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The Corps of Engineers Issue New Nationwide Permits

Tammy L. Shaw, J.D.

In March, the Army Corps of Engineers (Corps) issued 5 new Nationwide Permits (NWPs) and modified 6 existing NWPs to replace Nationwide Permit 26 (NWP 26). Nine of the NWP general conditions were modified and two new conditions were added. The new and modified permits set out specific categories of activities, such as agricultural activities, stormwater management facilities, residential and commercial development (see list below), and the requirements for each, with regard to obtaining a permit. These new and modified permits and conditions became effective on June 7, 2000. According to the Corps, the new and modified permits will substantially increase protection of critical water resources by authorizing many of the same activities previously permitted under NWP 26, but on an activity-specific basis which will result in minimal adverse effects on the aquatic environment.


Pursuant to authority granted by section 404 of the Clean Water Act, the Corps issues permits for the discharge of dredged or fill material into any navigable waters of the United States. There are two broad types of permits: individual permits and general permits. Under the heading of general permits, there are regional general permits, and nationwide permits which pertain to groups of similar activities such as building boat docks and shore protection.

Nationwide permit requirements are triggered by the addition of any fill material to navigable waters or adjacent wetlands that impacts or results in a loss to an established threshold of acreage. The Corps establishes guidelines by setting maximum acreage limits that may be impacted by the discharge of dredged or fill materials. NWP 26 is the general permit most often used to authorize discharge of dredged or fill material into headwaters, isolated waters and wetlands.

In 1984, the Corps established an impact limit for NWP 26 of ten acres and a requirement that the Corps be notified for any impact greater than one acre. In 1996, the impact limit was reduced to three acres and one-third acre for the notification requirement. The new and modified permits further reduce the impact limit to one-half acre and most require notification of activities impacting more than one-tenth of an acre. While the new limits are substantially more restrictive than previous limits, the Corps reports that these permit requirements will not result in denial of more permit applications, but will provide for increased protection of the aquatic environment based on a more detailed, activity-specific review of each permit.

In addition to these changes, the new NWPs impose linear foot limits on impacts to certain streams, allow for limited use of the NWPs in 100-year flood plains and provide for compensatory mitigation.

Index of Nationwide Permits

3. Maintenance

7. Outfall Structures and Maintenance

12. Utility Line Activities

14. Linear Transportation Crossings

27. Stream and Wetland Restoration Activities

39. Residential, Commercial, and Institutional Developments

40. Agricultural Activities

41. Reshaping Existing Drainage Ditches

42. Recreational Facilities

43. Stormwater Management Facilities

44. Mining Activities

The March 9, 2000, Federal Register notice (65 FR 12818) is available on the following Corps of Engineers' website: www.usace.army.mil/inet/functions/cw/cecwo/reg/ or through the U.S. Government Printing Office at www.access.gpo.gov/su-docs/aces/aces140.html .
The Corps of Engineers Issue New Nationwide Permits

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