General Permits are issued nationwide or regionally for a category or categories of activities that are either similar in nature and cause only minimal individual and cumulative adverse impacts (Nationwide and Regional General Permits) or would result in avoiding unnecessary regulatory control exercised by another federal, state, or local agency and the environmental consequences of the activity would be individually and cumulatively minimal (Programmatic General Permit). General Permits always include terms and conditions for compliance and may require preconstruction notification of the U.S. Army Corps of Engineers (See 33 CFR 320.1 (c), 322.2 (f), 323.2 (h), 325.2 (e)(2), and 330).
Nationwide General Permits (NWPs)
The Fort Worth Regulatory Branch has released electronic application submittal forms for some of the more commonly used Nationwide Permits (NWPs) in the Fort Worth District (currently: NWPs 3, 12, 13, 14, 21, 29, 39, & 43).
A Nationwide General Permit (NWP) is a type of general permit issued nationally. The regulations that govern NWPs are found at 33 CFR 330. There are currently 50 NWPs (published on February 19, 2012 and expire on March 18, 2017) with 31 general conditions. NWPs, like all general permits, are valid for 5 years from the date of issuance. NWP regional conditions for Texas and Louisiana have been adopted by the USACE. In the January 28, 2013 Federal Register Vol. 78, No.18 pp.5726-5733, a change was made to the 2012 NWP's. In most cases, permittees may proceed with activities authorized by NWPs without notifying the DE, however, the prospective permittee should carefully review the language of the NWP to ascertain whether he must notify the DE prior to commencing the authorized activity. For NWPs requiring a Preconstruction Notification (PCN), such notification must be made in writing as early as possible prior to commencing the proposed activity. The permittee may presume that his project qualifies for the NWP unless he is otherwise notified by the DE within a 45-day period. The 45-day period starts on the date of receipt of the notification in the Corps district office and ends 45 calendar days later regardless of weekends or holidays. If the DE notifies the prospective permittee that the notification is incomplete, a new 45-day period will commence upon receipt of the revised notification. The prospective permittee may not proceed with the proposed activity before expiration of the 45-day period unless otherwise notified by the DE. If the DE fails to act within the 45- day period, he must use the procedures of 33 CFR 330.5 in order to modify, suspend, or revoke the NWP authorization.
Under Section 401 of the Clean Water Act, certification of compliance with state water quality standards by the State Water Quality Agency is required for any discharge of pollutants into waters of the United States. Section 401 water quality certification is conducted by the Texas Commission on Environmental Quality (TCEQ) in Texas and the Louisiana Department of Environmental Quality (LDEQ) in Louisiana. All Section 404 permits, individual or general, require Section 401 water quality certification.
The TCEQ issued conditional water quality certification (WQC) for the NWPs. The USACE considers WQC for NWP 16 denied.
The Texas Railroad Commission issued water quality certification for activities associated with exploration, development, and production of oil, gas or geothermal resources that may result in discharges of fill into waters of the United States.
There are no Indian Lands in the Fort Worth District, however, the EPA issued water quality certification
for Indian Lands in Texas.
LDEQ issued water quality certification for NWPs 3, 4, 5, 6, 7, 12, 13, 14, 15, 16, 17, 18, 19, 20, 22, 23, 25, 27, 30, 31, 32, 33, 34, 36, 37, 38, 40, 41, 42, 43, 44, 45, 48, 49, 50, 51, and 52 without conditions. LDEQ denied water quality certification for NWPs 21, 29, and 39. Because NWPs 1, 2, 8, 9, 10, 11, 24, 28 and 35 cover only Section 10 waters, LDEQ did not act on water quality certification for those NWPs.
Preconstruction notification (PCN) to the USACE is required in many cases and resource agency coordination (Environmental Protection Agency (EPA), U.S. Fish and Wildlife Service (USFWS), Texas Commission on Environmental Quality (TCEQ), Texas Parks and Wildlife Department (TPWD), and Texas Historical Commission) is required in some cases. A PCN to the USACE is required (even if a PCN is not otherwise required) if threatened or endangered species or its critical habitat might be affected by the activity or is in the vicinity of the project; or if the activity may have the potential to cause effects to any historic properties listed, determined to be eligible for listing in, or potentially eligible for listing in the National Register of Historic Places, including previously unidentified properties. The applicant may not begin the activity until notified by the USACE that the requirements of the Endangered Species Act and/or the National Historic Preservation Act have been satisfied and that the activity is authorized.
Also, work cannot begin under NWPs 21, 49, or 50 until the applicant has received approval from the USACE. If the proposed activity requires a written waiver to exceed specified limits of NWPs 13, 29, 36, 39, 40, 42, and 43 the applicant cannot begin the activity until the USACE issues the waiver.
The USACE has 45 days to review a PCN to determine if it is complete. PCNs must include:
- Name, address, telephone number;
- Location of the proposed project;
- Description of the proposed project;
- The project's purpose;
- Direct and indirect adverse environmental effects;
- Discussion regarding potential impacts to federally listed endangered or threatened species and historic properties;
- Mitigation Plan for greater than 1/10 acre impact to wetlands that are waters of the U.S.;
- Other nationwide permits or individual permits to be used;
- Jurisdictional Determination; and
- Other permit specific items for NWP 48
Note: As a practical matter, mitigation should be addressed in any PCN.
See General Recommendations for Department of the Army Submittals and General Recommendations for Department of the Army Permit Submittals for Utility Lines for additional guidance.
If the PCN is not complete, the USACE can generally request the required information only once. However, if the prospective permittee does not provide all of the requested information, then the USACE will advise 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 USACE. The prospective permittee shall not begin the activity: 1) until notified in writing by the USACE that the activity may proceed under the NWP with any special conditions imposed by the USACE; or 2) if 45 calendar days have passed from the USACE's receipt of the complete PCN and the prospective permittee has not received written notice from the USACE.
If the permittee is required to notify the USACE pursuant to general condition 18 that listed endangered or threatened species or critical habitat might be affected or in the vicinity of the project, or pursuant to general condition 20 that the activity may have the potential to affect historic properties, the permittee may not begin the activity until receiving written notification from the USACE that 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 and/or Section 106 of the National Historic Preservation Act is completed. Also, work may not begin under NWPs 21, 49, or 50 until the permittee has received written approval from the USACE. If the proposed activity requires a written waiver to exceed specified limits of an NWP, the permittee may not begin the activity until the USACE issues the waiver. If the USACE notifies the permittee in writing that an individual permit is required within 45 calendar days of receipt of a complete PCN, the permittee may not begin the activity until an individual permit has been obtained.
Resource agency coordination is required for NWP activities that require a preconstruction notification to the USACE and result in the loss of greater than 1/2-acre of waters of the U.S. If resource agency coordination is required, the agencies have 10 calendar days to notify the USACE that they intend to provide comments. If an agency so notifies the USACE, then the USACE must wait an additional 15 calendar days for the comments. A signed compliance certification must be submitted by every permittee who has received NWP verification from the Corps. NWPs 27 and 48 have specific detailed reporting requirements.
A permittee may use more than one NWP to authorize a single and complete project, provided the acreage loss of waters of the United States does not exceed the highest specified acreage limit of the NWPs used to authorize that single and complete project. Projects must be designed and constructed to avoid and minimize adverse effects to waters of the U.S. to the maximum extent practicable at the project site. Mitigation in all forms (avoidance, minimization, and compensation) may be required to the extent necessary to ensure minimal adverse impacts on the aquatic environment.
The current NWPs were effective on March 19, 2012 after a public comment period. An amendment to the 2012 Nationwide Permits was issued January 28, 2013.
Previous versions of NWPs:
- 1977 (Effective dates: July 19, 1977 to July 22, 1982)
- 1982 (Effective dates: July 22, 1982 to October 5, 1984)
- 1984 (Effective dates: October 5, 1984 to January 21, 1992)
- 1992 (Effective dates: January 21, 1992 to February 11, 1997)
- 1997 (Effective dates: February 11, 1997 to June 7, 2000)
- 2000 (Effective dates: June 7, 2000 to March 18, 2002)
- 2002 (Effective dates: March 18, 2002 to March 19, 2007)
- 2007 (Effective dates: March 19, 2007 to March 18, 2012)
Regional General Permits (RGPs)
A Regional General Permit (RGP) is a type of general permit that is issued regionally. Regulations addressing RGPs are found at 33 CFR 322.2(f), 323.2(h), and 325.2(e)(2). RGPs contain provisions intended to protect the environment, including natural and cultural resources. Work that would not comply with those provisions may require authorization by individual permit. However, compliance with the conditions contained in this RGP does not guarantee authorization of the work by a regional general permit. Work or structures that would have unacceptable impacts on the public interest are not authorized. Activities requiring Department of the Army authorization that are not specifically authorized by an RGP are prohibited unless they are authorized by nationwide or individual permit.
There are currently 3 RGPs available for use in the Fort Worth District that are intended to expedite the authorization of minor, recurring work:
The TCEQ has certified pursuant to Section 401 of the CWA and Title 30, Texas Administrative Code, Chapter 279, for the activities for which it is responsible, that activities conducted under these RGPs would not result in a violation of established Texas Water Quality Standards provided the standard provisions and General Condition 33 are followed. The LDEQ has certified pursuant to Section 401 of the CWA and LAC 33:IX.1507.A-E that the requirements for water quality certification for the State of Louisiana have been met and that placement of fill material associated with these RGPs would not violate the water quality standards of Louisiana provided for under LAC 33:IX.Chapter 11.
Programmatic General Permits (PGPs)
A Programmatic General Permit (PGP) is a type of general permit that is issued to avoid unnecessary duplication of regulatory control exercised by another federal, state, or local agency. With a PGP, a permit applicant generally must only apply to one agency rather than applying to both agencies for permits for the same work.
One PGP is available in the Fort Worth District. This PGP authorizes discharges of dredged and fill material into waters of the United States, excluding wetlands, associated with activities specifically authorized by the Lower Colorado River Authority (LCRA) in a lakewide permit during planned lake drawdowns and other events that leave lake levels 5 feet or more below the when full elevation of the lake. This PGP applies to work in areas regulated by LCRA at Lakes Travis, Marble Falls, Lyndon B. Johnson, Inks, and Buchanan in Travis, Burnet, Llano, and San Saba Counties in the State of Texas. The permit applicant must possess a valid lakewide permit from LCRA prior to the start of work. LCRA will provide a copy of this PGP with each lakewide permit issued.