SW0001-CS000301AM
• ~
The new rule is
the latest step in
the process that
has steadily
focused the
Corps of
Engineers' over-
sight of wetlands.
Contents
The demise of
NWP 26 ........3
New & Modified
NWPs ..........3
New NWP General
Conditions ......6
NWP Summaries ..7
Corps Of Engineers replaces NWP 26 with stricter, more specific rules.
N ew regulations from the U.S. Army Corps of
Engineers for construction activities that affect
wetlands in Texas extend coverage to all but the most
minor development. The new system includes a series
of stricter, more specific Nationwide Permits (NWPs)
to replace the moregeneral NWP 26.
The final rule on issuance and modification of
Nationwide Permits was published in the Federal
Register of March 9, 2000. The rule is the latest step
in the process that has steadily
focused the Corps' oversight
of wetlands from the original
10 -acre limit of NWP 26 in
1984 to 3 acres in 1996 to the
new limit of a half acre under
the new, activity- specific
NWPs. The revised system
also imposes restrictions on
development within the 100 -
year floodplain. NWPs cannot
be used for activities affecting
more than 300 linear feet of
streambed.
Development previously
carried out under NWP 26 must now seek permits
based on the specific activity. The acreage limit for
many of the new NWPs is 0.5 acre of wetlands, but
pre - construction notification (PCN) to the Corps'
District Engineer is required for discharge of dredged
or fill materials that could result in the loss of 0.10
defined as "wetlands," the new NWP system will add
to development cost and time. The Corps estimated
that complying with the new nationwide permitting
system will cost the regulated community an addi-
tional $32 million per year in direct expenses. The
annual direct cost to the general public has been esti-
mated at $300 million by the National Association of
Counties and The Foundation for Environmental and
Economic Progress. The additional oversight will
require an increase in its
annual budget of more than
$6 million, the Corps said.
The recently published rule
establishes five new NWPs,
modifies six existing NWPs,
amends nine NWP general
conditions and adds two new
NWP general conditions.
Although the permit system
is styled as "nationwide," it
allows for regional variations.
The District Engineer in any
of the Corps' 38 districts can
establish lower notification
thresholds and impose additional restrictions to
ensure permitted activities result in minimal adverse
effects. District Engineers have the authority to deter-
mine if an activity complies with the terms and con-
ditions of an NWP.
NWPs do not:
acre of wetlands.
Because almost any development will affect land
Carter.: Burgess
• Eliminate the need to obtain other federal, state
and local permits, approvals and authorizations as
A special report from Carter & Burgess - Spring 2000
required by law.
• Grant any property rights or exclusive privileges.
• Authorize any injury to the property or the rights
of others.
• Authorize interference with any existing or pro-
posed federal project.
The full text of the Federal Register Public Notice
regarding the new and modified NWPs is located at
www.access.gpo.gov.
Because each district can establish its own require-
ments, as can states, a general nationwide description of
the program is impossible. The requirements contained
in this publication are based on Corps of Engineers'
oversight for the state of Texas and may not be applica-
ble to other regions.
WETIDS PROTECTION
The Corps regulates the discharge of dredged and fill
material in wetlands and other "waters of the United
States" under Section 404 of the federal Clean Water
Act.
Waters of the United States include not only marshes
and swamps, but also certain stock tanks, lakes, rivers
and creeks.
The Code of Federal Regulations (40 CFR 232.2(r))
defines wetlands under the Corps' Section 404 jurisdic-
tion as:
Those areas that are inundated or saturated by surface
or ground water (hydrology) at a frequency and
duration sufficient to support, and that under normal
circumstances do support, a prevalence of vegetation.
NATIONWIDE PERMITS
2
EXISTING/UNCHANGED NWPs
NWP 1:
Aids to Navigation
NWP 2:
Structures in Artificial Canals
NWP 4:
Fish and Wildlife Harvesting,
Bank Stabilization
Enhancement, and Attraction Devices and
U.S. Coast Guard- Approved Bridges
Activities
NWP 5:
Scientific Measurement Devices
NWP 6:
Survey Activities
NWP 8:
Oil and Gas Structures
NWP 9:
Structures in Fleeting and Anchorage
NWP 32: Completed Enforcement Actions
NWP 33: Temporary Construction, Access and
Areas
NWP 10:
Mooring Buoys
NWP 11:
Temporary Recreational Structures
NWP 13:
Bank Stabilization
NWP 15:
U.S. Coast Guard- Approved Bridges
NWP 16:
Return Water from Upland Contained
NWP 38:
Disposal Areas
NWP 17:
Hydropower Projects
NWP 18:
Minor Discharges
NWP 19:
Minor Dredging
NWP 20:
Oil Spill Cleanup
NWP 21:
Surface Coal Mining Activities
NWP 22:
Removal of Vessels
NWP 23:
Approved Categorical Exclusions
NWP 24:
State- Administered Section 404 Programs
NWP 25:
Structural Discharges
NWP 28:
Modifications of Existing Marinas
NWP 29:
Single- Family Housing
NWP 30:
Moist Soil Management for Wildlife
NWP 31:
Maintenance of Existing Flood Control
Projects
NWP 32: Completed Enforcement Actions
NWP 33: Temporary Construction, Access and
NEw NWPs
Dewatering
NWP 34:
Cranberry Production Activities
NWP 35:
Maintenance Dredging of Existing Basins
NWP 36:
Boat Ramps
NWP 37:
Emergency Watershed Protection and
Stormwater Management Facilities
Rehabilitation
NWP 38:
Cleanup of Hazardous and Toxic Waste
NEw NWPs
NWP 39:
Residential, Commercial and
NWP 7:
Institutional Developments
NWP 41:
Reshaping Existing Drainage Ditches
NWP 42:
Recreational Facilities
NWP 43:
Stormwater Management Facilities
NWP 44:
Mining Activities
MODIFIED NWPs
NWP 3:
Maintenance
NWP 7:
Outfall Structures and Maintenance
NWP 12:
Utility Line Activities
NWP 14:
Linear Transportation Crossings
NWP 27:
Stream and Wetlands Restoration Activities
NWP 40:
Agricultural Activities
THIS NWP EXPIRES 6/7/00
NWP 26: Headwater and Isolated Waters Discharges
Areas that function as wetlands ecologically but do
not exhibit all three characteristics — wetland hydrology,
hydrophytes and hydric soils - do not qualify as jurisdic-
tional wetlands.
The Clean Water Act established two types of wet-
lands permits: individual and general.
Individual permits apply to a single project in a spe-
cific location.
General permits apply to any project that meets the
permits conditions and requirement. General permits
can be regional or national. More than 90 percent of
projects in wetlands under Corps jurisdiction have been
processed under general permits, with the majority of
these handled under NWP 26, just one of the 39 NWPs
established by the Corps. Under the Clean Water Act,
general permits can allow only "minimal individual and
cumulative" impacts to the environment.
All but one of the NWPs were for specific activities,
from cranberry cultivation to maintenance of stormwa-
ter management facilities. The most popular permit was
NWP 26, which did not cover any specific activity. It
was only concerned with the amount of fill allowed in
"isolated waters and headwaters," or small streams and
the dry end of the wetlands range. Some 50 percent to
75 percent of activities in jurisdictional waters were
based on NWP 26.
THE DEMISE OF NWP 26
As a result of criticism from environmental groups
that NWP 26 was too broad, in December 1996 the
Corps said it would replace that permit within two years
with new and revised NWPs. In the meantime it
reduced the 10 -acre limit to 3 acres and tightened the
PCN threshold from 1 acre to 1/3 acre. The develop-
ment community
protested this move,
which the Corps had
taken without any pub-
lic comment period.
The new rules pub-
lished in March 2000
revised NWPs and the
regional conditions
proposed by Corps
districts.
NWP 26's latest
expiration date is June
7, 2000. However,
projects that require a
PCN under NWP 26
must have been sub-
mitted by March 9,
2000. These projects
may be processed
through February 11,
2002.
NEW /MODIFIED
REPLACEMENT
NATIONWIDE
PERMITS
Stream channelization or
relocation is not authorized
downstream of the point where
the stream's average annual
flow is 1 cubic foot per second.
;
O
J
NWP 39- stream
channelization or
stream relocation
is not authorized
below this point.
Stream Channel izationlRelocation Restrictions
The five new and six amended NWPs replace those
activities previously authorized by NWP 26.
NWP 3. Maintenance
NWP 3 authorizes activities associated with:
• Repair, rehabilitation or replacement of existing and
previously authorized structures. Minor deviations are
allowed if the activity does not differentiate from the
Corps' announcement
(hydrophytes) typically adapted far life in saturated soil in July 1999 seeking
conditions (hydric soils). Wetlands generally include public input on the
swamps, marshes, bogs, and similar areas. proposed new and
r _ .
I.I
structures and placement of new or additional rip rap to
protect the structure. Removal of accumulated sedi-
ments and placement of rip rap is limited to no further
than 200 feet outward from the structure.
• Discharges into waters of the U.S. associated with
the restoration of uplands damaged by a discrete event.
The applicant must notify the District Engineer within
12 months of the date of damage and will have up to
two years from that date to complete construction.
• Minor dredging is limited to 50 cubic yards to
remove debris.
NWP 7. Outfall Structures and Maintenance
NWP 7 covers the construction of outfall structures
and their associated intake structures. The removal of
accumulated sediments from intakes, outfalls and canals
is limited to removal of sediments to attain the intended
design of the structure.
NWP 12. Utility Line Activities
NWP 12 authorizes the construction of utility lines
and their associated substations, foundations and access
roads.
Substations are limited to no more than 0.5 acres.
Foundations are limited to separate footings and no
pads are allowed. Access roads must be used for con-
struction and maintenance, not solely for construction
access.
The Corps must be notified if
Forested wetlands are impacted.
Work is in navigable waters.
Utility line in jurisdictional waters exceeds 500 feet.
Utility line is placed within jurisdictional waters
that run parallel to a stream bed in those waters
More than the substation would disturb 0.1 acre of
waters. Or,
Linear Transportation Crossings
struction, expansion, modification or improvement of
linear transportation crossings.
The permit differentiates between public and private
The maximum allowable impacts to waters for
(excluding non -tidal wetlands adjacent to tidal waters)
and no more than 1/3 acre and 200.1inear feet in tidal
waters and non -tidal wetlands adjacent to tidal waters.
Private crossings cannot impact more than 1/3 of
an acre of water and 200 linear feet.
• Pre - construction notification is required for impacts
of more than 0.1 acre and in special aquatic sites,
including wetlands. PCN must include a compensatory
Discharges associated with NWPs 29,
39, 40, 42, 43 and 44 are not
authorized within the FEMA- mapped
100- ear floodplain below the
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headwaters or floodway within the
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42
headwaters. These permits may be
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used in the flood fringe within the
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headwaters, but require
a pre - construction
notification to the District i
Engineer.
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NWps l
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• Removal of accumulated sediments near existing public crossings are half an acre in non -tidal waters
mitigation plan and a discussion of minimizati —)
efforts.
NWP 27. Stream and Wetland Restoration
Activities
This permit allows the restoration and enhancement
of tidal and non -tidal wetlands and riparian areas; the
creation of tidal and non -tidal wetlands and riparian
residential, commercial and institutional developments
and related features. These previously had been author-
ized under NWP 26.
• The maximum allowable impact to waters of the
U.S. is 0.5 acre. The project cannot cause the loss of
more than 300 linear feet of streambed (intermittent
and perennial).
• A PCN is required for impacts greater than 0.1 acre
areas; and the restoration and enhancement of non -tidal and any impacts to open waters, including perennial
streams and non -tidal open waters. and intermittent stream beds. Post - construction notifi-
PCN is required on non - federal public or private land cation is required for impacts of .25 acre or less. A vege-
that does not have a previous agreement with the U.S.
Fish and Wildlife Service or Natural Resources
Conservation Service, or covered by a permit under the
federal Surface Mining Control and Reclamation Act.
NWP 39. Residential, Commercial and
Institutional Developments
The new NWP 39 covers those activities that involve
rated buffer along stream beds of 25 to 50 feet will be
typically required.
• Stream channelization relocation is NOT allowed
downstream of the point where the annual average flow
is 1 cubic feet per second.
NWP 40. Agricultural Activities
NWP 40 allows impacts on a farm tract associated
with improvement to agricultural production and the
construction of building pads for farm buildings.
The maximum impact to non -tidal is 0.5 acre. The
relocation of existing serviceable drainage ditches con-
structed in non -tidal streams is limited to less than 300
linear feet.
PCN is required if a permit holder not participating
in a USDA program impacts an area greater than 0.1
acre, or if any farm buildings impact waters.
NWP 41. Reshaping Existing Drainage
Ditches
NWP 41 covers the discharge in certain jurisdictional
waters for the modification of existing serviceable
drainage ditches. This improves water quality by reduc-
ing erosion, and increases the vegetation growth poten-
tial and the uptake of nutrients by the vegetation.
The original design capacity of the drainage ditch
cannot be changed and additional jurisdictional waters
cannot be drained. PCN is required if sidecasting into
jurisdictional waters or more than 500 linear feet of
drainage ditch would be impacted.
NWP 42. Recreational Facilities
NWP 42 authorizes the construction or expansion of
recreational facilities with a low impact on the aquatic
environment. This includes hiking trails, bike paths,
horse paths, nature centers and campgrounds.
5
M
The construction or expansion of golf courses and the
expansion of ski areas are allowed if the designs and
operations follow environmentally friendly methods.
Support buildings, such as storage and maintenance
sheds, are also allowed.
The maximum allowable impact to jurisdictional
waters is 0.5 acres and 300 linear feet of streambed.
PCN is required for impacts greater than 0.1 acre.
NWP 43. Stormwater Management Facilities
NWT 43 covers the construction and maintenance of
stormwater management facilities such as
detention /retention basins and stormwater ponds. These
activities cannot impact greater than 0.5 acres of juris-
dictional waters or 300 linear feet of streambed.
Construction of new stormwater facilities on perenni-
al stream beds is not authorized with NWP 43. PCN is
required if more than 0.1 acre of jurisdictional waters is
impacted.
A maintenance plan and compensatory mitigation
proposal must be submitted with the permit application.
NWP 44. Mining Activities
Activities associated with aggregate mining (sand and
gravel as well as crushed /broken stone) and hard
rock/mineral mining are covered under NWP 44.
Impacts to jurisdictional waters of up to 0.5 acre
are allowed for associated support activities and up to 2
acres for a single and complete project.
Beneficiation and hard rock/mineral mining activi-
ties may not occur within 200 feet of an open waterway.
• Aggregate mining is not allowed in stream beds
(except for lower perennial streams), or in waters (with
flows greater than 1 cubic foot per second) located with-
in 100 feet of these stream beds. Hard rock/mineral
mining activities are allowed within 100 feet of headwater
streams.
• PCN is required in all cases and compensatory mit-
igation is required for impacts to wetlands.
NEW NWP GENERAL CONDITIONS
In addition to the new NWPs, the Corps modified or
added several key general conditions.
Compliance Certification
Every permit holder who has received authorization
from the Corps must submit a post- construction certifi-
cate regarding the completed work and any required
mitigation.
Designated Critical Resource Waters
Activities are restricted in NOAH- designated marine
KEY DEFIMTIONS
Ephemeral Stream -- Stream that has flowing water only during and
shortly after precipitation events in a typical year. These streams are
located above the water table year- round. Runoff from rainfall, not
groundwater, is the primary source of water for stream flow.
Floodway - Area regulated by federal, state or local requirements to
provide for discharge for the base flow, so that the cumulative increase
in water surface elevation is no more than a designated amount within
the 100 -year floodplain.
Flood Fringe - Portion of the 100 -year floodplain outside the flood -
way.
Intermittent Stream -- A stream that has flowing water during certain
times of the year, when groundwater provides water for stream flow.
Intermittent streams may not have flowing water during dry periods.
Runoff from rainfall is a supplemental source of water for stream flow.
Loss of Water of the U.S. -- Waters of the U.S., including the filled
area, and other waters that are permanently adversely affected by
flooding, excavation, or drainage as a result of regulated activity.
Permanent adverse effects include permanent above- grade, at- grade, or
below -grade fills that change an aquatic area to dry land, increase the
bottom elevation of a water body or change the use of a water body.
The loss of stream bed includes the linear feet of perennial or intermit-
tent stream bed that is filled or excavated. Waters that are temporarily
filled, flooded, excavated or drained, but then restored to their original
contours and elevations after construction are not included.
Non -tidal Wetland -- Wetland that is not subject to the ebb and flow
of tidal waters. Non -tidal wetlands contiguous to tidal waters are
located landward of the high tide line.
Open Water -- Area that, during a year with normal patterns of precip-
itation, has standing or flowing water for sufficient duration to estab-
lish an ordinary high water mark. This term includes rivers, streams,
lakes and ponds. It does not include ephemeral waters.
Perennial Stream -- A stream with flowing water year -round during a
typical year. The water table is located above the stream bed for most
of the year. Groundwater is the primary source of water for stream
flow. Runoff from rainfall is a supplemental source of water for
stream flow.
Riffle and Pool Complexes -- Special aquatic sites that sometimes
characterize steep gradient sections of streams. Such stream sections
are recognizable by their hydraulic characteristics. The rapid move-
ment of water over a course substrate in riffles results in a rough flow,
turbulent surface and high levels of dissolved oxygen in the water.
Pools are deeper areas associated with riffles, characterized by slower
stream velocity, streaming flow, smooth surface and finer substrate.
Stormwater Management -- Mechanism for controlling stormwater
runoff to reduce downstream erosion, water quality degradation, and
flooding and mitigate the adverse effects of changes in land use on the
aquatic environment.
Stormwater Management Facilities -- 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 improve the
quality of the runoff.
Stream Channelization -- Manipulation of a stream channel to
increase the rate of water flow through the stream channel.
Manipulation may include deepening, widening, straightening, armor-
ing or other activities that change the stream cross - section, or other
aspects of stream channel geometry, to increase the rate of water flow
through the stream channel. A channelized stream remains a "waters
of the U.S.," despite the modifications to increase the rate of water
flow.
Vegetated Shallows -- Special aquatic sites permanently inundated and
under normal circumstances containing rooted aquatic vegetation, such
as seagrasses in marine and estuarine systems and a variety of vascular
rooted plants in freshwater systems.
Waterbody -- 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. Wetlands contiguous to the waterbody are consid-
ered part of the waterbody.
Carter.: Burgess
CartereBurgess
Summary of Final Nationwide Permits
NWP No.
Title
Activity
Maximum Limits
PCN Threshold
3
Maintenance
(1) Repair, rehabilitation or
200 linear feet from structure;
Required in all cases except
replacement of existing
50 cubic yards
for repair, replacement or
structure
rehabilitation of existing
(2) Removal of accumulated
structures
sediments /placement of
rip rap
(3) Activities in waters
associated with replacing
uplands lost due to storm
event
7
Outfall Structures and
(1) Construction of outfall
Restricted to original
Required in all cases
Maintenance
structures and associated
configuration
intake structures
(2) Maintenance excavation
12
Utility Line Activities
Construction of utility lines,
Substations — 0.5 acre
(1) Forested wetlands
substations, foundations and
Foundations — no pads
(2) Section 10 waters
access roads associated with
Access road — 0.5acre
(3) Utility line — 500 linear
utility lines
feet
(4) Substations — 0.1 acre
(5) Access road — 500
linear feet
(6) Road of impervious
material
14
Linear Transportation
Construction, expansion,
Public (non - tidal) — 0.5 acre
(1) 0.25 acre
Crossings
modification or improvement of
Public (tidal and their non-
(2) Special aquatic site
linear transportation crossings
tidal wetlands! — 1/3 acre;
200 linear feet
Private — 1/3 acres; 200
linear feet
27
Stream and Wetland
Restoration, enhancement and
None
Required on non - federal
Restoration Activities
creation of designated waters
public or private with no
previous agreement
39
Residential,
Construction or expansion of
Maximum limit is 0.5 acre and
(1) > 0.1 acre
Commercial and
residential, commercial and
300 linear feet of streambed.
(2) Loss of open waters
Institutional
institutional building
(3) Post - construction notice
Developments
foundations and pads and
required if impact
attendant features
greater than 0.1 acre
40
Agricultural Activities
Improvements to agricultural
Maximum limit = 0.5 acre
(1) Non - participants 0.1
production and construction of
300 linear feet of streambed
acre
building pads for farm buildings
(2) All Farm Buildings
41
Reshaping Existing
Modification of cross - sectional
Restricted to minimum
(1) Sidecast into waters of
Drainage Ditches
configuration of existing
necessary
U.S.
serviceable drainage ditches
(2) 500 linear feet of
ditches in water o U.S.
42
Recreational Facilities
Construction of low impact
0.5 acre
(1) > 0.1 acre
recreational facilities
43
Stormwater
Construction and maintenance
Construction — 0.5 acre
(1) > 0.1 acre
Management
of stormwater management
Cannot impact perennial
Facilities
facilities
streambed or 300 linear feet
of intermittent streambed
44
Mining Activities
Mining of aggregate and hard
0.5 acre
PCN required in all cases
rock/minerals