NWP #39: Residential, Commercial, and Institutional Developments
If your project does not qualify for this NWP you will have to apply for an Individual Permit.
Important information regarding NWPs in general can be found here. It is also important to note that any NWP must comply with both General and Regional conditions, in addition to any local regulations appropriate to the activity. Be sure to read the applicable information found on the pages linked above.
This permit covers the discharge of dredged material into non-tidal U.S. waters, but not non-tidal wetlands adjacent to tidal waters, for constructing or expanding residential, commercial and institutional developments, including building foundations, pads and attendant features. Attendant features are things like parking lots, garages, yards, utility lines, stormwater management facilities, roads and some recreational facilities like playgrounds, playing fields and golf courses. The golf course must be an integral part of the residential development. New ski areas or oil and gas wells are not covered under this NWP. Examples of residential developments are both multiple and single unit developments. Commercial developments include retail stores, industrial facilities, restaurants, business parks and shopping centers. Things like schools, fire stations, government office buildings, judicial buildings, public works buildings, libraries, hospitals and religious worship places are examples of institutional developments. All of these activities must meet the following criteria:
- No more than 1/2-acre of non-tidal U.S. waters, excluding non-tidal wetlands adjacent to tidal waters can be lost as a result of the discharge;
- The discharges cannot cause more than 300 linear-feet of a stream to be lost unless it is an intermittent stream bed and this criterion is waived in writing by the District Engineer. To be waived the project must meet the District Engineer's criteria, must comply with all conditions and terms of this NWP and the project, individually and cumulatively, will result in only minimal adverse impacts to the aquatic environment;
- If any of the following are true the permittee must notify the District Engineer in accordance with the rules found here under General Condition #13:
- The discharge results in more than 1/10-acre of non-tidal waters of the U.S., excluding non-tidal wetlands adjacent to tidal waters; or
- Any open waters, including perennial or intermittent streams, will be lost below the high water mark because of the discharge; or
- More than 300 linear feet of intermittent stream bed will be lost due to the discharge. In this instance for the activity to proceed the District Engineer must determine the other terms and conditions of this NWP are being met, any adverse environmental impacts are minimal, both individually and cumulatively, and must waive the stream impact limits in writing;
- If the discharge will be in a special aquatic site, including a wetland, the notification must include a delineation of the affected sites;
- The discharge has to be part of a single and complete project;
- Discharges into U.S. waters must be avoided and minimized at the project site to the maximum extent practicable. When required, the notification must include a written explanation of how losses of U.S. waters were avoided and minimized at the project site. Normally compensatory mitigation will be required to offset any losses to waters of the U.S. A compensatory mitigation proposal to offset unavoidable losses to waters of the U.S. must be included in the notification. If the applicant believes the adverse effects of the project are minimal without mitigation, the applicant can submit a justification to the District Engineer that explains why compensatory mitigation should not be required;
- If this NWP is being used with any other NWP any combined total permanent loss of waters of the U.S. greater than 1/10-acres requires the permittee to notify the District Engineer per General Condition #13;
- Any work done under this NWP cannot cause more than minimal water quality degradation or changes to the flow characteristics of any stream (see General Conditions #9 and 21);
- Within 30 days of completing work whose discharge causes less than 1/10 acre or less of U.S. waters the permittee must submit a report to the District Engineer. The report must contain the following:
- the permittee's name, address and telephone number;
- the work location;
- a work description;
- the type and acreage of any waters lost;
- the type and acreage of any compensatory mitigation used to offset the U.S.'s waters;
- If any open waters or streams exist within the project area the permittee must establish and maintain, to the maximum extent possible, wetland or upland vegetated buffers next to the open waters or streams consistent with General Condition 19. Deed restrictions, conservation easements, protective covenants, or other means of conserving land are required to protect and maintain the vegetated buffers.
NWP # Residential, Commercial and Institutional Activities
Only residential, commercial, and institutional activities with structures on the building foundation(s) or pad(s) and their attendant features are covered here. The required compensatory mitigation proposal in section f above may be either conceptual or detailed. The District Engineer will address the wetland or vegetated bugger required in (j) above on a case-by-case basis to address water quality concerns. This required wetland or upland vegetated buffer is only part of the overall compensatory mitigation requirement. If the project site was previously used for agricultural purposes and NWP #40 was used to authorize activities in waters of the U.S. to increase production or construct farm buildings this NWP cannot be used to authorize additional activities in waters of the U.S. on the site that exceeds the acreage limit of this NWP (the combined acreage loss authorized under these 2 permits cannot exceed 1/2 acre).
For residential subdivisions the total loss of waters of the U.S. authorized by this NWP cannot be greater than 1/2 acre, inclusive of any loss of waters associated with development of individual subdivision lots.
Areas that do not have wetland vegetation should be determined by the presence or absence of the ordinary high water mark or bed and bank. Waters of the U.S. that satisfy these criteria require a pre-construction notification although water is not usually present in the channel. Ephemeral waters are an exception and do not require a pre-construction notification under (c)(2) above unless more than 1/10 acres are lost. If more than 1/10 an acre is lost pre-construction notification under (c)(1) above is required.
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 firstname.lastname@example.org. This website is NOT intended as legal advice, and particularized analysis by professionals should be sought wherever appropriate.