Nationwide permits (NWPs) are general permits issued on a nationwide basis to streamline the Department of the Army (DA) authorization of activities that result in minimal individual and cumulative adverse effects on the aquatic environment. In order to qualify for the use of a NWP, perspective permittees must comply with all of the terms, general conditions (GCs), and regional conditions (RCs) of the NWP, including any requirements for the submittal of a pre-construction notification (PCN). Many of the NWPs, GCs and RCs require the submittal of a PCN before commencing the work, to ensure that activities authorized by those NWPs have minimal individual and cumulative adverse effects on the aquatic environment. If the proposed activity complies with the terms, GCs and RCs of the NWP, a DA NWP verification letter will be sent to the prospective permittee. The NWP verification letter may include additional case specific conditions Special Conditions (SC) to ensure the activity will not result in no more than minimal individual and cumulative adverse effects. The verification letter will indicate the specific period of time that the verification is valid, which is generally until the NWPs expire (i.e. March 18, 2022), unless the NWP authorization is modified, suspended, or revoked. Per regulation, the NWPs must be reissued every five years. The reissuance process involves a full interagency and public interest review.
Links to NWP pages:
2021 Nationwide Permits
2017 Nationwide Permits
Activities authorized by the 2017 NWPs remain authorized by those NWPs until March 18, 2022. For permittees holding authorizations for activities for any of the 12 NWPs replaced by this final rule, if the previously verified activity continues to qualify for NWP authorization under any of the 12 NWPs reissued in this final rule, that verification letter continues to be in effect until March 18, 2022, unless the district engineer specified a different expiration date in the NWP verification letter. As long as the verified NWP activities continue to comply with the terms and conditions of the 12 existing NWPs issued in this final rule, those activities continue to be authorized by the applicable NWP(s) until March 18, 2022, unless a district engineer modifies, suspends, or revokes a specific NWP authorization. For permittees with authorizations for activities that were authorized by the 2017 NWPs, but no longer qualify for authorization under the 12 existing NWPs that are reissued in this final rule (i.e., the reissued NWP has been modified so that the activity that was authorized is no longer covered), those activities continue to be authorized by the 2017 NWP(s) for 12 months of the date as long as those activities have commenced (i.e., are under construction) or are under contract to commence in reliance upon an NWP prior to the date on which the NWP expires. That authorization is contingent on the activity being completed within twelve months of the date of an NWP’s expiration, modification, or revocation, unless discretionary authority has been exercised by a division or district engineer 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). This provision applies to activities that were previously verified by the district engineer as qualifying for NWP authorization, but no longer qualify for NWP authorization under the modified or reissued NWP. If those activities no longer qualify for NWP authorization because they do not meet the terms and conditions of the 2021 NWPs (including any RCs imposed by Division Engineer), the prospective permittee will need to obtain an individual permit (Letter of Permission or Standard Permit or seek authorization under a Regional or Programmatic General Permit) if available.
Section 401 Water Quality Certifications
For any activity that may result in a discharge of a pollutant into waters of the U.S., prospective permittees must obtain a Section 401 Certification, or waiver thereof, from the appropriate State, authorized Tribe, or the Environmental Protection Agency (EPA) for activities located on tribal lands in which a tribe does not have Section 401 Certification authority. Section 401 Certification, or waiver, is required prior to the commencement of any activity under a NWP. In accordance with GC 25, where States and authorized Tribes, or EPA have not previously certified compliance of an NWP with Section 401 of the Clean Water Act, individual 401 Water Quality Certification must be obtained or waived (see 44 CFR 330.4(c)). The terms and conditions of individual 401 Water Quality Certifications are incorporated into the NWP authorizations by becoming a Special Conditions of the permit.
The use of any NWP that is not certified will require individual water quality certification pursuant to the U.S. Environmental Protection Agency's Clean Water Act Section 401 Certification Rule, which became effective September 11, 2020. Further information on new procedural requirements established by the CWA Section 401 Rule can be found in Sacramento District's Public Notice for the 401 Rule. Individual 401 certification conditions that are not waived by the District Engineer will become conditions of the NWP authorization.
401 Water Quality Certification Status of the Nationwide Permits
California 401 Summary Table
Nevada 401 Summary Table
Utah 401 Summary Table
Commencement of Construction of Activities Under a NWP
If a PCN is required by the terms, GCs, or RCs of the NWP, the prospective permittee may not begin construction of an activity under a NWP until either: (1) he or she is notified in writing by the District that the activity may proceed under the NWP with any special conditions imposed; or (2) 45 calendar days have passed from the District’s receipt of the complete PCN and the prospective permittee has not received written notice from the District. However, the 45 calendar day limit does not apply in the following circumstances:
- If the permittee is required to submit a PCN pursuant to GC18 that listed species or critical habitat might be affected or in the vicinity of the project, or to submit a PCN pursuant to GC 20 that the activity may have the potential to cause effects to historic properties, the permittee cannot begin the activity until receiving written notification 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 (ESA) and/or Section 106 of the National Historic Preservation Act (NHPA) has been completed (See Compliance with Section 7 of the ESA and Section 106 of the NHPA below for additional information).
- No work may begin under NWPs 21 or 50 until the permittee has received written approval from the Corps.
- If the proposed activity requires a written waiver to exceed specified limits of a NWP, the permittee may not begin the activity until the District issues the wavier.
- 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.
Compliance with Section 7 of the ESA and Section 106 of the NHPA
Section 7 of the ESA
No activity is authorized by any NWP if that activity is likely to jeopardize the continued existence of a threatened or endangered species as listed or proposed for listing under the Federal ESA, or to destroy or adversely modify the critical habitat of such species.
Federal permittees should follow their own procedures for complying with Section 7 of the ESA. GC 18 requires federal permittees to provide the District with appropriate documentation to demonstrate compliance with those requirements. The District will review the documentation submitted by the federal permittee and determine whether it is sufficient to address ESA compliance for the NWP activity, or whether additional ESA consultation is necessary. In addition, the Sacramento District RCs for California, Nevada, and Utah, requires that, for activities in which the District designates another federal agency as the lead for compliance with Section 7 of the ESA, the lead federal agency shall provide all relevant documentation to the District demonstrating previous consultation efforts, as it pertains to the Regulatory permit area. This information would be submitted with the PCN for the project. In order to expedite the NWP verification process, the Sacramento District encourages federal permittees to coordinate with the District prior to initiating Section 7 consultation, so that the District can designate the agency as the lead agency for compliance with ESA and to ensure that any consultation efforts include the Regulatory permit area.
GC 18 requires that non-federal permittees submit a PCN to the District if any listed species or designated critical habitat might be affected or is in the vicinity of the activity, or if the activity is located in designated critical habitat, and the permittee shall not begin work on the activity until notified by the District that the requirements of the ESA have been satisfied and the activity is authorized. For activities that might affect Federally-listed endangered or threatened species or their designated critical habitat, the PCN must include the names(s) of the endangered or threatened species that might be affected by the proposed work or that utilize the designated critical habitat that might be affected by the proposed work. The District will notify the non-federal applicant of the Corps’ effect determination within 45 days of receipt of a complete PCN. If the District determines that the activity may affect Federally-listed species or critical habitat, the District must initiate Section 7 consultation in accordance with the ESA. The District cannot verify the proposed work meets the terms and conditions of the NWP until such time consultation is completed. As a result of formal or informal consultation with the U.S. Fish and Wildlife Service (USFWS) and/or National Marine Fisheries Service (NMFS) under Section 7 of the ESA, the District may add special conditions to the NWP verification.
For additional information on the requirements of the Federal ESA, including specific information required to initiate consultation with the USFWS and/or NMFS, click here.
Section 106 of the NHPA
No activity which may affect properties listed, or properties eligible for listing, in the National Register of Historic Places, is authorized until the District has complied with the provisions of 33 CFR 325, Appendix C, and the requirements of Section 106 of the NHPA have been satisfied.
Federal permittees should follow their own procedures for complying with the requirements of Section 106 of the NHPA. General Condition 20 requires that federal permittees provide the District with the appropriate documentation to demonstrate compliance with those requirements. The District will review the documentation submitted by the federal permittee and determine whether it is sufficient to address NHPA compliance for the proposed NWP activity, or whether additional NHPA consultation is necessary. In addition, the Sacramento District regional conditions for California, Nevada, and Utah, requires that, for activities in which the District designates another federal agency as the lead for compliance with Section 106 of the NHPA, the lead federal agency shall provide all relevant documentation to the District demonstrating previous consultation efforts, as it pertains to the Regulatory area of potential effect (APE). This information would be submitted with the PCN for the project. In order to expedite the NWP verification process, the Sacramento District encourages federal permittees to coordinate with the District prior to initiating Section 106 consultation, so that the District can designate the agency as the lead agency for compliance with the NHPA and to ensure that any consultation efforts include the Regulatory APE.
General Condition 20 requires that non-federal permittees submit a PCN to the District if the proposed activity has 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 Place, including previously unidentified properties. The non-federal permittee shall not begin any work on the activity until notified by the District that the requirements of the NHPA have been satisfied and the activity is authorized. For such activities, the PCN must state which historic properties may be affect by the proposed work, or include a vicinity map indicating the location of the 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 resources can be sought from the State Historic Preservation Officer (SHPO), or Tribal Historic Preservation Officer (THPO), as appropriate, and the National Register of Historic Places. If the District determines that the proposed activity has the potential to affect historic properties, the District will consult with the SHPO and/or THPO under Section 106 of the NHPA. The District will notify the prospective permittee within 45 days of a complete PCN whether NHPA Section 106 consultation is required. The District cannot verify the proposed work meets the terms and conditions of the NWP until such time consultation is complete. If the activity would result in an adverse effect to a historic property, the District would coordinate with the SHPO and/or THPO to seek ways to avoid or minimize effects to the affected historic property. The results of the consultation may be added as a special condition to the NWP verification.
For additional information on the requirements of the NHPA, including the information required to initiate consultation with the SHPO and/or THPO, click here.
Frequently Asked Questions for the Nationwide Permit Program
NWP Process Flowchart
401 Certifcation Permit Process Flow Chart