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Regulatory Pathfinder for Coastal Development in South Carolina

NWP General Condition #27: Pre-Construction Notification

In many actions authorized pursuant to Clean Water Act Section 404(e) and a particular Nationwide Permit (NWP) issued thereunder, a proposed activity cannot proceed without advance notification (referred to as "Pre-Construction Notification") to the U.S. Army Corps of Engineers (Corps). If you have questions with respect to such requirements after reading this page, please refer to the full text (as a pdf) of the General Conditions for Nationwide Permits online or contact the Charleston District of the Corps with your specific questions.

Timing

A prospective permittee must notify the District Engineer by submitting a Pre-Construction Notification (PCN) as early as possible. In South Carolina a PCN can be completed through a Joint Permit Application or through other means as discussed below.

  1. The District Engineer has 30 days to decide if the PCN is complete, and is authorized to request additional information to make the notification complete. If the permittee fails to provide such requested additional information the District Engineer will notify permittee that the PCN is incomplete and that the Corps' review process will not begin until all the information is received.
  2. If proceeding under an NWP that requires a PCN, someone wishing to undertake a particular activity may not begin work until:
    1. written notification has been received from the District Engineer that the proposed activity is allowed under the NWP, with any special conditions imposed by the District Engineer; or
    2. written notification has been received from the District Engineer that an Individual Permit is necessary for the proposed activity; or
    3. 45 days have passed since the District Engineer received the complete PCN, and the District Engineer has issued no written notice.
  3. The right to proceed under any potentially applicable NWP can be subsequently modified, suspended or revoked in accordance with 33 CFR 330.5(d)(2).

Contents

Any PCN must be in writing and must include the following:

  1. Name, address and telephone numbers of the prospective permittee;
  2. Location of the proposed project; and,
  3. Brief description of the proposed project; its purpose; both direct and indirect adverse environmental effects; any other NWP(s), Regional General Permit(s), or Individual Permit(s) that will be used or have been used to authorize any part of the project. Sketches should be included when necessary to demonstrate compliance with the NWP;

Wetlands Delineations and Jurisdictional Determinations

  1. If appropriate, a wetlands delineation and/or jurisdictional determination must be completed according to the method the Corps currently requires. For a discussion of associated requirements by the Corps' Charleston District, click here;
  2. If you are seek to proceed with an activity pursuant to NWP #29 for Single Family Housing and your parcel is less than 1/4 acre, be sure to review the potential specific requirements set forth below;
  3. A potential permittee may ask the Corps to perform a delineation, but such a request may add time to the process. See the Charleston District's Jurisdictional Determination Checklist for helpful information; and,
  4. The 45-day response time imposed above will not start until the delineation or jurisdictional determination is completed and submitted to the Corps as required.

Additional Requirements for Specific Nationwide Permits

#18 Minor Discharges - Applicants for proposed activities seeking to proceed under this NWP must also include a delineation of affected special aquatic sites, including wetlands, vegetated shallows like submerged aquatic vegetation and seagrass beds, and riffle and pool complexes.

#29 Single Family Housing - Applicants for proposed activities seeking to proceed under this NWP must include the following:

  1. Past use of this NWP by the applicant or the applicant's spouse;
  2. A statement that the single-family house is for the personal residence of the applicant;
  3. A description of the entire parcel, including the size and a delineation of wetlands. Parcels less than 1/4 acres or less will not require a formal on-site delineation. However, an indication of where wetlands are located on the parcel and their size(s) must still be provided. If the parcel is more than 1/4 acre a formal wetland delineation must be completed in accordance with the current method required by the Corps; and,
  4. A written description of all land (including legal descriptions if available) owned by the applicant and the spouse within a one mile radius of the current parcel. This includes land owned in any form, including as a partner, corporation, joint tenant, co-tenant or as tenant-by-the-entirety and any land where a purchase and sale agreement or other contract for sale has been signed.

#33 Temporary Construction, Access and Dewatering - Applicants for proposed activities seeking to proceed under this NWP must include a restoration plan with reasonable measures to avoid and minimize harmful effects to aquatic resources.

#39 Commercial and Institutional Developments - Applicants for proposed activities seeking to proceed under this NWP must include:

  1. a written statement explaining how avoidance of harm to and minimization of losses of waters of the U.S. were achieved at the project site; and,
  2. a compensatory mitigation proposal to offset any losses of waters of the U.S. or a justification for why compensatory mitigation should not be required. If discharges will impact more than 300 linear feet of an intermittent stream bed the District Engineer must decide all other terms and conditions of the NWP are being met, the harmful environmental effects will be minimal both individually and cumulatively, and must waive in writing the limitation on stream impacts prior to the activity proceeding.

#43 Stormwater Management Facilities - Applicants for proposed activities seeking to proceed under this NWP must include:

  1. if the proposal is for a new facility, a maintenance plan in accordance with applicable state and local requirements and a compensatory mitigation proposal to offset any losses to waters of the U.S.; and,
  2. if the discharge will impact more than 300 linear feet of an intermittent streambed, the District Engineer must determine all other conditions and terms of the NWP will be fulfilled, the adverse environmental effects will be minimal cumulatively and individually, and must waive the limitation on stream impacts in writing before the permit can be issued and work may begin.

Form of Notification

In order to comply with PCN requirements under federal and state laws, you may use the Individual Permit application, the Joint Permit Application, or a letter setting forth all the required information. In any case, either an application or the letter must clearly indicate that it is a Pre-Construction Notification.

What Happens After I Submit My Pre-Construction Notification?

Upon receipt of a PCN, the District Engineer (and Project Manager) must consider several things:

  1. Whether the activity will result in more than minimal individual or cumulative adverse environmental impacts or will be contrary to the public interest;
  2. Whether mitigation requirements can be achieved. A proposed mitigation plan can be submitted to expedite the process. An included proposed mitigation plan will also be considered in determining whether the adverse environmental effects to the aquatic environment are minimal;
  3. Any submitted proposed compensatory mitigation plan (either detailed or conceptual) will be reviewed within 45 days after the District Engineer receives the complete PCN;
  4. If it is determined the activity complies with an applicable NWP's terms and conditions, and that adverse effects will be minimal (after considering any proposed mitigation as appropriate), the District Engineer will let the permittee know and will include any necessary conditions in written form;
  5. Regardless of what was submitted with the PCN, a compensatory mitigation proposal must be approved by the District Engineer in most cases before the permittee begins work;
  6. If the adverse environmental effects will be more than minimal the District Engineer will notify the applicant that either:
    1. The activity will not qualify for a NWP and that an Individual Permit should be sought;
    2. The project will be allowed under the NWP as long as the applicant further submits a mitigation proposal that will reduce the adverse effects on the aquatic environment to the minimal level; and/or,
    3. That the project will be authorized with specific modifications or conditions;
  7. In the case of an activity that requires a PCN, the District Engineer will provide a copy to appropriate state or federal agencies immediately. The District Engineer will then consider comments from other federal or State agencies about the proposed activity's compliance with the NWP terms and conditions and the need for a mitigation plan to reduce adverse effects to a minimal level. Except for NWPs for Emergency Watershed Protection and Rehabilitation, the agencies will have 10 days from the date the material is transmitted to them to telephone or fax the District Engineer indicating they intend to provide substantive, site-specific comments. Such notification from other agencies requires the District Engineer to wait an additional 15 days to make a decision. Agency comments will be fully considered if submitted in the required time frame, but no formal response to a particular agency will be given except if the National Marine Fisheries Service (NMFS) provides Essential Fish Habitat recommendations. In that case, the District Engineer will provide NMFS with a response within 30 days;
  8. Applicants are encouraged, but not required, to provide multiple copies of the notification to expedite agency notifications.

Complete Text of NWP General Conditions

The Charleston District of the Corps is available to consult regarding specific questions.

Last Updated October 29, 2010

ABOUT THIS PATHFINDER

This project was supported through a generous grant from the South Carolina Sea Grant Consortium. The principal investigator is Professor Kim Diana Connolly at the University of South Carolina School of Law. Two law students, Keith Bartlett and Valerie Cochran, provided invaluable work toward project completion. Technical assistance with web design was provided by USC School of Law webmaster Tobias Brasier. Broken links should be reported to lawweb@law.sc.edu. This website is NOT intended as legal advice, and particularized analysis by professionals should be sought wherever appropriate.

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