Other Federal Reviews That Can Apply to a Pond

Key points

• Size cutoffUnder the ESA section 7 regulations, section 7 and the requirements of 50 CFR part 402 apply to all actions in which there is discretionary Federal involvement or control.

  Applies when: Pond project has a federal nexus: it needs a Corps permit (individual permit or Nationwide Permit) or receives federal funding/assistance such as NRCS financial assistance 50 CFR 402.03 [2]
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  Section 7 and the requirements of this part apply to all actions in which there is discretionary Federal involvement or control.

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• DefinitionUnder the ACHP's section 106 regulations, an 'undertaking' is a project, activity, or program funded in whole or in part under the direct or indirect jurisdiction of a federal agency, including those carried out by or on behalf of a federal agency, those carried out with federal financial assistance, and those requiring a federal permit, license, or approval. If the undertaking is a type of activity that does not have the potential to cause effects on historic properties, assuming such properties were present, the agency has no further obligations under section 106.

  Applies when: Pond project has a federal nexus: it needs a Corps permit (individual permit or Nationwide Permit) or receives federal funding/assistance such as NRCS financial assistance 36 CFR 800.3(a)(1), 800.16(y) [4]
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  (1) No potential to cause effects. If the undertaking is a type of activity that does not have the potential to cause effects on historic properties, assuming such historic properties were present, the agency official has no further obligations under section 106 or this part. ... Undertaking means a project, activity, or program funded in whole or in part under the direct or indirect jurisdiction of a Federal agency, including those carried out by or on behalf of a Federal agency; those carried out with Federal financial assistance; and those requiring a Federal permit, license or approval.

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• AgencyNRCS states that a section 106 'undertaking' includes projects carried out with federal financial assistance and those requiring a federal permit, license or approval, so all NRCS projects must go through section 106, and that section 106 review must be complete before a federal decision is issued. NRCS directs questions about required section 106 documentation, studies, or consultation to the Cultural Resources Specialist (CRS) in each state, and uses a Prototype Programmatic Agreement (PPA) authorized by the ACHP in 2014.

  Applies when: Pond receives NRCS financial or technical assistance (e.g., EQIP cost-share for a pond built to the NRCS 378 standard) USDA NRCS, 'Cultural Resources' web page [6]
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  those carried out with Federal financial assistance; and those requiring a Federal permit, license or approval. At NRCS, that means that all of our projects must go through Section 106 so the agency is compliant with this law. ... Questions about what documentation, studies, or consultation requirements are required for NRCS to comply with Section 106 of the NHPA should be directed to the CRS in each state. ... In 2014 the ACHP signed an authorization designating a PPA for use by NRCS. ... Section 106 review must be complete prior to issuance of a federal decision

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• RequirementExcept as provided in 16 U.S.C. 1535(g)(2) and 1539, ESA section 9 makes it unlawful for any person subject to U.S. jurisdiction to take any endangered species of fish or wildlife within the United States or the territorial sea, or to violate any regulation pertaining to such species or to any threatened species of fish or wildlife promulgated under the ESA. The prohibition is addressed to 'any person subject to the jurisdiction of the United States'; its text contains no requirement that the activity be federally permitted or funded.

  Applies when: Always (no federal nexus needed); relevant when a pond site holds listed fish, wildlife, or plants 16 U.S.C. 1538(a)(1)(B), (a)(1)(G) [7]
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  Except as provided in sections 1535(g)(2) and 1539 of this title, with respect to any endangered species of fish or wildlife listed pursuant to section 1533 of this title it is unlawful for any person subject to the jurisdiction of the United States to- ... (B) take any such species within the United States or the territorial sea of the United States; ... (G) violate any regulation pertaining to such species or to any threatened species of fish or wildlife listed pursuant to section 1533 of this title and promulgated by the Secretary pursuant to authority provided by this chapter.

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• RequirementMigratory Bird Treaty Act section 2: unless permitted by regulations, it is unlawful at any time, by any means or in any manner, to pursue, hunt, take, capture, kill, or attempt to take, capture, or kill any migratory bird, or any part, nest, or egg of such a bird, covered by the migratory bird conventions. The Act applies only to migratory bird species native to the United States or its territories.

  Applies when: Clearing, grading, excavation, dam building or water impoundment that could kill migratory birds or destroy active nests, or disturb bald or golden eagles 16 U.S.C. 703(a), (b)(1) [8]
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  Unless and except as permitted by regulations made as hereinafter provided in this subchapter, it shall be unlawful at any time, by any means or in any manner, to pursue, hunt, take, capture, kill, attempt to take, capture, or kill, possess, offer for sale, sell, offer to barter, barter, offer to purchase, purchase, deliver for shipment, ... any migratory bird, any part, nest, or egg of any such bird ... (1) In general This subchapter applies only to migratory bird species that are native to the United States or its territories.

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• RequirementTVA Act section 26a provides that no dam, appurtenant works, or other obstruction affecting navigation, flood control, or public lands or reservations may be constructed, operated, or maintained across, along, or in the Tennessee River or any of its tributaries until plans for the construction, operation, and maintenance have been submitted to and approved by the TVA Board; building, starting to build, operating, or maintaining such structures without approval is prohibited, and once plans are approved, deviating from them (before or after completion) is prohibited unless the modification is approved first.

  Applies when: Pond dam, fill, culvert, water intake or other obstruction on the Tennessee River, a TVA reservoir, or any tributary of the Tennessee River (Tennessee River watershed) 16 U.S.C. 831y-1 (TVA Act section 26a), first paragraph [11]
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  no dam, appurtenant works, or other obstruction, affecting navigation, flood control, or public lands or reservations shall be constructed, and thereafter operated or maintained across, along, or in the said river or any of its tributaries until plans for such construction, operation, and maintenance shall have been submitted to and approved by the Board ... When such plans shall have been approved, deviation therefrom either before or after completion of such structures is prohibited unless the modification of such plans has previously been submitted to and approved by the Board.

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• RequirementCoastal Zone Management Act section 307(c)(3)(A): after final approval of a state's coastal management program, any applicant for a required federal license or permit to conduct an activity, in or outside the coastal zone, affecting any land or water use or natural resource of the state's coastal zone must include in the application a certification that the activity complies with the enforceable policies of the state's approved program and will be conducted consistently with it.

  Applies when: Pond work that needs a federal permit (e.g., a Corps permit) in a coastal state with a federally approved coastal management program, where the activity (in or outside the coastal zone) affects coastal land or water uses or natural resources 16 U.S.C. 1456(c)(3)(A) [12]
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  After final approval by the Secretary of a state's management program, any applicant for a required Federal license or permit to conduct an activity, in or outside of the coastal zone, affecting any land or water use or natural resource of the coastal zone of that state shall provide in the application ... a certification that the proposed activity complies with the enforceable policies of the state's approved program and that such activity will be conducted in a manner consistent with the program.

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• ExemptionFish and Wildlife Coordination Act exemption: the Act does not apply to projects for the impoundment of water where the maximum surface area of the impoundment is less than ten acres, nor to activities for or in connection with programs primarily for land management and use carried out by federal agencies on federal lands under their jurisdiction.

  Applies when: Impoundment whose maximum surface area is less than 10 acres 16 U.S.C. 662(h) [13]
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  (h) Exempt projects and activities The provisions of this Act shall not be applicable to those projects for the impoundment of water where the maximum surface area of such impoundments is less than ten acres, nor to activities for or in connection with programs primarily for land management and use carried out by Federal agencies with respect to Federal lands under their jurisdiction.

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• Requirement2026 NWP General Condition 16(a) (Wild and Scenic Rivers): no NWP activity may occur in a component of the National Wild and Scenic River System, or in a river officially designated by Congress as a 'study river' while the river is in official study status, unless the federal agency with direct management responsibility for the river has determined in writing that the proposed activity will not adversely affect the Wild and Scenic River designation or study status.

  Applies when: NWP activity that will occur in a component of the National Wild and Scenic River System or in an official congressional 'study river' while in official study status; work proposed under a 2026 Nationwide Permit NWP General Condition 16(a) (2026 NWPs), 91 FR 768, 877 (Jan. 8, 2026) [14]
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  16. Wild and Scenic Rivers. (a) No NWP activity may occur in a component of the National Wild and Scenic River System, or in a river officially designated by Congress as a ``study river'' for possible inclusion in the system while the river is in an official study status, unless the appropriate Federal agency with direct management responsibility for such river has determined in writing that the proposed activity will not adversely affect the Wild and Scenic River designation or study status.

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• RequirementUnder the 2026 Nationwide Permits, no activity is authorized under any NWP that 'may affect' a listed species or critical habitat unless ESA section 7 consultation addressing the consequences of the proposed activity has been completed. A non-federal permittee must submit a pre-construction notification (PCN) to the Corps district engineer if any listed species (or species proposed for listing) 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 may not begin work until notified by the district engineer that the requirements of the ESA have been satisfied and that the activity is authorized.

  Applies when: Pond activity would be authorized by a Nationwide Permit (e.g., NWP 40 or NWP 43) and listed species or critical habitat might be affected or are in the vicinity NWP General Condition 18(a), (c) (2026 NWPs), 91 FR 768, 877 (Jan. 8, 2026) [14]
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  No activity is authorized under any NWP which ``may affect'' a listed species or critical habitat, unless ESA section 7 consultation ... has been completed... Non-federal permittees must submit a pre-construction notification ... if any listed species (or species proposed for listing) 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... shall not begin work ... until notified by the district engineer that the requirements of the ESA have been satisfied and that the activity is authorized

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• RequirementUnder the 2026 Nationwide Permits, no NWP activity that may have the potential to cause effects on properties listed in, or eligible for listing in, the National Register of Historic Places is authorized until NHPA section 106 requirements are satisfied. A non-federal permittee must submit a PCN if the NWP activity might have the potential to cause effects on any historic property listed on, determined eligible for, or potentially eligible for the National Register, including previously unidentified properties.

  Applies when: Pond activity would be authorized by an NWP and could affect historic or archaeological properties NWP General Condition 20(a), (c) (2026 NWPs), 91 FR 768, 878 (Jan. 8, 2026) [14]
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  No activity is authorized under any NWP which may have the potential to cause effects on properties listed, or eligible for listing, in the National Register of Historic Places until the requirements of Section 106 ... Non-federal permittees must submit a pre-construction notification to the district engineer if the NWP activity might have the potential to cause effects on any historic properties listed on, determined to be eligible for listing on, or potentially eligible for listing on the National Register of Historic Places, including previously unidentified properties.

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Endangered species: ESA section 7 consultation and section 9 take

Section 7 requires each federal agency, in consultation with and with the assistance of the Secretary, to insure that any action it authorizes, funds, or carries out is not likely to jeopardize the continued existence of an endangered or threatened species or result in the destruction or adverse modification of designated critical habitat, unless the agency has been granted an exemption by the Endangered Species Committee. Under the section 7 regulations, the 'action area' is every area affected directly or indirectly by the federal action, not merely the immediate area involved. [1][2]

The agency must review its actions at the earliest possible time to decide whether they 'may affect' listed species or critical habitat; if so, formal consultation is required except as provided in 50 CFR 402.14(b). Informal consultation is optional, and it ends the process if the agency determines, with the written concurrence of the Service (FWS or NMFS), that the action is 'not likely to adversely affect' listed species or critical habitat. Formal consultation concludes within 90 days after it is initiated unless extended (a consultation involving a permit applicant cannot be extended by more than 60 days without the applicant's consent), and the Service must deliver the biological opinion within 45 days after formal consultation concludes. [2][5]

For a Corps individual permit, the district engineer reviews the application under section 7 and either states in the public notice that the work would not affect listed species or critical habitat or, if it may affect them, initiates formal consultation with the U.S. Fish and Wildlife Service or National Marine Fisheries Service. Under the 2026 Nationwide Permits, no activity that 'may affect' a listed species or critical habitat is authorized until section 7 consultation addressing it is complete, and the Corps decides whether the activity 'may affect' or will have 'no effect'. [5][14]

A Nationwide Permit does not authorize 'take' of a threatened or endangered species; General Condition 18(e) refers to separate authorization from FWS or NMFS, such as an ESA section 10 permit or a biological opinion with incidental take provisions. A non-federal permittee holding a valid section 10(a)(1)(B) incidental take permit with an approved Habitat Conservation Plan for a project or group of projects that includes the Nationwide Permit activity should provide a copy of that permit with the pre-construction notification. [14]

ESA section 9, whose text contains no requirement that the activity be federally permitted or funded, makes it unlawful, except as the statute provides, for any person subject to U.S. jurisdiction to take an endangered fish or wildlife species within the United States or its territorial sea, or to violate regulations for such species or for threatened fish or wildlife. The statute defines 'take' as to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt any of these. For endangered plants, subject to the same exceptions, it prohibits removing and reducing them to possession from areas under federal jurisdiction or maliciously damaging or destroying them there, and, on any other area, removing, cutting, digging up, damaging, or destroying them in knowing violation of a state law or regulation or during a violation of a state criminal trespass law. [7][15]

FWS and NMFS rescinded their regulatory definition of 'harm' by a final rule published July 14, 2026 and effective September 14, 2026, and now rely on the plain text of the statute; permits and incidental take statements finalized before the September 14, 2026 effective date will not be required to be reevaluated under that rule, and the Services say section 7 remains fully applicable to federal actions that may affect listed species or designated critical habitat. On November 21, 2025, FWS and NMFS proposed replacing the section 7 regulations promulgated in 2024 with those promulgated or otherwise in existence in 2019 (except the reinitiation section); it was published as a proposed rule, not a final rule, and if finalized it would apply only to consultations finalized after its effective date. [16][17]

• RequirementESA section 7(a)(2) requires each federal agency, in consultation with and with the assistance of the Secretary, to insure that any action it authorizes, funds, or carries out (an 'agency action') is not likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of designated critical habitat, unless the agency has been granted an exemption for the action by the Endangered Species Committee.

  Applies when: Pond project has a federal nexus: it needs a Corps permit (individual permit or Nationwide Permit) or receives federal funding/assistance such as NRCS financial assistance 16 U.S.C. 1536(a)(2) [1]
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  Each Federal agency shall, in consultation with and with the assistance of the Secretary, insure that any action authorized, funded, or carried out by such agency (hereinafter in this section referred to as an "agency action") is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined by the Secretary, after consultation as appropriate with affected States, to be critical, unless such agency has been granted an exemption for such action by the Committee

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• DefinitionUnder the ESA section 7 regulations, an 'action' is any activity or program of any kind authorized, funded, or carried out, in whole or in part, by federal agencies, and expressly includes the granting of permits and grants-in-aid and actions directly or indirectly causing modifications to the land or water. The 'action area' is every area affected directly or indirectly by the federal action, not merely the immediate area involved in the action.

  Applies when: Pond project has a federal nexus: it needs a Corps permit (individual permit or Nationwide Permit) or receives federal funding/assistance such as NRCS financial assistance 50 CFR 402.02 (definitions of 'Action' and 'Action area') [2]
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  Action means all activities or programs of any kind authorized, funded, or carried out, in whole or in part, by Federal agencies in the United States or upon the high seas. Examples include, but are not limited to: ... (c) the granting of licenses, contracts, leases, easements, rights-of-way, permits, or grants-in-aid; or (d) actions directly or indirectly causing modifications to the land, water, or air. Action area means all areas to be affected directly or indirectly by the Federal action and not merely the immediate area involved in the action.

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• ProcessEach federal agency must review its actions at the earliest possible time to determine whether any action 'may affect' listed species or critical habitat; if so, formal consultation is required, except as provided in 50 CFR 402.14(b). Informal consultation is optional; if during informal consultation the federal agency determines, with the Service's written concurrence, that the action is 'not likely to adversely affect' listed species or critical habitat, the consultation process is terminated and no further action is necessary.

  Applies when: Pond project has a federal nexus: it needs a Corps permit (individual permit or Nationwide Permit) or receives federal funding/assistance such as NRCS financial assistance 50 CFR 402.13(a), (c); 402.14(a) [2]
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  Informal consultation is an optional process... If during informal consultation it is determined by the Federal agency, with the written concurrence of the Service, that the action is not likely to adversely affect listed species or critical habitat, the consultation process is terminated, and no further action is necessary... Each Federal agency shall review its actions at the earliest possible time to determine whether any action may affect listed species or critical habitat. If such a determination is made, formal consultation is required, except as noted in paragraph (b) of this section.

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• TimelineFormal consultation concludes within 90 days after it is initiated unless extended. When a permit applicant is involved, the Service and the federal agency may agree to extend it only if the Service submits a written statement to the applicant before the close of the 90 days; a consultation involving an applicant cannot be extended by more than 60 days without the applicant's consent. The Service must deliver its biological opinion to the federal agency and the applicant within 45 days after formal consultation concludes.

  Applies when: Formal ESA section 7 consultation has been initiated for a federally permitted or funded project 50 CFR 402.14(e) [2]
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  Formal consultation concludes within 90 days after its initiation unless extended as provided below. ... If an applicant is involved, the Service and the Federal agency may mutually agree to extend the consultation provided that the Service submits to the applicant, before the close of the 90 days, a written statement setting forth: ... A consultation involving an applicant cannot be extended for more than 60 days without the consent of the applicant. Within 45 days after concluding formal consultation, the Service shall deliver a biological opinion to the Federal agency and any applicant.

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• ProcessFor Corps individual (standard) permit applications, the district engineer reviews the application for potential impacts on threatened or endangered species under ESA section 7. If he determines the activity would not affect listed species or critical habitat, the public notice says so; if he finds it may affect them, he will initiate formal consultation with FWS or NMFS.

  Applies when: Pond work requires a Corps individual permit (e.g., dam or fill in waters of the U.S. not exempt and not covered by a general permit) 33 CFR 325.2(b)(5) [5]
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  Applications will be reviewed for the potential impact on threatened or endangered species pursuant to section 7 of the Endangered Species Act as amended. ... If the district engineer determines that the proposed activity would not affect listed species or their critical habitat, he will include a statement to this effect in the public notice. If he finds the proposed activity may affect an endangered or threatened species or their critical habitat, he will initiate formal consultation procedures with the U.S. Fish and Wildlife Service or National Marine Fisheries Service.

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• TimelineUnder NWP General Condition 18, the district engineer decides whether the activity 'may affect' or will have 'no effect' on listed species and critical habitat and notifies the non-federal applicant within 45 days of receiving a complete PCN. An applicant who has identified listed species or critical habitat that might be affected or is in the vicinity may not begin work until the Corps says the activity will have 'no effect' or until ESA section 7 consultation or conference is completed, and if the applicant has not heard back within 45 days it must still wait for the Corps' notification.

  Applies when: Non-federal NWP applicant has identified listed species or critical habitat that might be affected or is in the vicinity NWP General Condition 18(c) (2026 NWPs), 91 FR 768, 877 (Jan. 8, 2026) [14]
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  The district engineer will determine whether the proposed activity ``may affect'' or will have ``no effect'' ... and will notify the non-federal applicant of the Corps' determination within 45 days of receipt of a complete pre-construction notification. ... the applicant shall not begin work until the Corps has provided notification that the proposed activity will have ``no effect'' ... or until ESA section 7 consultation or conference has been completed. If the non-federal applicant has not heard back from the Corps within 45 days, the applicant must still wait

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• RequirementNWP General Condition 18(e) states that authorization of an activity by an NWP does not authorize the 'take' of a threatened or endangered species, and that in the absence of separate authorization from FWS or NMFS (for example an ESA section 10 permit, or a biological opinion with incidental take provisions) the ESA prohibits any person subject to U.S. jurisdiction from taking a listed species. Under GC 18(f), a non-federal permittee that has a valid ESA section 10(a)(1)(B) incidental take permit with an approved Habitat Conservation Plan for a project or group of projects that includes the proposed NWP activity should provide a copy of that permit with the PCN.

  Applies when: Pond activity authorized by an NWP where listed species could be taken NWP General Condition 18(e), (f) (2026 NWPs), 91 FR 768, 877-878 (Jan. 8, 2026) [14]
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  Authorization of an activity by an NWP does not authorize the ``take'' of a threatened or endangered species ... In the absence of separate authorization (e.g., an ESA Section 10 Permit, a Biological Opinion with ``incidental take'' provisions, etc.) from the FWS or the NMFS, the Endangered Species Act prohibits any person ... to take a listed species ... If the non-federal permittee has a valid ESA section 10(a)(1)(B) incidental take permit with an approved Habitat Conservation Plan ... should provide a copy of that ESA section 10(a)(1)(B) permit with the PCN

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• DefinitionThe ESA defines 'take' as to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.

  16 U.S.C. 1532(19) [15]
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  The term "take" means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.

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• StatusFWS and NMFS rescinded their regulatory definition of 'harm' from 50 CFR parts 17 and 222 by a final rule published July 14, 2026 and effective September 14, 2026, and are relying on the plain text of the statute going forward. Permits and incidental take statements finalized before the effective date will not be required to be reevaluated, and the Services state that ESA section 7 remains fully applicable to federal actions that may affect listed species or designated critical habitat.

  Applies when: Projects evaluated on or after Sept. 14, 2026 91 FR 43300, 43302, 43304-43305 (July 14, 2026), FR Doc. 2026-14195, final rule [16]
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  This rescission removes the regulatory definition of ``harm'' from the Code of Federal Regulations (CFR) in Title 50 parts 17 and 222. DATES: This final rule is effective September 14, 2026. ... the Services are relying on the plain text of the statute as the standard going forward ... permits or incidental take statements finalized prior to the effective date of this rule will not be required to be reevaluated under this final rule. ... The Services emphasize that section 7 remains fully applicable to Federal actions that may affect listed species or their designated critical habitat.

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• StatusOn November 21, 2025, FWS and NMFS PROPOSED revising the ESA section 7 regulations at 50 CFR part 402 by replacing all provisions promulgated in 2024 with those promulgated or otherwise in existence in 2019, except the reinitiation section (402.16); if finalized, the changes would apply to section 7(a)(2) consultations finalized after the final rule's effective date and not retroactively. This is a proposed rule, not a final rule.

  90 FR 52600 (Nov. 21, 2025), FR Doc. 2025-20551, proposed rule [17]
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  Following a review of the 2024 rule, we propose to revise the regulations at 50 CFR part 402 by replacing all provisions of the regulations promulgated in 2024 with those promulgated or otherwise in existence in 2019, with the exception of Sec. 402.16 (Reinitiation of consultation). ... If finalized, these regulations would apply to section 7(a)(2) consultations finalized after the effective date of the final rule and would not apply retroactively

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• RequirementExcept as provided in 16 U.S.C. 1535(g)(2) and 1539, for endangered plant species ESA section 9 makes it unlawful for any person subject to U.S. jurisdiction to remove and reduce them to possession from areas under federal jurisdiction or maliciously damage or destroy them on any such area, or to remove, cut, dig up, or damage or destroy them on any other area in knowing violation of any state law or regulation or in the course of any violation of a state criminal trespass law.

  Applies when: Listed endangered plants occur at the pond site 16 U.S.C. 1538(a)(2)(B) [7]
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  Except as provided in sections 1535(g)(2) and 1539 of this title, with respect to any endangered species of plants ... it is unlawful for any person subject to the jurisdiction of the United States to- ... (B) remove and reduce to possession any such species from areas under Federal jurisdiction; maliciously damage or destroy any such species on any such area; or remove, cut, dig up, or damage or destroy any such species on any other area in knowing violation of any law or regulation of any State or in the course of any violation of a State criminal trespass law

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Historic properties: NHPA section 106

Section 106 requires a federal agency with jurisdiction over a federal or federally assisted undertaking, or with authority to license it, to take into account the undertaking's effect on historic properties before approving the expenditure of federal funds on it or issuing any license, and to give the Advisory Council on Historic Preservation (ACHP) a reasonable opportunity to comment. Under the ACHP's section 106 regulations, if the undertaking is a type of activity that does not have the potential to cause effects on historic properties, even assuming such properties were present, the agency has no further section 106 obligations. [3][4]

NRCS says section 106 review must be complete before a federal decision is issued, directs questions about section 106 documentation, studies, or consultation to the Cultural Resources Specialist in each state, and uses a Prototype Programmatic Agreement that the ACHP authorized in 2014. [6]

For Corps permits, the Corps' historic-properties procedures (33 CFR part 325, Appendix C) use a 'permit area': the waters of the United States directly affected by the proposed work or structures plus uplands directly affected as a result of authorizing the work. An activity outside waters of the U.S. is included only if all three tests are met: it would not occur but for the authorization, it is integrally related to the work, and it is directly associated (a first-order impact) with the work. The Corps is not responsible for identifying or assessing potentially eligible historic properties outside the permit area, but will consider effects on any known historic properties there. [5]

Under the 2026 Nationwide Permits, no activity that may have the potential to cause effects on properties listed in, or eligible for listing in, the National Register of Historic Places is authorized until section 106 requirements are satisfied. A non-federal applicant must file a pre-construction notification if the work might have the potential to cause effects on historic properties listed on, determined eligible for, or potentially eligible for the National Register, including previously unidentified ones, and the Corps is to say within 45 days of a complete notification whether section 106 consultation is required; an applicant who has not heard back within 45 days must still wait for the Corps' notification before starting work. [14]

The Nationwide Permit conditions describe NHPA section 110k as barring the Corps from granting a permit to an applicant who, intending to avoid section 106, intentionally significantly adversely affected a historic property the permit would relate to (or, having legal power to prevent it, allowed that effect), unless the Corps, after consulting the ACHP, determines the circumstances justify it. A permittee who discovers previously unknown historic, cultural, or archeological remains or artifacts during Nationwide Permit work must immediately notify the Corps and, to the maximum extent practicable, avoid construction that may affect them until the required coordination is complete. [14]

• RequirementNHPA section 106 requires the head of any federal agency with direct or indirect jurisdiction over a proposed federal or federally assisted undertaking, or with authority to license an undertaking, to take into account the effect of the undertaking on any historic property before approving the expenditure of federal funds on it or before issuing any license, and to give the Advisory Council on Historic Preservation (ACHP) a reasonable opportunity to comment.

  Applies when: Pond project has a federal nexus: it needs a Corps permit (individual permit or Nationwide Permit) or receives federal funding/assistance such as NRCS financial assistance 54 U.S.C. 306108 (NHPA section 106) [3]
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  The head of any Federal agency having direct or indirect jurisdiction over a proposed Federal or federally assisted undertaking in any State and the head of any Federal department or independent agency having authority to license any undertaking, prior to the approval of the expenditure of any Federal funds on the undertaking or prior to the issuance of any license, shall take into account the effect of the undertaking on any historic property. The head of the Federal agency shall afford the Council a reasonable opportunity to comment with regard to the undertaking.

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• DefinitionFor Corps permits, the Corps' historic-properties procedures (33 CFR part 325, Appendix C) define the 'permit area' as the waters of the United States directly affected by the proposed work or structures plus uplands directly affected as a result of authorizing the work. An activity outside waters of the U.S. is included in the permit area only if all three tests are satisfied: (i) it would not occur but for the authorization of the work in waters of the U.S.; (ii) it is integrally related to that work; and (iii) it is directly associated (first-order impact) with that work. The Corps is not responsible for identifying or assessing potentially eligible historic properties outside the permit area, but will consider the effects of undertakings on any known historic properties outside it.

  Applies when: Pond project needs a Corps permit (individual or general) 33 CFR part 325, Appendix C, paragraphs 1.g(1) and 6.f [5]
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  “permit area” ... means those areas comprising the waters of the United States that will be directly affected by the proposed work or structures and uplands directly affected as a result of authorizing the work... three tests must all be satisfied... would not occur but for the authorization... (ii) Such activity must be integrally related... directly associated (first order impact)... not responsible for identifying or assessing potentially eligible historic properties outside the permit area, but will consider the effects of undertakings on any known historic properties

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• TimelineAfter a historic-properties PCN, section 106 consultation is not required if the Corps district engineer determines the NWP activity does not have the potential to cause effects on historic properties, and is required if it does. For non-federal permittees, the Corps will say within 45 days of a complete PCN whether section 106 consultation is required; if the applicant has not heard back within 45 days, it must still wait for the Corps' notification before beginning.

  Applies when: Non-federal NWP applicant has notified the Corps of historic properties that might be affected NWP General Condition 20(c), (d) (2026 NWPs), 91 FR 768, 878 (Jan. 8, 2026) (GC 20(c) cross-references 36 CFR 800.3(a)) [14]
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  Section 106 consultation is not required when the district engineer determines that the activity does not have the potential to cause effects on historic properties ... Section 106 consultation is required when the district engineer determines that the activity has the potential to cause effects ... the district engineer will notify the prospective permittee within 45 days of receipt of a complete pre-construction notification whether NHPA section 106 consultation is required. ... If the non-federal applicant has not heard back from the Corps within 45 days, the applicant must still wait

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• RequirementNHPA section 110k (54 U.S.C. 306113), as described in NWP General Condition 20(e), bars the Corps from granting a permit to an applicant who, intending to avoid section 106, intentionally significantly adversely affected a historic property to which the permit would relate (or, having legal power to prevent it, allowed such an effect), unless the Corps, after consulting the ACHP, determines that circumstances justify granting the permit anyway.

  Applies when: Applicant disturbs a historic property (e.g., clears or grades an archaeological site) before seeking Corps authorization NWP General Condition 20(e) (2026 NWPs), 91 FR 768, 878 (Jan. 8, 2026) [14]
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  Prospective permittees should be aware that section 110k of the NHPA (54 U.S.C. 306113) prevents the Corps from granting a permit or other assistance to an applicant who, with intent to avoid the requirements of section 106 of the NHPA, has intentionally significantly adversely affected a historic property to which the permit would relate, or having legal power to prevent it, allowed such significant adverse effect to occur, unless the Corps, after consultation with the Advisory Council on Historic Preservation (ACHP), determines that circumstances justify granting such assistance

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• RequirementPermittees who discover previously unknown historic, cultural, or archeological remains or artifacts while doing NWP-authorized work must immediately notify the Corps district engineer and, to the maximum extent practicable, avoid construction activities that may affect the remains and artifacts until the required coordination is complete; the district engineer then initiates the federal, tribal, and state coordination required to determine whether the items or remains warrant a recovery effort or whether the site is eligible for listing in the National Register of Historic Places.

  Applies when: Remains or artifacts are found during construction of an NWP-authorized pond activity NWP General Condition 21 (2026 NWPs), 91 FR 768, 878 (Jan. 8, 2026) [14]
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  Permittees that discover any previously unknown historic, cultural or archeological remains and artifacts while accomplishing the activities authorized by NWPs, must immediately notify the district engineer ... and to the maximum extent practicable, avoid construction activities that may affect the remains and artifacts until the required coordination has been completed. The district engineer will initiate the federal, tribal, and state coordination required to determine if the items or remains warrant a recovery effort or if the site is eligible for listing in the National Register

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Fish and Wildlife Coordination Act

Except as its exemptions provide, the Coordination Act says that whenever the waters of a stream or other water body are proposed or authorized to be impounded, diverted, or otherwise controlled or modified, or the channel deepened, for any purpose, by a federal agency or by a public or private agency under a federal permit or license, 'such department or agency first shall consult' with the U.S. Fish and Wildlife Service and the head of the state wildlife agency. The Act does not apply to projects to impound water where the impoundment's maximum surface area is less than ten acres. [13]

Corps regulations say the Army gives full consideration to the views of FWS or NMFS and the state wildlife agency on fish and wildlife matters when deciding whether to issue, deny, or condition individual or general permits. Even under the Corps' abbreviated letter-of-permission procedure, which skips an individual public notice, the Corps coordinates with federal and state fish and wildlife agencies as the Coordination Act requires. [5][18]

For the Act, 'wildlife' and 'wildlife resources' include birds, fishes, mammals, all other classes of wild animals, and all types of aquatic and land vegetation on which wildlife depends. [19]

• RequirementFish and Wildlife Coordination Act section 2(a): except as provided in subsection (h), whenever the waters of any stream or other body of water are proposed or authorized to be impounded, diverted, the channel deepened, or otherwise controlled or modified for any purpose, by a federal department or agency or by any public or private agency under a federal permit or license, 'such department or agency first shall consult' with the U.S. Fish and Wildlife Service and with the head of the state agency administering wildlife resources in the state where the impoundment, diversion, or other control facility is to be built.

  Applies when: Pond or dam that impounds, diverts, deepens, or otherwise controls or modifies a stream or other water body and needs a federal permit or license (e.g., a Corps section 404 or section 10 permit) 16 U.S.C. 662(a) [13]
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  Except as hereafter stated in subsection (h) of this section, whenever the waters of any stream or other body of water are proposed or authorized to be impounded, diverted, the channel deepened, or the stream or other body of water otherwise controlled or modified for any purpose whatever ... by any public or private agency under Federal permit or license, such department or agency first shall consult with the United States Fish and Wildlife Service ... and with the head of the agency exercising administration over the wildlife resources of the particular State

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• DefinitionFor the Fish and Wildlife Coordination Act, 'wildlife' and 'wildlife resources' include birds, fishes, mammals, all other classes of wild animals, and all types of aquatic and land vegetation on which wildlife depends.

  Applies when: Pond or dam that impounds, diverts, deepens, or otherwise controls or modifies a stream or other water body and needs a federal permit or license (e.g., a Corps section 404 or section 10 permit) 16 U.S.C. 666b [19]
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  The terms "wildlife" and "wildlife resources" as used herein include birds, fishes, mammals, and all other classes of wild animals and all types of aquatic and land vegetation upon which wildlife is dependent.

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• ProcessCorps regulations implement the Coordination Act: any federal agency that proposes to control or modify any body of water must first consult with FWS or NMFS, as appropriate, and with the head of the state wildlife agency of the affected state; for Department of the Army permits, the Army gives full consideration to those agencies' views on fish and wildlife matters in deciding whether to issue, deny, or condition individual or general permits.

  Applies when: Pond or dam that impounds, diverts, deepens, or otherwise controls or modifies a stream or other water body and needs a federal permit or license (e.g., a Corps section 404 or section 10 permit); Corps individual or general permit 33 CFR 320.3(e); 33 CFR 320.4(c) [18]
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  Under the Fish and Wildlife Coordination Act and Reorganization Plan No. 4, any federal agency that proposes to control or modify any body of water must first consult with the United States Fish and Wildlife Service or the National Marine Fisheries Service, as appropriate, and with the head of the appropriate state agency exercising administration over the wildlife resources of the affected state. ... The Army will give full consideration to the views of those agencies on fish and wildlife matters in deciding on the issuance, denial, or conditioning of individual or general permits.

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• ProcessEven under the Corps' abbreviated 'letter of permission' procedure, which skips an individual public notice, the Corps coordinates with federal and state fish and wildlife agencies as required by the Fish and Wildlife Coordination Act and performs a public interest evaluation.

  Applies when: Pond or dam that impounds, diverts, deepens, or otherwise controls or modifies a stream or other water body and needs a federal permit or license (e.g., a Corps section 404 or section 10 permit); Corps processes the work by letter of permission 33 CFR 325.2(e)(1) [5]
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  Letters of permission are a type of permit issued through an abbreviated processing procedure which includes coordination with Federal and state fish and wildlife agencies, as required by the Fish and Wildlife Coordination Act, and a public interest evaluation, but without the publishing of an individual public notice.

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Tennessee Valley: TVA Section 26a approval

TVA Act section 26a requires TVA Board approval of plans before any dam, appurtenant works, or other obstruction affecting navigation, flood control, or public lands or reservations is built, operated, or maintained across, along, or in the Tennessee River or any of its tributaries, and approved plans may not be changed without prior approval. TVA's regulations define the 'Tennessee River System' as TVA reservoirs, the Tennessee River, or any of its tributaries, and list fills, water intakes, culverts, pipelines, channel excavations, and shoreline stabilization projects among example obstructions. [11][20]

In a 2003 rulemaking TVA described its watershed as the 'seven-State TVA Watershed', and its 1999 shoreline management decision covered TVA reservoirs in Alabama, Georgia, Kentucky, Mississippi, North Carolina, Tennessee, and Virginia. Section 26a approval is not limited to TVA land: for a facility on private land, the applicant must own the fee interest or hold an adequate leasehold or easement, and a TVA permit conveys no property interest. [20][21][22]

TVA's regulation provides for submitting section 26a applications on TVA's online application system (the regulation also describes another way to submit); to contact an office, TVA lists 1-800-882-5263 or plic@tva.gov. TVA decides whether a facility is 'minor' or 'major'; its examples of major projects include culverts, roads, water intakes, dredging, and placement of fill. Permits from the Corps and from state water or air agencies must be obtained or applied for at the same time as or before the 26a application, and NHPA and ESA consultations must take place. [20]

If the work may result in a discharge into navigable waters of the United States, the application must include a copy of the request for certification from the state where the discharge would originate (or, where appropriate, an interstate water pollution control agency or EPA), and TVA grants no 26a permit until certification is obtained or waived. TVA may, at its sole discretion, deny an application that in its judgment would be contrary to unified development and regulation of the Tennessee River system or would adversely affect navigation, flood control, public lands or reservations, the environment, or sensitive resources (including federally listed threatened or endangered species, high-priority state-listed species, and high-function wetlands); in lieu of denial, TVA may require mitigation. [20]

TVA's cost-recovery regulations set the administrative charge for a 26a approval within a range of $100 to $5,000; where actual administrative costs are expected to significantly exceed that range, TVA will not proceed until a charge covering its actual costs is agreed, and the charge may be waived where there is a corresponding benefit to TVA or a waiver is otherwise in the public interest. An application is not complete until the fee is paid. [20][23]

A 26a permit expires unless the applicant starts construction within 18 months after issuance, and issuing a permit does not mean TVA has determined the facility is safe for any purpose. Structures built, operated, or maintained in violation of section 26a may be stopped, and their removal or discontinuation ordered, by a federal district court in the district where they are located, in proceedings TVA is authorized to bring. [11][20]

• RequirementStructures built, started, operated, or maintained in violation of section 26a may be stopped, and their removal or discontinuation ordered, by injunction or order of any federal district court in the district where they are located; TVA is authorized to bring those proceedings. Section 26a approval does not substitute for the requirements of any other federal or state law; it is required in addition to them.

  Applies when: Pond dam, fill, culvert, water intake or other obstruction on the Tennessee River, a TVA reservoir, or any tributary of the Tennessee River (Tennessee River watershed) 16 U.S.C. 831y-1, third and fourth paragraphs [11]
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  Such construction, commencement of construction, operation, or maintenance of any structures or parts thereof in violation of the provisions of this section may be prevented, and the removal or discontinuation thereof required by the injunction or order of any district court ... and the Corporation is authorized to bring appropriate proceedings to this end. The requirements of this section shall not be construed to be a substitute for the requirements of any other law of the United States or of any State

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• DefinitionTVA's section 26a regulations list, as examples of obstructions that need TVA approval, boat docks, piers, boathouses, buoys, floats, boat launching ramps, fills, water intakes, devices for discharging effluent, bridges, aerial cables, culverts, pipelines, fish attractors, shoreline stabilization projects, channel excavations, and floating cabins. TVA states that anyone considering constructing, operating, or maintaining any such obstruction on a stream in the Tennessee River Watershed should carefully review the part 1304 regulations. For part 1304, the 'Tennessee River System' means TVA reservoirs, the Tennessee River, or any of the Tennessee River's tributaries.

  Applies when: Pond dam, fill, culvert, water intake or other obstruction on the Tennessee River, a TVA reservoir, or any tributary of the Tennessee River (Tennessee River watershed) 18 CFR 1304.1; 18 CFR 1304.412 (definition of 'Tennessee River System') [20]
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  such obstructions may include boat docks, piers, boathouses, buoys, floats, boat launching ramps, fills, water intakes, devices for discharging effluent, bridges, aerial cables, culverts, pipelines, fish attractors, shoreline stabilization projects, channel excavations, and floating cabins ... Any person considering constructing, operating, or maintaining any such obstruction on a stream in the Tennessee River Watershed should carefully review the regulations in this part ... Tennessee River System means TVA reservoirs, the Tennessee River or any of the Tennessee River's tributaries.

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• RequirementSection 26a approval is not limited to TVA land: for a facility on private land, the applicant must own the fee interest in the land or have an adequate leasehold or easement interest in the property where the facility will be located. A TVA permit conveys no property interest.

  Applies when: Pond dam, fill, culvert, water intake or other obstruction on the Tennessee River, a TVA reservoir, or any tributary of the Tennessee River (Tennessee River watershed); facility located on private land 18 CFR 1304.2(a) [20]
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  If the facility is to be built on private land, the applicant must own the fee interest in the land or have an adequate leasehold or easement interest in the property where the facility will be located. ... A TVA permit conveys no property interest.

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• ProcessSection 26a applications are submitted on TVA's online application system (see notes for the full text of 1304.2(b), which also describes an alternative); TVA's listed contact is 1-800-882-5263 or plic@tva.gov. TVA decides whether a facility is 'minor' (examples given 'by way of example only': boat docks, piers, rafts, boathouses, fences, steps, gazebos, floating cabins) or 'major' (examples include culverts, roads, wastewater discharges, water intakes, dredging, and placement of fill). An application is not complete until the fee determined under 18 CFR part 1310 is paid.

  Applies when: Pond dam, fill, culvert, water intake or other obstruction on the Tennessee River, a TVA reservoir, or any tributary of the Tennessee River (Tennessee River watershed) 18 CFR 1304.2(b), (c), (c)(1), (c)(2) [20]
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  Applications shall be submitted on TVA's online application system ... To contact an office, call 1-800-882-5263 or email plic@tva.gov. ... TVA shall determine whether a proposed facility is minor or major. An application shall not be complete until payment of the appropriate fee as determined in accordance with 18 CFR part 1310 ... minor facilities may include: boat docks, piers, rafts, boathouses, fences, steps, gazebos, and floating cabins. ... major projects and facilities may include: ... culverts, roads, wastewater discharges, water intakes, dredging, and placement of fill.

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• ProcessRelationship to Corps and other permits: section 26a applicants must obtain or apply for permits from the U.S. Army Corps of Engineers and state water or air agencies at the same time as or before applying for 26a approval, and NHPA and ESA consultations must take place. TVA notifies the Corps and other federal agencies with jurisdiction over the application, as appropriate, and a hearing is held if the Corps requests one under the TVA/Corps joint processing Memorandum of Understanding.

  Applies when: Pond dam, fill, culvert, water intake or other obstruction on the Tennessee River, a TVA reservoir, or any tributary of the Tennessee River (Tennessee River watershed); project also needs a Corps section 404/section 10 permit 18 CFR 1304.2(c)(2)(vi); 18 CFR 1304.4(a), (c)(3) [20]
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  Consultations under the National Historic Preservation Act of 1966 and the Endangered Species Act of 1973 shall take place, and permits from the U.S. Army Corps of Engineers and State agencies for water or air regulation shall be obtained or applied for at the same time as or before application for section 26a approval. ... (a) TVA shall notify the U.S. Army Corps of Engineers (USACE) and other federal agencies with jurisdiction over the application as appropriate. ... (3) A hearing is requested by the USACE pursuant to the TVA/Corps joint processing Memorandum of Understanding

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• RequirementIf the structure or activity may result in any discharge into navigable waters of the United States, the section 26a application must include a copy of the request for certification from the state in which the discharge would originate (or, if appropriate, from the interstate water pollution control agency with jurisdiction or from EPA). No section 26a permit will be granted until the required certification has been obtained or waived; if the certifying agency has not acted within a reasonable period, not to exceed one year, and certification is waived, TVA will proceed.

  Applies when: Pond dam, fill, culvert, water intake or other obstruction on the Tennessee River, a TVA reservoir, or any tributary of the Tennessee River (Tennessee River watershed); the work may result in a discharge into navigable waters 18 CFR 1304.2(d) [20]
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  may result in any discharge into navigable waters of the United States, applicant shall also submit with the application ... a copy of the request for certification from the state in which such discharge would originate, or if appropriate, from the interstate water pollution control agency ... or from the Environmental Protection Agency ... No section 26a permit will be granted until required certification has been obtained or has been waived. If a certifying agency has not acted within a reasonable period of time, not to exceed one year ... and certification is waived, TVA will proceed

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• RequirementTVA may, at its sole discretion, deny a section 26a application for any obstruction or activity that in TVA's judgment would be contrary to unified development and regulation of the Tennessee River system, or would adversely affect navigation, flood control, public lands or reservations, the environment, or sensitive resources (including federally listed threatened or endangered species, high-priority state-listed species, and high-function wetlands). In lieu of denial TVA may require mitigation. Approvals contain the conditions required by law.

  Applies when: Pond dam, fill, culvert, water intake or other obstruction on the Tennessee River, a TVA reservoir, or any tributary of the Tennessee River (Tennessee River watershed) 18 CFR 1304.7; 18 CFR 1304.8 [20]
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  Approvals of applications shall contain such conditions as are required by law ... TVA may, at its sole discretion, deny any application ... that in TVA's judgment would be contrary to the unified development and regulation of the Tennessee River system, would adversely affect navigation, flood control, public lands or reservations, the environment, or sensitive resources (including, without limitation, federally listed threatened or endangered species, high priority State-listed species, wetlands with high function and value ... In lieu of denial, TVA may require mitigation measures

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• TimelineA section 26a permit expires unless the applicant starts construction within 18 months after the permit is issued. TVA's issuance of a permit does not mean TVA has determined the facility or obstruction is safe for any purpose.

  Applies when: Pond dam, fill, culvert, water intake or other obstruction on the Tennessee River, a TVA reservoir, or any tributary of the Tennessee River (Tennessee River watershed); after a 26a permit is issued 18 CFR 1304.2(e); 18 CFR 1304.9 [20]
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  TVA's issuance of a permit does not mean that TVA has determined a facility or obstruction is safe for any purpose or that TVA has any duty to make such a determination. ... A permit issued pursuant to this part shall expire unless the applicant initiates construction within eighteen (18) months after the date of issuance.

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• FeeTVA's cost-recovery regulations say TVA acts on section 26a approvals of fills, structures, or other obstructions only if the applicant pays the administrative charge TVA assesses, although the responsible land manager may waive payment where there is a corresponding benefit to TVA or the waiver is otherwise in the public interest. For section 26a approvals the charge must fall within a regulatory range of $100 to $5,000, unless actual administrative costs are expected to significantly exceed that range, in which case TVA will not proceed until agreement is reached on a charge covering TVA's actual administrative costs. TVA may also charge for environmental reviews it conducts under its NEPA procedures.

  Applies when: Pond dam, fill, culvert, water intake or other obstruction on the Tennessee River, a TVA reservoir, or any tributary of the Tennessee River (Tennessee River watershed) 18 CFR 1310.2(a)(4); 18 CFR 1310.3(a)(3), (c), (e) [23]
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  TVA will undertake the following actions only upon the condition that the applicant pay to TVA such administrative charges ... may waive payment where he/she determines that there is a corresponding benefit to TVA or that such waiver is otherwise in the public interest ... fills, structures, or other obstructions under section 26a of the TVA Act—$100-$5,000. ... shall not proceed with the TVA action until agreement is reached on payment of a charge calculated to cover TVA's actual administrative costs. ... TVA may impose a charge in connection with environmental reviews

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• TVA's 1999 record of decision for its Shoreline Management Initiative covered TVA reservoirs in Alabama, Georgia, Kentucky, Mississippi, North Carolina, Tennessee, and Virginia.

  Applies when: Determining whether a pond site could be in the Tennessee River watershed 64 FR 30092 (June 4, 1999), FR Doc. 99-14199, title [22]
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  Shoreline Management Initiative (SMI), Reservoirs in Alabama, Georgia, Kentucky, Mississippi, North Carolina, Tennessee, and Virginia

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Coastal states: Coastal Zone Management Act consistency

A 'coastal state' is a state in, or bordering on, the Atlantic, Pacific, or Arctic Ocean, the Gulf of Mexico, Long Island Sound, or one or more of the Great Lakes. The coastal zone extends inland from the shorelines only to the extent necessary to control shorelands whose uses have a direct and significant impact on coastal waters, and to control areas likely to be affected by or vulnerable to sea level rise; after final approval of a state's program, the requirement that a federal permit applicant certify consistency with that program reaches activities in or outside the zone that affect any land or water use or natural resource of the state's coastal zone. [12][24]

Each state coastal agency lists in its program the federal permits it wants to review (for example, 'Corps of Engineers 404 permits'), and no listed permit may be issued until the consistency requirements are met. A state may also issue a general concurrence for minor activities in a geographic area; activities meeting its conditions are not subject to the individual certification, although, unless the state indicates otherwise, applicants must still send the state copies of their federal permit applications. [25]

An applicant for a federal permit subject to state review must include a consistency certification, in wording the regulation prescribes, in the federal permit application and furnish the state a copy at the same time; on request, the state must identify the enforceable policies that apply. The statute says concurrence is conclusively presumed if the state does not respond within six months after receiving its copy of the certification. The federal consistency regulations start the six-month review when the state has received the certification and all necessary data and information, require the state to report the status and basis for delay if it has not decided within three months, and presume concurrence if its response is not received within six months after review begins. [12][25]

If the state objects, the federal agency may not issue the permit except through the Secretary of Commerce appeal process. The appeal must be filed within 30 days of receiving the objection, with no extensions, and the fee is $500 for a project valued above $1 million and $200 for other appeals (or the appellant may request a fee waiver). [25]

For a Corps permit, when a non-federal applicant's activity affects the coastal zone of a state with an approved program, the district engineer obtains the applicant's certification, and if the state objects or says the activity needs further review, the Corps will not issue the permit until the state concurs or the Secretary of Commerce determines the activity is consistent with the Act's purposes or necessary in the interest of national security. For the 2026 Nationwide Permits, General Condition 26 requires an individual state concurrence, or a presumption of concurrence, in coastal states where the Nationwide Permit has not previously received state concurrence, and General Condition 27 requires compliance with any regional and case-specific conditions, including those the state added in its consistency determination. [5][14][26]

• DefinitionA 'coastal state' under the CZMA is a state in, or bordering on, the Atlantic, Pacific, or Arctic Ocean, the Gulf of Mexico, Long Island Sound, or one or more of the Great Lakes. The coastal zone extends inland from the shorelines only to the extent necessary to control shorelands whose uses have a direct and significant impact on coastal waters, and areas likely to be affected by or vulnerable to sea level rise.

  Applies when: Pond work that needs a federal permit (e.g., a Corps permit) in a coastal state with a federally approved coastal management program, where the activity (in or outside the coastal zone) affects coastal land or water uses or natural resources 16 U.S.C. 1453(1), (4) [24]
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  The zone extends inland from the shorelines only to the extent necessary to control shorelands, the uses of which have a direct and significant impact on the coastal waters, and to control those geographical areas which are likely to be affected by or vulnerable to sea level rise. ... (4) The term "coastal state" means a state of the United States in, or bordering on, the Atlantic, Pacific, or Arctic Ocean, the Gulf of Mexico, Long Island Sound, or one or more of the Great Lakes.

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• TimelineIf the state does not notify the federal agency of its concurrence or objection within six months after receiving the applicant's certification, concurrence is conclusively presumed. No federal license or permit may be granted until the state concurs or concurrence is presumed, unless the Secretary of Commerce finds the activity consistent with the CZMA's objectives or otherwise necessary in the interest of national security.

  Applies when: Pond work that needs a federal permit (e.g., a Corps permit) in a coastal state with a federally approved coastal management program, where the activity (in or outside the coastal zone) affects coastal land or water uses or natural resources 16 U.S.C. 1456(c)(3)(A) [12]
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  fails to furnish the required notification within six months after receipt of its copy of the applicant's certification, the state's concurrence with the certification shall be conclusively presumed. No license or permit shall be granted by the Federal agency until the state or its designated agency has concurred with the applicant's certification or until, by the state's failure to act, the concurrence is conclusively presumed, unless the Secretary ... finds ... that the activity is consistent with the objectives of this chapter or is otherwise necessary in the interest of national security.

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• ProcessEach state coastal agency develops a list, included in its management program, of federal license or permit activities it wishes to review for consistency, described by specific permit (for example 'Corps of Engineers 404 permits'); if it chooses to review listed activities outside the coastal zone, it must generally describe their geographic location. No federal permit on an approved list may be issued until the consistency requirements are satisfied.

  Applies when: Pond work that needs a federal permit (e.g., a Corps permit) in a coastal state with a federally approved coastal management program, where the activity (in or outside the coastal zone) affects coastal land or water uses or natural resources 15 CFR 930.53(a), (d) [25]
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  the federal license or permit activities shall be described in terms of the specific licenses or permits involved (e.g., Corps of Engineers 404 permits, Coast Guard bridge permits). In the event the State agency chooses to review federal license or permit activities, with reasonably foreseeable coastal effects, outside of the coastal zone, it must generally describe the geographic location of such activities. ... (d) No federal license or permit described on an approved list shall be issued by a Federal agency until the requirements of this subpart have been satisfied.

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• ExemptionA state may issue a general concurrence for minor federal license or permit activities in a geographic area; minor activities meeting the general concurrence's conditions are not subject to the individual consistency certification requirement, although (unless the state indicates otherwise) applicants must send the state copies of their federal permit applications.

  Applies when: Pond work that needs a federal permit (e.g., a Corps permit) in a coastal state with a federally approved coastal management program, where the activity (in or outside the coastal zone) affects coastal land or water uses or natural resources; activity is a minor activity covered by a state general concurrence 15 CFR 930.53(b) [25]
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  may issue a general public notice (see § 930.61) and general concurrence allowing similar minor work in the same geographic area to proceed without prior State agency review. ... Minor federal license or permit activities which satisfy the conditions of the general concurrence are not subject to the consistency certification requirement of this subpart. Except in cases where the State agency indicates otherwise, copies of federal license or permit applications for activities subject to a general concurrence must be sent by the applicant to the State agency

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• ProcessOn request, the state coastal agency must identify the enforceable policies that apply to the proposed activity. Applicants for federal permits subject to state agency review must include a consistency certification in the federal permit application and at the same time furnish the state a copy of the certification. The certification must read: 'The proposed activity complies with the enforceable policies of (name of State) approved management program and will be conducted in a manner consistent with such program.'

  Applies when: Pond work that needs a federal permit (e.g., a Corps permit) in a coastal state with a federally approved coastal management program, where the activity (in or outside the coastal zone) affects coastal land or water uses or natural resources 15 CFR 930.56; 15 CFR 930.57 [25]
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  Upon request by the applicant, the State agency shall identify any enforceable policies applicable to the proposed activity ... all applicants for required federal licenses or permits subject to State agency review shall provide in the application to the federal licensing or permitting agency a certification ... At the same time, the applicant shall furnish to the State agency a copy of the certification ... “The proposed activity complies with the enforceable policies of (name of State) approved management program and will be conducted in a manner consistent with such program.”

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• TimelineThe state's six-month consistency review starts when it receives the certification and all necessary data and information. If the state has not decided within three months after review begins, it must notify the applicant and federal agency of the status and the basis for delay; concurrence is conclusively presumed if the state's response is not received within six months after review begins.

  Applies when: Pond work that needs a federal permit (e.g., a Corps permit) in a coastal state with a federally approved coastal management program, where the activity (in or outside the coastal zone) affects coastal land or water uses or natural resources 15 CFR 930.60(a); 15 CFR 930.62(a)-(b) [25]
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  six-month review period ... of an applicant's consistency certification begins on the date the State agency receives the consistency certification required by § 930.57 and all the necessary data and information required by § 930.58(a). ... Concurrence by the State agency shall be conclusively presumed if the State agency's response is not received within six months following commencement of State agency review. (b) If the State agency has not issued a decision within three months following commencement of State agency review, it shall notify the applicant and the Federal agency of the status

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• ProcessIf the state objects to the consistency certification within the six-month review, it must notify the applicant, the federal agency, and the NOAA OCRM Director. An objection based on sufficient information must describe how the activity is inconsistent with specific enforceable policies of the program; a state may instead object because the applicant failed, after a written request, to supply required information. After a state objection, the federal agency may not issue the permit except through the Secretary of Commerce appeal process (15 CFR part 930, subpart H); the objection letter must tell the applicant it may, within 30 days of receipt, ask the Secretary of Commerce to override the objection.

  Applies when: Pond work that needs a federal permit (e.g., a Corps permit) in a coastal state with a federally approved coastal management program, where the activity (in or outside the coastal zone) affects coastal land or water uses or natural resources; the state objects 15 CFR 930.63(a)-(b), (e); 15 CFR 930.64 [25]
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  objects to the applicant's consistency certification within six months ... it shall notify the applicant, Federal agency and Director ... objections that are based on sufficient information ... shall describe how the proposed activity is inconsistent with specific enforceable policies ... objection may be based upon a determination that the applicant has failed ... to supply the information ... within 30 days from receipt of this letter, you may request that the Secretary of Commerce override this objection. ... shall not issue the federal license or permit except as provided in subpart H

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• ProcessCorps permit processing: for a non-federal applicant whose activity affects the coastal zone of a state with an approved program, the district engineer obtains the applicant's consistency certification. If the state objects to the certification or issues a decision that the activity requires further review, the Corps will not issue the permit until the state concurs or the Secretary of Commerce determines the activity is consistent with the purposes of the CZM Act or necessary in the interest of national security; if the state neither concurs nor objects within six months of receiving the certification, concurrence is conclusively presumed.

  Applies when: Pond work that needs a federal permit (e.g., a Corps permit) in a coastal state with a federally approved coastal management program, where the activity (in or outside the coastal zone) affects coastal land or water uses or natural resources; Corps individual permit 33 CFR 325.2(b)(2)(ii); see also 33 CFR 320.3(b), 320.4(h) [5]
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  the district engineer shall obtain from the applicant a certification ... If the state agency objects to the certification or issues a decision indicating that the proposed activity requires further review, the district engineer shall not issue the permit until the state concurs with the certification statement or the Secretary of Commerce determines ... If the state agency fails to concur or object to a certification statement within six months of the state agency's receipt of the certification statement, state agency concurrence

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• ProcessNationwide Permits: the Corps itself must provide a CZMA consistency determination and receive state agreement before issuing, reissuing, or expanding an NWP that authorizes activities in a state with a federally approved coastal program, when activities within or outside that state's coastal zone will affect land or water uses or natural resources of its coastal zone. Where a state has disagreed with the Corps' determination, NWP authorization for such activities is denied without prejudice until the prospective permittee furnishes an individual consistency certification and demonstrates that the state has concurred in it (or that concurrence should be presumed, per 330.4(d)(6)).

  Applies when: Pond work that needs a federal permit (e.g., a Corps permit) in a coastal state with a federally approved coastal management program, where the activity (in or outside the coastal zone) affects coastal land or water uses or natural resources; work proposed under a Nationwide Permit 33 CFR 330.4(d)(1), (3) [26]
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  requires the Corps to provide a consistency determination and receive state agreement prior to the issuance, reissuance, or expansion of activities authorized by an NWP ... when activities that would occur within, or outside, that state's coastal zone will affect land or water uses or natural resources of the state's coastal zone. ... When a state has disagreed with the Corps consistency determination, authorization ... is denied without prejudice until the prospective permittee furnishes the DE an individual consistency certification ... and demonstrates that the state has concurred in it

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• Requirement2026 NWP General Condition 26 (Coastal Zone Management): in coastal states where an NWP has not previously received state CZM consistency concurrence, an individual state consistency concurrence must be obtained or a presumption of concurrence must occur (see 33 CFR 330.4(d)). General Condition 27 requires compliance with any regional conditions and with case-specific conditions, including those added by the state in its CZMA consistency determination.

  Applies when: Pond work that needs a federal permit (e.g., a Corps permit) in a coastal state with a federally approved coastal management program, where the activity (in or outside the coastal zone) affects coastal land or water uses or natural resources; work proposed under a 2026 Nationwide Permit NWP General Conditions 26 and 27 (2026 NWPs), 91 FR 768, 835, 880 (Jan. 8, 2026) [14]
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  26. Coastal Zone Management. In coastal states where an NWP has not previously received a state coastal zone management consistency concurrence, an individual state coastal zone management consistency concurrence must be obtained, or a presumption of concurrence must occur (see 33 CFR 330.4(d)). ... 27. Regional and Case-By-Case Conditions. The activity must comply with any regional conditions ... or by the state in its Coastal Zone Management Act consistency determination.

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Wild and Scenic Rivers

The Wild and Scenic Rivers Act bars federal agencies from assisting, by loan, grant, license, or otherwise, the construction of a water resources project that would have a direct and adverse effect on the values for which a designated river was established, as determined by the Secretary charged with its administration. It does not preclude licensing of or assistance to developments above or below the river area, or on a tributary, that will not invade the area or unreasonably diminish the scenic, recreational, and fish and wildlife values present on the date of designation. [27]

Under 2026 Nationwide Permit General Condition 16, no Nationwide Permit activity may occur in a designated wild and scenic river, or in an official congressional study river while it is in study status, unless the federal agency managing the river has determined in writing that it will not adversely affect the designation or study status. The permittee must file a pre-construction notification and may not begin until the Corps reports that written determination. [14]

For rivers administered in whole or in part by the USDA Forest Service, a Corps permit under the Rivers and Harbors Act of 1899 or Clean Water Act section 404 counts as federal assistance, a study river includes the adjacent area within one quarter mile of its banks, and no permit may be issued for a federally assisted water resources project on such a river without prior notice to the Secretary of Agriculture; the permitting agency must give the Forest Service notice of intent at least 60 days before the proposed action. [28]

• RequirementWild and Scenic Rivers Act section 7(a): no federal department or agency may assist by loan, grant, license, or otherwise in the construction of any water resources project that would have a direct and adverse effect on the values for which a designated wild and scenic river was established, as determined by the Secretary charged with its administration. This does not preclude licensing of or assistance to developments below or above a wild, scenic, or recreational river area or on any stream tributary to it that will not invade the area or unreasonably diminish the scenic, recreational, and fish and wildlife values present in the area on the date of designation.

  Applies when: Pond or dam work in, above, below, or on a tributary of a river designated in the National Wild and Scenic Rivers System or an official congressional 'study river' 16 U.S.C. 1278(a) [27]
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  no department or agency ... shall assist by loan, grant, license, or otherwise in the construction of any water resources project that would have a direct and adverse effect on the values for which such river was established, as determined by the Secretary charged with its administration. ... licensing of, or assistance to, developments below or above a wild, scenic or recreational river area or on any stream tributary thereto which will not invade the area or unreasonably diminish the scenic, recreational, and fish and wildlife values present in the area on the date of designation

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• ProcessUnder 2026 NWP General Condition 16(b), if a proposed NWP activity will occur in a designated wild and scenic river or official study river, the permittee must submit a pre-construction notification (PCN); the district engineer coordinates the PCN with the federal agency managing the river, and the permittee may not begin work until the district engineer notifies it that the managing agency has determined in writing that the activity will not adversely affect the designation or study status.

  Applies when: NWP activity that will occur in a component of the National Wild and Scenic River System or in an official congressional 'study river' while in official study status; work proposed under a 2026 Nationwide Permit NWP General Condition 16(b) (2026 NWPs), 91 FR 768, 877 (Jan. 8, 2026) [14]
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  the permittee must submit a pre-construction notification (see general condition 32). The district engineer will coordinate the PCN with the Federal agency with direct management responsibility for that river. Permittees shall not begin the NWP activity until notified by the district engineer that the Federal agency with direct management responsibility for that river has determined in writing that the proposed NWP activity will not adversely affect the Wild and Scenic River designation or study status.

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• ProcessFor wild and scenic rivers and study rivers administered in whole or part by the Secretary of Agriculture (Forest Service), 'Federal assistance' includes a Corps permit under the Rivers and Harbors Act or Clean Water Act section 404, and a 'study river' includes the adjacent area within one quarter mile of the river banks. No license or permit may be issued for a federally assisted water resources project on any portion of such a Wild and Scenic River or Study River without prior notice to the Secretary of Agriculture; the permitting agency must give the Forest Service notice of intent no less than 60 days before the proposed action.

  Applies when: Pond or dam work in, above, below, or on a tributary of a river designated in the National Wild and Scenic Rivers System or an official congressional 'study river'; river administered by USDA Forest Service 36 CFR 297.2, 297.3, 297.4(b) [28]
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  authorization granted by the Corps of Engineers ... pursuant to the Rivers and Harbors Act of 1899 ... and section 404 of the Clean Water Act ... Study river means a river and the adjacent area within one quarter mile of the banks of the river ... can be issued for a Federally assisted water resources project on any portion of a Wild and Scenic River or Study River ... without prior notice to the Secretary of Agriculture ... no less than 60 days prior to the date of proposed action, the Federal agency shall provide a notice of intent

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Migratory birds and eagles

Under 2026 Nationwide Permit General Condition 19, the permittee is responsible for making sure the work complies with the Migratory Bird Treaty Act (MBTA) and the Bald and Golden Eagle Protection Act, and for contacting the local U.S. Fish and Wildlife Service office to determine what measures, if any, are necessary or appropriate to reduce adverse effects on migratory birds or eagles, including whether incidental take permits are necessary and available. [14]

The MBTA applies only to migratory bird species native to the United States or its territories, and FWS's permit regulations bar taking a migratory bird or its parts, nests, or eggs except under a valid permit or as FWS's permit, hunting, or Alaska subsistence regulations allow. [8][29]

FWS's October 2021 rule (effective December 3, 2021) revoked a January 2021 rule that had defined the MBTA as not prohibiting incidental take; FWS said then that it was returning to implementing the MBTA as prohibiting incidental take and applying enforcement discretion. This guide could not confirm whether that is still the Interior Department's enforcement position in 2026. On April 21, 2025, FWS withdrew its October 4, 2021 advance notice of proposed rulemaking, which had announced its intent to develop proposed regulations to authorize incidental take of migratory birds. [30][31]

Under the Eagle Act, 'take' includes molesting or disturbing, and FWS defines 'disturb' as agitating or bothering an eagle to a degree that causes, or is likely to cause, based on the best scientific information available, injury to an eagle, or a decrease in productivity or nest abandonment by substantially interfering with normal breeding, feeding, or sheltering behavior. The statute's own penalty figures, for taking a bald or golden eagle without a permit knowingly or with wanton disregard for the consequences, are a fine of up to $5,000, imprisonment for up to one year, or both (up to $10,000, up to two years, or both for a second or later conviction), and a civil penalty of up to $5,000 per violation may be assessed. [9][10][32]

FWS's current eagle permit framework, effective April 12, 2024, includes a general permit for bald eagle disturbance: to qualify, an applicant must meet the requirements of 50 CFR 22.210 and be conducting a listed activity, among them altering shorelines and water bodies (such as water impoundment) or vegetation within 660 feet of a bald eagle nest, and loud, intermittent noise such as blasting within one-half mile of an in-use bald eagle nest; no permit is required when an activity that may ordinarily disturb eagles is already ongoing when an eagle pair begins nesting. FWS issues the general permit automatically on registration, with the applicant certifying that it meets the general and issuance criteria, and the current fee table lists a $100 application fee for the general disturbance permit and $2,500 (commercial) or $500 (noncommercial) for a specific disturbance permit. [32][33][34]

• Requirement2026 NWP General Condition 19 (Migratory Birds and Bald and Golden Eagles): the permittee is responsible for ensuring that an NWP-authorized action complies with the Migratory Bird Treaty Act and the Bald and Golden Eagle Protection Act, and for contacting the appropriate local U.S. Fish and Wildlife Service office to determine what measures, if any, are necessary or appropriate to reduce adverse effects to migratory birds or eagles, including whether 'incidental take' permits are necessary and available under those Acts for the activity.

  Applies when: Clearing, grading, excavation, dam building or water impoundment that could kill migratory birds or destroy active nests, or disturb bald or golden eagles; work authorized under a 2026 Nationwide Permit NWP General Condition 19 (2026 NWPs), 91 FR 768, 878 (Jan. 8, 2026) [14]
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  19. Migratory Birds and Bald and Golden Eagles. The permittee is responsible for ensuring that an action authorized by an NWP complies with the Migratory Bird Treaty Act and the Bald and Golden Eagle Protection Act. The permittee is responsible for contacting the appropriate local office of the U.S. Fish and Wildlife Service to determine what measures, if any, are necessary or appropriate to reduce adverse effects to migratory birds or eagles, including whether ``incidental take'' permits are necessary and available

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• StatusFWS's October 4, 2021 final rule (effective December 3, 2021) revoked the January 7, 2021 rule that had defined the MBTA as not prohibiting incidental take; FWS said at that time that the immediate effect was to return to implementing the MBTA as prohibiting incidental take and applying enforcement discretion, consistent with judicial precedent and agency practice before 2017. Whether this remains the Interior Department's enforcement position in 2026 was not confirmed.

  Applies when: Clearing, grading, excavation, dam building or water impoundment that could kill migratory birds or destroy active nests, or disturb bald or golden eagles 86 FR 54642 (Oct. 4, 2021), FR Doc. 2021-21473, SUMMARY and DATES [30]
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  We now revoke that rule for the reasons set forth below. The immediate effect of this final rule is to return to implementing the MBTA as prohibiting incidental take and applying enforcement discretion, consistent with judicial precedent and longstanding agency practice prior to 2017. DATES: This rule is effective December 3, 2021. ... which concluded that the MBTA does not prohibit incidental take.

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• StatusOn April 21, 2025, FWS withdrew its October 4, 2021 advance notice of proposed rulemaking (86 FR 54667), which had announced FWS's intent to develop proposed regulations to authorize the incidental take of migratory birds under the MBTA; FWS said the withdrawal was consistent with Secretary of the Interior's Order No. 3418, 'Unleashing American Energy'.

  Applies when: Clearing, grading, excavation, dam building or water impoundment that could kill migratory birds or destroy active nests, or disturb bald or golden eagles 90 FR 16664 (Apr. 21, 2025), FR Doc. 2025-06782 [31]
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  The advance notice of proposed rulemaking that published on October 4, 2021, at 86 FR 54667, is withdrawn as of April 21, 2025. ... informing the public of our intent to develop proposed regulations to authorize the incidental take of migratory birds under the Migratory Bird Treaty Act of 1918, as amended (16 U.S.C. 703 et seq.). ... The Service is withdrawing the advance notice of proposed rulemaking, consistent with Secretary of the Interior's Order No. 3418, titled ``Unleashing American Energy''.

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• DefinitionUnder the Bald and Golden Eagle Protection Act, 'take' includes pursue, shoot, shoot at, poison, wound, kill, capture, trap, collect, molest, or disturb.

  Applies when: Clearing, grading, excavation, dam building or water impoundment that could kill migratory birds or destroy active nests, or disturb bald or golden eagles 16 U.S.C. 668c [10]
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  "take" includes also pursue, shoot, shoot at, poison, wound, kill, capture, trap, collect, molest or disturb

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• DefinitionFWS eagle regulations define 'disturb' as agitating or bothering a bald or golden eagle to a degree that causes, or is likely to cause, based on the best scientific information available, injury to an eagle, a decrease in its productivity by substantially interfering with normal breeding, feeding, or sheltering behavior, or nest abandonment by substantially interfering with normal breeding, feeding, or sheltering behavior. 'Incidental take' is take that is foreseeable and results from, but is not the purpose of, an activity.

  Applies when: Clearing, grading, excavation, dam building or water impoundment that could kill migratory birds or destroy active nests, or disturb bald or golden eagles 50 CFR 22.6 (definitions of 'Disturb' and 'Incidental take') [32]
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  Disturb means to agitate or bother a bald or golden eagle to a degree that causes, or is likely to cause, based on the best scientific information available, (1) injury to an eagle, (2) a decrease in its productivity, by substantially interfering with normal breeding, feeding, or sheltering behavior, or (3) nest abandonment ... Incidental take means take that is foreseeable and results from, but is not the purpose of, an activity.

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• Size cutoffEagle disturbance permits (in force): to qualify for a general permit for disturbance of bald eagles, an applicant must meet the requirements of 50 CFR 22.210 and be conducting a listed activity, which include alteration of shorelines and water bodies (e.g., shorelines, wetlands, docks, moorings, marinas, and water impoundment) within 660 feet of a bald eagle nest; alteration of vegetation (e.g., mowing, timber operations, forestry) within 660 feet of a bald eagle nest; and loud, intermittent noises (e.g., blasting) within one-half mile of an in-use bald eagle nest. A permit is not required when an activity that may ordinarily disturb eagles is ongoing at the time an eagle pair initiates nesting.

  Applies when: Clearing, grading, excavation, dam building or water impoundment that could kill migratory birds or destroy active nests, or disturb bald or golden eagles; pond work near a bald eagle nest 50 CFR 22.280(a), (b)(3), (b)(4), (b)(9) [32]
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  A permit is not required when an activity that may ordinarily disturb eagles is ongoing at the time an eagle pair initiates nesting ... To qualify for a general permit, you must meet the requirements of § 22.210 ... (3) Alteration of shorelines and water bodies (e.g., shorelines, wetlands, docks, moorings, marinas, and water impoundment) within 660 feet of a bald eagle nest. (4) Alteration of vegetation ... within 660 feet of a bald eagle nest. ... (9) Loud, intermittent noises (e.g., blasting) within one-half-mile of an in-use bald eagle nest.

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• FeeFWS's current user-fee table lists a permit application fee of $100 for a General Eagle Permit for Disturbance Take (50 CFR part 22). The listed application fee for a Specific Eagle Permit for Disturbance Take is Commercial $2,500; Noncommercial $500.

  Applies when: Clearing, grading, excavation, dam building or water impoundment that could kill migratory birds or destroy active nests, or disturb bald or golden eagles; eagle disturbance permit 50 CFR 13.11(d)(4) (user fee table) [34]
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  General Eagle Permit—Disturbance Take | 50 CFR part 22 | 100 | | | Specific Eagle Permit—Disturbance Take | 50 CFR part 22 | Commercial—2,500; Noncommercial—500

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