Descriptions of
Nationwide Permits

The following is a general description of each of the types of nationwide permits. 

(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.  This NWP 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 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 rip rap 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 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.

(d)  This NWP does not authorize maintenance dredging for the primary purpose of navigation and 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 pre-construction notification to the district engineer prior to commencing the activity (See general condition 27).  Where maintenance dredging is proposed, the pre-constriction notification must include information regarding the original design capacities and configurations of the outfalls, intakes, small impoundments, and canals.  (Sections 10 and 404)

Note: This NWP authorizes the repair, rehabilitation, or replacement of any previously authorized structure or fill that does not qualify for the Clean Water Act Section 404(f) exemption for maintenance.

(a) 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 U.S., 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 U.S. 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 U.S. 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" of the trench should normally be backfilled with topsoil from the trench. The trench cannot be constructed in such a manner as to drain waters of the U.S. (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.

(b) Utility line substations: This NWP authorizes the construction, maintenance, or expansion of substation facilities associated with a power line or utility line in non-tidal waters of the U.S.,  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 waters of the U.S.

(c) 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 U.S., 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.

(d) 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 U.S., provided the total discharge from a single and complete project does not cause the loss of greater than 1/2 acre of non-tidal waters of the U.S. This NWP does not authorize discharges into non-tidal wetlands adjacent to tidal waters for access roads. Access roads must be the minimum width necessary (see Note 2, below). Access roads must be constructed so that the length of the road minimizes any adverse effects on waters of the U.S. 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 U.S. must be properly bridged or culverted to maintain surface flows.

This NWP may authorize utility lines in or affecting navigable waters of the U.S. even if there is no associated discharge of dredged or fill material (See 33 CFR part 322).  Over utility lines The term “utility line” does not include activities which drain a water of the U.S., 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 loss of waters of the U.S. includes the filled area plus waters of the U.S. that are adversely affected by flooding, excavation, or drainage as a result of the project. Activities authorized by paragraphs (i) through (iv) may not exceed a total of 1/2-acre loss of waters of the U.S. Waters of the U.S. temporarily affected by filling, flooding, excavation, or drainage, where the project area is restored to preconstruction contours and elevation, is not included in the calculation of permanent loss of waters of the U.S. This includes temporary construction mats (e.g., timber, steel, geotextile) used during construction and removed upon completion of the work. Where certain functions and values of waters of the U.S. are permanently adversely affected, such as the conversion of a forested wetland to an herbaceous wetland in the permanently maintained utility line right-of-way, mitigation will be required to reduce the adverse effects of the project to the minimal level. Mechanized land clearing necessary for the construction, maintenance, or repair of utility lines and the construction, maintenance and expansion of utility line 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 U.S. 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 U.S. 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 other 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 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 U.S., excluding overhead lines, exceeds 500 feet;

(4) The utility line is placed within a jurisdictional area (i.e., water of the U.S.), 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 U.S.;

(6) Permanent access roads constructed above grade in waters of the U.S. for a distance of more than 500 feet; or

(7) Permanent access roads are constructed in waters of the U.S. with impervious materials. (See general condition 27.) (Sections 10 and 404)

Note 1: Where the proposed utility is constructed or installed in navigable waters of the U.S. (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 U.S. 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 charges of dredged or fill material into waters of the U.S. associated with such pipelines will require a section 404 permit (see NWP 15).

(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 this criterion is waived in writing by the district engineer;

(c)  The activity will not exceed an average of one cubic yard per running foot placed along the bank below the plane of the ordinary high water mark or the high tide line, unless this criterion is waived in writing by the district engineer;

(d)  The activity does not involve discharges of fill material into special aquatic sites, unless this criterion is waived in writing by the district engineer;

(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 U.S.;

(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.

Notification: The permittee must submit a pre-construction notification to the district engineer prior to commencing the activity if the bank stabilization activity:

(1)    Involves discharges into special aquatic sites;

(2)    Is in excess of 500 feet in length; or

(3)    Will involve the discharge of greater than an average of one cubic yard per running foot along the bank below the plane of the ordinary high tide line (See general condition 27.) (Sections 10 and 404)

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 constriction 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.

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 U.S. exceeds 1/10 acre; or

(2) There is a discharge in a special aquatic site, including wetlands. (See general condition 27.)  (Sections 10 and 404)

Note: Some discharges for the construction of farm roads or forest roads, or temporary roads for moving mining equipment, may be eligible for an exemption under Section 404(f) of the Clean Water Act (see 33 CFR 323.4).

(a) less than 5000 kw of total generating capacity at existing reservoirs, where the project, including the fill, is licensed by the Federal Energy Regulatory Commission (FERC) under the Federal Power Act of 1920, as amended; or

(b)  a licensing exemption granted by the FERC pursuant to Section 408 of the Energy Security Act of 1980 (16 U.S.C. 2705 and 2708) and Section 30 of the Federal Power Act, as amended;

Notification: The permittee must submit a pre-construction notification to the district engineer prior to commencing the activity.  (See general condition 27.) (Section 404)

 (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 U.S.; 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 side, including wetlands.  (See general condition 27.) (Sections 10 and 404)

Notification: The permittee must submit a pre-construction notification to the district engineer and receive written authorization prior to commencing the activity.  (See general condition 27.) (Sections 10 and 404)

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 27)  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 U.S., 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 U.S., separate authorization will be required.

Note 2: Compliance with general condition 17, Endangered Species, and general condition 18, 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.

(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 activityis 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-OR) has concurred with that agency’s or department’s determination that the activity is categorically excluded and approved the activity for authorization under NWP 23.

      The Office of the Chief of Engineers may require additional conditions, including pre-construction notification, for authorization of an agency’s categorical exclusions under this NWP.

Notification: Certain categorical exclusions approved for authorization under this NWP require the permittee to submit a pre-construction notification to the district engineer prior to commencing the activity (See general condition 27).  The activities that require pre-construction notification are listed in the appropriate Regulatory Guidance Letters.  (Sections 10 and 404)

Note: The agency or department may submit an application for an activity believed to be categorically excluded to the Office of the Chief of Engineers (Attn: CECW-CO).  Prior to approval for authorization under this NWP of any agency’s activity, the Office of the Chief of Engineers will solicit public comment.  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 the Corps Regulatory Guidance Letter 05-07, which is available at: http://www.usace.army.mil/inet/functions.  Any future approved categorical exclusion will be announced in the Regulatory Guidance Letters and posted on this same Web site.

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 state permit are not included in this NWP, but certain structures will be exempted by section 154 of Pub. L. 94-587, 90 Stat. 2917 (33 U.S.C. 591) (see 33 CFR 322.3(a)(2)).

To the extent that a Corps permit is required, activities authorized by the NWP include, by are not limited to: the removal of accumulated sediments; the installation, removal, and maintenance of small water control structures, dikes, and berms; the installation of current deflectors; the enhancement, restoration, or establishment of riffle and pool stream structure; the placement of in-stream habitat structures; modifications of the stream bed and/or banks to restore or establish stream meanders; the backfilling of artificial channels and drainage ditches; the removal of existing drainage structures; the construction of oyster habitat over unvegetated bottom in tidal waters; shellfish seeding; activities needed to reestablish vegetation, including plowing or discing for seed bed preparation and the planting of appropriate wetland species; mechanized land clearing to remove non-native invasive, exotic, or nuisance vegetation; and other related activities.  Only native plant species should be planted at the site.

This NWP authorizes the relocation of non-tidal waters, including non-tidal wetlands and streams, on the project site provided there are net increases in the 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 water or the conversion of tidal waters, including tidal wetlands, to other aquatic uses, such as the conversion of tidal wetlands into open water impoundments.

Reversion: For enhancement, restoration, and establishment activities conducted:

(1) In accordance with the terms and conditions of a binding wetland enhancement, restoration, or establishment agreement between the landowner and the U.S. Fish and Wildlife Service (FWS), the Natural Resources Conservation Service (NRCS), the National Marine Fisheries Service, the National Ocean Service (NOS), or their designated state cooperating agencies;

(2) as voluntary wetland restoration, enhancement, and establishment actions documented by the NRCS or USDA 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 OSM or the applicable state agency this NWP also authorizes any future discharge of dredged or fill material associated with the reversion of the area to its documented prior condition and use (i.e., prior to the restoration, enhancement, or establishment activities).  The reversion must occur within five years after expiration of a limited term wetland restoration or establishment agreement or permit, and is authorized in these circumstances even if the discharge occurs after this NWP expires.  The five-year reversion limit does not apply to agreements without time limits reached between the landowner and the FWS, NRCS, FSA, NMFS, NOS, or an appropriate state cooperating agency.  This NWP also authorizes discharges of dredged or fill material in waters of the U.S. for the reversion of wetlands that were restored, enhanced, or established on prior-converted cropland that has not been abandoned or on uplands, in accordance with a binding agreement between the landowner and NRCS, FSA, FWS, or their designated state cooperating agencies (even though the restoration, enhancement, or establishment activity did not require a section 404 permit).  The prior condition will be documented in the original agreement or permits 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 to 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 Corps Regulatory requirements are applicable to that type of land at the time.  The requirement that the activity result in net increase in aquatic resource functions and services does not apply to reversion activities meeting the above conditions.  Except for the activities described above, this NWP does not authorize any future discharge of dredged or fill material associated with the reversion of the area to its prior condition.  In such cases a separate permit would be required for any reversion.

Reporting: For those activities that do not require pre-construction notification, the permittee must submit to the district engineer a copy of:

(1)    The binding wetland enhancement, restoration, or establishment agreement, or a project description, including project plans and location map;

(2)    The NRCS or USDA Technical Service Provider documentation for the voluntary wetland restoration, enhancement, or establishment action; or

(3)    The SMCRA permit issued by OSM or the applicable state agency.  These documents must be submitted to the district engineer at least 30 days prior to commencing activities in waters of the U.S. 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 27), except for the following activities:

(1)    Activities conducted on non-Federal public lands and private lands, in accordance with the terms and conditions of a binding wetland enhancement, restoration, or establishment agreement between the landowner and U.S. FWS, NRCS, FSA, NMFS, NOS, or their designated state cooperating agencies;

(2)    Voluntary wetland restoration, enhancement, and establishment actions documented by the NRCS 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 OSM 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 programs.  However, this NWP does not authorize the reversion of an area used for a compensatory mitigation project to its prior condition, since compensatory mitigation is generally intended to be permanent. 

The discharge must not cause the loss of more than 1/2-acre of non-tidal waters of the U.S., including the loss of no more than 300 linear feet of stream bed, unless for intermittent or ephemeral stream beds this 300 foot limit is waived in writing by the district engineer.  This NWP does not authorize discharges into non-tidal wetlands adjacent to tidal waters.

Subdivisions: For residential subdivisions, the aggregate total loss of waters of the U.S. authorized by the NWP cannot exceed ½ acre.  This includes any loss of waters of the U.S. associated with development of individual subdivision lots.

Notification: The permittee must submit a pre-construction notification to the district engineer in prior to commencing the activity. (See general condition 27.) (Sections 10 and 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).

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 approved 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 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 33CFR 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 activity-specific 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 one-time 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 BMPs as appropriate.

Emergency Situations: In emergency situations, this NWP may be used to authorize maintenance activities in flood control facilities for which no maintenance baseline has been approved. Emergency situations are those which would result in an unacceptable hazard to life, a significant loss of property, or an immediate, unforeseen, and significant economic hardship if action is not taken before a maintenance baseline can be approved. In such situations, the determination of mitigation requirements, if any, may be deferred until the emergency has been resolved. Once the emergency has ended, a maintenance baseline must be established expeditiously, and mitigation, including mitigation for maintenance conducted during the emergency, must be required as appropriate.

Notification: The permittee must submit a pre-construction notification to the district engineer before any maintenance work is conducted (See general condition 27). The pre-constriction 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 pre-construction notification must include a description of the maintenance baseline and the dredged material disposal site. (Sections 10 and 404)

(i)   The terms of a final written Corps non-judicial settlement agreement resolving a violation of Section 404 of the CWA 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 CWA, 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 U.S. under Section 404 of the CWA 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 (CWA), Section 107 of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA or Superfund), Section 312 of the National Marine Sanctuaries Act (NMSA), section 1002 of the Oil Pollution Act of 1990 (OPA), 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)

Notification: The permittee must submit a pre-construction notification to the district engineer prior to commencing the activity (See general condition 27).  The pre-construction notification must include a restoration plan showing how all temporary fills and structures will be removed and the area restored to pre-project conditions.  (Sections 10 and 404)

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 27.) (Section 404) 

(a) The discharge into waters of the U.S. does not exceed 50 cubic yards of concrete, rock, crushed stone or gravel into forms, or placement of pre-cast concrete planks or slabs, unless the 50 cubic yard limit is waived in writing by the district engineer; 

(b) The boat ramp does not exceed 20 feet in width unless this criterion is waived in writing by the district engineer; 

(c)  The base material is crushed stone, gravel or other suitable material;

(d) The excavation is limited to the area necessary for site preparation and all excavated material is removed to the upland; and,

(e) No material is placed in special aquatic sites, including wetlands.

The use of unsuitable materials that is structurally unstable is not authorized.  If dredging in navigable waters of the U.S. is necessary to provide access to the boat ramp, the dredging may be authorized by another NWP, regional general permit, or 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 U.S. exceeds 50 cubic yards, or (2) the boat ramp exceeds 20 feet in width.  (See general condition 27.) (Sections 10 and 404)

 (a) The NRCS for a situation requiring immediate action under its emergency Watershed Protection Program (7 CFR part 624);

(b) The USFS under its Burned-Area Emergency Rehabilitation Handbook (FSH 509.13);

(c) The DOI 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 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 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: The permittee must submit a pre-construction notification to the district engineer prior to commencing the activity (see general condition 27). (Sections 10 and 404)

 Notification: The permittee must submit a pre-construction notification to the district engineer prior to commencing the activity. (See general condition 27.) (Sections 10 and 404)

Note: Activities undertaken entirely on a Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) site by authority of CERCLA as approved or required by EPA, are not required to obtain permits under Section 404 of the CWA or Section 10 of the Rivers and Harbors Act.

 Notification: The permittee must submit a pre-construction notification to the district engineer prior to commencing the activity. (See general condition 27.) (Sections 10 and 404)

 This NWP also authorized the construction of farm ponds in non-tidal waters of the U.S., excluding perennial streams, provided the farm pond is used solely for agricultural purposes.  This NWP does not authorize the construction of aquaculture ponds.

The NWP also authorizes discharges of dredged or fill material into non-tidal waters of the U.S. 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 U.S.  This NWP does not authorize discharges into non-tidal wetlands adjacent to tidal waters.  This NWP does not authorize the relocation of greater than 300 linear-feet of existing serviceable drainage ditches constructed in non-tidal streams unless, for drainage ditches constructed in intermittent and ephemeral streams, this 300 linear foot limit is waived in writing by the district engineer.

Notification: The permittee must submit a pre-construction notification to the district engineer prior to commencing the activity. (See general condition 27.) (Sections 10 and 404)

Note: Some discharges for agricultural activities may qualify for an exemption under section 404(f) of the CWA.  This NWP authorizes the construction of farm ponds that do not qualify for the CWA Section 404(f)(1)(C) exemption because of the recapture provision at Section 404(f)(2).

 This NWP does not authorize the relocation of drainage ditches constructed in waters of the U.S.; the location of the centerline of the reshaped drainage ditch must be approximately the same as the location of the centerline of the original drainage ditch. This NWP does not authorize stream channelization or stream relocation projects.

Notification: The permittee must submit a pre-construction notification to the district engineer prior to commencing the activity. If more than 500 linear feet of drainage ditch will be reshaped. (See general condition 27.) (Section 404)

The discharge must not cause the loss of greater than 1/2-acre of non-tidal waters of the U.S., including the loss of no more than 300 linear-feet of stream bed, unless for intermittent and ephemeral stream beds this 300 foot linear foot limit is waived in writing by the district engineer. This NWP does not authorize discharges into non-tidal wetlands adjacent to tidal waters

Notification: The permittee must submit a pre-construction notification to the district engineer prior to commencing the activity. (See general condition 27) (Section 404)

The discharge must not cause the loss of greater than 1/2-acre of non-tidal waters of the U.S. including the loss of greater than 300 linear-feet of stream bed, unless for intermittent and ephemeral stream beds this 300 linear foot limit is waived in writing by the district engineer. This NWP does not authorize discharges 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 27.) 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)

 Notification: The permittee must submit a pre-construction notification to the district engineer prior to commencing the activity. (See general condition 27.)  If reclamation is required by other statutes, then a copy of the reclamation plan must be submitted with the pre-construction notification. (Sections 10 and 404)

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 27) within 12-months of the date of the damage. The pre-construction notification should include documentation, such as recent topographic survey or photographs, to justify the extent of the proposed restoration. (Sections 10 and 404)

Note: Uplands lost as a result of a storm, flood, or other discrete event can be replaced without a section 404 permit, if the uplands are restored to the ordinary high water mark (in non-tidal waters) or high-tide line (in tidal waters). (See also 33 CFR 328.5)

This NWP does not authorize discharges of dredged or fill material into ditches constructed in streams or other waters of the U.S., 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 U.S. 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 27.) (Section 404)

(a)  Appropriate measures must be taken to maintain normal downstream flows and minimize flooding to the maximum extent practicable when temporary structures, work and discharges, including cofferdams, are necessary for construction activities or access fills or dewatering of construction sites;

(b)  Material resulting from trench excavation may be temporarily sidecast into waters of the U.S. for no more than three months, provided that the material is not placed in such a manner that it is dispersed by currents or other forces. The district engineer may extend the period of temporary side casting for no more than a total of 180 days, where appropriate. The trench cannot be constructed or backfilled in such a manner as to drain waters of the U.S. (e.g., backfilling with extensive gravel layers, creating a French drain effect);

(c)  Temporary fill must consist of materials, and be placed in a manner, that will not be eroded by expected high flows. Temporary fills must be removed in their entirety and the affected areas returned to pre-construction elevations. The affected areas must be revegetated, as appropriate;

(d)  In wetlands, the top 6 to 12 inches of the trench should normally be backfilled with topsoil from the trench so that there is no change in preconstruction contours;

(e)  To the maximum extent practicable, the restoration of open waters must be to the pre-construction course, condition, capacity, and location of the waterbody;

(f)   Any exposed slopes and stream banks must be stabilized immediately upon completion of the project;

(g)  Additional maintenance activities done in conjunction with the time-sensitive inspection or repair must not result in additional losses of waters of the U.S.; and,

(h)  The permittee is a participant in the Pipeline Repair and Environmental Guidance System (PREGS).

Reporting: The permittee must submit a post construction report to the PHP within seven days after completing the work. The report must be submitted electronically to PHP via PREGS. The report must contain the following information: Project sites located in waters of the U.S., temporary access routes, stream dewatering sites, temporary fills and temporary structures identified on a map of the pipeline corridor; photographs of the pre- and post-construction work areas located in waters of the U.S.; and a list of BMPs employed for each pipeline segment shown on the map. (Section 10 and 404)

Note: Division engineers may modify this NWP by adding regional conditions to protect the aquatic environment, as long as those regional conditions do not require pre-construction notification or other actions that would delay time sensitive inspections and repairs. Examples of appropriate regional conditions include best management practices.

This NWP does not authorize new operations or the expansion of the project area for an existing commercial shellfish aquaculture activity. This NWP does not authorize the cultivation of new species (i.e., species not previously cultivated in the waterbody). This NWP does not authorize attendant features such as docks, piers, boat ramps, stockpiles, staging areas, or the deposition of shell material back into waters of the U.S. as waste.

Reporting: For those activities that do not require pre-construction notification, the permittee must submit a report to the district engineer that includes the following information: (1) The size of the project area for the commercial shellfish aquaculture activity (in acres); (2) the location of the activity; (3) a brief description of the culture method and harvesting method(s); (4) the name(s) of the cultivated species; and (5) whether canopy predator nets are being used. This is a subset of the information that would be required for pre-construction notification. This report may be provided by letter or using an optional reporting form provided by the Corps. Only one report needs to be submitted during the period this NWP is valid, as long as there are no changes to the operation that require pre-construction notification. The repost must be submitted to the district engineer within 90 days of the effective date of this NWP.

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 species being cultivated; or (4) there is a change in the culture methods (e.g., from bottom culture to off-bottom culture); or (5) dredge harvesting, tilling, or harrowing is conducted in areas inhabited by submerged aquatic vegetation (See general condition 27.) (Sections 10 and 404)

Note: The permittee should notify the applicable USCG office regarding the project.

 Notification: The permittee must submit a pre-construction notification to the district engineer and receive written authorization prior to commencing the activity. (See general condition 27.) (Sections 10 and 404)

This NWP does not authorize discharges into non-tidal wetlands adjacent to tidal waters. This NWP does not authorize discharges into non-tidal 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 27.) If reclamation is required by other statutes, then a copy of the reclamation plan must be submitted with the pre-construction modification. (Sections 10 and 404)

Note: Coal preparation and processing activities outside of the mine sites may be authorized by NWP 21.

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