South Carolina's Flagship University

Regulatory Pathfinder
for Coastal Development in South Carolina

Nationwide Permit #3 - Repair and Maintenance of Private, Non-Commercial Dock Projects and Habitable Structures in South Carolina

Certain activities may be able to proceed in a streamlined manner pursuant to federal requirements by complying with Nationwide Permits (NWPs) issued as authorized by Clean Water Act Section 404(e). All NWPs require that an authorized activity or project must meet regional conditions and general conditions that exist on a national level.

Nationwide Permit #3

NWP #3 authorizes certain maintenance activities. However, excavation of accumulated sediment or other material is not authorized in areas adjacent to existing private or commercial dock facilities, piers, canals dug for boating access, marinas, or boat slips, under this permit. Likewise, a permittee must notify the District Engineer in accordance with General Condition 13 if the discharge of dredged or fill material causes the loss of greater than 1/10-acre of waters of the U.S. or there is a discharge in a special aquatic site, including wetlands and riffle pool complexes.

Given these restrictions, maintenance and reconstruction or repair of damage from a discrete event such as a flood or hurricane to a dock, pier or house may be able proceed using an NWP if the following conditions are met:

  1. Repairing, rehabilitating or replacing a previously authorized and currently serviceable structure or fill
    1. if the structure or fill will not be used in a manner different from what was included or contemplated by the original permit or most recent authorized modification;
    2. and any potential minor deviations from the structure's or fill's original configuration deemed necessary due to changes in materials, construction techniques, or current construction or safety codes may be allowed only if adverse environmental impacts are minimal.
  2. Repairing, rehabilitating or replacing structures or fills destroyed or damaged by events such as storms, floods, or fire may be allowed if the repair, rehabilitation or replacement has begun or is contracted to begin within 2 years of the destruction or damage. If it was a catastrophic event, this time limit may be waived by the District Engineer for good cause such as funding, contract or a similar delay.

In addition the following activities may be eligible to proceed under this NWP:

  1. Discharges of dredged or fill material, including excavation, into waters of the U.S. to remove accumulated sediments and debris in the vicinity of or within existing structures, and placing new or additional riprap to protect an existing structure, if the District Engineer is notified per General Condition 13, when:
    1. sediment removal is limited to minimum necessary to restore the waterway in the structure's immediate vicinity to its approximate dimensions when the structure was built but no more than 200 feet in any direction from the structure;
    2. only the minimum amount necessary of riprap to protect and ensure the safety of the structure is placed;
    3. all excavated materials are deposited and kept in an upland area, unless the District Engineer gives separate authorization; and
    4. bank stabilizations not directly associated with the structure require the District Engineer's separate authorization
  2. To authorize "[d]ischarges of dredged or fill material, including excavation, into all waters of the U.S. for activities associated with the restoration of upland areas damaged by a storm, flood, or other discrete event, including construction, placement, or installation of upland protection structures and minor dredging to remove obstructions in a water of the U.S.". In such a case, within 12 months of the date of damage, the Corps District Engineer must be notified according to GC 13, and associated work must commence, or be under contract to commence, within 2 years of the date of the damage.
    1. evidence like photographs or a topographic survey should be provided to justify the restoration's extent;
    2. the extent of restoration cannot exceed the contours, or ordinary high water mark, in existence before the damage;
    3. the District Engineer has ongoing authority to decide the pre-existing conditions and the extent of restoration work authorized under this permit;
    4. Minor dredging to remove obstructions is limited to 50 cubic yards below the plane of the ordinary high water mark AND to the amount necessary to repair the contours of the pre- existing bottom plane of the waterbody; and,
    5. Discharge of dredged or fill material and all related work in order to restore the upland area has to be part of a single and complete project.

This permit DOES NOT

  1. Allow the use of NWPs 18 [Minor Discharges] or 19 [Minor Dredging], in addition to this one, for restoration of damaged upland areas.
  2. Allow maintenance dredging for primarily navigation or beach restoration
  3. Allow new stream channelizations or relocation projects

Any work authorized under this permit MUST NOT result in more than minimal degradation of water quality, minimal changes to a stream's flow characteristics, or increase flooding.

Last Updated October 29, 2010


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.