill material into waters of the United States, must be minimized or avoided to the maximum extent practicable at the project site (i.e., on-site). Furthermore, the District Engineer will require restoration, creation, enhancement, or preservation of other aquatic resources in order to offset the authorized impacts, at least to the extent that adverse environmental effects to the aquatic environment are minimal. An important element of any mitigation plan for projects in or near streams or other open waters is the requirement of vegetated buffers (wetland, upland, or both) adjacent to the open water areas.
21. Spawning Areas. Activities, including structures and work in navigable waters of the United States or discharges of dredged or fill material, in spawning areas during spawning seasons must be avoided to the maximum extent practicable. Activities that physically destroy (e.g., excavate or fill) an important spawning area are not authorized.
22. Management of Water Flows: To the maximum extent practicable, the project must be designed to maintain pre-construction downstream flow conditions (e.g., location, capacity, and flow rates). Furthermore, the project must not permanently restrict or impede the passage of normal or expected high flows (unless the primary purpose of the fill is to impound waters) and the structure or discharge of dredged or fill material must withstand expected high flows. The project must provide, to the maximum extent practicable, for retaining excess flows from the site and for establishing flow rates from the site similar to pre-construction conditions. To minimize downstream impacts, such as flooding or erosion, and upstream impacts, such as back-up flooding, the project must not, to the maximum extent practicable, increase water flows from the site, relocate water, or redirect flow beyond pre-construction conditions.
23. Adverse Effects from Impoundments. If the activity, including structures and work in navigable waters of the United States or discharge of dredged or fill material, creates an impoundment of water, adverse effects on the aquatic system caused by the accelerated passage of water and/or the restriction of its flow shall be minimized to the maximum extent practicable.
24. Waterfowl Breeding Areas. Activities, including structures and work in navigable waters of the United States or discharges of dredged or fill material, into breeding areas for migratory waterfowl must be avoided to the maximum extent practicable.
25. Removal of Temporary Fills. Any temporary fills must be removed in their entirety and the affected areas returned to their preexisting elevation.
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
1. Aquatic bench: Aquatic benches are those shallow areas around the edge of a permanent pool stormwater management facility that support aquatic vegetation, both submerged and emergent.
2. Best management practices: Best Management Practices (BMPs) are policies, practices, procedures, or structures implemented to mitigate the adverse impacts on surface water quality resulting from development. BMPs are categorized as structural or non-structural. A BMP policy may affect the limits on a development.
3. Channelized stream: A channelized stream is a stream that has been manipulated to increase the rate of water flow through the stream channel. Manipulation may include deepening, widening, straightening, armoring, and other activities that change the stream cross-section and other aspects of channel geometry in an effort to increase water conveyance. A channelized stream remains a water of the United States despite the alterations. For the purposes of the NWPs, a channelized stream is not considered to be a drainage ditch.
4. Contiguous wetland: A contiguous wetland is a wetland that is connected by surface waters to other waters of the United States. For example, in tidal ecosystems, contiguous wetlands may be either tidal or non-tidal. For the purposes of the NWPs, contiguous wetlands in tidal ecosystems extend in the same direction as the ebb and flow of the tide; wetlands that are upstream (i.e., either upstream on the main tidal channel or upstream on any linear aquatic system with a defined channel that enters the contiguous wetland) of tidal waters are not considered to be contiguous. Contiguous wetlands in non-tidal systems are normally contiguous to the nearest open water of the United States and perpendicular to a tangent of the OHWM of that open water. Wetlands contiguous with other waters of the United States are adjacent to those waters, but wetlands adjacent to those waters are not necessarily contiguous, as they may be separated from waters of the United States by berms, levees, roads, etc.
5. Drainage ditch: A linear excavation or depression constructed for the purpose of conveying surface runoff or groundwater from one area to another. An "upland drainage ditch" is a drainage ditch constructed entirely in uplands (i.e., not waters of the United States) and is not a water of the United States, unless it becomes tidal or otherwise extends the ordinary high water line of existing waters of the United States. Drainage ditches constructed in waters of the United States (e.g., by excavating wetlands) remain waters of the United States even though they are heavily manipulated to increase drainage. The term "drainage ditch" does not include channelized streams. A drainage ditch may be constructed in uplands or wetlands.
6. Ephemeral stream: An ephemeral stream has flowing water only during, and for a short duration after, storm 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.
7. Farm: A land unit under one ownership operated as a farm as reported to the Internal Revenue Service.
8. Intermittent stream: An intermittent stream has flowing water during certain times of the year. When the stream bed is located below the water table, groundwater is the primary source of 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.
9. Loss of waters of the United States: Waters of the United States that include the filled area and other waters that are adversely affected by flooding, excavation, or drainage as a result of the regulated activity. The acreage of loss of waters of the United States is the threshold measurement of the impact to existing waters for determining whether a project may qualify for an NWP; it is not a net threshold that is calculated after considering compensatory mitigation that may be used to offset losses of aquatic functions and values. The loss of stream bed includes the linear feet of stream that is filled or excavated.
10. Noncontiguous wetland: A noncontiguous wetland is a wetland that is not connected by surface waters to other waters of the United States, or is part of a linear aquatic system with a defined channel to the otherwise contiguous wetland. Noncontiguous wetlands may be adjacent to other waters of the United States, but a direct connection to other waters of the United States is lacking. For example, a depressional wetland located on a floodplain that is separated by a narrow band of uplands from the river is a noncontiguous wetland, but still adjacent to that river due to periodic overbank flooding that is a source of hydrology for that wetland. Noncontiguous wetlands also include those wetlands that are tributary to the contiguous wetland or its open water area, where the tributary has a defined channel for water flow.
11. Non-tidal wetland: A non-tidal wetland is a wetland (i.e., a water of the United States) that is not subject to the ebb and flow of tidal waters. The definition of a wetland can be found at 33 CFR 328.3(b). Non-tidal wetlands contiguous to tidal waters are located landward of the high tide line (i.e., spring high tide line).
12. Perennial stream: A perennial stream has flowing water year- round during a typical year. The stream bed is located below the water table 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.
13. Riffle and pool complex: Riffle and pool complexes typically occur in steep gradient sections of perennial streams and consist of alternating stream segments characterized by: 1) the rapid of movement of water over a coarse substrate (e.g., gravel or cobble) with shallow water and 2) the slower movement of water over a finer substrate (e.g., sand or silt) with deeper water.
14. 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 negative impacts of urbanization.
15. Stormwater management facilities: Stormwater management facilities are those facilities, including but not limited to, stormwater retention and detention ponds and BMPs, 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.
16. Tidal wetland: A tidal wetland is a wetland (i.e., a water of the United States) that is inundated by tidal waters. The definitions of a wetland and tidal waters can be found at 33 CFR 328.3(b) and 33 CFR 328.3(f), respectively. Tidal waters rise and fall in a predictable and measurable rhythm or cycle due to the gravitational pulls of the moon and sun. Tidal waters end where the rise and fall of the water surface can no longer be practically measured in a predictable rhythm due to masking by other waters, wind, or other effects. Tidal wetlands are located channelward of the high tide line (i.e., spring high tide line) and are inundated by tidal waters at least two times per month, during spring high tides.
17. 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.
18. Waterbody: A waterbody is any area that in a normal year has water flowing or standing above ground to the extent that evidence of an ordinary high water mark is established.
Federal Register: July 1, 1998 (Volume 63, Number 126) Page 36039-36078
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