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Regulatory Pathfinder for Coastal Development in South Carolina

Nationwide Permits

The re-issued Nationwide Permits and General Conditions can be found here: Nationwide Permits.

Pursuant to authority granted in Section 404(e) of the Clean Water Act and associated requirements, the U.S. Army Corps of Engineers (Corps) re-issued all Nationwide Permits (NWPs in March 2007. At that time, the Corps issued six new NWPs, and updated all existing NWPs. These re-issued and new NWPs became effective March 19, 2007. In addition, the Corps updated all general conditions applicable to all NWPs. NWP were authorized by Congress to allow certain projects to go forward without having to obtain an Individual Permit. Activities allowed under an NWP are meant to be similar in nature and minimal in impacts, and must meet multiple specific conditions. In many cases, permit applicants must obtain permission (by engaging in Pre-Construction Notification" prior to commencing activities authorized by an NWP.

There is some debate as to the limit of the Corps jurisdiction over various activities. More information about the potential reach of the Corps' jurisdiction can be found at Do I Need a Permit? Some projects that may not fall under Corps jurisdiction may nonetheless require state permits because they are located in the state-defined critical area and thus fall under the S.C. Department of Health and Environmental Control's Office of Ocean and Coastal Resource Management (OCRM)'s jurisdiction. Details on state requirements are available on the applicable project-specific page.

Some coastal activities which may qualify for federal NWP include:

  1. Maintenance and Repair of Destroyed Docks
  2. Temporary Recreational Structures
  3. Bank Stabilizations
  4. Minor Discharges
  5. Minor Dredging
  6. Single Family Housing
  7. Residential, Commercial and Institutional Developments
  8. Boat Ramps

Notes on Nationwide Permits

  1. Two or more different NWPs may be combined to authorize a "single and complete project." A single and complete project is defined as "the total project proposed or accomplished by one owner/developer or partnership or other association of owners/developers." The maximum acreage for the combined project is capped, all conditions for each permit must be met (including PCNs), and all general conditions apply. Furthermore, you may not use the same NWP more than once for a single and complete project.
  2. The portions of a project covered by an NWP can start while an individual permit is pending for the other portions of the project IF AND ONLY IF the portions of the project authorized under a Nationwide Permit have independent utility and will function or meet their purpose independent of the total project. All conditions (including applicable PCNs) must be met.
    1. If the portion of an activity proposed to be covered by a NWP is dependent on the other parts of the project awaiting an individual permit approval, and its construction and use wouldn't be justified if the Corps denies the individual permit application, then the NWP will NOT apply and each portion of the project will have to be evaluated as part of entire project through an individual permit process.
  3. If a portion of a project is authorized to proceed under a NWP, it will in no way prejudice the individual permit decision process for the overall project. The individual permit application must include analysis of the entire project including those activities authorized by the NWP.
  4. No NWP will apply, even if the portion of the project is not dependent on the rest of the project, if any part of the project is subject to an enforcement action by the Corps or the U.S. Environmental Protection Agency.

Federal permits, including NWPs, authorizing activities in South Carolina MUST also meet state-specific conditions. The Corps uses a joint application form with OCRM.

The following activities CANNOT proceed using a NWP if they take place in the critical area of the coastal zone. For more details on these and other limits, please go to OCRM's critical area permitting regulations here.

  1. Return Water from Upland Contained Disposal Areas,
  2. Hydropower Projects,
  3. Surface Coal Mining Activities,
  4. Approved Categorical Exclusions,
  5. State Administered Section 404 Programs,
  6. Modifications of Existing Marinas,
  7. Cranberry Production Activities,
  8. Maintenance Dredging of Existing Basins,
  9. Recreational Facilities, and
  10. Stormwater Management Facilities

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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