Which federal reviews run before ground breaks in Puerto Rico?

Authority

Clean Water Act Section 404 — 33 U.S.C. 1344 · 33 CFR 323 — Permits for discharges of dredged or fill material into waters of the United States · 33 CFR 330 — Nationwide permit program · 33 CFR 330.4 — Conditions, limitations, and restrictions · Reissuance and Modification of Nationwide Permits, 8 January 2026 (FR doc 2026-00121) · Endangered Species Act Section 7 — 16 U.S.C. 1536 · 50 CFR 402 — Interagency cooperation, formal and informal consultation · 50 CFR 402.12 — Biological assessment · 50 CFR 402.13 — Informal consultation · National Historic Preservation Act Section 106 — 54 U.S.C. 306108 · 36 CFR 800 — Protection of historic properties

Sources

14 sources

33 CFR 323.3 — Discharges requiring permits · 33 U.S.C. 1344 — Clean Water Act Section 404 · 33 CFR 330.1 — Purpose and policy of the nationwide permit program · 33 CFR 330.2 — Definitions · 33 CFR 330.4 — Conditions, limitations, and restrictions · Reissuance and Modification of Nationwide Permits (8 January 2026) · 16 U.S.C. 1536 — Endangered Species Act Section 7 · 50 CFR 402.12 — Biological assessment · 50 CFR 402.13 — Informal consultation · 50 CFR 402.14 — Formal consultation · 54 U.S.C. 306108 — National Historic Preservation Act Section 106 · 36 CFR 800.1 — Purposes · 36 CFR 800.4 — Identification of historic properties · 36 CFR 800.5 — Assessment of adverse effects

Verified

6 September 2026

Status

Current

Which federal reviews can attach to a construction job in Puerto Rico?

Three federal reviews can attach to a construction job in Puerto Rico: a Clean Water Act Section 404 permit from the Corps of Engineers for work in waters of the United States, an Endangered Species Act Section 7 consultation on listed species and critical habitat, and a National Historic Preservation Act Section 106 review of effects on historic properties. Each one attaches on its own trigger, and a job can draw one, two, or all three.Our reading¶

They run on two different engines, and that difference is the whole shape of the problem. Section 404 is a permit the work itself needs. Sections 7 and 106 are duties a federal agency owes before it acts.Our reading¶

So the second and third arrive attached to the first. Any federal authorization on the job pulls the species duty and the history duty along with it, on that authorization's timetable.Our reading¶

The duty sits with the agency; the information comes from the applicant. The agency asks what is on the ground, and the answer is built out of documents somebody has to produce.Our reading¶

What puts a Corps of Engineers permit on the work?

Except for the discharges that § 323.4 exempts, a Department of the Army permit is required for the discharge of dredged or fill material into waters of the United States.Verbatim¶

Two things in that sentence do the work. The trigger is a discharge of dredged or fill material, which reaches ordinary construction acts such as placing fill or grading through a channel, and the trigger is the act itself rather than the size of the job.Our reading¶

The same paragraph carries its own exits. Certain discharges are already permitted by regulation under 33 CFR part 330 — the nationwide permits. Other discharges may be authorized by district or division engineers on a regional basis — the regional permits.Verbatim¶

When a job goes the individual-permit road instead, the statute puts notice and opportunity for public hearings ahead of issuance.Verbatim¶

That produces a public file with dates on it.Our reading¶

Except as provided in § 323.4 of this part, DA permits will be required for the discharge of dredged or fill material into waters of the United States. Certain discharges specified in 33 CFR part 330 are permitted by that regulation (“nationwide permits”). Other discharges may be authorized by district or division engineers on a regional basis (“regional permits”). If a discharge of dredged or fill material is not exempted by § 323.4 of this part or permitted by 33 CFR part 330, an individual or regional section 404 permit will be required for the discharge of dredged or fill material into waters of the United States.

The Secretary may issue permits, after notice and opportunity for public hearings for the discharge of dredged or fill material into the navigable waters at specified disposal sites.

What is a nationwide permit, and which set is current?

A nationwide permit is a type of general permit issued by the Chief of Engineers, designed to regulate with little, if any, delay or paperwork certain activities having minimal impacts.Verbatim¶

So a qualifying job takes cover under a permit that already exists instead of applying for one of its own.Our reading¶

The set in force today is the 2026 set. It took effect on 15 March 2026 and expires on 15 March 2031. There are 57 of them, and they came with their own general conditions and definitions. Checked 6 September 2026.Verbatim¶

Any material that talks about the 2021 nationwide permits is describing a set that has been replaced. Check the date on anything that lists nationwide permits before using it.Our reading¶

The formal definition authorizes on a nationwide basis “unless specifically limited.”Verbatim¶

Those three words are the door for regional limits. A prospective permittee must satisfy all terms and conditions of the nationwide permit for a valid authorization to occur, and division engineers hold discretionary authority over specific geographic areas, classes of activity, and classes of waters inside their division. So the national text is half the answer, and what that division has in force is the other half.Our reading¶

There is also a hard ceiling on how long any of this lasts. A general permit runs five years at most, and inside that window the Secretary may revoke or modify it, after opportunity for public hearing, on a determination that the authorized activities have an adverse impact on the environment.Verbatim¶

For a build that runs longer than five years, that ceiling is the practical point. Cover written under one set of nationwide permits was written under that set's conditions, and a later phase gets measured against whatever is in force on the day it starts.Our reading¶

Nationwide permits (NWPs) are a type of general permit issued by the Chief of Engineers and are designed to regulate with little, if any, delay or paperwork certain activities having minimal impacts.

Nationwide permit refers to a type of general permit which authorizes activities on a nationwide basis unless specifically limited.

No general permit issued under this subsection shall be for a period of more than five years after the date of its issuance and such general permit may be revoked or modified by the Secretary if, after opportunity for public hearing, the Secretary determines that the activities authorized by such general permit have an adverse impact on the environment or such activities are more appropriately authorized by individual permits.

The 57 NWPs, the general conditions, and the associated definitions will go into effect on March 15, 2026. The NWPs will expire on March 15, 2031.

Does nationwide coverage start on its own?

Where a nationwide permit calls for preconstruction notification, coverage runs on a 45-day clock: the permittee may presume the project qualifies unless the district engineer sends notice inside that 45-day period.Verbatim¶

That makes the date of receipt in the district office a real date on the job calendar, and the 45th calendar day a second one. Both belong in the file, because the presumption is built out of a span of time that somebody has to be able to prove.Our reading¶

What the district engineer's answer can contain is set out elsewhere in part 330, and it is worth reading before the clock is relied on. The rule quoted here settles the timing and points to the answer; it does the timing job only.Our reading¶

Silence has to be waited out, not just documented. The prospective permittee may not proceed with the proposed activity before expiration of the 45-day period unless otherwise notified by the district engineer.Verbatim¶

So 45 days of quiet is both the wait and the entire legal basis for going ahead, and the proof is the dated notification plus the dated calendar.Our reading¶

The permittee may presume that his project qualifies for the NWP unless he is otherwise notified by the DE within a 45-day period.

The 45-day period starts on the date of receipt of the notification in the Corps district office and ends 45 calendar days later regardless of weekends or holidays. If the DE notifies the prospective permittee that the notification is incomplete, a new 45-day period will commence upon receipt of the revised notification. The prospective permittee may not proceed with the proposed activity before expiration of the 45-day period unless otherwise notified by the DE.

1. Identify which nationwide permit the work would use, and read that permit's own terms.
2. Read the regional conditions in force for that district alongside the national text.
3. Send the preconstruction notification to the district engineer, and keep a dated copy.
4. Count 45 calendar days from the date the Corps district office received it — weekends and holidays included — and write the 45th day on the job calendar.
5. File the answer when it comes, or file the dated note that the 45 days ran out.

Who owes the endangered species consultation, and what sets it off?

The duty sits with the federal agency: each federal agency must insure that any action it authorizes, funds, or carries out is not likely to jeopardize a listed species or result in the destruction or adverse modification of habitat determined to be critical. A federal authorization on the work is what sets it off.Verbatim¶

A privately funded job on private land can run for years outside Section 7 and land inside it the day it needs a federal permit.Our reading¶

The trigger is set low. The agency must review its actions at the earliest possible time to determine whether the action may affect listed species or critical habitat, and once that determination is made, formal consultation is required unless the exception in paragraph (b) applies.Verbatim¶

“May affect” is a threshold of possibility. The chance of an effect is enough to start the review, which is why this is the hardest of the three clocks to predict.Our reading¶

“At the earliest possible time” is an instruction about timing, not a suggestion about diligence. A job that draws the review late has a sequencing problem on the face of its own file.Our reading¶

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 pursuant to subsection (h) of this section.

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.

How is the species question closed without formal consultation?

The species question closes at the informal stage when the federal agency determines, with the written concurrence of the Director, that the proposed action is not likely to adversely affect any listed species or critical habitat.Verbatim¶

Two roads reach that point, and the rule names both: a biological assessment prepared under § 402.12, or informal consultation with the Service under § 402.13.Verbatim¶

Each road carries its own clock. On a written request for concurrence, the Service shall provide written concurrence or non-concurrence within 60 days, extendable by mutual consent but not past 120 days total from the date the request was received. On the biological assessment road, the assessment shall be completed within 180 days after its initiation unless a different period is agreed to, and the Director responds in writing within 30 days on whether he concurs with its findings.Verbatim¶

The words that carry the weight are “written concurrence of the Director.”Verbatim¶

That makes the thing to ask for a document rather than a conversation, and the useful way to ask for it is by name and by date.Our reading¶

That date is also a fixed point in time for everything documented afterward. Conditions on the ground on the day of the concurrence are the conditions the concurrence was written about.Our reading¶

A Federal agency need not initiate formal consultation if, as a result of the preparation of a biological assessment under § 402.12 or as a result of informal consultation with the Service under § 402.13, the Federal agency determines, with the written concurrence of the Director, that the proposed action is not likely to adversely affect any listed species or critical habitat.

Upon receipt of a written request consistent with paragraph (c)(1) of this section, the Service shall provide written concurrence or non-concurrence with the Federal agency's determination within 60 days. The 60-day timeframe may be extended upon mutual consent of the Service, the Federal agency, and the applicant (if involved), but shall not exceed 120 days total from the date of receipt of the Federal agency's written request consistent with paragraph (c)(1) of this section.

The Federal agency or the designated non-Federal representative shall complete the biological assessment within 180 days after its initiation (receipt of or concurrence with the species list) unless a different period of time is agreed to by the Director and the Federal agency. If a permit or license applicant is involved, the 180-day period may not be extended unless the agency provides the applicant, before the close of the 180-day period, with a written statement setting forth the estimated length of the proposed extension and the reasons why such an extension is necessary.

The Federal agency shall submit the completed biological assessment to the Director for review. The Director will respond in writing within 30 days as to whether or not he concurs with the findings of the biological assessment.

1. Ask which federal authorization the job runs under. That names the agency that owes the consultation.
2. Ask whether the route was a biological assessment under § 402.12 or informal consultation under § 402.13.
3. Get the date the written request for concurrence was received, and count 60 days from it.
4. Ask for the written concurrence of the Director, by date.
5. Put that date in the project record, and date the visual record of the site against it.

What does Section 106 require, and by when?

Section 106 requires the head of the federal agency with jurisdiction over the undertaking, or with authority to license it, to take into account the effect of the undertaking on historic properties before federal funds are approved or any license is issued, and to give the Advisory Council a reasonable opportunity to comment.Verbatim¶

The regulation says the same thing in its own words at 36 CFR 800.1(a): take the effects into account, and afford the Council a reasonable opportunity to comment.Verbatim¶

The timing rule is the sharp one. The agency official must complete the section 106 process prior to the approval of federal funds or the issuance of any license. The words are “complete” and “prior to.”Verbatim¶

That gives a checkable order of events. Where a federal license exists and recorded resources sit inside the area of the work, the Section 106 process has a completion date, and that date comes before the license date.Our reading¶

What the process asks for is identification, an assessment of effect, and a search for ways to avoid, reduce, or mitigate that effect. All three of those are exercises in describing a place accurately on a date.Our reading¶

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.

Section 106 of the National Historic Preservation Act requires Federal agencies to take into account the effects of their undertakings on historic properties and afford the Council a reasonable opportunity to comment on such undertakings.

The agency official must complete the section 106 process “prior to the approval of the expenditure of any Federal funds on the undertaking or prior to the issuance of any license.”

How thorough does the search for historic properties have to be?

The standard is a reasonable and good faith effort, and the regulation lists examples of what such an effort may include: background research, consultation, oral history interviews, and work in the field. The quotation below carries that list in the regulation's own words.Our reading¶

“Reasonable and good faith” is a standard argued with evidence after the fact, which makes it different from a checklist. What defends it later is a dated account of what was looked at, where, and when.Our reading¶

The effect standard reaches the surroundings, not only the resource. An adverse effect is found when an undertaking may alter, directly or indirectly, the characteristics that qualify a property for the National Register, in a manner that would diminish the integrity of its location, design, setting, materials, workmanship, feeling, or association.Verbatim¶

“Setting” and “feeling” are the two words to watch. Work that stops at the edge of a resource can still reach it through its surroundings, so what has to be described on a date is the resource and the ground around it.Our reading¶

That is also the practical reason the aerial angle earns its place here. Setting is a question about surroundings, and surroundings are what a dated georeferenced visual record captures in one frame.Our reading¶

The agency official shall make a reasonable and good faith effort to carry out appropriate identification efforts, which may include background research, consultation, oral history interviews, sample field investigation, and field survey.

An adverse effect is found when an undertaking may alter, directly or indirectly, any of the characteristics of a historic property that qualify the property for inclusion in the National Register in a manner that would diminish the integrity of the property’s location, design, setting, materials, workmanship, feeling, or association.

Where do the three reviews meet, and what does that mean for the record?

They meet inside the federal construction stormwater permit, which is reported to carry a species criterion and a historic-properties screening as conditions of eligibility for the permit itself rather than as separate errands.Unverified¶

⚠ That finding is not carried by a quotation on this page. It comes from reading the permit in force and its appendices, and it should be confirmed against that permit's own text before anyone relies on it in writing.Unverified¶

The same permit is reported to give the wildlife services a window, measured from the day the notice of intent is filed, to tell the EPA that the species criterion is not met. That window is also unverified here and sits in the same permit.Unverified¶

If it holds, it changes how the job is counted. Someone who plans for three separate processes overcounts the number of desks and undercounts the number of clocks, because two of the reviews can arrive folded inside a permit the office already tracks, on that permit's dates.Our reading¶

What every one of these reviews has in common is the shape of its output: a dated document that describes a place. The species concurrence describes a place. The effect finding describes a place. The permit file describes a place.Our reading¶

So the record has a deadline that passes quietly, and it is the day the first machine moves. After that day, the question “what was here before” is answered by whatever was captured, and by nothing else.Our reading¶

A dated georeferenced visual record, repeated on a fixed schedule and kept additive, is what turns each of those documents from an assertion into something with a second source. That is a documentation problem, and it is solvable on the day the schedule is written.Our reading¶

1. List every federal authorization the work touches. Each one carries a species duty and a history duty.
2. For each, get two dates: the date the species consultation closed, and the date the Section 106 process completed.
3. Capture a dated georeferenced visual record of the areas named in those documents before ground moves.
4. Repeat the same frames on the same schedule, so a later question is answered by two dated records instead of one.
5. Keep the file additive. A correction goes on top of what is there, and both layers stay.

What most people have wrong

Each of these is a thing said confidently in public that the rule does not support. The section number settles it.

1. The nationwide permits are the 2021 set.The 2021 set has been replaced. The 57 nationwide permits in force took effect on 15 March 2026 and expire on 15 March 2031, with their own general conditions and definitions.FR doc 2026-00121 (8 January 2026)
2. A nationwide permit is a national blanket that reads the same everywhere.The definition itself authorizes activities on a nationwide basis “unless specifically limited.” The applicable text is the national permit plus the regional conditions in force for that district, and the second half is where a Caribbean job gets its answer.33 CFR 330.2(b); 33 CFR 330.4(a), (e)
3. If the job fits a nationwide permit, coverage is automatic.Where preconstruction notification applies, the presumption of qualifying is built out of 45 days of silence from the district engineer. The clock starts at the notification, and the 45th day is a date somebody has to be able to prove.33 CFR 330.1(e)(1)
4. Once a general permit covers the job, it covers the job.A general permit runs five years at most, and inside that window the Secretary may revoke or modify it, after opportunity for public hearing, on a determination that the authorized activities have an adverse impact on the environment. On a build that runs longer than five years, what authorized the first phase is a different document from what authorizes a later one.33 U.S.C. 1344(e)(2)
5. The endangered species consultation is the developer's paperwork.The duty runs to the federal agency that authorizes, funds, or carries out the action. It attaches to the federal approval, which is why a privately funded job can sit outside Section 7 for years and land inside it the day it needs a federal permit.16 U.S.C. 1536(a)(2)
6. Consultation starts once harm to a species is shown.The threshold is whether the action may affect listed species or critical habitat, reviewed at the earliest possible time. Possibility is the trigger, and once the determination is made, formal consultation is required unless the exception in paragraph (b) applies.50 CFR 402.14(a)
7. A phone call to the Service is enough to stay out of formal consultation.The informal route closes on the written concurrence of the Director that the action is not likely to adversely affect listed species or critical habitat. The concurrence is a signed, dated document, and it is the thing to ask for by name.50 CFR 402.14(b)(1)
8. The informal route has no deadline, so it takes as long as it takes.A written request for concurrence puts the Service on a 60-day clock, extendable by mutual consent but capped at 120 days total from the date of receipt. On the biological assessment road, the assessment is completed within 180 days of its initiation and the Director answers in writing within 30 days.50 CFR 402.13(c)(2); 50 CFR 402.12(i), (j)
9. Section 106 can run alongside early construction and catch up later.The agency official must complete the section 106 process prior to the approval of federal funds or the issuance of any license. The mandate is “complete” and the mandate is “prior to.”36 CFR 800.1(c)
10. A records check and a look at a map cover the identification duty.The standard is a reasonable and good faith effort, and the rule's examples run from background research and consultation through oral history interviews to two kinds of on-the-ground investigation. It is a standard argued with evidence after the fact.36 CFR 800.4(b)(1)
11. If the machines stay off the archaeological area, there is no adverse effect.An adverse effect includes indirect alteration of a property's setting and feeling, not only physical contact. Work that stops at the edge can still reach the resource through its surroundings.36 CFR 800.5(a)(1)

Where this goes next

• What does the EPA construction permit require me to photograph?The federal construction permit is where these three reviews meet, and where the inspection cadence and the retention clock live.
• Can I fly a drone over protected land in Puerto Rico?Section 7 names listed species and critical habitat; the flight-side rules for wildlife are a separate set with their own thresholds.
• Do I need FAA permission to fly over my Puerto Rico job site?A dated capture before ground moves only happens if the airspace clock is started first.

Written by a FAA Part 107 Certified Remote Pilot in western Puerto Rico, and verified on 6 September 2026. Something out of date or wrong on this page? Write and say so — corrections are read and dated.