Section 404 & 10 Nationwide Permits

Most work that requires a Clean Water Act (CWA) Section 404 and/or Section 10 of the Rivers and Harbors Act permit will be covered, or verified, by the US Army Corps of Engineers (Corps) under the Nationwide permit (NWP) program. Follow the steps on this webpage along with the Corps User’s Guide for Nationwide Permits in Washington State (the User’s Guide)(pdf 2.27 mb) to determine if your work can be verified under one of the NWPs or if an individual permit is required.

Before using this webpage, follow the steps on the Corps jurisdiction over wetlands and other waters webpage to determine if the Corps has Section 404 jurisdiction over the wetlands and streams where work will occur. If you don’t think the Corps has Section 404 or Section 10 jurisdiction, use the process on the Isolated wetlands Administrative Order webpage.

Some maintenance and emergency work may be exempt from getting a Section 404 permit. Use the information on the Exemptions from Section 404 review webpage to determine if work is exempt.

Follow the instructions on the Environmental liaisons webpage to submit applications to the Corps.

 

Determining if work can be covered under the NWPs

The NWPs are general permits issued for categories of activities that have minimal individual and cumulative adverse environmental effects on the environment. Work can be verified under, or authorized to use, the NWPs if it meets the Corps’ national and regional conditions.

Using Section 5 of the User’s Guide (pdf 2.27 mb) and the figure below, see which NWPs you may be able to use for the work.

Process for determining if work can be covered under the NWPs
 

NWPs

Is the work covered by one of the NWPs?

NWP specific conditions

Does the work meet the conditions for this NWP?

General conditions

Does the work meet the national and regional general conditions from the Corps?

 
What to do if you answered “no” to any of these questions

If you answered no to any of the questions in Figure 1, the work cannot be authorized under the NWPs. You will have to get an individual permit from the Corps instead. See the Section 404 individual permit webpage for information on how to apply for an individual permit.

Most commonly used NWPs

When you look to see if work can be covered by one of the NWPs, start with the four NWPs used the most by WSDOT, below.

14 - Linear Transportation Projects

This NWP can be used for constructing or improving roads. You can only use this NWP for up to 1/2 acre of non-tidal and 1/3 acre of tidal impacts.

13 - Bank Stabilization

This NWP can be used to stabilize banks for erosion control or prevention. Coordinate with the Corps liaisons if more than 1 cubic yard per running foot will be placed on the bank. If more than 1 cubic yard per running foot is being placed, you need approval from the Corps District Engineer. More than 500 linear feet of work will also require approval from the Corps District Engineer.

3 - Maintenance

This NWP can be used for maintenance on any previously authorized fill or fill placed before 1978. Any channel modification must be adjacent to or within the boundaries of previously authorized fill. New riprap is not allowed; instead use NWP 13 bank stabilization.

It can be used for the removal of sediments and debris around authorized fill or structures, like culverts and bridge footings. The removal of sediments is limited to within 200 feet of existing structure. The existing structure can be any part of the roadway or transportation structure, including previously authorized ditches.

This NWP allows for “minor deviation” in work area and material size/type. NWP 3(c) allows temporary fill if needed to maintain the structure (example: access road to reach bridge or culvert).

23 - Approved Categorical Exclusions

This NWP is a catch-all for any work that is categorically excluded from environmental review under the National Environmental Policy Act.

NWP 27 - Aquatic Habitat Restoration, Establishment, and Enhancement Activities, was also used frequently. However, if you have a fish passage or other project to improve aquatic habitat, consider using NWP 14 instead. You won’t need to submit the additional documentation required for a complete NWP 27 application.

If your work may impact more than 1/2 acre of wetland impacts, check to see if your work could be verified under NWPs 23, 3, 27, or 33.

Use the Corps’ Summary of the 2017 Nationwide Permits (pdf 110 kb) to help choose the best NWP for your work if it cannot be verified under one of the NWPs mentioned above.

When to submit an application to the Corps

Submit a Pre-Construction Notification (PCN), or application, to ask the Corps to verify the work under one of the NWPs when told to do so by a Regional or National General Condition. Use Section 5: Nationwide Permits of the User’s Guide (pdf 2.27 mb) to determine if you need to submit a PCN and what information to include with the application.

You cannot begin construction without the verification from the Corps that work is covered by a NWP if a PCN is required.

If the work does not require a PCN/JARPA, then work can proceed without submitting an application to the Corps. For the majority of Washington State Department of Transportation (WSDOT) work, a PCN/JARPA will be required.

Submit a Joint Aquatic Resource Permit Application (JARPA) as the PCN. Access the JARPA form, attachments, and instructions on the Joint Aquatic Resources Permit Application (JARPA) Form website.

Always submit a PCN/JARPA for work with:

  • Effects on endangered species or historic properties.
  • Any bank stabilization.
  • Any new, modified, or extended culverts.
  • Any loss of linear feet of stream channel.
  • Any project that will have permanent wetland losses that exceed 1,000 sf.

Use the JARPA and supplemental document matrix (pdf 22 kb) as a quick reference of what to include for a complete application. In general, the application will need to include (NWP National General Condition 32(b)):

  • A JARPA form with:
    • Permittee contact information.
    • Project location details.
    • The number of the NWP that your think work would be covered under.
    • Project description.
  • Drawings of the work – Find out how to prepare complete application drawings on the Permit application drawings webpage.
  • Wetland assessment and delineation including data forms and ratings – Find out how to conduct and document wetland delineations on the Wetland reconnaissance & assessment webpage.
  • Documentation that the work complies with the Endangered Species Act (ESA) and Section 106 of the National Historic Preservation Act.
    • If the Corps is the federal lead, ESA and Section 106 must be complete in order for the Corps to issue a permit decision. You will need to coordinate with the Corps if they are the lead.
    • If there is another federal lead, usually the Federal Highway Administration or Federal Transit Administration, then the Corps only needs to know the preliminary effect determination. The Corps will need to be a Cooperating Agency on the Memorandum of Agreement when there is an adverse effect for Section 106. If the consultations are not complete by the time the Corps is ready to issue the permit decision, they will add a condition to the permit that the consultations must be complete prior to the start of the permitted activity.
  • Mitigation plan for greater than 1,000 sf of permanent wetland loss.
  • Color photos of pre-project condition showing the Water of the US and Shoreline condition- This requirement is met if there are photos in the assessment and delineation or mitigation plan.

 

Special considerations (Regional General Conditions)

The Regional General Conditions (RGCs) (Section 3 of the User’s Guide (pdf 2.27 mb)) include special considerations for work in Washington State. Key RGCs to note are:

RGC 5 - Bank stabilization

If work has new bank stabilization, include the following information in the PCN/JARPA: cause of erosion, distance of existing structures from new work, other bank stabilization within 300 feet, current and post project habitat conditions (fish, wildlife, special aquatic sites), and use of least environmentally damaging methods (including bioengineering, woody material, root wads, bank planting, or beach nourishment).

RGC 6 - Crossings of Waters of the US (culverts or bridges)

For water crossings where Chinook, steelhead, Coho, chum, pink, and sockeye are present, the work must have been designed using Stream Sim or another design method that provides fish passage at all life stages. If Stream Sim was not used, include information why in the PCN/JARPA and explain how the design will provide equivalent or better fish passage than Stream Sim. It may be helpful, but is not required, to submit the Preliminary Basis for Design or Preliminary Hydraulic Design with your application because it has much of the information the Corps needs.

This RGC requires post-construction monitoring. WSDOT projects that use the Fish Passage project monitoring protocols satisfy this condition. Contact the Stream Response Program Manager (Susan Kanzler, susan.kanzler@wsdot.wa.gov) for a copy of the protocols.

RCC 7 – Stream loss

If there is any stream loss, you will need to submit a PCN. You cannot have any loss of perennial streams or a net loss of 300 feet of ephemeral/intermittent stream to use the NWPs. The stream loss restriction can be waived by the Corps’ district engineer on a case-by-case basis. Coordinate with the Corps liaisons as soon as possible if you think you will need the waiver.

For fish barrier removals or aquatic habitat enhancement projects, any stream loss is self-mitigating. Stream loss for work not associated with aquatic habitat enhancement may require mitigation.

Section 401 Water Quality Certification for NWPs

All federal permits, like the NWPs, require CWA Section 401 Water Quality Certification (WQC) from the state. Read Section 1: Understanding the Nationwide Permits in the User’s Guide (pdf 2.27 mb) for background information on WQCs and Section 7: Water Quality Certification for agency-specific NWP WQCs.

Each NWP has one of the following WQCs:

  • Certified - Use of the NWP does not require any additional Section 401 review.
  • Certified, subject to condition - Use of the NWP requires a review to determine if an individual WQC is needed.
  • Denied without prejudice - Always apply for an Individual WQC.

Application requirements

Use Section 5: Nationwide Permits and Section 7: Water Quality Certification of the User’s Guide (pdf 2.27 mb) and the JARPA and supplemental document matrix (pdf 22 kb) to find out what to submit in a complete application. The Section 404 & 10 Individual permits webpage describes individual WQC in detail.

For work in a waterbody, include information on how a project will be built. Discuss construction sequencing, stream diversions, dewatering and how concrete process water will be handled in Part 8 – Waterbodies of the JARPA form.

The EPA and tribes have similar application requirements as Ecology. See EPAs General Condition 6 for their application requirements. Note that EPAs General Conditions 2: Soil Erosion and Sediment Controls and 3: Compliance with Stormwater Pollution Prevention and National Pollutant Discharge Elimination System Permit Provisions require the application include the same information found in a Temporary Erosion and Sediment Control Plan (TESC), Stormwater Pollution Prevention Plan (SWPPP), and Water Quality Monitoring and Protection Plan. Find information on preparing a TESC and SWPPP on the Erosion control policies & procedures webpage.

Submitting the application

Submit an application to the appropriate 401 certifying agency or tribe if work requires review to determine if you need an individual WQC. Find the contact information for submitting the application on the State water quality jurisdiction over wetlands and other waters webpage. If you know that Ecology is the agency with 401 authority, follow the instructions on the Environmental liaisons webpage.