33 CFR 330.6 - Authorization by nationwide permit.

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§ 330.6 Authorization by nationwide permit.

(a)Nationwide permit verification.

(1) Nationwide permittees may, and in some cases must, request from a DE confirmation that an activity complies with the terms and conditions of an NWP. DEs should respond as promptly as practicable to such requests.

(2) If the DE decides that an activity does not comply with the terms or conditions of an NWP, he will notify the person desiring to do the work and instruct him on the procedures to seek authorization under a regional general permit or individual permit.

(3) If the DE decides that an activity does comply with the terms and conditions of an NWP, he will notify the nationwide permittee.

(i) The DE may add conditions on a case-by-case basis to clarify compliance with the terms and conditions of an NWP or to ensure that the activity will have only minimal individual and cumulative adverse effects on the environment, and will not be contrary to the public interest.

(ii) The DE's response will state that the verification is valid for a specific period of time (generally until the expiration date of the NWP) unless the NWP authorization is modified, suspended, or revoked. The response should also include a statement that the verification will remain valid for the specified period of time, if during that time period, the NWP authorization is reissued without modification or the activity complies with any subsequent modification of the NWP authorization. Furthermore, the response should include a statement that the provisions of § 330.6(b) will apply, if during that period of time, the NWP authorization expires, or is suspended or revoked, or is modified, such that the activity would no longer comply with the terms and conditions of an NWP. Finally, the response should include any known expiration date that would occur during the specified period of time. A period of time less than the amount of time remaining until the expiration date of the NWP may be used if deemed appropriate.

(iii) For activities where a state has denied 401 water quality certification and/or did not agree with the Corps consistency determination for an NWP the DE's response will state that the proposed activity meets the terms and conditions for authorization under the NWP with the exception of a state 401 water quality certification and/or CZM consistency concurrence. The response will also indicate the activity is denied without prejudice and cannot be authorized until the requirements of §§ 330.4(c)(3), 330.4(c)(6), 330.4(d)(3), and 330.4(d)(6) are satisfied. The response will also indicate that work may only proceed subject to the terms and conditions of the state 401 water quality certification and/or CZM concurrence.

(iv) Once the DE has provided such verification, he must use the procedures of 33 CFR 330.5 in order to modify, suspend, or revoke the authorization.

(b)Expiration of nationwide permits. The Chief of Engineers will periodically review NWPs and their conditions and will decide to either modify, reissue, or revoke the permits. If an NWP is not modified or reissued within five years of its effective date, it automatically expires and becomes null and void. Activities which have commenced (i.e, are under construction) or are under contract to commence in reliance upon an NWP will remain authorized provided the activity is completed within twelve months of the date of an NWP's expiration, modification, or revocation, unless discretionary authority has been exercised on a case-by-case basis to modify, suspend, or revoke the authorization in accordance with 33 CFR 330.4(e) and 33 CFR 330.5 (c) or (d). Activities completed under the authorization of an NWP which was in effect at the time the activity was completed continue to be authorized by that NWP.

(c)Multiple use of nationwide permits. Two or more different NWPs can be combined to authorize a “single and complete project” as defined at 33 CFR 330.2(i). However, the same NWP cannot be used more than once for a single and complete project.

(d)Combining nationwide permits with individual permits. Subject to the following qualifications, portions of a larger project may proceed under the authority of the NWPs while the DE evaluates an individual permit application for other portions of the same project, but only if the portions of the project qualifying for NWP authorization would have independent utility and are able to function or meet their purpose independent of the total project. When the functioning or usefulness of a portion of the total project qualifying for an NWP is dependent on the remainder of the project, such that its construction and use would not be fully justified even if the Corps were to deny the individual permit, the NWP does not apply and all portions of the project must be evaluated as part of the individual permit process.

(1) When a portion of a larger project is authorized to proceed under an NWP, it is with the understanding that its construction will in no way prejudice the decision on the individual permit for the rest of the project. Furthermore, the individual permit documentation must include an analysis of the impacts of the entire project, including related activities authorized by NWP.

(2) NWPs do not apply, even if a portion of the project is not dependent on the rest of the project, when any portion of the project is subject to an enforcement action by the Corps or EPA.

(e)After-the-fact authorizations. These authorizations often play an important part in the resolution of violations. In appropriate cases where the activity complies with the terms and conditions of an NWP, the DE can elect to use the NWP for resolution of an after-the-fact permit situation following a consideration of whether the violation being resolved was knowing or intentional and other indications of the need for a penalty. For example, where an unauthorized fill meets the terms and conditions of NWP 13, the DE can consider the appropriateness of allowing the residual fill to remain, in situations where said fill would normally have been permitted under NWP 13. A knowing, intentional, willful violation should be the subject of an enforcement action leading to a penalty, rather than an after-the-fact authorization. Use of after-the-fact NWP authorization must be consistent with the terms of the Army/EPA Memorandum of Agreement on Enforcement. Copies are available from each district engineer.

[ 56 FR 59134, Nov. 22, 1991, as amended at 78 FR 5733, Jan. 28, 2013]

This is a list of United States Code sections, Statutes at Large, Public Laws, and Presidential Documents, which provide rulemaking authority for this CFR Part.

This list is taken from the Parallel Table of Authorities and Rules provided by GPO [Government Printing Office].

It is not guaranteed to be accurate or up-to-date, though we do refresh the database weekly. More limitations on accuracy are described at the GPO site.

United States Code

§ 401 - Construction of bridges, causeways, dams or dikes generally; exemptions

§ 402 - Construction of bridges, etc., over Illinois and Mississippi Canal

§ 403 - Obstruction of navigable waters generally; wharves; piers, etc.; excavations and filling in

§ 403a - Creation or continuance of obstruction of navigable waters

§ 403b - Lighting at docks and boat launching facilities

§ 404 - Establishment of harbor lines; conditions to grants for extension of piers, etc.

§ 405 - Establishment and modification of harbor lines on Potomac and Anacostia Rivers

§ 406 - Penalty for wrongful construction of bridges, piers, etc.; removal of structures

§ 407 - Deposit of refuse in navigable waters generally

§ 407a - Deposit of debris of mines and stamp works

§ 408 - Taking possession of, use of, or injury to harbor or river improvements

§ 409 - Obstruction of navigable waters by vessels; floating timber; marking and removal of sunken vessels

§ 410 - Exception as to floating loose timber, sack rafts, etc.; violation of regulations; penalty

§ 411 - Penalty for wrongful deposit of refuse; use of or injury to harbor improvements, and obstruction of navigable waters generally

§ 412 - Liability of masters, pilots, etc., and of vessels engaged in violations

§ 413 - Duty of United States attorneys and other Federal officers in enforcement of provisions; arrest of offenders

§ 414 - Removal by Secretary of the Army of sunken water craft generally; liability of owner, lessee, or operator

§ 415 - Summary removal of water craft obstructing navigation; liability of owner, lessee, or operator

§ 416 - Appropriations for removal of sunken water craft

§ 417 - Expenses of investigations by Department of the Army

§ 418 - Provisions for protection of New York Harbor unaffected

§ 419 - Regulation by Secretary governing transportation and dumping of dredgings, refuse, etc., into navigable waters; oyster lands; appropriations

§ 419a - Management practices to extend capacity and useful life of dredged material disposal areas

§ 420 - Piers and cribs on Mississippi and St. Croix Rivers

§ 421 - Deposit of refuse, etc., in Lake Michigan near Chicago

§ 422 - Modification and extension of harbor lines at Chicago

§ 423 - Establishment of pierhead and bulkhead lines in Wilmington Harbor, California

§ 424 - Establishment of pierhead or bulkhead lines in Newport Harbor, California

§ 424a - Modification of harbor lines in Newport Harbor, California

§ 425 - Omitted

§ 426 - Investigations concerning erosion of shores of coastal and lake waters

§ 426-1

§ 426-2

§ 426-3

§ 426a - Additional investigations concerning erosion of shores of coastal and lake waters; payment of costs; “shores” defined

§ 426b - Applicability of existing laws; projects referred to Board of Engineers for Rivers and Harbors

§ 426c - Report by Coastal Engineering Research Center

§ 426d - Payment of expenses

§ 426e - Federal aid in protection of shores

§ 426e-1

§ 426f - Reimbursements

§ 426g - Storm and hurricane restoration and impact minimization program

§ 426g-1

§ 426h - Repealed. Pub. L. 110–114, title II, § 2038(b), Nov. 8, 2007, 121 Stat. 1100

§ 426h-1

§ 426i - Shore damage prevention or mitigation

33 U.S. Code § 426i–1 - Repealed. Pub. L. 113–121, title I, § 1014(c)(2), June 10, 2014, 128 Stat. 1222

§ 426i-2

§ 426j - Repealed. Pub. L. 110–114, title II, § 2037(b)(1), Nov. 8, 2007, 121 Stat. 1096

§ 426k - Five year demonstration program to temporarily increase diversion of water from Lake Michigan at Chicago, Illinois

§ 426l - Protection of Lake Ontario

§ 426m - Collection and removal of drift and debris from publicly maintained commercial boat harbors and adjacent land and water areas

§ 426n - Technical assistance to States and local governments; cost sharing

§ 426o - Great Lakes material disposal

§ 426o-1

§ 426o-2

§ 426p - Corps of Engineers

§ 427 to 430 - Repealed. July 31, 1945, ch. 334, § 5, 59 Stat. 508

§ 1344 - Permits for dredged or fill material

§ 1413 - Dumping permit program for dredged mate­rial