Nationwide Permit 40 authorizes discharges of dredged or fill material into non-tidal waters of the United States for various agricultural activities. This includes the construction of building pads for farm buildings, as well as the installation and placement of drainage tiles, ditches, or levees. It also covers mechanized land clearing, land leveling, and the relocation of existing serviceable drainage ditches that were previously constructed in jurisdictional waters. The permit also extends to the construction of farm ponds in non-tidal waters, provided they do not involve the discharge of fill into non-tidal wetlands adjacent to tidal waters. The scope is specifically limited to activities that support the production of crops, berries, or livestock, ensuring that agricultural operations can maintain or improve their productivity while adhering to federal environmental standards.
The 2026 reissuance of NWP 40 maintains the same national terms and conditions as the 2021 version, with no substantive modifications to the authorized activities or acreage limits. The Corps reevaluated the permit's individual and cumulative impacts and determined that the 1/2-acre limit and mandatory pre-construction notification remain sufficient to ensure that authorized agricultural work results in no more than minimal adverse environmental effects. While the regulatory text remains unchanged, the supporting decision document has been updated with the most recent environmental baseline data. This includes results from the 2022 National Lakes Assessment and the 2021 National Wetland Condition Assessment, providing an updated scientific foundation for the Corps' determination that the cumulative impacts of these activities across the country remain minimal.
Farmers, ranchers, and agricultural land managers typically use this permit for infrastructure and land improvements. It is essential for operations needing to build barns on fill, install subsurface drainage tiles, or relocate existing drainage ditches in areas with jurisdictional wetlands or streams.
The Corps determined that the reissuance of NWP 40 results in a 'no effect' finding for federally-listed endangered or threatened species and designated critical habitat. This determination is rooted in General Condition 18, which requires project-specific ESA Section 7 consultation if an activity 'might affect' listed resources; no activity is authorized until that process is complete. Compliance with Section 106 of the National Historic Preservation Act is ensured via General Condition 20. Because NWP 40 requires a mandatory Pre-Construction Notification for all activities, district engineers are able to review every proposal for potential impacts to historic properties. For Essential Fish Habitat (EFH), district engineers can apply regional or project-specific conditions to minimize impacts on sensitive aquatic environments during agricultural expansion or maintenance.
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