C.F.R. » Title 33 » CHAPTER II—CORPS OF ENGINEERS, DEPARTMENT OF THE ARMY, DEPARTMENT OF DEFENSE › PART 330—NATIONWIDE PERMIT PROGRAM

33 C.F.R. § 330.6

Authorization by nationwide permit

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(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]
Notes of Decisions
Cited in 23 cases (2 in the last 5 years), 1998–2023 · leading case: Crutchfield v. United States Army Corps of Engineers, 154 F. Supp. 2d 878 (E.D. Va. 2001).
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Crutchfield v. United States Army Corps of Engineers, 154 F. Supp. 2d 878 (E.D. Va. 2001). · cites it 14× “1 and 33 C.F.R. § 330.6 . Claim 2 alleges that the verification of the NWPs violates NEPA, 42 U.”
Crutchfield v. United States Army Corps of Engineers, 214 F. Supp. 2d 593 (E.D. Va. 2002). · cites it 9× “2d at 895-903; 33 C.F.R. § 330.6 (d)). The decisions in Crutchfield I reflect that the dispute in that case centered around the TC Interceptor, which, as noted, was intended to be the means through which the County would begin delivering untreated wastewater to the WWTP (when…”
Sierra Club v. United States Army Corps of Engineers, 803 F.3d 31 (D.C. Cir. 2015). · cites it 2× “33 C.F.R. § 330.6 (a)(2), (d). In this case, four regional Corps offices each issued verifications of the Flanagan South project for their respective regions under Nationwide Permit 12.”
Sierra Club v. U. S. Army Corps of Engineers, 981 F.3d 251 (4th Cir. 2020). · cites it 2× “In turn, 33 C.F.R. § 330.6 (d) states, “[P]ortions of a larger project may proceed under the authority of the NWPs while the [division engineer] evaluates an individual permit application for other portions of the same project, but only if the portions of the project qualifying…”
Ohio Valley Env't Coalition v. Hurst, 604 F. Supp. 2d 860 (S.D.W. Va 2009). · cites it 2× “33 C.F.R. § 330.6 (b). When issuing a nationwide permit, the Corps must also comply with the terms of NEPA.”
Crutchfield v. United States Army Corps of Engineers, 230 F. Supp. 2d 687 (E.D. Va. 2002). · cites it 3× “Furthermore, should the Corps decide to evaluate the project for authorization under multiple NWPs pursuant to 33 C.F.R. § 330.6 (c), it likewise must assess whether the previously ignored parts of the County's plans are part of the "single and complete project” as defined by 33…”
Utah Council, Trout Unlimited v. United States Army Corp. of Engineers, 187 F. Supp. 2d 1334 (D. Utah 2002). · cites it 3× “See 33 C.F.R. §§ 330.6 (a) & (a)(3)(i). Courts necessarily distinguish between NWP verification and the more rigorous consideration required by a request for an individual 404 permit.”
Crutchfield v. United States Army Corps of Engineers, 175 F. Supp. 2d 835 (E.D. Va. 2001). “2d at 895-903 ; 33 C.F.R. § 330.6 (d). A consequence of that flawed decision was that the Corps did not conduct the requisite environmental assessments of the project as a whole that otherwise would have been required under the CWA, NEPA and the NHPA.”
Crutchfield v. United States Army Corps of Engineers, 192 F. Supp. 2d 444 (E.D. Va. 2001). “2d at 895-903 ; 33 C.F.R. § 330.6 (d). The consequence of that decision was that the Corps did not conduct the requisite environmental assessments of the project that otherwise would have been required under NEPA and the NHPA.”
Bragg v. Robertson, 54 F. Supp. 2d 635 (S.D.W. Va 1999). “(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.”
United States v. Schmitt, 999 F. Supp. 317 (E.D.N.Y 1998). “In his 1995 testimony, Man-sky asserted that the Schmitts also were entitled to a Nationwide Two Permit under the provisions of 33 CFR § 330.6 (2). This provision, in effect since 1988, authorized structures constructed in artificial canals in residential areas where the…”
Nat'l Ass'n of Home Builders v. United States Army Corps of Engineers, 453 F. Supp. 2d 116 (D.D.C. 2006). “34), and an expired permit is "null and void,” 33 C.F.R. § 330.6 (b), and, therefore, cannot be reinstated.”
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— 33 C.F.R. § 330.6(d) — 2 cases
Sierra Club v. U. S. Army Corps of Engineers, 981 F.3d 251 (4th Cir. 2020). “In turn, 33 C.F.R. § 330.6 (d) states, “[P]ortions of a larger project may proceed under the authority of the NWPs while the [division engineer] evaluates an individual permit application for other portions of the same project, but only if the portions of the project qualifying…”
Crutchfield v. United States Army Corps of Engineers, 154 F. Supp. 2d 878 (E.D. Va. 2001). “1 and 33 C.F.R. § 330.6 . Claim 2 alleges that the verification of the NWPs violates NEPA, 42 U.”
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