NATIONWIDE PERMIT 3

1. Navigation.(a) No activity may cause more thana minimal adverse effect onnavigation.(b) Any safety lights and signalsprescribed by the U.S. Coast Guard,through regulations or otherwise,must be installed and maintained atthe permittee’s expense onauthorized facilities in navigablewaters of the United States.(c) The permittee understands andagrees that, if future operations bythe United States require theremoval, relocation, or otheralteration, of the structure or workherein authorized, or if, in theopinion of the Secretary of theArmyorhisauthorizedrepresentative, said structure orwork shall cause unreasonableobstruction to the free navigation ofthe navigable waters, the permitteewill be required, upon due noticefrom the Corps of Engineers, toremove, relocate, or alter thestructural work or obstructionscaused thereby, without expense tothe United States. No claim shall bemade against the United States onaccount of any such removal oralteration.2. Aquatic Life Movements.*See Regional AdditionNo activity may substantially disruptthe necessary life cycle movementsof those species of aquatic lifeindigenous to the waterbody,including those species thatnormally migrate through the area,unless the activity’s primarypurpose is to impound water. Allpermanent and temporary crossingsof waterbody shall be suitablyculverted, bridged, or otherwisedesigned and constructed tomaintain low flows to sustain themovement of those aquatic species.3. Spawning Areas.Activities in spawning areas duringspawning seasons must be avoidedto the maximum extent practicable.Activities that result in the physicaldestruction(e.g.,throughexcavation, fill, or downstreamsmothering by substantial turbidity)of an important spawning area arenot authorized.4. Migratory Bird Breeding Areas.*See Regional AdditionActivities in waters of the UnitedStates that serve as breeding areasfor migratory birds must be avoidedto the maximum extent practicable.5. Shellfish Beds. No activity mayoccur in areas of concentratedshellfish populations, unless theactivity is directly related to ashellfishharvestingactivityauthorized by NWPs 4 and 48, or is ashellfishseedingorhabitatrestoration activity authorized byNWP 27.TICES5. Shellfish Beds.No activity may occur in areas ofconcentrated shellfish populations,unless the activity is directly relatedto a shellfish harvesting activityauthorized by NWPs 4 and 48, or isa shellfish seeding or habitatrestoration activity authorized byNWP 27.ES6. Suitable Material.No activity may use unsuitablematerial (e.g., trash, debris, carbodies, asphalt, etc.). Material usedfor construction or discharged mustbe free from toxic pollutants in toxicamounts (see Section 307 of theClean Water Act).7. Water Supply Intakes.No activity may occur in theproximity of a public water supplyintake, except where the activity isfor the repair or improvement ofpublicwatersupplyintakestructures or adjacent bankstabilization.8. Adverse Effects FromImpoundments.Iftheactivitycreatesanimpoundment of water, adverseeffects to the aquatic system due toaccelerating the passage of water,and/or restricting its flow must beminimized to the maximum extentpracticable.9. Management of Water Flows.*See Regional AdditionTo the maximum extent practicable,thepreconstructioncourse,-4-condition, capacity, and location ofopen waters must be maintained foreach activity, including streamchannelization and storm watermanagement activities, except asprovided below. The activity mustbe constructed to withstandexpected high flows. The activitymust not restrict or impede thepassage of normal or high flows,unless the primary purpose of theactivity is to impound water ormanage high flows. The activitymay alter the preconstructioncourse; condition, capacity, andlocation of open waters if it benefitsthe aquatic environment (e.g.,stream restoration or relocationactivities).10. Fills Within 100–YearFloodplains. The activity mustcomply with applicable FEMAapproved state or local floodplainmanagement requirements.11. Equipment. Heavy equipmentworking in wetlands or mudflatsmust be placed on mats, or othermeasures must be taken tominimize soil disturbance.12. Soil Erosion and SedimentControls. *See Regional AdditionAppropriate soil erosion andsediment controls must be used andmaintained in effective operatingcondition during construction, andall exposed soil and other fills, aswell as any work below the ordinaryhigh water mark or high tide line,must be permanently stabilized atthe earliest practicable date.Permittees are encouraged toperform work within waters of theUnited States during periods of lowflow or no-flow.13. Removal of Temporary Fills.*See Regional AdditionTemporary fills must be removed intheir entirety and the affected areasreturnedtopre-constructionelevations. The affected areas mustbe revegetated, as appropriate.14. Proper Maintenance.Any authorized structure or fill shallbe properly maintained, includingmaintenance to ensure public safety

and compliance with applicableNWP general conditions, as well asany activity-specific conditionsadded by the district engineer to anNWP authorization.15. Single and Complete Project.The activity must be a single andcomplete project. The same NWPcannot be used more than once forthe same single and completeproject.16. Wild and Scenic Rivers.No activity may occur in a componentof the National Wild and Scenic RiverSystem, or in a river officiallydesignated by Congress as a ‘‘studyriver’’ for possible inclusion in thesystem while the river is in an officialstudy status, unless the appropriateFederalagencywithdirectmanagement responsibility for suchriver, has determined in writing thatthe proposed activity will notadversely affect the Wild and ScenicRiver designation or study status.Information on Wild and Scenic Riversmay be obtained from the appropriateFederal land management agencyresponsible for the designated Wildand Scenic River or Study River (e.g.,National Park Service, U.S. ForestService, Bureau of Land Management,U.S. Fish and Wildlife Service).17. Tribal Rights.No activity or its operation mayimpair reserved tribal rights,including, but not limited to,reserved water rights and treatyfishing and hunting rights.18. Endangered Species.*See Regional Addition(a) No activity is authorized underany NWP which is likely to directlyorindirectlyjeopardizethecontinued existence of threatenedor endangered species or a speciesproposed for such designation, asidentified under the FederalEndangered Species Act (ESA), orwhich will directly or indirectlydestroy or adversely modify thecritical habitat of such species. Noactivity is authorized under anyNWP which ‘‘may affect’’ a listedspecies or critical habitat, unlessSection 7 consultation addressingthe effects of the proposed activityhas been completed.(b) Federal agencies should followtheir own procedures for complyingwith the requirements of the ESA.Federal permittees must providethe district engineer with theappropriate documentation todemonstrate compliance with thoserequirements. The district engineerwill review the documentation anddetermine whether it is sufficient toaddress ESA compliance for theNWP activity, or whether additionalESA consultation is necessary.(c) Non-federal permittees mustsubmitapre-constructionnotification to the district engineerif any listed species or designatedcritical habitat might be affected oris in the vicinity of the project, or ifthe project is located in designatedcritical habitat, and shall not beginwork on the activity until notified bythe district engineer that therequirements of the ESA have beensatisfied and that the activity isauthorized. For activities that mightaffect Federally listed endangeredor threatened species or designatedcritical habitat, the pre-constructionnotification must include thename(s) of the endangered orthreatened species that might beaffected by the proposed work orthat utilize the designated criticalhabitat that might be affected bythe proposed work. The districtengineer will determine whetherthe proposed activity ‘‘may affect’’or will have ‘‘no effect’’ to listedspecies and designated criticalhabitat and will notify the nonFederal applicant of the Corps’determination within 45 days ofreceipt of a complete preconstruction notification. In caseswhere the non-Federal applicanthas identified listed species orcritical habitat that might beaffected or is in the vicinity of theproject, and has so notified theCorps, the applicant shall not beginwork until the Corps has providednotification the proposed activitieswill have ‘‘no effect’’ on listedspecies or critical habitat, or until-5-Section 7 consultation has beencompleted. If the non-Federalapplicant has not heard back fromthe Corps within 45 days, theapplicant must still wait fornotification from the Corps.(d) As a result of formal or informalconsultation with the FWS or NMFSthe district engineer may addspecies specific regional endangeredspecies conditions to the NWPs.(e) Authorization of an activity by aNWP does not authorize the ‘‘take’’of a threatened or endangeredspecies as defined under the ESA. Intheabsenceofseparateauthorization (e.g., an ESA Section10 Permit, a Biological Opinion with‘‘incidental take’’ provisions, etc.)from the U.S. FWS or the NMFS, TheEndangered Species Act prohibitsany person subject to thejurisdiction of the United States totake a listed species, where ‘‘take’’means to harass, harm, pursue,hunt, shoot, wound, kill, trap,capture, or collect, or to attempt toengage in any such conduct. Theword ‘‘harm’’ in the definition of‘‘take’’ means an act which actuallykills or injures wildlife. Such an actmay include significant habitatmodification or degradation whereit actually kills or injures wildlife bysignificantly impairing essentialbehavioralpatterns,includingbreeding, feeding or sheltering.(f) Information on the location ofthreatened and endangered speciesand their critical habitat can beobtained directly from the offices ofthe U.S. FWS and NMFS or theirworld wide web pages ttp://www.noaa.gov/fisheries.htmlrespectively.19. Migratory Birds and Bald andGolden Eagles.The permittee is responsible forobtaining any ‘‘take’’ permits requiredunder the U.S. Fish and WildlifeService’sregulationsgoverningcompliance with the Migratory BirdTreaty Act or the Bald and GoldenEagle Protection Act. The permittee

should contact the appropriate localoffice of the U.S. Fish and WildlifeService to determine if such ‘‘take’’permits are required for a particularactivity.20. Historic Properties.*See Regional Addition(a) In cases where the districtengineer determines that theactivity may affect properties listed,or eligible for listing, in the NationalRegister of Historic Places, theactivity is not authorized, until therequirements of Section 106 of theNational Historic Preservation Act(NHPA) have been satisfied.(b) Federal permittees should followtheir own procedures for complyingwith the requirements of Section106 of the National HistoricPreservationAct.Federalpermittees must provide the districtengineer with the appropriatedocumentation to demonstratecompliancewiththoserequirements. The district engineerwill review the documentation anddetermine whether it is sufficient toaddress section 106 compliance forthe NWP activity, or whetheradditional section 106 consultationsis necessary.(c) Non-federal permittees mustsubmitapre-constructionnotification to the district engineerif the authorized activity may havethe potential to cause effects to anyhistoric properties listed on,determined to be eligible for listingon, or potentially eligible for listingon the National Register of HistoricPlaces,includingpreviouslyunidentified properties. For suchactivities,thepreconstructionnotification must state whichhistoric properties may be affectedby the proposed work or include avicinity map indicating the locationof the historic properties or thepotential for the presence of historicproperties.Assistance regardinginformation on the location of orpotential for the presence of historicresources can be sought from theState Historic Preservation Officeror Tribal Historic PreservationOfficer, as appropriate, and theNational Register of Historic Places(see 33 CFR 330.4(g)).When reviewing pre-constructionnotifications, district engineers willcomply with the current proceduresfor addressing the requirements ofSection 106 of the National HistoricPreservation Act. The districtengineer shall make a reasonableand good faith effort to carry outappropriate identification efforts,which may include backgroundresearch, consultation, oral historyinterviews,samplefieldinvestigation, and field survey.Based on the information submittedand these efforts, the districtengineer shall determine whetherthe proposed activity has thepotential to cause an effect on thehistoric properties. Where the nonFederal applicant has identifiedhistoric properties on which theactivity may have the potential tocause effects and so notified theCorps, the non-Federal applicantshall not begin the activity untilnotified by the district engineereither that the activity has nopotential to cause effects or thatconsultation under Section 106 ofthe NHPA has been completed.(d) The district engineer will notifythe prospective permittee within 45days of receipt of a complete preconstruction notification whetherNHPA Section 106 consultation isrequired. Section 106 consultationis not required when the Corpsdetermines that the activity doesnot have the potential to causeeffects on historic properties (see36 CFR 800.3(a)). If NHPA section106 consultation is required and willoccur, the district engineer willnotify the non-Federal applicantthat he or she cannot begin workuntil Section 106consultation iscompleted. If the non-Federalapplicant has not heard back fromthe Corps within 45 days, theapplicant must still wait fornotification from the Corps.(e) Prospective permittees shouldbe aware that section 110k of theNHPA (16 U.S.C. 470h–2(k))prevents the Corps from granting a-6-permit or other assistance to anapplicant who, with intent to avoidthe requirements of Section 106 ofthe NHPA, has intentionallysignificantly adversely affected ahistoric property to which thepermit would relate, or having legalpower to prevent it, allowed suchsignificant adverse effect to occur,unless the Corps, after consultationwith the Advisory Council onHistoricPreservation(ACHP),determines that circumstancesjustify granting such assistancedespite the adverse effect createdor permitted by the applicant. Ifcircumstances justify granting theassistance, the Corps is required tonotify the ACHP and providedocumentationspecifyingthecircumstances, the degree ofdamage to the integrity of anyhistoric properties affected, andproposedmitigation.Thisdocumentation must include anyviews obtained from the applicant,SHPO/THPO, appropriate Indiantribes if the undertaking occurs onor affects historic properties ontribal lands or affects properties ofinterest to those tribes, and otherparties known to have a legitimateinterest in the impacts to thepermitted activity on historicproperties.21. Discovery of PreviouslyUnknown Remains and Artifacts.If you discover any previouslyunknownhistoric,culturalorarcheological remains and artifactswhile accomplishing the activityauthorized by this permit, you mustimmediately notify the districtengineer of what you have found, andto the maximum extent practicable,avoid construction activities that mayaffect the remains and artifacts untilthe required coordination has beencompleted. The district engineer willinitiate the Federal, Tribal and statecoordination required to determine ifthe items or remains warrant arecovery effort or if the site is eligiblefor listing in the National Register ofHistoric Places.

22. Designated Critical ResourceWaters.Critical resource waters include,NOAA managed marine sanctuariesand marine monuments, andNationalEstuarineResearchReserves. The district engineer maydesignate,afternoticeandopportunity for public comment,additionalwatersofficiallydesignated by a state as havingparticularenvironmentalorecological significance, such asoutstandingnationalresourcewaters or state natural heritagesites. The district engineer may alsodesignateadditionalcriticalresource waters after notice andopportunity for public comment.(a) Discharges of dredged or fillmaterial into waters of the UnitedStates are not authorized by NWPs7, 12, 14, 16, 17, 21, 29, 31, 35, 39,40, 42, 43, 44, 49, 50, 51, and 52 forany activity within, or directlyaffecting, critical resource waters,including wetlands adjacent to suchwaters.(b) For NWPs 3, 8, 10, 13, 15, 18, 19,22, 23, 25, 27, 28, 30, 33, 34, 36, 37,and 38, notification is required inaccordance with general condition31, for any activity proposed in thedesignated critical resource watersincluding wetlands adjacent tothose waters. The district engineermay authorize activities under theseNWPs only after it is determinedthat the impacts to the criticalresource waters will be no morethan minimal.DSK5SPTVN23. Mitigation.The district engineer will ateandpracticable mitigation necessary toensure that adverse effects on theaquatic environment are minimal:(a) The activity must be designedand constructed to avoid andminimize adverse effects, bothtemporary and permanent, towaters of the United States to themaximum extent practicable at theproject site (i.e., on site).(b) Mitigation in all its forms(avoiding, minimizing, rectifying,reducing, or compensating forresource losses) will be required tothe extent necessary to ensure thatthe adverse effects to the aquaticenvironment are minimal.(c) Compensatory mitigation at aminimum one-for-one ratio will berequired for all wetland losses thatexceed 1 10-acre and require preconstruction notification, unless thedistrict engineer determines inwriting that either some other formof mitigation would be moreenvironmentally appropriate or theadverse effects of the proposedactivity are minimal, and provides aproject-specific waiver of thisrequirement. For wetland losses of1 10-acre or less that require preconstruction notification, the districtengineer may determine on a caseby-case basis that compensatorymitigation is required to ensure thatthe activity results in minimaladverse effects on the aquaticenvironment.Compensatorymitigation projects provided tooffset losses of aquatic resourcesmust comply with the applicableprovisions of 33 CFR part 332.(1) The prospective permittee isresponsible for proposing anappropriateCompensatoryMitigation option if compensatorymitigation is necessary to ensurethat the

Management Act consistency for an NWP. Every person who may wish to obtain permit authorization under one or more NWPs, or who is currently relying on an existing or prior permit authorization under one or more NWPs, has been and is on notice that all of the provisions of 33 CFR 330.1 through 330.6 apply to every NWP authorization.