ENVIRONMENTAL PROGRAMS DEPARTMENT

ENVIRONMENTAL PROGRAMS DEPARTMENT

T

SOUTHERN UTE INDIAN TRIBE

PO BOX 737, MS 81, IGNACIO, CO 81137

(970) 563 – 0135 ∙ (970) 563 – 0384 FAX

March 12, 2026

Sent via email

Re:

NWP 27 PCN & Concurrent Section 401 Certification Request – 2 Projects:

Salabar Draw & Devil Creek II Restoration Projects (SPA-2026-025, SPA2026-026)

Dear Mr. Ruckel,

The Southern Ute Indian Tribe’s Environmental Programs Department (“Department”) received

a Clean Water Act (CWA) Section 401 certification request and associated U.S. Army Corps of

Engineers (USACE) Nationwide Permit (NWP) 27 forms on January 6, 2026, for the Devil

Creek II Restoration Project. As the project proponent/permittee, the 319 Program requested a

pre-filing meeting on December 11, 2025.

The proposed project is located on Tribal trust lands within the exterior boundaries of the

Southern Ute Indian Reservation; therefore, the Department is the certifying authority. The

Department’s decision is to grant a certification with conditions and applies to activities eligible

under NWP 27. Below is a summary of the Department’s findings.

1. Project Information

• Project Name: Devil Creek II Restoration Project

• Waterbody: Devil Creek

• Location: SENW Section 25, Township 33N, Range 7W, on the Tiffany CO quadrangle

map.

• Coordinates:

o Upstream: 37.07865 N, - 107.55090 W

o Downstream: 37.07876 N, - 107.55921 W

• Linear Extent: ~6,250 feet

• Permit Type Requested: Nationwide Permit 27 – Aquatic Habitat Restoration,

Enhancement, and Establishment Activities

2. Description of the Activity

The project proposes restoration of Devil Creek using Low-Tech Process-Based Restoration

(LTPBR) techniques, including installation of Post-Assisted Log Structures (PALS) and Beaver

Dam Analogs (BDAs). Work will involve:

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Raising incised stream channels to reconnect historic floodplains

Aggradation of sediments to slow water flow and improve water quality

Reestablishment of native riparian vegetation (PEM and PSS wetlands, 0.05 acres)

Placement of natural, locally sourced materials using hand tools to minimize disturbance

The total aquatic resources affected comprise approximately 1.72 acres (1.4 acre perennial

stream, 0.32 acre wetlands). No waters of the United States will be lost, and no compensatory

mitigation required.

•

•

•

•

3. Compliance with Water Quality Standards

Based on submitted documentation (PCN, Aquatic Resources Delineation – Attachment 4,

Biological Assessment – Attachment 2, SUIT Wildlife Concurrence – Attachment 3):

• The activity complies with applicable water quality standards for the Southern Ute Indian

Reservation.

• Temporary disturbances (suspended sediment, foot traffic, upland compaction) will be

minimized via best management practices.

• Riparian and wetland restoration are expected to improve long-term water quality by

stabilizing stream banks, filtering pollutants, increasing shading, and improving

floodplain hydrology.

4. Endangered Species

• Species: New Mexico Meadow Jumping Mouse (Zapus hudsonius luteus)

• Consultation: Section 7 ESA consultation is anticipated with the U.S. Fish and Wildlife

Service; project design incorporates measures to minimize impacts on the species.

5. Historic Properties

• No historic properties or resources listed on, or eligible for, the National Register of

Historic Places are expected to be affected.

• Activities occur within the Ordinary High Water Mark (OHWM). SUIT Lands Division

coordination has occurred.

6. Decision

Based on the review of the project information, supporting documentation, and applicable

environmental regulations:

The Southern Ute Indian Tribe Environmental Programs Department issues a Section 401 Water

Quality Certification for the Devil Creek II Restoration Project under Nationwide Permit 27.

Conditions of Certification:

1. Activities must comply with all NWP 27 General Conditions (1–32).

2. Construction must utilize hand tools and local materials where feasible to minimize

aquatic and riparian disturbance.

3. Native vegetation must be established according to the project plan to ensure riparian and

wetland restoration success.

4. Short-term water quality impacts (suspended sediment, minor turbidity) must be

minimized and monitored.

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5. ESA Section 7 consultation to be coordinated with the U.S. Fish and Wildlife Service for

the New Mexico Meadow Jumping Mouse.

6. Monitoring and maintenance of structures and vegetation must be conducted for five

years post-construction to ensure project success.

7. Discovery of any previously unknown cultural resources or artifacts requires immediate

cessation of work and notification of SUIT Lands Division and relevant authorities.

8. The 319 Program’s Annual Report must include status of monitoring and revegetation for

this project until the project is complete.

This 401 certification decision letter must be retained in your files with the applicable USACE

permit verification. This certification is specifically associated with the USACE 404 permit

(SPA-2026-026) and expires concurrently with said permit.

Within 30 days of the Department’s 401 certification decision, any person aggrieved by the

decision may seek judicial review in the Southern Ute Indian Tribal Court. The review shall be

on the record without taking additional evidence. If the court finds that the Department exceeded

its authority, made an erroneous interpretation of the law, acted in an arbitrary and capricious

manner, or made a determination which is unsupported by the evidence in the record, the court

may reverse or modify the Department’s decision or action. Otherwise, the decision of the

Department shall be affirmed. Upon request by the court, the Department shall provide the court

with a certified copy of all documents, records, transcripts, or other information which formed

the basis for any decision or action for which an aggrieved party seeks judicial review.

7. Conclusion

This Section 401 Water Quality Certification is valid for activities authorized under NWP 27 and

is based on the project plans, USACE determination for Clean Water Act Section 404(b)(1), and

coordination with relevant Tribal and Federal entities. Implementation of the project is expected

to enhance riparian function, improve water quality, and provide ecological benefits to Devil

Creek while maintaining compliance with applicable water quality standards.

If you have questions about the Tribe’s certification decision, please contact the Tribe’s Water

Quality Program at wqs@southernute-nsn.gov or by calling (970)563-2272.

Sincerely,

Mark Hutson, Director

Environmental Programs Department

Enclosure: Southern Ute Indian Tribe’s 401 Water Quality Certification Requirements

cc:

Albuquerque District-Southern Colorado Branch, U.S. Army Corps of Engineers,

Attachment

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Supporting Information for Certification Conditions

Numbered

Condition

Why the condition is necessary to assure the activity

will comply with water quality requirements

Condition 1

Reporting

This condition is necessary to protect water quality

because it ensures that the project proponent is using

planning, installation, and monitoring practices that

will maintain the integrity of the site’s designated uses,

hydrology, and riparian and aquatic resource functions

and values.

Citation that

authorizes the

condition

40 CFR 230.10(d);

40 CFR 230.70;

40 CFR 230.75;

SUIT WQS Sections

6.1.1, 6.1.3, 6.1.6,

6.1.8, 7.1, 7.2, 13.1;

SUIT 401 Procedures

Sections 4-106(1)(e)(g), 4-106(1)(i), 4106(1)(o)-(t), 4106(2)(a)-(b)

Southern Ute Indian Tribe (SUIT)

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401 Water Quality Certification Requirements

SUIT Clean Water Act Section 401 Certification Procedures for Nationwide Permits,

Regional General Permits, and Individual Section 404 Permits Issued by the U.S. Army

Corps of Engineers

Article 4-106. Certification Requirements

(1) The following requirements shall apply to all certifications unless specifically authorized by the

401 certification issued by the Division:

(a) A water quality certification shall require the project owner and operator to notify the

Division Head of all changes in the project subsequent to certification.

(b) A water quality certification shall not be transferable without the written approval of the

Division Head.

(c) Authorized representatives from the Division shall be permitted to enter upon the site where

the construction activity or operation of the project is taking place for purposes of inspection of

compliance with BMPs and certification conditions.

(d) In the event of any changes in control or ownership of facilities where the construction

activity or operation of the project is taking place, the successor shall be notified in writing by

his predecessor of the existence of the BMPs and certification conditions. The permittee shall

provide a copy of such notification to the Division.

(e) If the permittee discovers that certification conditions are not being implemented as

designed, or are not operating or functioning as designed, or if there is an exceedance of water

quality standards despite compliance with the certification conditions by the permittee, the

permittee shall verbally notify the Division of such failure or exceedance within two working

days of becoming aware of the same. Within ten working days of such notification, the

permittee shall provide to the Division, in writing, the following:

i. In the case of the failure to comply with the certification conditions, a description of (i)

the nature of such failure, (ii) any reasons for such failure, (iii) the period of noncompliance, and (iv) the measures to be taken to correct such failure to comply; and

ii. In the case of the exceedance of water quality criteria, (i) an explanation, to the extent

known after reasonable investigation, of the relationship between the project and the

exceedance, (ii) the identity of any other known contributions to the exceedance, and (iii) a

proposal to modify the certification conditions so as to remedy the contribution of the

project to the exceedance.

(f) Any anticipated change in discharge location, quantities, or composition associated with the

project must be reported to the Division by submission of a written notice by the permittee no

less than ten days before the change. If the change is determined to be significant, the permittee

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will be notified within ten days, and the change will be acknowledged and approved or

disapproved.

(g) Any diversion from or bypass of facilities necessary to maintain compliance with the terms

and conditions herein is prohibited, except (i) where unavoidable to prevent loss of life or

severe property damage, or (ii) where excessive storm drainage or runoff would damage any

facilities necessary for compliance with limitations and prohibitions herein. The Division shall

be notified immediately in writing of each such diversion or bypass.

(h) At least 5 days before commencement of a project in a watercourse, which the Division has

certified, or conditionally certified, the permittee shall notify the Division.

(i) Immediately upon discovery of any spill or other discharge to waters of the United States

not authorized by the applicable license or permit, the permittee shall notify the Division.

(j) Construction operations within watercourses and water bodies shall be restricted to only

those project areas specified in the federal license or permit.

(k) No construction equipment shall be operated below the existing water surface.

(l) Work should be carried out diligently and completed as soon as practicable. To the

maximum extent practicable, discharges of dredged or fill material shall be restricted to those

periods when impacts to designated uses are minimal.

(m) The project shall incorporate provisions for operation, maintenance, and replacement of

BMPs to assure compliance with the conditions identified in this section, and any other

conditions placed in the permit or certification.

All such provisions shall be identified and complied with in an operation and maintenance plan

which will be retained by the project owner and available for inspection within a reasonable

timeframe upon request by any authorized representative of the Division.

(n) The use of chemicals during construction and operation shall be in accordance with the

manufacturers’ specifications. There shall be no excess application and introduction of

chemicals into waters of the United States.

(o) All solids, sludges, dredged or stockpiled materials and all fuels, lubricants, or other toxic

materials shall be controlled in a manner so as to prevent such materials from entering waters

of the United States.

(p) All seed, mulching material and straw used in the project shall be certified weed-free.

(q) Discharges of dredged or fill material in excess of that necessary to complete the project are

not permitted.

(r) Discharges to waters of the United States not identified in the license or permit and not

certified in accordance therewith are not allowed.

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(s) No discharge shall be allowed which causes non-attainment of federal or tribal narrative

water quality or biological criteria.

(t) Before any equipment touches the water, the project proponent must provide to the

Division:

(i) a certification that (a) the equipment has not been used in waters with the possibility of

aquatic nuisance species infestation and (b) the equipment has been thoroughly

decontaminated using water that is heated to a temperature necessary to kill aquatic

nuisance species,

(ii) evidence that the equipment has passed a Colorado Parks and Wildlife invasive species

inspection, or

(iii) a certification in a form that is acceptable to the Division, signed by a third-party

consultant, certifying that the equipment has undergone a waters of the United Statesspecific preventative decontamination using water that is heated to a temperature necessary

to kill aquatic nuisance species.

(2) Best Management Practices.

(a) BMPs are required for all projects for which Division certification is issued except for

section 402 permits. Project proponents must select and propose BMPs to the Division to be

employed in their project.

(b) All certification requests for certifications which require BMPs shall include a map of

project location, a site plan, and a listing of the selected BMPs chosen for the project. At a

minimum, each project must provide for the following:

i. Permanent erosion and sediment control measures that shall be installed at the earliest

practicable time consistent with good construction practices and that shall be maintained

and replaced as necessary throughout the life of the project.

ii. Temporary erosion and sediment control measures that shall be coordinated with

permanent measures to assure economical, effective, and continuous control throughout the

construction phase and during the operation of the project.

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2021 Nationwide Permit

Summary

Albuquerque District

NATIONWIDE PERMIT 27

Aquatic Habitat Restoration, Enhancement, and Establishment Activities

Effective Date: February 25, 2022

Expiration Date: March 14, 2026

(NWP Final Notice, 86 FR 73522)

Aquatic Habitat Restoration, Enhancement, and Establishment Activities. Activities in waters of

the United States associated with the restoration, enhancement, and establishment of tidal and

non-tidal wetlands and riparian areas, the restoration and enhancement of non-tidal streams and

other non-tidal open waters, and the rehabilitation or enhancement of tidal streams, tidal

wetlands, and tidal open waters, provided those activities result in net increases in aquatic

resource functions and services.

To be authorized by this NWP, the aquatic habitat restoration, enhancement, or establishment

activity must be planned, designed, and implemented so that it results in aquatic habitat that

resembles an ecological reference. An ecological reference may be based on the characteristics

of one or more intact aquatic habitats or riparian areas of the same type that exist in the region.

An ecological reference may be based on a conceptual model developed from regional ecological

knowledge of the target aquatic habitat type or riparian area.

To the extent that a Corps permit is required, activities authorized by this NWP include, but are

not limited to the removal of accumulated sediments; releases of sediment from reservoirs to

maintain sediment transport continuity to restore downstream habitats; the installation, removal,

and maintenance of small water control structures, dikes, and berms, as well as discharges of

dredged or fill material to restore appropriate stream channel configurations after small water

control structures, dikes, and berms are removed; the installation of current deflectors; the

enhancement, rehabilitation, or re-establishment of riffle and pool stream structure; the

placement of in-stream habitat structures; modifications of the stream bed and/or banks to

enhance, rehabilitate, or re-establish stream meanders; the removal of stream barriers, such as

undersized culverts, fords, and grade control structures; the backfilling of artificial channels; the

removal of existing drainage structures, such as drain tiles, and the filling, blocking, or reshaping

of drainage ditches to restore wetland hydrology; the installation of structures or fills necessary

to restore or enhance wetland or stream hydrology; the construction of small nesting islands; the

construction of open water areas; the construction of oyster habitat over unvegetated bottom in

tidal waters; coral restoration or relocation activities; shellfish seeding; activities needed to

reestablish vegetation, including plowing or discing for seed bed preparation and the planting of

appropriate wetland species; re-establishment of submerged aquatic vegetation in areas where

those plant communities previously existed; re-establishment of tidal wetlands in tidal waters

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where those wetlands previously existed; 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 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., the conversion of

a stream to wetland or vice versa) or uplands. Changes in wetland plant communities that occur

when wetland hydrology is more fully restored during wetland rehabilitation activities are not

considered a conversion to another aquatic habitat type. This NWP does not authorize stream

channelization. This NWP does not authorize the relocation of tidal waters or the conversion of

tidal waters, including tidal wetlands, to other aquatic uses, such as the conversion of tidal

wetlands into open water impoundments.

Compensatory mitigation is not required for activities authorized by this NWP since these

activities must result in net increases in aquatic resource functions and services.

Reversion. For enhancement, restoration, and establishment activities conducted: (1) In

accordance with the terms and conditions of a binding stream or wetland enhancement or

restoration agreement, or a wetland establishment agreement, between the landowner and the

U.S. Fish and Wildlife Service (FWS), the Natural Resources Conservation Service (NRCS), the

Farm Service Agency (FSA), the National Marine Fisheries Service (NMFS), the National Ocean

Service (NOS), U.S. Forest Service (USFS), or their designated state cooperating agencies; (2) as

voluntary wetland restoration, enhancement, and establishment actions documented by the

NRCS or USDA Technical Service Provider pursuant to NRCS Field Office Technical Guide

standards; or (3) on reclaimed surface coal mine lands, in accordance with a Surface Mining

Control and Reclamation Act permit issued by the Office of Surface Mining Reclamation and

Enforcement (OSMRE) or the applicable state agency, this NWP also authorizes any future

discharge of dredged or fill material associated with the reversion of the area to its documented

prior condition and use (i.e., prior to the restoration, enhancement, or establishment activities).

The reversion must occur within five years after expiration of a limited term wetland restoration

or establishment agreement or permit, and is authorized in these circumstances even if the

discharge of dredged or fill material occurs after this NWP expires. The five-year reversion limit

does not apply to agreements without time limits reached between the landowner and the FWS,

NRCS, FSA, NMFS, NOS, USFS, or an appropriate state cooperating agency. This NWP also

authorizes discharges of dredged or fill material in waters of the United States for the reversion

of wetlands that were restored, enhanced, or established on prior-converted cropland or on

uplands, in accordance with a binding agreement between the landowner and NRCS, FSA, FWS,

or their designated state cooperating agencies (even though the restoration, enhancement, or

establishment activity did not require a section 404 permit). The prior condition will be

documented in the original agreement or permit, and the determination of return to prior

conditions will be made by the Federal agency or appropriate state agency executing the

agreement or permit. Before conducting any reversion activity, the permittee or the appropriate

Federal or state agency must notify the district engineer and include the documentation of the

prior condition. Once an area has reverted to its prior physical condition, it will be subject to

whatever the Corps Regulatory requirements are applicable to that type of land at the time. The

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requirement that the activity results in a net increase in aquatic resource functions and services

does not apply to reversion activities meeting the above conditions. Except for the activities

described above, this NWP does not authorize any future discharge of dredged or fill material

associated with the reversion of the area to its prior condition. In such cases a separate permit

would be required for any reversion.

Reporting. For those activities that do not require pre-construction notification, the permittee

must submit to the district engineer a copy of: (1) The binding stream enhancement or restoration

agreement or wetland enhancement, restoration, or establishment agreement, or a project

description, including project plans and location map; (2) the NRCS or USDA Technical Service

Provider documentation for the voluntary stream enhancement or restoration action or wetland

restoration, enhancement, or establishment action; or (3) the SMCRA permit issued by OSMRE

or the applicable state agency. The report must also include information on baseline ecological

conditions on the project site, such as a delineation of wetlands, streams, and/or other aquatic

habitats. These documents must be submitted to the district engineer at least 30 days prior to

commencing activities in waters of the United States authorized by this NWP.

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

prior to commencing any activity (see general condition 32), 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 stream enhancement or restoration agreement or

wetland enhancement, restoration, or establishment agreement between the landowner and

the FWS, NRCS, FSA, NMFS, NOS, USFS or their designated state cooperating agencies;

(2) Activities conducted in accordance with the terms and conditions of a binding coral

restoration or relocation agreement between the project proponent and the NMFS or any of

its designated state cooperating agencies;

(3) Voluntary stream or wetland restoration or enhancement action, or wetland establishment

action, documented by the NRCS or USDA Technical Service Provider pursuant to NRCS

Field Office Technical Guide standards; or

(4) The reclamation of surface coal mine lands, in accordance with an SMCRA permit issued

by the OSMRE or the applicable state agency.

However, the permittee must submit a copy of the appropriate documentation to the district

engineer to fulfill the reporting requirement. (Authorities: Sections 10 and 404).

Note: This NWP can be used to authorize compensatory mitigation projects, including mitigation

banks and in-lieu fee projects. However, this NWP does not authorize the reversion of an area

used for a compensatory mitigation project to its prior condition, since compensatory mitigation

is generally intended to be permanent.

Nationwide Permit General Conditions

Note: To qualify for NWP authorization, the prospective permittee must comply with the

following general conditions, as applicable, in addition to any regional or case-specific

conditions imposed by the division engineer or district engineer. Prospective permittees should

contact the appropriate Corps district office to determine if regional conditions have been

imposed on an NWP. Prospective permittees should also contact the appropriate Corps district

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office to determine the status of Clean Water Act Section 401 water quality certification and/or

Coastal Zone Management Act consistency for an NWP. Every person who may wish to obtain

permit authorization under one or more NWPs, or who is currently relying on an existing or prior

permit authorization under one or more NWPs, has been and is on notice that all of the

provisions of 33 CFR 330.1 through 330.6 apply to every NWP authorization. Note especially 33

CFR 330.5 relating to the modification, suspension, or revocation of any NWP authorization.

1. Navigation

(a) No activity may cause more than a minimal adverse effect on navigation.

(b) Any safety lights and signals prescribed by the U.S. Coast Guard, through regulations or

otherwise, must be installed and maintained at the permittee's expense on authorized facilities in

navigable waters of the United States.

(c) The permittee understands and agrees that, if future operations by the United States require

the removal, relocation, or other alteration, of the structure or work herein authorized, or if, in

the opinion of the Secretary of the Army or his or her authorized representative, said structure or

work shall cause unreasonable obstruction to the free navigation of the navigable waters, the

permittee will be required, upon due notice from the Corps of Engineers, to remove, relocate, or

alter the structural work or obstructions caused thereby, without expense to the United States. No

claim shall be made against the United States on account of any such removal or alteration.

2. Aquatic Life Movements

No activity may substantially disrupt the necessary life cycle movements of those species of

aquatic life indigenous to the waterbody, including those species that normally migrate through

the area, unless the activity's primary purpose is to impound water. All permanent and temporary

crossings of waterbodies shall be suitably culverted, bridged, or otherwise designed and

constructed to maintain low flows to sustain the movement of those aquatic species. If a

bottomless culvert cannot be used, then the crossing should be designed and constructed to

minimize adverse effects to aquatic life movements.

3. Spawning Areas

Activities in spawning areas during spawning seasons must be avoided to the maximum extent

practicable. Activities that result in the physical destruction (e.g., through excavation, fill, or

downstream smothering by substantial turbidity) of an important spawning area are not

authorized.

4. Migratory Bird Breeding Areas

Activities in waters of the United States that serve as breeding areas for migratory birds must be

avoided to the maximum extent practicable.

5. Shellfish Beds

No activity may occur in areas of concentrated shellfish populations, unless the activity is

directly related to a shellfish harvesting activity authorized by NWPs 4 and 48 or is a shellfish

seeding or habitat restoration activity authorized by NWP 27.

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6. Suitable Material

No activity may use unsuitable material (e.g., trash, debris, car bodies, asphalt, etc.). Material

used for construction or discharged must be free from toxic pollutants in toxic amounts (see

section 307 of the Clean Water Act).

7. Water Supply Intakes

No activity may occur in the proximity of a public water supply intake, except where the activity

is for the repair or improvement of public water supply intake structures or adjacent bank

stabilization.

8. Adverse Effects from Impoundments

If the activity creates an impoundment of water, adverse effects to the aquatic system due to

accelerating the passage of water, and/or restricting its flow must be minimized to the maximum

extent practicable.

9. Management of Water Flows

To the maximum extent practicable, the pre-construction course, condition, capacity, and

location of open waters must be maintained for each activity, including stream channelization,

storm water management activities, and temporary and permanent road crossings, except as

provided below. The activity must be constructed to withstand expected high flows. The activity

must not restrict or impede the passage of normal or high flows unless the primary purpose of the

activity is to impound water or manage high flows. The activity may alter the pre-construction

course, condition, capacity, and location of open waters if it benefits the aquatic environment

(e.g., stream restoration or relocation activities).

10. Fills Within 100-Year Floodplains

The activity must comply with applicable FEMA-approved state or local floodplain management

requirements.

11. Equipment

Heavy equipment working in wetlands or mudflats must be placed on mats, or other measures

must be taken to minimize soil disturbance.

12. Soil Erosion and Sediment Controls

Appropriate soil erosion and sediment controls must be used and maintained in effective

operating condition during construction, and all exposed soil and other fills, as well as any work

below the ordinary high water mark or high tide line, must be permanently stabilized at the

earliest practicable date. Permittees are encouraged to perform work within waters of the United

States during periods of low-flow or no-flow, or during low tides.

13. Removal of Temporary Structures and Fills

Temporary structures must be removed, to the maximum extent practicable, after their use has

been discontinued. 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.

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14. Proper Maintenance

Any authorized structure or fill shall be properly maintained, including maintenance to ensure

public safety and compliance with applicable NWP general conditions, as well as any activityspecific conditions added by the district engineer to an NWP authorization.

15. Single and Complete Project

The activity must be a single and complete project. The same NWP cannot be used more than

once for the same single and complete project.

16. Wild and Scenic Rivers

(a) No NWP activity may occur in a component of the National Wild and Scenic River System,

or in a river officially designated by Congress as a “study river” for possible inclusion in the

system while the river is in an official study status, unless the appropriate Federal agency with

direct management responsibility for such river, has determined in writing that the proposed

activity will not adversely affect the Wild and Scenic River designation or study status.

(b) If a proposed NWP activity will 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, the permittee must submit a preconstruction notification (see general condition 32). The district engineer will coordinate the

PCN with the Federal agency with direct management responsibility for that river. Permittees

shall not begin the NWP activity until notified by the district engineer that the Federal agency

with direct management responsibility for that river has determined in writing that the proposed

NWP activity will not adversely affect the Wild and Scenic River designation or study status.

(c) Information on Wild and Scenic Rivers may be obtained from the appropriate Federal land

management agency responsible for the designated Wild and Scenic River or study river (e.g.,

National Park Service, U.S. Forest Service, Bureau of Land Management, U.S. Fish and Wildlife

Service). Information on these rivers is also available at: http://www.rivers.gov/.

17. 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.

18. Endangered Species

(a) No activity is authorized under any NWP which is likely to directly or indirectly jeopardize

the continued existence of a threatened or endangered species or a species proposed for such

designation, as identified under the Federal Endangered Species Act (ESA), or which will

directly or indirectly destroy or adversely modify designated critical habitat or critical habitat

proposed for such designation. No activity is authorized under any NWP which “may affect” a

listed species or critical habitat unless ESA section 7 consultation addressing the consequences

of the proposed activity on listed species or critical habitat has been completed. See 50 CFR

402.02 for the definition of “effects of the action” for the purposes of ESA section 7

consultation, as well as 50 CFR 402.17, which provides further explanation under ESA section 7

regarding “activities that are reasonably certain to occur” and “consequences caused by the

proposed action.”

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(b) Federal agencies should follow their own procedures for complying with the requirements of

the ESA (see 33 CFR 330.4(f)(1)). If pre-construction notification is required for the proposed

activity, the Federal permittee must provide the district engineer with the appropriate

documentation to demonstrate compliance with those requirements. The district engineer will

verify that the appropriate documentation has been submitted. If the appropriate documentation

has not been submitted, additional ESA section 7 consultation may be necessary for the activity

and the respective federal agency would be responsible for fulfilling its obligation under section

7 of the ESA.

(c) Non-federal permittees must submit a pre-construction notification to the district engineer if

any listed species (or species proposed for listing) or designated critical habitat (or critical habitat

proposed such designation) might be affected or is in the vicinity of the activity, or if the activity

is located in designated critical habitat or critical habitat proposed for such designation, and shall

not begin work on the activity until notified by the district engineer that the requirements of the

ESA have been satisfied and that the activity is authorized. For activities that might affect

Federally-listed endangered or threatened species (or species proposed for listing) or designated

critical habitat (or critical habitat proposed for such designation), the pre-construction

notification must include the name(s) of the endangered or threatened species (or species

proposed for listing) that might be affected by the proposed activity or that utilize the designated

critical habitat (or critical habitat proposed for such designation) that might be affected by the

proposed activity. The district engineer will determine whether the proposed activity “may

affect” or will have “no effect” to listed species and designated critical habitat and will notify the

non-Federal applicant of the Corps' determination within 45 days of receipt of a complete preconstruction notification. For activities where the non-Federal applicant has identified listed

species (or species proposed for listing) or designated critical habitat (or critical habitat proposed

for such designation) that might be affected or is in the vicinity of the activity, and has so

notified the Corps, the applicant shall not begin work until the Corps has provided notification

that the proposed activity will have “no effect” on listed species (or species proposed for listing

or designated critical habitat (or critical habitat proposed for such designation), or until ESA

section 7 consultation or conference has been completed. If the non-Federal applicant has not

heard back from the Corps within 45 days, the applicant must still wait for notification from the

Corps.

(d) As a result of formal or informal consultation or conference with the FWS or NMFS the

district engineer may add species-specific permit conditions to the NWPs.

(e) Authorization of an activity by an NWP does not authorize the “take” of a threatened or

endangered species as defined under the ESA. In the absence of separate authorization (e.g., an

ESA Section 10 Permit, a Biological Opinion with “incidental take” provisions, etc.) from the

FWS or the NMFS, the Endangered Species Act prohibits any person subject to the jurisdiction

of the United States to take a listed species, where “take” means to harass, harm, pursue, hunt,

shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. The

word “harm” in the definition of “take” means an act which actually kills or injures wildlife.

Such an act may include significant habitat modification or degradation where it actually kills or

injures wildlife by significantly impairing essential behavioral patterns, including breeding,

feeding, or sheltering.

(f) If the non-federal permittee has a valid ESA section 10(a)(1)(B) incidental take permit with

an approved Habitat Conservation Plan for a project or a group of projects that includes the

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proposed NWP activity, the non-federal applicant should provide a copy of that ESA section

10(a)(1)(B) permit with the PCN required by paragraph (c) of this general condition. The district

engineer will coordinate with the agency that issued the ESA section 10(a)(1)(B) permit to

determine whether the proposed NWP activity and the associated incidental take were considered

in the internal ESA section 7 consultation conducted for the ESA section 10(a)(1)(B) permit. If

that coordination results in concurrence from the agency that the proposed NWP activity and the

associated incidental take were considered in the internal ESA section 7 consultation for the ESA

section 10(a)(1)(B) permit, the district engineer does not need to conduct a separate ESA section

7 consultation for the proposed NWP activity. The district engineer will notify the non-federal

applicant within 45 days of receipt of a complete pre-construction notification whether the ESA

section 10(a)(1)(B) permit covers the proposed NWP activity or whether additional ESA section

7 consultation is required.

(g) Information on the location of threatened and endangered species and their critical habitat

can be obtained directly from the offices of the FWS and NMFS or their world wide web pages

at http://www.fws.gov/ or http://www.fws.gov/ipac and http://www.nmfs.noaa.gov/pr/species/esa/,

respectively.

19. Migratory Birds and Bald and Golden Eagles

The permittee is responsible for ensuring that an action authorized by an NWP complies with the

Migratory Bird Treaty Act and the Bald and Golden Eagle Protection Act. The permittee is

responsible for contacting the appropriate local office of the U.S. Fish and Wildlife Service to

determine what measures, if any, are necessary or appropriate to reduce adverse effects to

migratory birds or eagles, including whether “incidental take” permits are necessary and

available under the Migratory Bird Treaty Act or Bald and Golden Eagle Protection Act for a

particular activity.

20. Historic Properties

(a) No activity is authorized under any NWP which may have the potential to cause effects to

properties listed, or eligible for listing, in the National Register of Historic Places until the

requirements of Section 106 of the National Historic Preservation Act (NHPA) have been

satisfied.

(b) Federal permittees should follow their own procedures for complying with the requirements

of section 106 of the National Historic Preservation Act (see 33 CFR 330.4(g)(1)). If preconstruction notification is required for the proposed NWP activity, the Federal permittee must

provide the district engineer with the appropriate documentation to demonstrate compliance with

those requirements. The district engineer will verify that the appropriate documentation has been

submitted. If the appropriate documentation is not submitted, then additional consultation under

section 106 may be necessary. The respective federal agency is responsible for fulfilling its

obligation to comply with section 106.

(c) Non-federal permittees must submit a pre-construction notification to the district engineer if

the NWP activity might have the potential to cause effects to any historic properties listed on,

determined to be eligible for listing on, or potentially eligible for listing on the National Register

of Historic Places, including previously unidentified properties. For such activities, the preconstruction notification must state which historic properties might have the potential to be

affected by the proposed NWP activity or include a vicinity map indicating the location of the

Page 8 of 26

historic properties or the potential for the presence of historic properties. Assistance regarding

information on the location of, or potential for, the presence of historic properties can be sought

from the State Historic Preservation Officer, Tribal Historic Preservation Officer, or designated

tribal representative, as appropriate, and the National Register of Historic Places (see 33 CFR

330.4(g)). When reviewing pre-construction notifications, district engineers will comply with the

current procedures for addressing the requirements of section 106 of the National Historic

Preservation Act. The district engineer shall make a reasonable and good faith effort to carry out

appropriate identification efforts commensurate with potential impacts, which may include

background research, consultation, oral history interviews, sample field investigation, and/or

field survey. Based on the information submitted in the PCN and these identification efforts, the

district engineer shall determine whether the proposed NWP activity has the potential to cause

effects on the historic properties. Section 106 consultation is not required when the district

engineer determines that the activity does not have the potential to cause effects on historic

properties (see 36 CFR 800.3(a)). Section 106 consultation is required when the district engineer

determines that the activity has the potential to cause effects on historic properties. The district

engineer will conduct consultation with consulting parties identified under 36 CFR 800.2(c)

when he or she makes any of the following effect determinations for the purposes of section 106

of the NHPA: No historic properties affected, no adverse effect, or adverse effect.

(d) Where the non-Federal applicant has identified historic properties on which the proposed

NWP activity might have the potential to cause effects and has so notified the Corps, the nonFederal applicant shall not begin the activity until notified by the district engineer either that the

activity has no potential to cause effects to historic properties or that NHPA section 106

consultation has been completed. For non-federal permittees, the district engineer will notify the

prospective permittee within 45 days of receipt of a complete pre-construction notification

whether NHPA section 106 consultation is required. If NHPA section 106 consultation is

required, the district engineer will notify the non-Federal applicant that he or she cannot begin

the activity until section 106 consultation is completed. If the non-Federal applicant has not

heard back from the Corps within 45 days, the applicant must still wait for notification from the

Corps.

(e) Prospective permittees should be aware that section 110k of the NHPA (54 U.S.C. 306113)

prevents the Corps from granting a permit or other assistance to an applicant who, with intent to

avoid the requirements of section 106 of the NHPA, has intentionally significantly adversely

affected a historic property to which the permit would relate, or having legal power to prevent it,

allowed such significant adverse effect to occur, unless the Corps, after consultation with the

Advisory Council on Historic Preservation (ACHP), determines that circumstances justify

granting such assistance despite the adverse effect created or permitted by the applicant. If

circumstances justify granting the assistance, the Corps is required to notify the ACHP and

provide documentation specifying the circumstances, the degree of damage to the integrity of

any historic properties affected, and proposed mitigation. This documentation must include any

views obtained from the applicant, SHPO/THPO, appropriate Indian tribes if the undertaking

occurs on or affects historic properties on tribal lands or affects properties of interest to those

tribes, and other parties known to have a legitimate interest in the impacts to the permitted

activity on historic properties.

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21. Discovery of Previously Unknown Remains and Artifacts

Permittees that discover any previously unknown historic, cultural, or archeological remains and

artifacts while accomplishing the activity authorized by an NWP, they must immediately notify

the district engineer of what they have found, and to the maximum extent practicable, avoid

construction activities that may affect the remains and artifacts until the required coordination

has been completed. The district engineer will initiate the Federal, Tribal, and state coordination

required to determine if the items or remains warrant a recovery effort or if the site is eligible for

listing in the National Register of Historic Places.

22. Designated Critical Resource Waters

Critical resource waters include, NOAA-managed marine sanctuaries and marine monuments,

and National Estuarine Research Reserves. The district engineer may designate, after notice and

opportunity for public comment, additional waters officially designated by a state as having

particular environmental or ecological significance, such as outstanding national resource waters

or state natural heritage sites. The district engineer may also designate additional critical resource

waters after notice and opportunity for public comment.

(a) Discharges of dredged or fill material into waters of the United States are not authorized by

NWPs 7, 12, 14, 16, 17, 21, 29, 31, 35, 39, 40, 42, 43, 44, 49, 50, 51, 52, 57 and 58 for any

activity within, or directly affecting, critical resource waters, including wetlands adjacent to such

waters.

(b) For NWPs 3, 8, 10, 13, 15, 18, 19, 22, 23, 25, 27, 28, 30, 33, 34, 36, 37, 38, and 54,

notification is required in accordance with general condition 32, for any activity proposed by

permittees in the designated critical resource waters including wetlands adjacent to those waters.

The district engineer may authorize activities under these NWPs only after she or he determines

that the impacts to the critical resource waters will be no more than minimal.

23. Mitigation

The district engineer will consider the following factors when determining appropriate and

practicable mitigation necessary to ensure that the individual and cumulative adverse

environmental effects are no more than minimal:

(a) The activity must be designed and constructed to avoid and minimize adverse effects, both

temporary and permanent, to waters of the United States to the maximum extent practicable at

the project site (i.e., on site).

(b) Mitigation in all its forms (avoiding, minimizing, rectifying, reducing, or compensating for

resource losses) will be required to the extent necessary to ensure that the individual and

cumulative adverse environmental effects are no more than minimal.

(c) Compensatory mitigation at a minimum one-for-one ratio will be required for all wetland

losses that exceed 1/10-acre and require pre-construction notification, unless the district engineer

determines in writing that either some other form of mitigation would be more environmentally

appropriate, or the adverse environmental effects of the proposed activity are no more than

minimal and provides an activity-specific waiver of this requirement. For wetland losses of 1/10acre or less that require pre-construction notification, the district engineer may determine on a

Page 10 of 26

case-by-case basis that compensatory mitigation is required to ensure that the activity results in

only minimal adverse environmental effects.

(d) Compensatory mitigation at a minimum one-for-one ratio will be required for all losses of

stream bed that exceed 3/100-acre and require pre-construction notification, unless the district

engineer determines in writing that either some other form of mitigation would be more

environmentally appropriate, or the adverse environmental effects of the proposed activity are no

more than minimal and provides an activity-specific waiver of this requirement. This

compensatory mitigation requirement may be satisfied through the restoration or enhancement of

riparian areas next to streams in accordance with paragraph (e) of this general condition. For

losses of stream bed of 3/100-acre or less that require pre-construction notification, the district

engineer may determine on a case-by-case basis that compensatory mitigation is required to

ensure that the activity results in only minimal adverse environmental effects. Compensatory

mitigation for losses of streams should be provided, if practicable, through stream rehabilitation,

enhancement, or preservation, since streams are difficult-to-replace resources (see 33 CFR

332.3(e)(3)).

(e) Compensatory mitigation plans for NWP activities in or near streams or other open waters

will normally include a requirement for the restoration or enhancement, maintenance, and legal

protection (e.g., conservation easements) of riparian areas next to open waters. In some cases, the

restoration or maintenance/protection of riparian areas may be the only compensatory mitigation

required. If restoring riparian areas involves planting vegetation, only native species should be

planted. The width of the required riparian area will address documented water quality or aquatic

habitat loss concerns. Normally, the riparian area will be 25 to 50 feet wide on each side of the

stream, but the district engineer may require slightly wider riparian areas to address documented

water quality or habitat loss concerns. If it is not possible to restore or maintain/protect a riparian

area on both sides of a stream, or if the waterbody is a lake or coastal waters, then restoring or

maintaining/protecting a riparian area along a single bank or shoreline may be sufficient. Where

both wetlands and open waters exist on the project site, the district engineer will determine the

appropriate compensatory mitigation (e.g., riparian areas and/or wetlands compensation) based

on what is best for the aquatic environment on a watershed basis. In cases where riparian areas

are determined to be the most appropriate form of minimization or compensatory mitigation, the

district engineer may waive or reduce the requirement to provide wetland compensatory

mitigation for wetland losses.

(f) Compensatory mitigation projects provided to offset losses of aquatic resources must comply

with the applicable provisions of 33 CFR part 332.

(1) The prospective permittee is responsible for proposing an appropriate compensatory

mitigation option if compensatory mitigation is necessary to ensure that the activity results in

no more than minimal adverse environmental effects. For the NWPs, the preferred

mechanism for providing compensatory mitigation is mitigation bank credits or in-lieu fee

program credits (see 33 CFR 332.3(b)(2) and (3)). However, if an appropriate number and

type of mitigation bank or in-lieu credits are not available at the time the PCN is submitted to

the district engineer, the district engineer may approve the use of permittee-responsible

mitigation.

(2) The amount of compensatory mitigation required by the district engineer must be

sufficient to ensure that the authorized activity results in no more than minimal individual

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and cumulative adverse environmental effects (see 33 CFR 330.1(e)(3)). (See also 33 CFR

332.3(f).)

(3) Since the likelihood of success is greater and the impacts to potentially valuable uplands

are reduced, aquatic resource restoration should be the first compensatory mitigation option

considered for permittee-responsible mitigation.

(4) If permittee-responsible mitigation is the proposed option, the prospective permittee is

responsible for submitting a mitigation plan. A conceptual or detailed mitigation plan may be

used by the district engineer to make the decision on the NWP verification request, but a

final mitigation plan that addresses the applicable requirements of 33 CFR 332.4(c)(2)

through (14) must be approved by the district engineer before the permittee begins work in

waters of the United States, unless the district engineer determines that prior approval of the

final mitigation plan is not practicable or not necessary to ensure timely completion of the

required compensatory mitigation (see 33 CFR 332.3(k)(3)). If permittee-responsible

mitigation is the proposed option, and the proposed compensatory mitigation site is located

on land in which another federal agency holds an easement, the district engineer will

coordinate with that federal agency to determine if proposed compensatory mitigation project

is compatible with the terms of the easement.

(5) If mitigation bank or in-lieu fee program credits are the proposed option, the mitigation

plan needs to address only the baseline conditions at the impact site and the number of credits

to be provided (see 33 CFR 332.4(c)(1)(ii)).

(6) Compensatory mitigation requirements (e.g., resource type and amount to be provided as

compensatory mitigation, site protection, ecological performance standards, monitoring

requirements) may be addressed through conditions added to the NWP authorization, instead

of components of a compensatory mitigation plan (see 33 CFR 332.4(c)(1)(ii)).

(g) Compensatory mitigation will not be used to increase the acreage losses allowed by the

acreage limits of the NWPs. For example, if an NWP has an acreage limit of 1/2-acre, it cannot

be used to authorize any NWP activity resulting in the loss of greater than 1/2-acre of waters of

the United States, even if compensatory mitigation is provided that replaces or restores some of

the lost waters. However, compensatory mitigation can and should be used, as necessary, to

ensure that an NWP activity already meeting the established acreage limits also satisfies the no

more than minimal impact requirement for the NWPs.

(h) Permittees may propose the use of mitigation banks, in-lieu fee programs, or permitteeresponsible mitigation. When developing a compensatory mitigation proposal, the permittee

must consider appropriate and practicable options consistent with the framework at 33 CFR

332.3(b). For activities resulting in the loss of marine or estuarine resources, permitteeresponsible mitigation may be environmentally preferable if there are no mitigation banks or inlieu fee programs in the area that have marine or estuarine credits available for sale or transfer to

the permittee. For permittee-responsible mitigation, the special conditions of the NWP

verification must clearly indicate the party or parties responsible for the implementation and

performance of the compensatory mitigation project, and, if required, its long-term management.

(i) Where certain functions and services of waters of the United States are permanently

adversely affected by a regulated activity, such as discharges of dredged or fill material into

waters of the United States that will convert a forested or scrub-shrub wetland to an herbaceous

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wetland in a permanently maintained utility line right-of-way, mitigation may be required to

reduce the adverse environmental effects of the activity to the no more than minimal level.

24. Safety of Impoundment Structures

To ensure that all impoundment structures are safely designed, the district engineer may require

non-Federal applicants to demonstrate that the structures comply with established state or

federal, dam safety criteria or have been designed by qualified persons. The district engineer may

also require documentation that the design has been independently reviewed by similarly

qualified persons, and appropriate modifications made to ensure safety.

25. Water Quality

(a) Where the certifying authority (state, authorized tribe, or EPA, as appropriate) has not

previously certified compliance of an NWP with CWA section 401, a CWA section 401 water

quality certification for the proposed discharge must be obtained or waived (see 33 CFR

330.4(c)). If the permittee cannot comply with all of the conditions of a water quality

certification previously issued by certifying authority for the issuance of the NWP, then the

permittee must obtain a water quality certification or waiver for the proposed discharge in order

for the activity to be authorized by an NWP.

(b) If the NWP activity requires pre-construction notification and the certifying authority has not

previously certified compliance of an NWP with CWA section 401, the proposed discharge is

not authorized by an NWP until water quality certification is obtained or waived. If the certifying

authority issues a water quality certification for the proposed discharge, the permittee must

submit a copy of the certification to the district engineer. The discharge is not authorized by an

NWP until the district engineer has notified the permittee that the water quality certification

requirement has been satisfied by the issuance of a water quality certification or a waiver.

(c) The district engineer or certifying authority may require additional water quality

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

degradation of water quality.

26. Coastal Zone Management

In coastal states where an NWP has not previously received a state coastal zone management

consistency concurrence, an individual state coastal zone management consistency concurrence

must be obtained, or a presumption of concurrence must occur (see 33 CFR 330.4(d)). If the

permittee cannot comply with all of the conditions of a coastal zone management consistency

concurrence previously issued by the state, then the permittee must obtain an individual coastal

zone management consistency concurrence or presumption of concurrence in order for the

activity to be authorized by an NWP. The district engineer or a state may require additional

measures to ensure that the authorized activity is consistent with state coastal zone management

requirements.

27. Regional and Case-By-Case Conditions

The activity must comply with any regional conditions that may have been added by the Division

Engineer (see 33 CFR 330.4(e)) and with any case specific conditions added by the Corps or by

Page 13 of 26

the state, Indian Tribe, or U.S. EPA in its CWA section 401 Water Quality Certification, or by

the state in its Coastal Zone Management Act consistency determination.

28. Use of Multiple Nationwide Permits

The use of more than one NWP for a single and complete project is authorized, subject to the

following restrictions:

(a) If only one of the NWPs used to authorize the single and complete project has a specified

acreage limit, the acreage loss of waters of the United States cannot exceed the acreage limit of

the NWP with the highest specified acreage limit. For example, if a road crossing over tidal

waters is constructed under NWP 14, with associated bank stabilization authorized by NWP 13,

the maximum acreage loss of waters of the United States for the total project cannot exceed 1/3acre.

(b) If one or more of the NWPs used to authorize the single and complete project has specified

acreage limits, the acreage loss of waters of the United States authorized by those NWPs cannot

exceed their respective specified acreage limits. For example, if a commercial development is

constructed under NWP 39, and the single and complete project includes the filling of an upland

ditch authorized by NWP 46, the maximum acreage loss of waters of the United States for the

commercial development under NWP 39 cannot exceed 1/2-acre, and the total acreage loss of

waters of United States due to the NWP 39 and 46 activities cannot exceed 1 acre.

29. Transfer of Nationwide Permit Verifications

If the permittee sells the property associated with a nationwide permit verification, the permittee

may transfer the nationwide permit verification to the new owner by submitting a letter to the

appropriate Corps district office to validate the transfer. A copy of the nationwide permit

verification must be attached to the letter, and the letter must contain the following statement and

signature:

“When the structures or work authorized by this nationwide permit are still in existence at the

time the property is transferred, the terms and conditions of this nationwide permit, including any

special conditions, will continue to be binding on the new owner(s) of the property. To validate

the transfer of this nationwide permit and the associated liabilities associated with compliance

with its terms and conditions, have the transferee sign and date below.”

___________________________

(Transferee)

___________________________

(Date)

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30. Compliance Certification

Each permittee who receives an NWP verification letter from the Corps must provide a signed

certification documenting completion of the authorized activity and implementation of any

required compensatory mitigation. The success of any required permittee-responsible mitigation,

including the achievement of ecological performance standards, will be addressed separately by

the district engineer. The Corps will provide the permittee the certification document with the

NWP verification letter. The certification document will include:

(a) A statement that the authorized activity was done in accordance with the NWP authorization,

including any general, regional, or activity-specific conditions;

(b) A statement that the implementation of any required compensatory mitigation was completed

in accordance with the permit conditions. If credits from a mitigation bank or in-lieu fee program

are used to satisfy the compensatory mitigation requirements, the certification must include the

documentation required by 33 CFR 332.3(l)(3) to confirm that the permittee secured the

appropriate number and resource type of credits; and

(c) The signature of the permittee certifying the completion of the activity and mitigation.

The completed certification document must be submitted to the district engineer within 30 days

of completion of the authorized activity or the implementation of any required compensatory

mitigation, whichever occurs later.

31. Activities Affecting Structures or Works Built by the United States

If an NWP activity also requires review by, or permission from, the Corps pursuant to 33 U.S.C.

408 because it will alter or temporarily or permanently occupy or use a U.S. Army Corps of

Engineers (USACE) federally authorized Civil Works project (a “USACE project”), the

prospective permittee must submit a pre-construction notification. See paragraph (b)(10) of

general condition 32. An activity that requires section 408 permission and/or review is not

authorized by an NWP until the appropriate Corps office issues the section 408 permission or

completes its review to alter, occupy, or use the USACE project, and the district engineer issues

a written NWP verification.

32. Pre-Construction Notification

(a) Timing. Where required by the terms of the NWP, the prospective permittee must notify the

district engineer by submitting a pre-construction notification (PCN) as early as possible. The

district engineer must determine if the PCN is complete within 30 calendar days of the date of

receipt and, if the PCN is determined to be incomplete, notify the prospective permittee within

that 30 day period to request the additional information necessary to make the PCN complete.

The request must specify the information needed to make the PCN complete. As a general rule,

district engineers will request additional information necessary to make the PCN complete only

once. However, if the prospective permittee does not provide all of the requested information,

then the district engineer will notify the prospective permittee that the PCN is still incomplete

and the PCN review process will not commence until all of the requested information has been

received by the district engineer. The prospective permittee shall not begin the activity until

either:

Page 15 of 26

(1) He or she is notified in writing by the district engineer that the activity may proceed

under the NWP with any special conditions imposed by the district or division engineer; or

(2) 45 calendar days have passed from the district engineer's receipt of the complete PCN,

and the prospective permittee has not received written notice from the district or division

engineer. However, if the permittee was required to notify the Corps pursuant to general

condition 18 that listed species or critical habitat might be affected or are in the vicinity of

the activity, or to notify the Corps pursuant to general condition 20 that the activity might

have the potential to cause effects to historic properties, the permittee cannot begin the

activity until receiving written notification from the Corps that there is “no effect” on listed

species or “no potential to cause effects” on historic properties, or that any consultation

required under Section 7 of the Endangered Species Act (see 33 CFR 330.4(f)) and/or section

106 of the National Historic Preservation Act (see 33 CFR 330.4(g)) has been completed. If

the proposed activity requires a written waiver to exceed specified limits of an NWP, the

permittee may not begin the activity until the district engineer issues the waiver. If the district

or division engineer notifies the permittee in writing that an individual permit is required

within 45 calendar days of receipt of a complete PCN, the permittee cannot begin the activity

until an individual permit has been obtained. Subsequently, the permittee's right to proceed

under the NWP may be modified, suspended, or revoked only in accordance with the

procedure set forth in 33 CFR 330.5(d)(2).

(b) Contents of Pre-Construction Notification: The PCN must be in writing and include the

following information:

(1) Name, address, and telephone numbers of the prospective permittee;

(2) Location of the proposed activity;

(3) Identify the specific NWP or NWP(s) the prospective permittee wants to use to authorize

the proposed activity;

(4) (i) A description of the proposed activity; the activity's purpose; direct and indirect

adverse environmental effects the activity would cause, including the anticipated amount

of loss of wetlands, other special aquatic sites, and other waters expected to result from

the NWP activity, in acres, linear feet, or other appropriate unit of measure; a description

of any proposed mitigation measures intended to reduce the adverse environmental

effects caused by the proposed activity; and 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, including other separate and distant crossings for

linear projects that require Department of the Army authorization but do not require preconstruction notification. The description of the proposed activity and any proposed

mitigation measures should be sufficiently detailed to allow the district engineer to

determine that the adverse environmental effects of the activity will be no more than

minimal and to determine the need for compensatory mitigation or other mitigation

measures.

(ii) For linear projects where one or more single and complete crossings require preconstruction notification, the PCN must include the quantity of anticipated losses of

wetlands, other special aquatic sites, and other waters for each single and complete

crossing of those wetlands, other special aquatic sites, and other waters (including those

Page 16 of 26

single and complete crossings authorized by an NWP but do not require PCNs). This

information will be used by the district engineer to evaluate the cumulative adverse

environmental effects of the proposed linear project and does not change those non-PCN

NWP activities into NWP PCNs.

(iii) Sketches should be provided when necessary to show that the activity complies with

the terms of the NWP. (Sketches usually clarify the activity and when provided results in

a quicker decision. Sketches should contain sufficient detail to provide an illustrative

description of the proposed activity (e.g., a conceptual plan), but do not need to be

detailed engineering plans);

(5) The PCN must include a delineation of wetlands, other special aquatic sites, and other

waters, such as lakes and ponds, and perennial and intermittent streams, on the project site.

Wetland delineations must be prepared in accordance with the current method required by

the Corps. The permittee may ask the Corps to delineate the special aquatic sites and other

waters on the project site, but there may be a delay if the Corps does the delineation,

especially if the project site is large or contains many wetlands, other special aquatic sites,

and other waters. Furthermore, the 45-day period will not start until the delineation has been

submitted to or completed by the Corps, as appropriate;

(6) If the proposed activity will result in the loss of greater than 1/10-acre of wetlands or

3/100-acre of stream bed and a PCN is required, the prospective permittee must submit a

statement describing how the mitigation requirement will be satisfied or explaining why the

adverse environmental effects are no more than minimal and why compensatory mitigation

should not be required. As an alternative, the prospective permittee may submit a conceptual

or detailed mitigation plan.

(7) For non-federal permittees, if any listed species (or species proposed for listing) or

designated critical habitat (or critical habitat proposed for such designation) might be

affected or is in the vicinity of the activity, or if the activity is located in designated critical

habitat (or critical habitat proposed for such designation), the PCN must include the name(s)

of those endangered or threatened species (or species proposed for listing) that might be

affected by the proposed activity or utilize the designated critical habitat (or critical habitat

proposed for such designation) that might be affected by the proposed activity. For NWP

activities that require pre-construction notification, Federal permittees must provide

documentation demonstrating compliance with the Endangered Species Act;

(8) For non-federal permittees, if the NWP activity might have the potential to cause effects

to a historic property listed on, determined to be eligible for listing on, or potentially eligible

for listing on, the National Register of Historic Places, the PCN must state which historic

property might have the potential to be affected by the proposed activity or include a vicinity

map indicating the location of the historic property. For NWP activities that require preconstruction notification, Federal permittees must provide documentation demonstrating

compliance with section 106 of the National Historic Preservation Act;

(9) For an activity that will 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, the PCN must identify the

Wild and Scenic River or the “study river” (see general condition 16); and

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(10) For an NWP activity that requires permission from, or review by, the Corps pursuant to

33 U.S.C. 408 because it will alter or temporarily or permanently occupy or use a U.S. Army

Corps of Engineers federally authorized civil works project, the pre-construction notification

must include a statement confirming that the project proponent has submitted a written

request for section 408 permission from, or review by, the Corps office having jurisdiction

over that USACE project.

(c) Form of Pre-Construction Notification: The nationwide permit pre-construction notification

form (Form ENG 6082) should be used for NWP PCNs. A letter containing the required

information may also be used. Applicants may provide electronic files of PCNs and supporting

materials if the district engineer has established tools and procedures for electronic submittals.

(d) Agency Coordination: (1) The district engineer will consider any comments from Federal and

state agencies concerning the proposed activity's compliance with the terms and conditions of

the NWPs and the need for mitigation to reduce the activity's adverse environmental effects

so that they are no more than minimal.

(2) Agency coordination is required for: (i) All NWP activities that require pre-construction

notification and result in the loss of greater than 1/2-acre of waters of the United States; (ii)

NWP 13 activities in excess of 500 linear feet, fills greater than one cubic yard per running

foot, or involve discharges of dredged or fill material into special aquatic sites; and (iii) NWP

54 activities in excess of 500 linear feet, or that extend into the waterbody more than 30 feet

from the mean low water line in tidal waters or the ordinary high water mark in the Great

Lakes.

(3) When agency coordination is required, the district engineer will immediately provide

(e.g., via email, facsimile transmission, overnight mail, or other expeditious manner) a copy

of the complete PCN to the appropriate Federal or state offices (FWS, state natural resource

or water quality agency, EPA, and, if appropriate, the NMFS). With the exception of NWP

37, these agencies will have 10 calendar days from the date the material is transmitted to

notify the district engineer via telephone, facsimile transmission, or email that they intend to

provide substantive, site-specific comments. The comments must explain why the agency

believes the adverse environmental effects will be more than minimal. If so contacted by an

agency, the district engineer will wait an additional 15 calendar days before making a

decision on the pre-construction notification. The district engineer will fully consider agency

comments received within the specified time frame concerning the proposed activity's

compliance with the terms and conditions of the NWPs, including the need for mitigation to

ensure that the net adverse environmental effects of the proposed activity are no more than

minimal. The district engineer will provide no response to the resource agency, except as

provided below. The district engineer will indicate in the administrative record associated

with each pre-construction notification that the resource agencies' concerns were considered.

For NWP 37, the emergency watershed protection and rehabilitation activity may proceed

immediately in cases where there is an unacceptable hazard to life, or a significant loss of

property or economic hardship will occur. The district engineer will consider any comments

received to decide whether the NWP 37 authorization should be modified, suspended, or

revoked in accordance with the procedures at 33 CFR 330.5.

(4) In cases of where the prospective permittee is not a Federal agency, the district engineer

will provide a response to NMFS within 30 calendar days of receipt of any Essential Fish

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Habitat conservation recommendations, as required by section 305(b)(4)(B) of the

Magnuson-Stevens Fishery Conservation and Management Act.

(5) Applicants are encouraged to provide the Corps with either electronic files or multiple

copies of pre-construction notifications to expedite agency coordination.

District Engineer's Decision

1. In reviewing the PCN for the proposed activity, the district engineer will determine whether

the activity authorized by the NWP will result in more than minimal individual or cumulative

adverse environmental effects or may be contrary to the public interest. If a project proponent

requests authorization by a specific NWP, the district engineer should issue the NWP verification

for that activity if it meets the terms and conditions of that NWP, unless he or she determines,

after considering mitigation, that the proposed activity will result in more than minimal

individual and cumulative adverse effects on the aquatic environment and other aspects of the

public interest and exercises discretionary authority to require an individual permit for the

proposed activity. For a linear project, this determination will include an evaluation of the single

and complete crossings of waters of the United States that require PCNs to determine whether

they individually satisfy the terms and conditions of the NWP(s), as well as the cumulative

effects caused by all of the crossings of waters of the United States authorized by an NWP. If an

applicant requests a waiver of an applicable limit, as provided for in NWPs 13, 36, or 54, the

district engineer will only grant the waiver upon a written determination that the NWP activity

will result in only minimal individual and cumulative adverse environmental effects.

2. When making minimal adverse environmental effects determinations the district engineer

will consider the direct and indirect effects caused by the NWP activity. He or she will also

consider the cumulative adverse environmental effects caused by activities authorized by an

NWP and whether those cumulative adverse environmental effects are no more than minimal.

The district engineer will also consider site specific factors, such as the environmental setting in

the vicinity of the NWP activity, the type of resource that will be affected by the NWP activity,

the functions provided by the aquatic resources that will be affected by the NWP activity, the

degree or magnitude to which the aquatic resources perform those functions, the extent that

aquatic resource functions will be lost as a result of the NWP activity (e.g., partial or complete

loss), the duration of the adverse effects (temporary or permanent), the importance of the aquatic

resource functions to the region (e.g., watershed or ecoregion), and mitigation required by the

district engineer. If an appropriate functional or condition assessment method is available and

practicable to use, that assessment method may be used by the district engineer to assist in the

minimal adverse environmental effects determination. The district engineer may add casespecific special conditions to the NWP authorization to address site-specific environmental

concerns.

3. If the proposed activity requires a PCN and will result in a loss of greater than 1/10-acre of

wetlands or 3/100-acre of stream bed, the prospective permittee should submit a mitigation

proposal with the PCN. Applicants may also propose compensatory mitigation for NWP

activities with smaller impacts, or for impacts to other types of waters. The district engineer will

consider any proposed compensatory mitigation or other mitigation measures the applicant has

included in the proposal in determining whether the net adverse environmental effects of the

proposed activity are no more than minimal. The compensatory mitigation proposal may be

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either conceptual or detailed. If the district engineer determines that the activity complies with

the terms and conditions of the NWP and that the adverse environmental effects are no more than

minimal, after considering mitigation, the district engineer will notify the permittee and include

any activity-specific conditions in the NWP verification the district engineer deems necessary.

Conditions for compensatory mitigation requirements must comply with the appropriate

provisions at 33 CFR 332.3(k). The district engineer must approve the final mitigation plan

before the permittee commences work in waters of the United States, unless the district engineer

determines that prior approval of the final mitigation plan is not practicable or not necessary to

ensure timely completion of the required compensatory mitigation. If the prospective permittee

elects to submit a compensatory mitigation plan with the PCN, the district engineer will

expeditiously review the proposed compensatory mitigation plan. The district engineer must

review the proposed compensatory mitigation plan within 45 calendar days of receiving a

complete PCN and determine whether the proposed mitigation would ensure that the NWP

activity results in no more than minimal adverse environmental effects. If the net adverse

environmental effects of the NWP activity (after consideration of the mitigation proposal) are

determined by the district engineer to be no more than minimal, the district engineer will provide

a timely written response to the applicant. The response will state that the NWP activity can

proceed under the terms and conditions of the NWP, including any activity-specific conditions

added to the NWP authorization by the district engineer.

4. If the district engineer determines that the adverse environmental effects of the proposed

activity are more than minimal, then the district engineer will notify the applicant either: (a) That

the activity does not qualify for authorization under the NWP and instruct the applicant on the

procedures to seek authorization under an individual permit; (b) that the activity is authorized

under the NWP subject to the applicant's submission of a mitigation plan that would reduce the

adverse environmental effects so that they are no more than minimal; or (c) that the activity is

authorized under the NWP with specific modifications or conditions. Where the district engineer

determines that mitigation is required to ensure no more than minimal adverse environmental

effects, the activity will be authorized within the 45-day PCN period (unless additional time is

required to comply with general conditions 18, 20, and/or 31), with activity-specific conditions

that state the mitigation requirements. The authorization will include the necessary conceptual or

detailed mitigation plan or a requirement that the applicant submit a mitigation plan that would

reduce the adverse environmental effects so that they are no more than minimal. When

compensatory mitigation is required, no work in waters of the United States may occur until the

district engineer has approved a specific mitigation plan or has determined that prior approval of

a final mitigation plan is not practicable or not necessary to ensure timely completion of the

required compensatory mitigation.

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.

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5. NWPs do not authorize interference with any existing or proposed Federal project (see

general condition 31).

Definitions

Best management practices (BMPs): Policies, practices, procedures, or structures implemented to

mitigate the adverse environmental effects on surface water quality resulting from development.

BMPs are categorized as structural or non-structural.

Compensatory mitigation: The restoration (re-establishment or rehabilitation), establishment

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

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

practicable avoidance and minimization has been achieved.

Currently serviceable: Useable as is or with some maintenance, but not so degraded as to

essentially require reconstruction.

Direct effects: Effects that are caused by the activity and occur at the same time and place.

Discharge: The term “discharge” means any discharge of dredged or fill material into waters of

the United States.

Ecological reference: A model used to plan and design an aquatic habitat and riparian area

restoration, enhancement, or establishment activity under NWP 27. An ecological reference may

be based on the structure, functions, and dynamics of an aquatic habitat type or a riparian area

type that currently exists in the region where the proposed NWP 27 activity is located.

Alternatively, an ecological reference may be based on a conceptual model for the aquatic

habitat type or riparian area type to be restored, enhanced, or established as a result of the

proposed NWP 27 activity. An ecological reference takes into account the range of variation of

the aquatic habitat type or riparian area type in the region.

Enhancement: The manipulation of the physical, chemical, or biological characteristics of an

aquatic resource to heighten, intensify, or improve a specific aquatic resource function(s).

Enhancement results in the gain of selected aquatic resource function(s) but may also lead to a

decline in other aquatic resource function(s). Enhancement does not result in a gain in aquatic

resource area.

Establishment (creation): The manipulation of the physical, chemical, or biological

characteristics present to develop an aquatic resource that did not previously exist at an upland

site. Establishment results in a gain in aquatic resource area.

High Tide Line: The line of intersection of the land with the water's surface at the maximum

height reached by a rising tide. The high tide line may be determined, in the absence of actual

data, by a line of oil or scum along shore objects, a more or less continuous deposit of fine shell

or debris on the foreshore or berm, other physical markings or characteristics, vegetation lines,

tidal gages, or other suitable means that delineate the general height reached by a rising tide. The

line encompasses spring high tides and other high tides that occur with periodic frequency but

does not include storm surges in which there is a departure from the normal or predicted reach of

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the tide due to the piling up of water against a coast by strong winds such as those accompanying

a hurricane or other intense storm.

Historic Property: Any prehistoric or historic district, site (including archaeological site),

building, structure, or other object included in, or eligible for inclusion in, the National Register

of Historic Places maintained by the Secretary of the Interior. This term includes artifacts,

records, and remains that are related to and located within such properties. The term includes

properties of traditional religious and cultural importance to an Indian tribe or Native Hawaiian

organization and that meet the National Register criteria (36 CFR part 60).

Independent utility: A test to determine what constitutes a single and complete non-linear project

in the Corps Regulatory Program. A project is considered to have independent utility if it would

be constructed absent the construction of other projects in the project area. Portions of a multiphase project that depend upon other phases of the project do not have independent utility.

Phases of a project that would be constructed even if the other phases were not built can be

considered as separate single and complete projects with independent utility.

Indirect effects: Effects that are caused by the activity and are later in time or farther removed in

distance but are still reasonably foreseeable.

Loss of waters of the United States: Waters of the United States that are permanently adversely

affected by filling, flooding, excavation, or drainage because of the regulated activity. The loss

of stream bed includes the acres of stream bed that are permanently adversely affected by filling

or excavation because of the regulated activity. Permanent adverse effects include permanent

discharges of dredged or fill material that change an aquatic area to dry land, increase the bottom

elevation of a waterbody, or change the use of a waterbody. The acreage of loss of waters of the

United States is a threshold measurement of the impact to jurisdictional waters or wetlands for

determining whether a project may qualify for an NWP; it is not a net threshold that is calculated

after considering compensatory mitigation that may be used to offset losses of aquatic functions

and services. Waters of the United States temporarily filled, flooded, excavated, or drained, but

restored to pre-construction contours and elevations after construction, are not included in the

measurement of loss of waters of the United States. Impacts resulting from activities that do not

require Department of the Army authorization, such as activities eligible for exemptions under

section 404(f) of the Clean Water Act, are not considered when calculating the loss of waters of

the United States.

Navigable waters: Waters subject to section 10 of the Rivers and Harbors Act of 1899. These

waters are defined at 33 CFR part 329.

Non-tidal wetland: A non-tidal wetland is a 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 (i.e., spring high tide line).

Open water: For purposes of the NWPs, an open water is any area that in a year with normal

patterns of precipitation has water flowing or standing above ground to the extent that an

ordinary high water mark can be determined. Aquatic vegetation within the area of flowing or

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standing water is either non-emergent, sparse, or absent. Vegetated shallows are considered to be

open waters. Examples of “open waters” include rivers, streams, lakes, and ponds.

Ordinary High Water Mark: The term ordinary high water mark means that line on the shore

established by the fluctuations of water and indicated by physical characteristics such as a clear,

natural line impressed on the bank, shelving, changes in the character of soil, destruction of

terrestrial vegetation, the presence of litter and debris, or other appropriate means that consider

the characteristics of the surrounding areas.

Perennial stream: A perennial stream has surface water flowing continuously year-round during

a typical year.

Practicable: Available and capable of being done after taking into consideration cost, existing

technology, and logistics in light of overall project purposes.

Pre-construction notification: A request submitted by the project proponent to the Corps for

confirmation that a particular activity is authorized by nationwide permit. The request may be a

permit application, letter, or similar document that includes information about the proposed work

and its anticipated environmental effects. Pre-construction notification may be required by the

terms and conditions of a nationwide permit, or by regional conditions. A pre-construction

notification may be voluntarily submitted in cases where pre-construction notification is not

required, and the project proponent wants confirmation that the activity is authorized by

nationwide permit.

Preservation: The removal of a threat to, or preventing the decline of, aquatic resources by an

action in or near those aquatic resources. This term includes activities commonly associated with

the protection and maintenance of aquatic resources through the implementation of appropriate

legal and physical mechanisms. Preservation does not result in a gain of aquatic resource area or

functions.

Re-establishment: The manipulation of the physical, chemical, or biological characteristics of a

site with the goal of returning natural/historic functions to a former aquatic resource. Reestablishment results in rebuilding a former aquatic resource and results in a gain in aquatic

resource area and functions.

Rehabilitation: The manipulation of the physical, chemical, or biological characteristics of a site

with the goal of repairing natural/historic functions to a degraded aquatic resource.

Rehabilitation results in a gain in aquatic resource function but does not result in a gain in

aquatic resource area.

Restoration: The manipulation of the physical, chemical, or biological characteristics of a site

with the goal of returning natural/historic functions to a former or degraded aquatic resource. For

the purpose of tracking net gains in aquatic resource area, restoration is divided into two

categories: Re-establishment and rehabilitation.

Riffle and pool complex: Riffle and pool complexes are special aquatic sites under the 404(b)(1)

Guidelines. Riffle and pool complexes sometimes characterize steep gradient sections of streams.

Such stream sections are recognizable by their hydraulic characteristics. The rapid movement of

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water over a course substrate in riffles results in a rough flow, a turbulent surface, and high

dissolved oxygen levels in the water. Pools are deeper areas associated with riffles. A slower

stream velocity, a streaming flow, a smooth surface, and a finer substrate characterize pools.

Riparian areas: Riparian areas are lands next to streams, lakes, and estuarine-marine shorelines.

Riparian areas are transitional between terrestrial and aquatic ecosystems, through which surface

and subsurface hydrology connects riverine, lacustrine, estuarine, and marine waters with their

adjacent wetlands, non-wetland waters, or uplands. Riparian areas provide a variety of ecological

functions and services and help improve or maintain local water quality. (See general condition

23.)

Shellfish seeding: The placement of shellfish seed and/or suitable substrate to increase shellfish

production. Shellfish seed consists of immature individual shellfish or individual shellfish

attached to shells or shell fragments (i.e., spat on shell). Suitable substrate may consist of

shellfish shells, shell fragments, or other appropriate materials placed into waters for shellfish

habitat.

Single and complete linear project: A linear project is a project constructed for the purpose of

getting people, goods, or services from a point of origin to a terminal point, which often involves

multiple crossings of one or more waterbodies at separate and distant locations. The term “single

and complete project” is defined as that portion of the total linear project proposed or

accomplished by one owner/developer or partnership or other association of owners/developers

that includes all crossings of a single water of the United States (i.e., a single waterbody) at a

specific location. For linear projects crossing a single or multiple waterbodies several times at

separate and distant locations, each crossing is considered a single and complete project for

purposes of NWP authorization. However, individual channels in a braided stream or river, or

individual arms of a large, irregularly shaped wetland or lake, etc., are not separate waterbodies,

and crossings of such features cannot be considered separately.

Single and complete non-linear project: For non-linear projects, the term “single and complete

project” is defined at 33 CFR 330.2(i) as the total project proposed or accomplished by one

owner/developer or partnership or other association of owners/developers. A single and complete

non-linear project must have independent utility (see definition of “independent utility”). Single

and complete non-linear projects may not be “piecemealed” to avoid the limits in an NWP

authorization.

Stormwater management: Stormwater management is the mechanism for controlling stormwater

runoff for the purposes of reducing downstream erosion, water quality degradation, and flooding

and mitigating the adverse effects of changes in land use on the aquatic environment.

Stormwater management facilities: Stormwater management facilities are those facilities,

including but not limited to, stormwater retention and detention ponds and best management

practices, which retain water for a period of time to control runoff and/or improve the quality

(i.e., by reducing the concentration of nutrients, sediments, hazardous substances, and other

pollutants) of stormwater runoff.

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Stream bed: The substrate of the stream channel between the ordinary high water marks. The

substrate may be bedrock or inorganic particles that range in size from clay to boulders.

Wetlands contiguous to the stream bed, but outside of the ordinary high water marks, are not

considered part of the stream bed.

Stream channelization: The manipulation of a stream's course, condition, capacity, or location

that causes more than minimal interruption of normal stream processes. A channelized

jurisdictional stream remains a water of the United States.

Structure: An object that is arranged in a definite pattern of organization. Examples of structures

include, without limitation, any pier, boat dock, boat ramp, wharf, dolphin, weir, boom,

breakwater, bulkhead, revetment, riprap, jetty, artificial island, artificial reef, permanent mooring

structure, power transmission line, permanently moored floating vessel, piling, aid to navigation,

or any other manmade obstacle or obstruction.

Tidal wetland: A tidal wetland is a jurisdictional wetland that is inundated by tidal waters. 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.

Tribal lands: Any lands title to which is either: (1) Held in trust by the United States for the

benefit of any Indian tribe or individual; or (2) held by any Indian tribe or individual subject to

restrictions by the United States against alienation.

Tribal rights: Those rights legally accruing to a tribe or tribes by virtue of inherent sovereign

authority, unextinguished aboriginal title, treaty, statute, judicial decisions, executive order or

agreement, and that give rise to legally enforceable remedies.

Vegetated shallows: Vegetated shallows are special aquatic sites under the 404(b)(1) Guidelines.

They are areas that are permanently inundated and under normal circumstances have rooted

aquatic vegetation, such as seagrasses in marine and estuarine systems and a variety of vascular

rooted plants in freshwater systems.

Waterbody: For purposes of the NWPs, a waterbody is a “water of the United States.” If a

wetland is adjacent to a waterbody determined to be a water of the United States, that waterbody

and any adjacent wetlands are considered together as a single aquatic unit (see 33 CFR

328.4(c)(2)).

Additional Information

For additional information concerning the nationwide permits or for a written determination

regarding a specific project, please contact the office below:

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New Mexico:

Albuquerque District Office

4101 Jefferson Plaza NE

Albuquerque, NM 87109-3435

Telephone: (505) 342-3280

Southern New Mexico and Western Texas:

Las Cruces Regulatory Office

200 E Griggs Avenue

Las Cruces, NM 88001-3516

Telephone: (505) 554-7943

Northwestern New Mexico, Southwestern Colorado, and the San Luis Valley of Colorado:

Durango Regulatory Office

1970 E 3rd Avenue, Suite 109

Durango, CO 81301-5025

Telephone: (970) 259-1582

Northwestern Colorado:

Grand Junction Regulatory Office

400 Rood Avenue, Room 224

Grand Junction, CO 81501-2520

Telephone: (970) 243-1199

Southeastern Colorado:

Pueblo Regulatory Office

201 W 8th Street, Suite 350

Pueblo, CO 81003-3435

Telephone: (719) 543-9459

Information about the U.S. Army Corps of Engineers regulatory program, including NWPs, may

also be accessed on our website at www.spa.usace.army.mil/reg.

This NWP is effective February 25, 2022, and expires on March 14, 2026.

Summary Version: February 25, 2022

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