2017 NWP Regional Conditions: On March 17, 2017 the final Regional Conditions for the State of New York were approved by the Great Lakes and Ohio River Division Engineer (LRD), effective on March 19, 2017.  On March 21, 2017,  the Buffalo and New York Districts issued a joint public notice (PN) announcing the final Regional Conditions, Water Quality Certification and Coastal Consistency Determination for the 2017 NWP in the State of NY. To view the new Regional Conditions only, click HERE.

2017 NWP Water Quality Certification: The Final Water Quality Certification (WQC) for the 2017 NWP in NY State was issued on March 7, 2017 by the NYS Department of Environmental Conservation. Click HERE to view.

2017 NWP Coastal Consistency Determination: The Final Coastal Consistency Determination for the 2017 NWP in NY State was issued on March 17, 2017 by the NYS Department of State. Click HERE to view.

      (a) No activity is authorized under any NWP which is likely to directly or indirectly jeopardize the continued existence of a threatened or endangered species or a species proposed for such designation, as identified under the Federal Endangered Species Act (ESA), or which will directly or indirectly destroy or adversely modify the critical habitat of such species. No activity is authorized under any NWP which “may affect” a listed species or critical habitat, unless ESA section 7 consultation addressing the effects of the proposed activity has been completed. Direct effects are the immediate effects on listed species and critical habitat caused by the NWP activity. Indirect effects are those effects on listed species and critical habitat that are caused by the NWP activity and are later in time, but still are reasonably certain to occur.

      (b) Federal agencies should follow their own procedures for complying with the requirements of the ESA. If pre-construction notification is required for the proposed activity, the Federal permittee must provide the district engineer with the appropriate documentation to demonstrate compliance with those requirements. The district engineer will verify that the appropriate documentation has been submitted. If the appropriate documentation has not been submitted, additional ESA section 7 consultation may be necessary for the activity and the respective federal agency would be responsible for fulfilling its obligation under section 7 of the ESA.

      (c) Non-federal permittees must submit a pre-construction notification to the district engineer if any listed species or designated critical habitat might be affected or is in the vicinity of the activity, or if the activity is located in designated critical habitat, and shall not begin work on the activity until notified by the district engineer that the requirements of the ESA have been satisfied and that the activity is authorized. For activities that might affect Federally-listed endangered or threatened species or designated critical habitat, the pre-construction notification must include the name(s) of the endangered or threatened species that might be affected by the proposed activity or that utilize the designated critical habitat that might be affected by the proposed activity. The district engineer will determine whether the proposed activity “may affect” or will have “no effect” to listed species and designated critical habitat and will notify the non-Federal applicant of the USACE’ determination within 45 days of receipt of a complete pre-construction notification. In cases where the non-Federal applicant has identified listed species or critical habitat that might be affected or is in the vicinity of the activity, and has so notified the Corps, the applicant shall not begin work until the Corps has provided notification that the proposed activity will have “no effect” on listed species or critical habitat, or until ESA section 7 consultation has been completed. If the non-Federal applicant has not heard back from the Corps within 45 days, the applicant must still wait for notification from the Corps.

• NYS Protocol for Defining "In the Vicinity" of Listed Bats Under NWP General Condition No. 18 in NYS
• Add info for PCNs to Address Effects to Listed Bats in NYS
• USFWS 2018 Indiana Bat and Northern Long-eared Bat Summer Survey Guidelines
• FHWA Bridge Survey Guidance
• FHWA Bridge Survey Form      

Additional Information Sources for ESA

• USFWS Information for Planning and Conservation: https://www.fws.gov/ipac/
• NYS Natural Heritage Program: http://www.dec.ny.gov/animals/31181.html
• USFWS New York Field Office: https://www.fws.gov/northeast/nyfo/es/esdesc.htm

Additional ESA Guidance for Applicants (Under construction)

On December 10, 2020, the New York State Department of State (NYSDOS) provided the Districts its Coastal Zone Management determination (F-2020-0754) for the reissuance of the existing 54 NWPs and the five (5) new NWPs, as requested by the Districts on September 29, 2020, indicating the proposed reissuance and modification of the NWPs, pursuant to 33 CFR Part 330 is and will be conducted in a manner consistent to the maximum extent practicable with the New York State Coastal Management Program (CMP).  On October 7, 2021, NYSDOS provided recertification of its prior consistency decision regarding the 41 NWPs that will go into effect on February 25, 2022 (F-2021-0784). The CZM determinations and conditions have been incorporated into the NWP documents. Click HERE to view the determination. For projects where NYSDOS has objected to the Corps consistency determination, the use of an NWP to authorize an activity within New York State's coastal zone is contingent upon obtaining an individual CZM consistency determination or case-specific presumption of CZM concurrence from NYSDOS.

The final Regional Conditions for the State of New York for the 16 2021 NWPs, that were issued on January 5, 2021 and effective as of March 15, 2021, were approved by the Great Lakes and Ohio River Division Engineer (LRD) and North Atlantic Division (NAD), effective on March 15, 2021.  On March 8, 2021, the Buffalo and New York Districts issued a joint public notice (PN) announcing the final Regional Conditions, Water Quality Certification and Coastal Consistency Determination for the 2021 NWP in the State of NY. Click HERE to view the PN. 

All 2021 NWPs, regardless of effective date, will expire on March 14, 2026 unless the NWP is subsequently modified, suspended, revoked.

The WQC determinations and conditions have been incorporated into the NWP documents.  For projects where the WQC has been denied or that do not meet the general or special WQC conditions, the use of an NWP to authorize a discharge into waters of the United States is contingent upon obtaining an individual WQC or case-specific waiver from the respective agency or tribe.

On December 14, 2020, the Districts received the following final WQC determinations:

i.          New York State Department of Public Services (NYSDPS) denied WQCs for all Section 404 NWPs that may apply to activities undertaken pursuant to New York State Public Service Law (PSL) Article VII for activities that relate to the construction and operation of major natural gas or electric transmission facilities.

ii.          The New York State Office of Renewable Energy Siting (NYSORES) denied WQCs for all Section 404 NWPs that may apply to activities undertaken pursuant to New York State Executive Law Article 6, Section 94-C for activities that relate to the construction and operation of major renewable electric generating facilities.

iii.         The New York State Board on Electric Generation Siting and the Environment (Siting Board) denied the request for WQC for all Section 404 NWPs that may apply to activities undertaken pursuant to PSL Article 10 for new and repowered or modified major electric generating facilities of 25 megawatts or more.

iv.         The U.S. Environmental Protection Agency (USEPA), as the certifying agency for the seven federally recognized Indian Nations in New York (Cayuga Nation, Onondaga Nation, Oneida Nation of Indians, Seneca Nation of Indians*, Shinnecock Indian Nation, Tonawanda Seneca Nation, and Tuscarora Nation) denied WQC for all Section 404 NWPs occurring on these tribal lands. *Note: Subsequent to the USEPA determination, the Seneca Nation of Indians has been designated by USEPA as a certifying authority for all work occurring within their tribal lands. The USEPA determination, made on their behalf, will remain valid until such time as the Seneca Nation completes their WQC determination. A public notice will be issued with their final WQC determination when the process is complete.

On December 23, 2020, the Saint Regis Mohawk Tribe denied WQC for all applicable NWPs occurring on Saint Regis Mohawk Tribal land.

On December 18, 2020, the Districts received the final WQC determination from the New York State Department of Environmental Conservation (NYSDEC) for NWP activities not covered by the above determinations. On October 15, 2021, the Districts received the WQC determination from the New York State Department of Environmental Conservation (NYSDEC) for the remaining 41 NWPs. Click HERE to view the comprehensive WQC.  See specific NWP for WQC determination and conditions.