Appendix C. NATIONWIDE PERMITS ISSUED BY U.S. ARMY CORPS OF ENGINEERS

US Army Corps
of Engineers
Fort Worth District

Public Notice

Applicant:    N/A   

Permit Application No.: Announcement of Consolidated Regulations

Date: November 13, 1986

The purpose of this public notice is to inform you of a proposal for work in which you might be interested. It is also to solicit your comments and information to better enable us to make a reasonable decision on factors affecting the public interest. We hope you will participate in this process.

Regulatory Program Since its early history the US Army Corps of Engineers has played an important role in development of the nation's water resources. Originally this involved constriction of harbor fortifications and coastal defenses. Later duties included the improvement of waterways to provide avenues of commerce. An important part of our mission today is the protection of the nation's waterways through the administration of the US Army Corps of Engineers Regulatory Program.

Section 10 The US Army Corps of Engineers is agreed by Congress under Section 10 of the River and Harbor Act of 1899 (33 USC 403) to regulate all work or structures in or affecting the course, condition, or capacity of navigable waters of the United States. The intent of this law is to protect the navigable capacity of waters important to interstate commerce.

Section 404 The US Army Corps of Engineers is directed by Congress under Section 404 of the Clean Water Act (33 USC 1344) to regulate the discharge of dredged and fill material into all waters of the United States including their adjacent wetlands. The intent of this law is to protect the nation's waters from the indiscriminate discharge of material capable of causing pollution and to restore and maintain their chemical, physical and biological integrity.

Contact: Name    State of Texas   
Phone Number   [phone]

Corps of Engineers Regulatory Program

Reauthorization of the Nationwide Permits

On November 13, 1986, the Corps of Engineers published, in the Federal Register, the consolidated final rules for the administration of its regulatory program under the Rivers and Harbors Act of 1899, The Clean Water Act and the Marine Protection, Research and Sanctuaries Act. These rules become effective on January 12, 1986.

An integral part of the Corps regulatory program is the concept of general permits for minor activities. General permits are activity and/or area specific and are designed to relieve some of the administrative burdens associated with permit processing for both applicants and the Federal government. The nationwide permits found at 33 CFR 330.5(a) are a form of general permits issued by the Chief of Engineers and are intended to apply throughout the entire United States and its territories. A listing of the nationwide permits and special conditions is attached.

Corps of Engineers permits are required by law to insure consistency with coastal zone management programs implemented by the states. The state of Texas does not have a Coastal Zone Management Act.

Permits, issued by the Corps of Engineers, under the authority of Section 404 of the Clean Water Act may not be issued until the state (where the discharge will occur) certifies, under Section 401 of the Act, that the discharge will comply with the water quality standards of the state. The State of Texas has not denied water quality certification for any nationwide permit(s).

The nationwide permit found at 33 CFR 330.5(a)(26) requires that the permittee notify the district engineer at least 20 days prior to performing the discharge, if the discharge will cause the loss or significant adverse modification of more than 1 acre of waters of the United States (including wetlands). Specific procedures for this pre-discharge notification are contained in 33 CFR 330.7.

Public Notice, Regulatory Program - Nationwide Permits

The nationwide permits provide a simplified, expeditious means of project authorization under the various authorities of the Corps of Engineers. We encourage prospective permit applicants to consider the advantages of nationwide permit authorization during the preliminary design of their projects. Assistance and further information regarding all aspects of the Corps of Engineers regulatory program may be obtained by contacting the following office. (see attached map to determine which office has jurisdiction in your area):

1.

Fort Worth District/Permits Section
Wayne A. Lea
P.O. Box 17300
Fort Worth, Texas 76102-0300
ATTN: SWFOD-O
[phone]

2.

Galveston District/Permit Section
Marcos DelaRosa
P.O. Box 1229
Galveston, Texas 77553
ATTN: SWACO-R
[phone]

3.

Albuquerque District
Andy J. Rosenau
Regulatory Functions Branch
P.O. Box 1580
Albuquerque, New Mexico 87103
ATTN: SWACO-OR
[phone]

4.

Tulsa District
Don Ringeisen
Regulatory Functions Section
P.O. Box 61
Tulsa, OK 74121
ATTN: STTOD-NR
(918) 581-72617

Nationwide Permits Contained in 33 CFR 330.5

The following is a list of the nationwide permits authorized by the Chief of Engineers, and published at 33 CFR 330.5. The conditions found at Section 330.5(b) and best management practices which apply to the nationwide permits have been reprinted at the end of this attachment.

The parenthetical references (Section 10, Section 404) following each nationwide permit indicate the specific authority under which that permit is issued.

Sec. 330.5 (a) Authorized activities. The following activities, [including discharges of dredged or fill material,] are hereby permitted provided they meet the conditions listed in paragraph (b) of this section and, where required, comply with the notification procedures of Section 330.7.

(1)

The placement of aids to navigation and regulatory markers which are approved by and installed in accordance with the requirements of the US Coast Guard (33 CFR Part 66, Subchapter C). (Section 10)

(2)

Structures constructed in artificial canals within principally residential developments where the connection of the canal to a navigable water of the United States has been previously authorized (see 33 CFR Part 322.5 (g)). (Section 10)

(3)

The repair, rehabilitation, or replacement of any previously authorized, currently serviceable, structure or fill, or of any currently serviceable structure or fill constructed prior to the requirement for authorization, provided such repair, rehabilitation, or replacement does not result in a deviation from the plans of the original structure or fill, and further provided that the structure or fill has not been put to uses differing from uses specified for it in any permit authorizing its original construction. Minor deviations due to changes in materials or construction techniques and which are necessary to make repair, rehabilitation, or replacement are permitted. Maintenance dredging and beach restoration are not authorized by this nationwide permit. (Sections 10 and 404)

(4)

Fish and wildlife harvesting devices and activities, such as pound nets, crab traps, eel pots, lobster traps, duck blinds, and clam and oyster digging. (Section 10)

(5)

Staff gages, tide gages, water recording devices, water quality testing and improvement devices, and similar scientific structures. (Section 10)

(6)

Survey activities including core sampling, seismic exploratory operations, and plugging of seismic shot holes and other exploratory-type bore holes. Drilling of exploration-type bore holes for oil and gas exploration is not authorized by this nationwide permit; the plugging of such holes is authorized. (Sections 10 and 404).

(7)

Outfall structures and associated intake structures where the effluent from that outfall has been permitted under the National Pollutant Discharge Elimination System program (Section 402 of the Clean Water Act) (see 40 CFR Part 122) provided that the district or division engineer makes a determination that the individual and cumulative adverse environmental effects of the structure itself are minimal in accordance with section 330.7(c)(2) and (d). Intake structures per se are not included - only those directly associated with an outfall structure are covered by this nationwide permit. This permit includes minor excavation, filling and other work associated with installation of the intake and outfall structures. (Sections 10 and 404)

(8)

Structures for the exploration, production, and transportation of oil, gas, and minerals on the outer continental shelf within areas leased for such purposes by the Department of Interior, Mineral Management Service, provided those structures are not placed within the limits of any designated shipping safety fairway or traffic separation scheme (where such limits have not been designated or where changes are anticipated, district engineers, will consider recommending the discretionary authority provided by 330.8 of this Part), and further subject to the provisions of the fairway regulations in 33 CFR Part 322.5 (1) [Part 209.135] (Section 10).

(9)

Structures placed within anchorage or fleeting areas to facilitate moorage of vessels where such areas have been established for that purpose by the U.S. Coast Guard. (Section 10)

(10)

Non-commercial, single-boat, mooring buoys. (Section 10)

(11)

Temporary buoys and markers placed for recreational use such as water skiing and boat racing provided that the buoy or marker is removed within 30 days after its use has been discontinued. At Corp. of Engineers reservoirs, the reservoir manager must approve each buoy or marker individually. (Section 10)

(12)

Discharge of material for backfill or bedding for utility lines, including outfall and intake structures, provided there is no change in preconstruction bottom contours (excess material must be removed to an upland disposal area). A "utility line" is defined as any pipe or pipeline for the transportation of any gaseous, liquid, liquifiable, or slurry substance, for any purpose, and any cable, line, or wire for the transmission for any purpose of electrical energy, telephone and telegraph messages, and radio and television communication. (The utility line and outfall and intake structures will require a Section 10 permit if in navigable waters of the United States. See 33 CFR Part 322. See also paragraph (a)(7) of this section.) (Section 404)

(13)

Bank stabilization activities provided:

(i)

The bank stabilization activity is less than 500 feet in length;

(ii)

The activity is necessary for erosion prevention;

(iii)

The activity is limited to less than an average of one cubic yard per running foot placed along the bank within waters of the United States;

(iv)

No material is placed in excess of the minimum needed for erosion protection;

(v)

No material is placed in any wetland area;

(vi)

No material is placed in any location or in any manner so as to impair surface water flow into or out of any wetland area;

(vii)

Only clean material free of waste metal products, organic materials, unsightly debris, etc. is used; and

(viii)

The activity is a single and complete project. (Sections 10 and 404)

(14)

Minor road crossing fills including all attendant features, both temporary and permanent, that are part of a single and complete project for crossing of a non-tidal waterbody, provided that the crossing is culverted, bridged or otherwise designed to prevent the restriction of, and to withstand, expected high flows and provided further that discharges into any wetlands adjacent to the waterbody do not extend beyond 100 feet on either side of the ordinary high water mark of that waterbody. A "minor road crossing fill" is defined as a crossing that involves the discharge of less than 200 cubic yards of fill material below the plane of ordinary high water. The crossing may require a permit from the US Coast Guard if located in navigable waters of the United States (see 33 USC 301). Some road fills may be eligible for an exemption from the need for a Section 404 permit altogether (see 33 CFR 323.4). District engineers are authorized, where local circumstances (regional conditions indicate the need, to define the term "expected high flows" for the purpose of establishing applicability of this nationwide permit. (Sections 10 and 404)

(15)

Discharges of dredged or fill material [Fill placed] incidental to the construction of bridges across navigable waters of the United States, including cofferdams, abutments, foundation seals, piers, and temporary construction and access fills provided such fill has been authorized by the US Coast Guard [under Section 9 of the Rivers and Harbors Act of 1899] as part of the bridge permit. Causeways and approach fills are not included in this nationwide permit and will require an individual or regional Section 404 permit. (Section 404)

(16)

Return water from an upland, contained dredged material disposal area (see 33 CFR 323.2(d)) [(j)] provided the state has issued a site specific or generic certification under Section 401 of the Clean Water Act (see also 33 CFR 325.2(b)(1)). The dredging itself requires a Section 10 permit if located in navigable waters of the United States. The return water or runoff from a contained disposal area is administratively defined as a discharge of dredged material by 33 CFR 323.2(d)[(j)] even though the disposal itself occurs on the upland and thus does not require a Section 404 permit. This nationwide permit satisfies the technical requirement for a Section 404 permit for the return water where the quality of the return water is controlled by the state through the Section 401 certification procedures. (Section 404)

(17)

Fills associated with small hydropower projects at existing reservoirs where the project which includes the fill is licensed by the Federal Energy Regulatory Commission (FERC) under the Federal Power Act of 1920, as amended; has a total generating capacity of not more than 1500 kw (2,000 horsepower); qualifies for the short-form licensing procedures of the FERC (see 18 CFR 4.61); and the district or division engineer makes a determination that the individual and cumulative adverse effects on the environment are minimal in accordance with Section 330.7(c)(2) and (d). (Section 404)

(18)

Discharges of dredged or fill material into all waters of the United States other than wetlands that do not exceed ten cubic yards as part of a single and complete project provided the material is not placed for the purpose of stream diversion. [provided no material is placed in wetlands] (Sections 10 and 404)

(19)

Dredging of no more than ten cubic yard. from navigable waters of the United States as part of a single and complete project. This permit does not authorize the connection of canals or other artificial waterways to navigable waters of the United States (see Section 33 CFR 322.5(g)). (Section 10)

(20)

Structures, work, and discharges for the containment and cleanup of oil and hazardous substances which are subject to the National Oil and Hazardous Substances Pollution Contingency Plan, (40 CFR 300), provided the Regional Response Team which is activated under the Plan concurs with the proposed containment and cleanup action. (Sections 10 and 404)

(21)

Structures, work, discharges associated with surface coal mining activities provided they were authorized by the Department of the Interior, Office of Surface Mining, or by states with approved programs under Title V of the Surface Mining Control and Reclamation Act of 1977; the appropriate district engineer is given the opportunity to review the Title V permit application and all relevant Office of Surface Mining or state (as the case may be) documentation prior to any decision on that application; and the district or division engineer makes a determination that the individual and cumulative adverse effects on the environment from such structures, work, or discharges are minimal in accordance with Sections 330.7(c)(2) and (3) and (d). (Sections 10 and 404)

(22)

Minor work, fills, or temporary structures required for the removal of wrecked, abandoned, or disabled vessels, or the removal of man-made obstructions to navigation. This permit does not authorize maintenance dredging, shoal removal, or river bank snagging. (Sections 10 and 404)

(23)

Activities, work, and discharges undertaken, assisted, authorized, regulated, funded, or financed, in whole or in part, by another federal agency or department where that agency or department has determined, pursuant to the CEQ Regulation for Implementing the Procedural Provisions of the National Environmental Policy Act (40 CFR Part 1500 et seq.), that the activity, work, or discharge is categorically excluded from environmental documentation because it is included within a category of actions which neither individually nor cumulatively have a significant effect on the human environment, and the Office of the Chief of Engineers (ATTN: DAEN-CWO-N) has been furnished notice of the agency's or department's application for the categorical exclusion and concurs with that determination. Prior to approval for purposes of this nationwide permit of any agency's categorical exclusions, the Chief of Engineers will solicit comments through publication in the Federal Register. (Sections 10 and 404)

Note: As of the date of the attached notice, the categorical exclusions of the following agencies have received the concurrence of the Chief of Engineers:

1.

Federal Highway Administration/Urban Mass Transit Administration (23 CFR 771.115),

2.

U.S. Coast Guard (45 Federal Register 32819),

3.

Bureau of Reclamation (48 Federal Register 17151).

(24)

Any activity permitted by a state administering its own Section 404 permit program for the discharge of dredged or fill material authorized at 33 USC 1344(g)-(l) is [shall be] permitted pursuant to Section 10 of the Rivers and Harbors Act of 1899. Those activities which do not involve a Section 404 state permit are not included in this nationwide permit but many will be exempted by Sec. 154 of PL 94-587. (See 33 CFR 322.3(a)(2)). (Section 10)

(25)

Discharge of concrete into tightly sealed forms or cells where the concrete is used as a structural member which would not otherwise be subject to Clean Water Act jurisdiction. (Section 404)

(26)

Discharges of dredged or fill material into the waters listed in paragraphs (a)(26)(i) and (ii) of this section except those which cause the loss or substantial adverse modification of 10 acres or more of such waters of the United States, including wetlands. For discharges which cause the loss or substantial adverse modification of 1 to 10 acres of such waters, including wetlands, notification to the district engineer is required in accordance with Section 330.7 of this section. (Section 404).

(i)

Non-tidal rivers, streams, and their lakes and impoundments, including adjacent wetlands, that are located above the headwaters.

(ii)

Other non-tidal waters of the United States, including adjacent wetlands, that are not part of a surface tributary system to interstate waters or navigable waters of the United States (i.e., isolated waters).

(b)

Conditions. The following special conditions must be followed in order for the nationwide permits identified in paragraph (a) of this section to be valid:

(1)

That any discharge of dredged or fill material will not occur in the proximity of a public water supply intake.

(2)

That any discharge of dredged or fill material will not occur in areas of concentrated shellfish production unless the discharge is directly related to a shellfish harvesting activity authorized by paragraph (a)(4) of this section.

(3)

That the activity will not jeopardize a threatened or endangered species as identified under the Endangered Species Act (ESA), or destroy or adversely modify the critical habitat of such species. In the case of federal agencies, it is the agencies responsibility to comply with the requirements of the ESA. If the activity may adversely affect any listed species or critical habitat, the district engineer must initiate Section 7 consultation in accordance with the ESA. In such cases, the district engineer may: (i) initiate Section 7 consultation and then, upon completion, authorize the activity under the nationwide permit by adding, if appropriate, activity specific conditions, or (ii) prior to or concurrent with Section 7 consultation he may recommend discretionary authority (See Section 330.8) or use modification, suspension, or revocation procedures (See 33 CFR 325.7). [review its activities to determine if the action "may affect" any listed species or critical habitat. If so, the Federal agency must consult with the Fish and Wildlife Service and/or National Marine Fisheries Service:]

(4)

That the activity shall not significantly disrupt the movement of those species of aquatic life indigenous to the waterbody (unless the primary purpose of the fill is to impound water);

(5)

That any discharge of dredged or fill material shall consist of suitable material free from toxic pollutants (see Section 307 of Clean Water Act) in toxic amounts;

(6)

That any structure or fill authorized shall be properly maintained.

(7)

That the activity will not occur in a component of the National Wild and Scenic River System; nor 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;

(8)

That the activity shall not cause an unacceptable interference with navigation;

(9)

That, if the activity may adversely affect historic properties which the National Park Service has listed on, or determined eligible for listing on, the National Register of Historic Places, the permittee will notify the district engineer. If the district engineer determines that such historic properties may be adversely affected, he will provide the Advisory Council on Historic Preservation an opportunity to comment on the effects on such historic properties or he will consider modification, suspension, or revocation in accordance with 33 CFR 325.7. Furthermore, that, if the permittee before or during prosecution of the work authorized, encounters a historic property that has not been listed or determined eligible for listing on the National Register, but which may be eligible for listing in the National Register, he shall immediately notify the district engineer;

(10)

That the construction or operation of the activity will not impair reserved tribal rights, including, but not limited to, reserved water rights and treaty fishing and hunting rights;

(11)

That in certain states, an individual state water quality certification must be obtained or waived (See Section 330.9);

(12)

That in certain states, an individual state coastal zone management consistency concurrence must be obtained or waived (See Section 330.10);

(13)

That the activity will comply with regional conditions which may have been added by the division engineer (See Section 330.8(a)); and

(14)

That the management practices listed in Section 330.6 of this part shall be followed to the maximum extent practicable.

(c)

Further information.

(1)

District engineers are authorized to determine if an activity complies with the terms and conditions of a nationwide permit unless that decision must be made by the division engineer in accordance with Section 330.7.

(2)

Nationwide permits do not obviate the need to obtain other Federal, state or local authorizations required by law.

(3)

Nationwide permits do not grant any property rights or exclusive privileges

(4)

Nationwide permits do not authorize any injury to the property or rights of others.

(5)

Nationwide permits do not authorize interference with any existing or proposed Federal project.

(d)

Modification, Suspension or Revocation of Nationwide Permits. The Chief of Engineers may modify, suspend, or revoke nationwide permits in accordance with the relevant procedures of 33 CFR 325.7. Such authority includes, but is not limited to: adding individual, regional, or nationwide conditions; revoking authorization for a category of activities or a category of waters by requiring individual or regional permits; or revoking an authorization on a case-by-case basis. This authority is not limited to concerns for the aquatic environment as is the discretionary authority in section 330.8.

Public Notice, Regulatory Program - Nationwide Permits

Sec. 330.6 Management practices.

(a)

In addition to the conditions specified in Sections 330.5 of this Part, the following management practices shall be followed, to the maximum extent practicable, in order to minimize the adverse effects of these discharges on the aquatic environment. Failure to comply with these practices may be cause for the district engineer to recommend, or the division engineer to take, discretionary authority to regulate the activity on an individual or regional basis pursuant to Section 330.8 of this Part.

(1)

Discharges of dredged or fill material into waters of the United States shall be avoided or minimized through the use of other practical alternatives.

(2)

Discharges in spawning areas during spawning seasons shall be avoided.

(3)

Discharges shall not restrict or impede the movement of aquatic species indigenous to the waters or the passage of normal or expected high flows or cause the relocation of the water (unless the primary purpose of the fill is to impound waters).

(4)

If the discharge creates an impoundment of water, adverse impacts on the aquatic system caused by the accelerated passage of water and/or the restriction of its flow shall be minimized.

(5)

Discharge in wetlands areas shall be avoided.

(6)

Heavy equipment working in wetlands shall be placed on mats.

(7)

Discharges into breeding areas for migratory waterflow shall be avoided.

(8)

All temporary fills shall be removed in their entirety.